Gerald Lynn Avery VS CitiMortgage, Inc. and Gulf Coast Bank & Trust Company
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2008 CA 2052 GERALD LYNN AVERY VERSUS CITIMORTGAGE INC AND GULF COAST BANK AND TRUST COMPANY 11 66 UiIU DATE OF JUDGMENT W 1 J ON APPEAL FROM THE NINETEENTH JUDICIAL DISTRICT COURT NUMBER 555 586 DIV F 22 PARISH OF EAST BATON ROUGE STATE OF LOUISIANA HONORABLE TIMOTHY E KELLEY JUDGE Harry L Shoemaker III Counsel for PlairrtifT Baton Rouge Louisiana Gerald Kent A Lambert Brian M Lynn A very Counsel for Defendant Ballay CitiMortgage Inc New Orleans Louisiana BEFORE Disposition Appellant KUHN GUIDRY AND GAIDRY JJ REVERSED IN PART AFFIRMED IN PART Appellee KUHN J Plaintiff Lynn Avery appeals the trial of action of defendant of his residence enrichment We reverse in of court res CitiMortgage obtained alternatively or objections Inc CitiMortgage petition seeking annulment of a judgment return the exceptions raising the peremptory sustaining cause Gerald appellant judicata and and dismissing through executory for damages judgment s no his process and and unjust return of his negligence part and affirm in part PROCEDURAL BACKGROUND filed Avery located in the South residence damages to According to Avery s St with interest and protection Pursuant to a late of the August 18 2005 purported balance due charges attorney preservation judgment on things subdivision in Gerard petition collect via executory process the along among other petition seeking a the Baton Rouge or CitiMortgage sued on a promissory note fees and amounts advanced for the property subject rendered in that lawsuit to the lien of the Avery s residence was mortgage seized and sold In August adjudicated Avery 2001 an the veteran s Gulf Coast compensation I Avery payments payments 1 to of Department Veterans Affairs incompetent beneficiary and pursuant thereto the Twenty Fourth Judicial District Court Company United States as appointed the defendant Gulf Coast Avery s curator for his benefit See the Uniform Veterans but that Guardianship they to including making averred that Gulf Coast CitiMortgage empowered properly were not Law set forth 2 at Bank and Trust disburse his his made those monthly monthly mortgage monthly mortgage properly credited La R S 29 351 374 to his account by CitiMortgage annulled 2 Thus Alternatively he as to have sought raised in his the executory process judgment and amended and original petition Avery sought damages from CitiMortgage due of payments tendered on CitiMortgage by Gulf Coast his behalf and for on retention of any funds s to be granted res 3 judicata and failure rightfully belonging After judgment issued claims filed in hearing a to state the trial conformity with the by Avery with prejudice a cause improper crediting unjust enrichment based CitiMortgage filed peremptory exceptions objecting the basis of its to to him Avery trial court s petition on rulings and A exceptions dismissing subsequently signed by was s of action for which relief may sustained both court supplemental the trial all the judge Avery appeals RES JUDICATA A judgment of dismissal with prejudice shall have the effect of judgment of absolute dismissal after trial is conclusive between the parties except A final the is judgment acquires C C University 2 art 3506 31 Tolis 95 1529 p 2 on La v 16 10 or Board 95 nonconformity the of the of Supervisors of 660 So 2d 1206 13 4231 further review on review Louisiana State 1206 the alternative that Gulf Coast owed residence and failed to do so dilatory exceptions of lack of procedural capacity petition complaining that as an incompetent A very lacked capacity to for his and that at all times he behalf The a and seeks filed petition nullity stipulation agreeing that Avery the no final judgment R S judgment is confirmed naming Gulf Coast as a defendant Avery alleges in duty to timely pay his monthly mortgage payments on the damages for this failure or for unjust enrichment CitiMortgage initially A final direct review under La if the In 3 1673 authority of the thing adjudged if sought within the time fixed by law La La C C P art a and file parties subsequently adjudication as an incompetent constituted a limited interdiction maintained his rights and authority to sue and be sued thereby resolving on own s dilatory objections 3 entered into a written The doctrine of res judicata is defined by La R S 13 4231 which provides Except as otherwise provided by law a valid and final judgment is conclusive between the same parties except on appeal or other direct review to the following extent 1 If the 2 If the in favor of the plaintiff all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment action existing causes judgment is judgment is in favor of the defendant all of causes judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those of action 3 A at the time of final judgment in favor of either the plaintiff is conclusive second action is barred because it the defendant in any Ordinarily or subsequent action between them with respect to any issue actually litigated and determined if its determination was essential to that judgment a the pnor action occurrence as because the plaintiff must seek occurrence as long as it arose of the first action in favor of the in the to foster Leon v