95-196 La.App. 3 Cir. 5/31/95, Sellers v. Sellers
| Decision Date | 31 May 1995 |
| Citation | 660 So.2d 499 |
| Parties | 95-196 La.App. 3 Cir |
| Court | Court of Appeal of Louisiana — District of US |
Roger Chadwick Edwards Jr., Abbeville, for Evelyn Aucoin Sellers.
Bernard Seymour Smith, Lafayette, for Nolan Joseph Sellers.
Before KNOLL and SULLIVAN, JJ., and BROUILLETTE *, J. Pro Tem.
[95-196 La.App. 3 Cir. 1] HAROLD J. BROUILLETTE, Judge Pro Tem.
As part of a continuing dispute over a period of several years involving custody, support and community property, Nolan Sellers brought this action against [95-196 La.App. 3 Cir. 2] his former wife, Evelyn Sellers, seeking to have the court: (a) declare null a judgment requiring him to pay $300 per month rent for the use of the community home; (b) declare null a sheriff's sale of the community home; and (c) order the cancellation of inscriptions of money judgments in favor of Evelyn Sellers recorded in the mortgage records of Vermilion Parish. The trial court denied all demands and Nolan Sellers has appealed on all issues. Evelyn Sellers answered seeking damages for frivolous appeal.
A judgment of separation from bed and board was rendered in 1984 granting custody of the four children of the marriage to Evelyn Sellers and ordering Nolan Sellers to pay alimony pendente lite and child support. Following that judgment, a number of motions to make child support arrearages executory were filed, heard and granted. Judgments on those motions were signed on February 10, 1987 in the amount of $1,340 plus interest and attorney's fees 1; on June 12, 1988 in the amount of $2,177.50 plus interest and attorney's fees; and on April 20, 1992 in the amount of $5,950 plus interest.
A hearing on March 23, 1992, which resulted in the April 20, 1992 judgment for arrearages noted above, also involved rules for contempt, to increase child support, reduce child support, change of custody and matters relating to community property. The rules were tried before Judge Diana Simon and both parties [95-196 La.App. 3 Cir. 3] were represented by attorneys who later withdrew their representation and are not counsel in this litigation. The minute entry for that hearing states, inter alia :
Nolan Sellers, Jr. is to pay the sum of $300.00 per month as rent on the community property. He is to get credit on the insurance paid by him.
A formal judgment was signed on April 20, 1992 clearly indicating that it emanated from the March 23, 1992 hearing. It was "Approved As To Form And Content" by both attorneys. The judgment makes no mention of the $300 rent which was included in the minutes.
Evelyn Sellers' present counsel enrolled as counsel on August 2, 1993 and filed a motion on September 14, 1993 seeking various orders and decrees. The motion alleges that Nolan Sellers had been ordered to pay rent on the family home in the amount of $300 per month. A hearing on all issues contained in the motion was assigned for September 27, 1993. The court minutes for September 27, 1993 provide:
A Pre-Trial [sic] was held in Chambers with Counsel. Both motions before the Court were withdrawn in Open Court. Stipulation Agreement by the parties. Stipulation to be set out in Judgment. Judgment to be signed upon presentation.
Apparently no stipulation was ever signed. With his letter to the court dated October 20, 1993, counsel for Evelyn Sellers enclosed two separate judgments. The letter stated that they had not been approved by opposing counsel because he was attempting to contact Nolan Sellers for authorization of the approval.
Without the approval of Nolan Sellers' counsel, the trial court signed both judgments, the first recognizing the three prior arrearage judgments as mentioned earlier and ordering seizure of Nolan Sellers' one-half interest in the [95-196 La.App. 3 Cir. 4] family home and the second rendering a separate judgment for $300 per month rent on the family home. The preamble to each of the judgments states:
This matter came to be heard on March 23, 1992, however a Judgment was never signed and counsel for Plaintiff and Defendant have been replaced. The matter was brought to the Court's attention at a regularly fixed rule this 27th day of September, 1993.
A writ of fieri facias was issued as directed by the court in the first October 21, 1993 judgment. It ordered seizure and sale of Nolan Sellers' interest in the family home. The sale proceeded routinely except that there was one postponement of the sale date at the direction of counsel for Evelyn Sellers. The sale was finally conducted on May 4, 1994 and Evelyn Sellers was the highest bidder for her former husband's undivided one-half interest. The record reflects that the $300 per month rent judgment was included by the sheriff in calculating the amount of the writ.
