Germania Plantation, Inc. VS Douglas Spor Hayward, Sr.
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COURT OF APPEAL STATE OF LOUISIANA FIRST CIRCUIT 2007 CA 2572 GERMANlA PLANTATION INC VERSUS DOUGLAS SPOR HAYWARD SR Judgment On rendered Appeal from the MAY 2 ZOOS 23rd Judicial District Court Parish of Ascension State of Louisiana Case Number 85676 Division B The Honorable Thomas J Kliebert Jr Rufus Holt Baton Craig Rouge LA Jr Counsel for Plaintiff Appellee Germania Plantation Inc Kenneth L Blanchard Jr Plaquemine LA K tIAI I T Judge Presiding Counsel for Defendant Appellant Douglas Spor Hayward Sr OMCLGe S BEFORE PARRO KUHN AND DOWNING JJ DOWNING J S Douglas Inc Germania and enjoining The property Sr appeals a judgment granting Germania Plantation preliminary injunction revoking a the Ascension Parish sheriff also restored judgment or possession affirm the judgment of the trial we reasons Hayward an order of executory process from anyone to Germania selling For the certain following court PERTINENT FACTS AND PROCEDURAL HISTORY In October 2005 not mention or answered the 2007 The note promissory seek to of the a enforce the same note to was a secured petition act by an act and an were of mortgage taken in this petition amended of mortgage in The trial note promissory petition against Germania enforce the mortgage in this petition No further steps Hayward filed seeking Hayward filed an to but In January judicial district executory proceeding for court did Germania proceeding same on a Hayward proceeding in the collect non payment signed orders for the issuance of a writ of seizure and sale of the mortgaged property Germania filed In March 2007 separate proceeding seeking a a petition for injunction and other relief in preliminary injunction to arrest the alleging that the debt secured by the mortgage unenforceable legally required by law for subject promissory judicata and that an was Hayward filed had been an litigated exception to to follow the was procedures Germania also asserted that the executory proceeding note seizure and sale extinguished that the debt Hayward had failed a judgment of vagueness and was therefore which the trial court res never addressed 1 The presiding revoked trial court The other mentioned in the was signed two orders signed on January of executory process 2007 pursuant 10 31 judgment 2 one on an vhich is specifically This latter order is not January 16 2007 amended petition After injunction that a 2 The Hayward suit in if the an judgment stated had waived any he could ordinary not preliminary s 1 by first filing process 2 that Germania would suffer irreparable harm issued appeals asserting as error that the trial process after proceed by executory not Germania right to proceed by executory preliminary injunction were now granted grounds for the preliminary injunction two ordinary proceeding and Hayward that the trial court contradictory hearing erred in court filing suit on finding his note in process DISCUSSION Procedural Framework An is injunction an appropriate La C C P immovable property method for 2751 art arresting the seizure and sale of provides as follows in this regard The defendant in the executory proceeding may arrest the seizure and sale of the property by injunction when the debt secured by the security interest mortgage or privilege is extinguished or is legally unenforceable or executory proceeding has This article gives But injunction the general injunction Office Centers Inc see an b also Comment to v procedure required by if the not on which seizure and sale may be arrested may be obtained art 2751 be executory proceeding may 2754 any valid 326 either provided by Executive ground La Defenses and asserted the seizure and sale to arrest on 433 So 2d 324 Cournoyer proceeding an been followed terms La C C P law for App 4 Cir 1983 procedural objections through injunction an in Articles 2751 through La C C P art 2642 As applicable where court proceeding 1 or in this matter the executory in a t he petition proceeding the process to is for injunction shall be filed in the pending either separate suit The injunction proceeding in the to arrest graJ1ted a new trial an joint motion to allow the introduction of the records in Hayward sought only to entorce the note and the second where Hay foree lose on the mortgage securing payment of the note The trial court issue as one where 3 the o a executory seizure and 1 h O proceedings at ard sought executory sale shall be but the defendant may apply for a apply for a The dissolution pleadings ccP loss art or application an modification of or supporting or hear court may An 3609 damage a affidavits injunction or preliminary injunction may take art was that suit in Hayward waived s two Lafayette Royale Apartments support of this fmding Meadow Brook is We cases or was signed the District Court to to federal on court where La cases irreparable injury in other cases specifically It cited Meadow Brook Nat Bank 187 So 2d 793 Inc La App that the trial 3 Cir court s 1966 reliance in on misplaced by executory plaintiff filed foreclose on plaintiff had enjoin the seizure and sale process but before formal a new this suit same against judgment to that mortgage by ordinary process of the 4 right it had to Id at 794 injunction should be ordinary process in suit to foreclose under waived any effect defendant in the United States plaintiffs appeal grounds that by filing the ordinary proceed by executory process upon filing respectfully conclude The defendant moved that the dismissed upon the verified granting the preliminary injunction In Meadow Brook after the trial court decided to of certain property in for the or Executory Process for in the district court ordinary process as art 3601A grounds right any proof applicant Whether Hayward Waived court La C C P preliminary injunction shall be issued in La C C P One of the trial a preliminary injunction may otherwise result to the provided by law for 3609 and 3612 in accordance with hearing for such shall be held before the sale of the property 2752A v through preliminary injunction In the event the defendant does Article 3602 the of Articles 3601 governed by the provisions proceed by executory Id process and The court that the court In every applying mortgage proceeding on a proceeding note is he is Therefore in a not 620 So 2d 526 its It then filed an petition