La R S all the same as 13 4231 Comments 1990 causes of action asserted 13 4231 provides judicial efficiency Moore 98 1792 p 4 a and La broad were not La R S by the judgment cause that asserted in the first that a are was the or the extinguished same of action different subject When the asserted same and fairness economy rights arising from or occurrence Causes of action that and barred La R S was of the out I t would not matter whether the of the transaction plaintiff judgment extinguished out provides judicial all relief and assert all in the first action asserted in the second action This arIses matter judgment and is merged by the plaintiff are 4231 13 application of res judicata the purpose is protect the defendants from multiple lawsuits App 1st Cir 4 1199 4 731 So 2d 502 505 writ denied 99 1294 La 7 2 99 broad res effect of the exceptions are to this find 3 the parties transaction lawsuit of action causes or See Smith the was the judicata res cause at the time of the final the the or causes matter of the p 4 App La 2 the of action 5 the of the out arose court a and judgment present petition subject LeBlanc 2006 0041 v 4 same asserted in that occurrence the basis of on executory process lawsuit is val id are asserted in the present suit existed or action s in the 1 the judgment judgment is final La R S 13 4232 1 judgment dismiss A very to Generally cause However there application including when exceptional circumstances justify relief from the judicata must 747 So 2d 20 executory process 1 st Cir 8 15 07 966 So 2d 66 70 The party raising the objection of the essential facts to res support the objection invoked unless all its essential elements any doubt the sale of property without 2631 by an The doctrine however proving cannot be present It is strictly construed and to be resolved asserted either those which act importing a against the party raising an in Articles 2751 and are 2754 to an effect the seizure and to enforce a mortgage or a art executory proceeding may be to arrest the seizure and sale suspensive appeal of the writ of seizure and sale 5 to judgment injunction proceeding through used confession of judgment La C C P procedural objections through directing the issuance are previous citation authentic Defenses and provided bears the burden of ld Executory proceedings evidenced Jd are concerning its applicability is objection judicata or both as from the order La C C P art 2642 The defendant in the executory of the property mortgage or is privilege 2751 art may arrest the seizure and sale by injunction when the debt secured by the security interest extinguished law for procedure required by C C P proceeding And as a an is or legally unenforceable executory proceeding has general rule in an from appeal not been an authenticity of the the 318 So 2d 668 670 process itself Wells 2002 0895 p 3 2002 2782 denying a La App 2d La La 1 24 03 defendant entity to move 1975 So 2d 52 injunctive relief property the issues before the court issuing see also Standard to were on a writ v Ross Mortgage Corp v writ denied appeal of judgment a the seizure and sale of her suspend whether the for executory process and whether Inc 865 So 2d 93 95 noting that La be raised is can Commercial Securities Co 4th Cir 10 9 02 App 836 Cir if the followed order of seizure and sale via executory process the sole contention that or plaintiff plaintiff was the proper followed the procedure for executory process In his petition Avery concedes that sold his residence via executory process timely appealed the judgment rendered seizure and sale of his residence and appeal Avery the same is valid And does not Thus it is the clearly CitiMortgage successfully seized and in that matter Avery does dispute that the parties is final and the parties the two lawsuits arise out of the foreclosure of Avery s residence or that he did 6 so executory process lawsuit On are in the executory process lawsuit in the two lawsuits same transaction Avery s are the same or occurrence The executory process lawsuit due to the failure of payments to be credited to to arrest the attempted not contend in the undisputed that the judgment judgment the record establishes that he Nothing in was CitiMortgage the allegedly account and this suit alleges Avery is entitled annulment of the earlier an to CitiMortgage and focuses his challenge judicata dismissal of all his claims relief from the justify judgment insofar negligence i e as that earlier causes judgment properly credit his Avery process attempt La lack of action debt was obtain on legally injunctive and for account res alleged judicata effect or 7 to his part is of See from from of the App 4th Cir 7 9 03 858 So 2d 439 timely appeal no moment or the because A very is that it had been constitute relief from the effect of the doctrine as 7 to Standard v 865 So 2d 112 Although his l16 it appears that by injunction executory process judgment this Wells 2002 0895 at p nature of the law bringing Wells the seizure and sale of his residence unenforceable relief La See not asserting that the extinguished 5 complicated procedural posture of the respective actions and the unsettled s unjust enrichment procedurally prohibited executory proceeding 11 14 03 to arrest under La C C P art 2571 was the 2002 1934 p 2003 2262 