Anthem Bank & Tr. v. Nickroo

• Decision Date: 06 July 2020
• Docket Number: NUMBER 2019 CA 1216
• Parties: ANTHEM BANK & TRUST, A FEDERAL SAVINGS BANK FORMERLY KNOWN AS FIRST FINANCIAL BANK & TRUST COMPANY v. SHAHRAM NICKROO AND MARY ANN HEARD NICKROO
• Court: Court of Appeal of Louisiana — District of US

ANTHEM BANK & TRUST, A FEDERAL SAVINGS BANK FORMERLYKNOWN AS FIRST FINANCIAL BANK & TRUST COMPANY v. SHAHRAM NICKROO AND MARY ANN HEARD NICKROO

NUMBER 2019 CA 1216

STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT

July 6, 2020

NOT DESIGNATED FOR PUBLICATION

Appealed from the Twenty-First Judicial District Court In and for the Parish of Livingston State of Louisiana

Docket Number 147394

Honorable Robert H. Morrison, III, Judge Presiding

David M. Cohn

D. Brian Cohn

Bartley P. Bourgeois

Allyson S. Jarreau

Baton Rouge, LA

Counsel for Plaintiff/Appellant,

Anthem Bank & Trust, A Federal Savings

Bank, formerly known as First Financial

Bank & Trust Company

Joseph Paul Rummage, Jr.

Denham Springs, LA

Counsel for Defendants/Appellees,

Shahram Nickroo and Mary Ann Heard

Niekroo

BEFORE: WHIPPLE, C.J., GUIDRY, AND THERIOT, JJ.

WHIPPLE, C.J.

This matter is before us on appeal by plaintiff, Anthem Bank & Trust, a Federal Savings Bank, formerly known as First Financial Bank & Trust Company, ("the Bank") from a judgment of the district court denying the Bank's motion to set aside an order of dismissal and ordering the Bank to file a separate ordinary action for a deficiency judgment. For the reasons that follow, the judgment is reversed and this matter is remanded for further proceedings.

FACTS AND PROCEDURAL HISTORY

On December 16, 2011, Shahram Nickroo executed a promissory note in the amount of $711,453.50 payable to the Bank in one principal payment of $711,453.50 due December 16, 2012, with regular monthly payments of accrued unpaid interest on the loan beginning January 1, 2012. The promissory note was secured by a collateral mortgage note executed by Shahram Nickroo and Mary Ann Heard Nickroo on August 7, 2008, in the amount of $1,500,000.00, affecting two tracts of property in Livingston Parish. The purpose of the collateral mortgage note was to secure loans or advances issued by the Bank to the Nickroos. Pursuant to a "Change in Terms Agreement" dated December 16, 2011, and executed by Shahram Nickroo on April 18, 2013, the maturity date of the loan was extended to December 12, 2013.

On January 13, 2015, the Bank filed a petition¹ and order for executory process, averring that the Nickroos defaulted on the loan in the amount of $711,424.18 in unpaid principal and $21,797.36 in unpaid interest, and requesting that an immediate writ of seizure and sale issue, directing the Sheriff of Livingston Parish to seize and sell the immovable property subject to the collateral mortgagenote.² On January 15, 2015, the district court signed the order, granting executory process and ordering a writ of seizure and sale.

On July 13, 2015, the Nickroos filed a petition to enjoin foreclosure, alleging defects in the executory process. The district court denied the petition, noting that the "allegations do not preclude the Sheriff's Sale, but may be raised in defense should the creditor seek a deficiency judgment." On August 26, 2015, the Sheriff sold the immovable property subject to the collateral mortgage for $496,666.68. Three years later, on September 28, 2018, the Bank filed a second supplemental and amending petition, converting the matter to ordinary process and seeking a deficiency judgment for the balance owed by the Nickroos.³

The Nickroos responded by filing an ex parte motion for order of dismissal on the grounds of abandonment, averring that no discovery or other action had been taken by the parties in the litigation since the Bank filed an answer to the Nickroos' petition to enjoin foreclosure on September 21, 2015, until the Bank's filing of its second supplemental and amending petition on September 28, 2018, and thus, that the proceedings should be dismissed as abandoned, pursuant to LSA-C.C.P. art. 561, given that more than three years had elapsed with no timely "step" taken in the prosecution of the case. An ex parte order was signed by the district court on November 15, 2018, dismissing the proceeding, without prejudice, as abandoned.