court into 4 a suit on case to first suit s to brought by that suit Manuel Tire Co as the open the creditor filed a an note Inc J W v debt owed Id account suit to contrary authority open account to collect securing an option executory proceeding against the defendant by the enforce 528 at The by filing proceed a process to enforce its collateral chattel an Id executory proceeding art 2644 provides attempt not as 1 0 The 01 plaintiff in an ordinary proceeding may Louisiana Code of Civil Procedure art 372 I provides that proceedings 5 mortgage to convert court Id its suit at 531 on an The open further concluded that the 5 plaintiff in an executory proceeding may convert it amending his petition so as to pray that the defendant he cited and obligation secured by the mortgage or privilege The by ordinary to In process once Louisiana Code ofCivil Procedure executory Hayward to convert 3 Cir 1993 The 4 filed plaintiff which he had the Here attempting not App concluded that the creditor did account to open account to collect the debt the creditor could not later on by executory I La collateral chattel mortgage defendant contended that a over the seeking enforcement of the mortgage securing the Manuel Tire the creditor filed defendant principle that could have been one Hayward cites another Third Circuit Inc this by executory process or only the promissory executory process Herpin plaintiff waived its right have found by ordinary process executory think it is we Id at 795 case we foreclose dispute proceed by executory then concluded that court by filing the ordinary proceedings executory process to The Id declaratory was It is too well settled for to 26443 La C C P art noted that Article 2644 including the following Citations omitted clear that enforce appeal after reviewing plaintiff by suing via ordinaria waived the right process action The Id pertinent jurisprudence of jurisprudential rules file dismissed the into an not convert it into an a ordinary proceeding by for judgment against him on the executory proeeecling conventional mortgage is enforced by ordinary or suit plaintiffs process on Id at 532 enforce its chattel mortgage to inconsistent with its suit for executory was not open account pursue both remedies until the defendant s The then stated that the creditor court against the defendant executiva The facts before Hayward first sought executory process evidenced can to enforce the by the promissory does not ground for granting we note note they do our Germania s the creditor right was to satisfied proceed via those in Manuel Tire to He then filed another suit for only While both suits relate not the debt to involve identical remedies only one 5 find merit in conclude to waive its not directly analogous be enforced by executory process however did enforce his mortgage to Accordingly obligation Id are us It ruled that the creditor could Hayward We inquiry s now assignment of turn to the trial This error court s second preliminary injunction Irreparable Injury As the second ground for its judgment the trial irreparable injury will suffer conclude that the trial ground as As device court Germania stands matter a designed merits of the 1753 p 4 of law to preserve App preliminary injunction on 5 to a cumulated only if a in issued granting a preliminary injunction preliminary injunction is status existing need make subject not We on this lose its historic immovable property the pending requires matter of the a a interlocutory procedural trial of the issues Paddison Builders Inc 672 So 2d 1133 only an a party litigation mutually 6 the applicant for a prima facie showing that he will prevail to II of the actions cumulated are on Turncliff 95 v The 1136 preliminary injunction requires We are a vare that La e c p art 425A that is the preliminary injunction is not err 1 Cir 4 4 96 the merits Thus the or occuucnce a Citation omitted case La did if found that Germania court less proof than assert all causes of action Ho ever La c e p arising art consistent and employ the out is required of the transaction 462 allows actions to be same form ofproeedure in Id at pp 4 5 672 So 2d at ordinary proceeding for a permanent injunction an 1136 Paddison concerned the trial brought under the to foreclose on a same codal articles This mortgage after preliminary injunction court at s denial of issue here court preliminary injunction a against an proceeding executory reversed the trial court and concluding that the creditors had made granted prima a a facie showing that they would succeed Here both Germania and for this Reasons is currently Hayward III v 2029 on specific ground in to argue to for a appeal in this Hayward appeals we injunction under the court note liquidated by proceedings that the judgment therein that La C cP art has a case a not Accordingly we did court c w not err in 2007 CA provides liquidated claim Germania to seems have been decide these issues here prima facie showing that it will prevail and that the trial William C parties claims against each other We do This 2753A 4 Because of this trial court judgment in favor of Germania Germania has made appeal 2007 CA 2028 that the defendant the disallowed caption compensation against the debt secured by the mortgage in these is nos docket of judgment against contained in the record of this are Douglas S Hayward Sr In relation to these plead issue from Germania of copies note at judgment judgment a Both records contain underlying proceedings Hayward in which the as Hayward jointly entered into evidence the records granting will affirm the judgment of the trial a on we conclude that the merits of this preliminary injunction court DECREE For the foregoing reasons we vacate Hayward waived his right process Further we to the portion ofthe judgment finding that executory process upon filing suit by ordinary stay that portion of the judgment decreeing the revocation of the order of executory process granted on 7 January 16 2007 in Docket No 85 128 C pending further that transfers the 81 852 court are now proceedings matter to pending Costs of this appeal Further Division E where In all other are VACATED IN PART vacate we we of the judgment STAYED IN PART No affirm the judgment ofthe trial against Douglas 8 portion ordinary proceedings in Docket respects assessed the S Hayward Sr AFFIRMED IN PART
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