did not effect of the executory process executory process lawsuit involved foreclosure of his residence ordinary negligence action in Avery res exceptional CitiMortgage accepted monthly mortgage payments to s We agree through executory writ denied judicata court he urges that Specifically res to the trial appeal of action that warrant relief from the Because the Mortgage Corp on damages arising from CitiMortgage his claims for Gulf Coast but failed constitute to unjust enrichment narrowly circumstances judgment and damages for the negligent management of the payments made alternatively A very to as required 865 So 2d at 116 to The in relation to each other exceptional circumstances justifying the claim for damages as a result of CitiMortgage s alleged improper crediting his behalf and for any funds the trial court erred in dismissing Avery him to extinguished his residence if for one return See La C C P of these if at the trial court of the Avery time cannot requirements so as art legally unenforceable that as was required the had asserted final a valid nullity in judgment established an not to executory establish that exist the time of the at to this claim action claim as s the nullity In it would have proceeding And because the other correctly dismissed that portion of Avery return the debt had process judgment and the executory by this record insofar executory process judgment and of the to arrest the seizure and sale of application of res judicata be asserted in this lawsuit were for Further he has failed 2751 Accordingly at the time procedure required by law to bar of the 1 damages of his residence did exist that such did other words therefore 13 4232 A grounds for annulment of the executory executory proceeding existed that the was on alleged retention of s does not raise any contentions that had not been followed proceeding even or See La R S these claims for executory process lawsuit the debt been payments tendered by Gulf Coast unjust enrichment caused by CitiMortgage rightfully belonging Moreover of res and judicata action claim the petition seeking annulment of his residence NO CAUSE OF ACTION Avery also challenges the trial cause 4 of action to dismiss the Because we court damage claims have found that the trial court s sustaining asserted in his correctly dismissed the basis of res judicata it is unnecessary to review whether his for nullity relief 8 of the objection of petition 4 Avery s nullity petition stated no action claim a cause on of action The function of the peremptory exception of question whether the law extends of the The petition a objection of no to anyone under remedy of action is no cause of action cause the factual on the facts La 11128 0 1 801 So 2d 346 controvert the or C C P 931 art purposes of in the the case an to de trial court s The novo accepted it appears petition should not be beyond doubt on p 3 to state of action cause La the face of the papers and for the In reviewing of action the on a by the exception the well pleaded facts true review because the only remedy in 2001 0987 Bryant v a legal No evidence may be introduced to support as no cause decision is based unless 348 49 the issues raised exception of a Fink pleading exception is triable be must stated in the objection that the petition fails determining petition sustaining alleged to allegations to test the designed sufficiency of the petition by determining whether plaintiff is afforded law based is the question sufficiency of dismissed for failure that the a plaintiff support of any claim which would entitle him to can relief court s court should appellate exception raises trial a the a prove no subject of law and the petition to state ruling cause Simply of action of facts in set Fink 2001 0987 at p 4 801 So 2d at 349 The facts that that CitiMortgage Avery alleges in his petition that entitle received indebtedness but that true for purposes of Avery has presented on the face of the a Gulf CitiMortgage did its retention of these payments as from Coast not payments credit his account for damages his He also scenario that states a cause of action See Standard Mortgage 9 of action Corp are mortgage avers unjustly enriched CitiMortgage Taking these evaluating the exception of no cause petition him to we that facts find that against CitiMortgage 2002 0895 at p 8 865 So 2d at 117 of no cause Therefore the trial erred in court of action to dismiss A very s granting CitiMortgage claim for s exception damages DECREE For these that reasons peremptory exception of res damages is reversed and peremptory exception of affirmed 5 Appeal costs judicata that res of the trial portion and portion no cause assessed as s judgment granting of action of the trial court judicata insofar are court Avery to A very s the claim for s judgment granting the s nullity action claim is against defendant appellee CitiMortgage Inc REVERSED IN PART AFFIRMED IN PART 5 Although A very because he did we or find the complains that not comply with La no error necessity in the trial court for an the trial court erroneously District Court Rules Rule 9 8 implicit ruling concluding expedited hearing s 10 denied his motion to continue by timely filing his that he failed to show pleading good cause
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