The Bank filed an opposition to the petition for dismissal and a motion to set aside the ex parte order of dismissal, contending that a final judgment rendered pursuant to a completed executory process proceeding precludes application of theabandonment principles. Following a hearing, the district court signed a judgment on May 14, 2019, denying the Bank's motion to set aside the order of dismissal and ordering the Bank to file a separate ordinary action for any deficiency balance remaining after the sheriff's sale, despite the provisions of LSA-C.C.P. art. 2772.⁴

The Bank now appeals, contending that the district court erred in: (1) dismissing the lawsuit on the basis of abandonment; (2) "circumventing" the Bank's right to bring its claim for a deficiency judgment in the same lawsuit under LSA-C.C.P. art. 2772; and (3) improperly ordering the Bank to bring its claim for a deficiency judgment in a separate suit.⁵

DISCUSSION

Motion to Dismiss Appeal

As an initial matter, we note that the Nickroos filed with this court a motion to dismiss the Bank's appeal, contending that in filing a separate suit as ordered by the district court and availing itself of relief in accordance with the judgment, the Bank has acquiesced in the judgment on appeal, such that no justiciable controversy remains for resolution on this appeal.

Louisiana Code of Civil Procedure article 2085 provides that:

[a]n appeal cannot be taken by a party who confessed judgment in the proceedings in the trial court or who voluntarily and unconditionally acquiesced in a judgment rendered against him. Confession of or acquiescence in part of a divisible judgment or in a favorable part of an indivisible judgment does not preclude an appeal as to other parts of such judgment.

The Nickroos specifically contend in their motion to dismiss that by instituting a new petition for a deficiency judgment in a separate, ordinary action, as directed by the district court in its May 14, 2019 judgment, the Bank has acquiesced in the judgment on appeal, and that the appeal should be dismissed as moot. In support, the Nickroos rely on attachments to their motion, which include, inter alia, copies of pleadings purportedly filed by the Bank in a separate suit below, a petition for deficiency judgment against Mr. Nickroo filed on June 3, 2019, a motion for preliminary default, and related filings, none of which are part of the appellate record in the instant case. However, attachments to a memorandum or motion do not form part of the record on appeal, and, thus, cannot be considered. See English Turn Property Owners Association v. Taranto, 2016-0319 (La. App. 4^th Cir. 4/19/17), 219 So. 3d 381, 386, writ denied, 2017-1100 (La. 10/16/17), ___ So. 3d ___ (documents attached to a motion to dismiss appeal form no part of the record on appeal and cannot be considered).

The Bank concedes in its opposition that it initially did file a separate suit for a deficiency judgment, as ordered by the district court, but argues that this action in no way constitutes a voluntary and unconditional acquiescence of its rights to appeal, nor does any subsequent filing change the fact that its motion to set aside dismissal was improperly denied.⁶ With regard to the record that is before us, the Bank contends that a real and ongoing dispute exists between the parties where: no settlement has been reached; it did not execute a satisfaction of judgment; it has not accepted any benefit of a judgment; and it did not waive its right to appeal. The Bank points out that there is nothing in the district court or appellate court record of these proceedings that evidences any intent by the Bankto abandon its right to appeal, and that its dispute with the Nickroos is ripe and definitive and is properly before this court. We agree.

A party against whom a judgment was rendered is not entitled to appeal if he or she has "voluntarily and unconditionally acquiesced in a judgment rendered against him." LSA-C.C.P. art. 2085. However, appeals are favored in law and forfeiture of the right to appeal through acquiescence is never presumed. Coleman Oldsmobile, Inc. v. Johnson, 474 So. 2d 20, 21 (La. App. 1^st Cir. 1985). Thus, the party alleging acquiescence must establish by direct or circumstantial evidence that the party now appealing intended to acquiesce. Succession of Marcel, 387 So. 2d 1363, 1364 (La. App. 1^st Cir. 1980). Acquiescence should be decreed only when the party's intention to abandon his right of appeal is clearly demonstrated. Coleman Oldsmobile, Inc. v. Johnson, 474 So. 2d at 22; see also Ourso v. Wal-Mart Stores, Inc., 2008-0780 (La. App. 1^st Cir. 11/14/08), 998 So. 2d 295, 299, writ denied, 2008-2885 (La. 2/6/09), 999 So. 2d 785. The term "acquiescence" envisions voluntary execution of a judgment. See LSA-C.C.P. art. 2085, Official Revision Comments, Comment (d).

Such acquiescence must be voluntary, unconditional, complete, and coupled with the intention of abandoning the appeal. Acquiescence is never presumed and must be established by evidence which leaves no doubt regarding appellant's alleged acquiescence, considering that appeals are favored in law. Ponder v. Pechon, 169 So. 2d 671, 673 (La. App. 1^st Cir. 1964), writ refused, 170 So. 2d 868 (La. 1965). A party favored by judgment may accept the full amount thereof from the party cast or may even cause execution on the judgment without forfeiting his right of appeal because of acquiescence. Succession of Marcel, 387 So. 2d at 1364.

On the record before us, we are unable to say that the Bank's filing of a petition when ordered to do so by the district court in an adverse judgment wassufficient to establish a voluntary and unconditional acquiescence in the Bank's right to appeal the judgment giving rise to the filing of a separate suit. The Bank contends in its opposition that it filed the separate action because it was ordered to do so by the district court, which caused it to incur "increased costs" and resulted in "judicial...