Nolan Sellers asserts that the sheriff's sale of the community home on May 4, 1994 should be annulled because (a) the writ included the judgment of February 10, 1987, which had been satisfied, and (b) the property was not reappraised when the sale was rescheduled from January 5, 1994 to May 4, 1994. He also questions the judgment of $300 per month rent being included in calculations of the amount of the writ. That judgment should be discussed first.
For the reasons discussed later in this opinion, the judgment of October 21, 1993 ordering the payment of a $300 monthly rental is set aside as a nullity. However, this is not grounds to set aside the sale because it was, at the time [95-196 La.App. 3 Cir. 5] of the sale, a recorded executory judgment. These facts are comparable to a sheriff's sale on a judgment which is subsequently reversed on devolutive appeal. It has long been well established that the validity of sheriff sales made in execution of judgments which are executory are not affected by the subsequent reversal of the judgment on appeal. State v. Mutual Investment Company, 214 La. 356, 37 So.2d 817 (1948); Wetherbee v. Lodwick Lumber Company, 194 La. 352, 193 So. 671 (1940); Continental Securities Corporation v. Wetherbee, 187 La. 773, 175 So. 571 (1937). The reasoning and logic of those cases clearly apply to the present case.
With reference to Nolan Sellers' complaint about the failure to reappraise the property after the "cancellation" of the original sale date, the record shows clearly that this was simply a postponement of the sale date at the request of counsel and it was properly re-advertised in the official journal of the parish. There is nothing in the record to show that the original appraisal was not accurate and it is further pointed out that Nolan Sellers did not choose to name an appraiser as he was entitled to do.
To overcome the presumption of the validity of an appraisal, there must be a showing that the appraisal was fundamentally defective. John Deere Company v. Loewer, 505 So.2d 973 (La.App. 3 Cir.1987); Plauche-Locke Securities, Inc. v. Johnson, 187 So.2d 178 (La.App. 3 Cir.1966). The law is clear that if the sheriff's return shows that the property was sold after appraisement, it will be assumed that there was a legal appraisement unless the contrary is proved. Stockman v. Money, Inc., 277 So.2d 504 (La.App. 1 Cir.), writ not considered, 281 So.2d 738 (La.1973); Jones v. Alford, 172 So. 213 (La.App. 2 Cir.1937).
[95-196 La.App. 3 Cir. 6] There were in fact errors in the sheriff's sale. As noted above, the February 10, 1987 judgment had been fully satisfied by prior sheriff's sale and should not have been included in the writ. Additionally, the writ directs the sheriff to seize and sell the property to satisfy a judgment rendered on October 21, 1993. The notice of seizure states that the amount of the writ is $9,467.50 plus interest, attorney's fees and costs. This was clearly an addition of the $1,340.00, $2,177.50, and $5,950.00 judgments which were recognized in the October 21, 1993 judgment. The writ was really issued to satisfy these three separate judgments rendered on three separate occasions before October 21, 1993. This court is not aware of any authority for gathering up a number of judgments and accumulating them into one judgment for purposes of seizure and sale. However, we feel that this was an administrative error of the clerk of court or sheriff and that there was no damage resulting because there were valid and executory judgments to support the writ.
It was error to include the February 10, 1987 judgment in the judgment of recognition of October 21, 1993 and it follows that it was also error to include it in determining the amount of the writ. However, there were two valid judgments to support the seizure and sale and the error of including the February 10, 1987 judgment does not require a cancellation of the sale. As noted hereinafter, a recalculation of the distribution of the proceeds of the sale by the trial court will be required based upon this court's ruling.
In evaluating the claim of Nolan Sellers that the sale should be set aside because of the errors pointed out above, it should be noted that Nolan Sellers was properly served with all required notices and took no action to enjoin the sale; he waived his right to name an appraiser; and, perhaps most important, he attended and [95-196 La.App. 3 Cir. 7] observed the sale without protest. In Edwards v. Edwards, 282 So.2d 858, 861 (La.App. 1 Cir.), writ refused, 284 So.2d 777 (La.1973) the court held:
Equally applicable herein is the well established rule that a party who is present at a judicial sale and is aware of defects in the proceedings, but sits idly by without making any protest or objection, is barred and estopped from subsequently attacking the validity of the sale on the basis of the known defects. The reason for the rule is the protection of the integrity of judicial sales. Harris v. First Nat. Bank in Arcadia, 185 La. 284, 169 So. 341; ...
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