Dixie Sav. and Loan Ass'n v. Pitre

• Decision Date: 27 July 1999
• Docket Number: No. 99-CA-154.,99-CA-154.
• Citation: 751 So.2d 911
• Parties: DIXIE SAVINGS AND LOAN ASSOCIATION v. E.J. PITRE.
• Court: Court of Appeal of Louisiana — District of US

751 So.2d 911

DIXIE SAVINGS AND LOAN ASSOCIATION v. E.J. PITRE.

No. 99-CA-154.

Court of Appeal of Louisiana, Fifth Circuit.

July 27, 1999.

Writ Denied December 10, 1999.

Regina S. Wedig, Donald E. Theriot, Bordelon, Hamlin & Theriot, New Orleans, Louisiana, Attorneys for Defendant/Appellee FDIC as Receiver for Dixie Federal Savings & Loan.

Elizabeth Smyth Sirgo, Chopin, Wagar, Cole, Richard & Reboul, Metairie, Louisiana, Attorney for Defendant/Appellee The Home Insurance Company.

Samuel J. Accardo, Jr., Accardo, Edrington & Golden, Laplace, Louisiana, Attorney for Defendant/Appellant Sheriff of St. John the Baptist Parish.

Patrick D. Breedon, New Orleans, Louisiana, Attorney for Plaintiff/Second Appellant E.J. Pitre and Cindy Pitre. Panel composed of Judges H. CHARLES GAUDIN, CHARLES GRISBAUM, Jr., and SOL GOTHARD.

GOTHARD, Judge.

This matter involves protracted litigation between the parties. In 1979, plaintiff, E.J. Pitre, executed a promissory note which was secured by a mortgage on a mobile home. The note was paraphed with a chattel mortgage which was subsequently assigned to Dixie Savings and Loan Association (Dixie).¹ Pitre fell behind in the payments, and Dixie filed a petition to enforce the chattel mortgage by executory process. In due course the district judge signed an order for executory process, and on March 10, 1983 the clerk issued a writ of seizure commanding the Sheriff of St. John the Baptist Parish to:

Seize and Sell at Public auction, with benefit of appraisement, to the last and highest bidder the following described mortgaged property to pay and satisfy said claim ....to wit:

1 1979 Capri # BR 80×14 Mobile Home, Manufacturer's Serial No. ALS-79-14×803 + 2CKSN8153, complete with items included, as set forth in said mortgage.

The mortgage referenced in the Writ of Seizure listed the following:

Items Included: Air conditioning, furniture (per manufacturer's floor plan), a range and a refrigerator.

On April 13, 1983, the Sheriff served notice of the seizure on Pitre and seized the mobile home that same day. Pitre did not satisfy the demand within the days prescribed by law. Accordingly, notice of judicial sale was advertised and the trailer was sold at public auction on May 4, 1983. During the time between seizure and sale of the trailer, it was housed at Labat's Mobile Home, (Labat's) which was appointed as keeper by the Sheriff.

On April 10, 1983, under the same docket number in which the executory proceedings were pending, Pitre, and his wife, Cindy, filed an action entitled simply "Petition". In that pleading the Pitres name Dixie, Lloyd Johnson, the Sheriff of St. John the Baptist Parish, and Able Mobile Home Transport Co. (Able), who was employed by the Sheriff to secure and transport the trailer to Labat's, as defendants. The petition alleges defects in the proceeding which rendered the issuance of the order permitting executory process improper and violative of the federal constitution. Additionally, Pitre made various tort allegations. Defendants filed exceptions of no cause of action and prescription. The trial court granted the exception of no cause of action, and dismissed the Pitres' suit for damages. The matter was appealed.

This Court considered the appeal of that ruling, and affirmed the portions of the trial court's judgment which upheld the constitutionality of the statutes relating to the executory process and dismissed claims against the Sheriff based on claims that the seizure was illegal because of the improper issuance of executory process. Dixie Federal Savings and Loan Association v. Pitre, 498 So.2d 112 (La.App. 5 Cir.1986). Further, we affirmed the granting of the exception of no cause of action, but remanded the matter to the trial court with instructions that the Pitres should be allowed to timely amend their petition to allege sufficiently the factual basis to support their theories of recovery.

On remand, the Pitres filed a "Second Amended and Supplemental Petition", in which they added Labat's as a defendant. The petition makes allegations of defects in the executory process and makes allegations in tort against all defendants. The tort claim seeks redress for the trailer, as well as, certain contents which were not covered by the mortgage.

Dixie filed a motion for summary judgment. On February 27, 1991, the trial court rendered a judgment, which granted in part and denied in part, Dixie's motion for summary judgment. In that ruling the trial court held that summary judgment was, "granted as to any relief sought stemming from the seizure of the mobile home itself and as it relates to any defenses or procedural defects of the executory process", and denied, "insofar as it relates to plaintiff's petition for damages resulting from the seizure of property not covered by the mortgage". No review of that ruling was sought by either party.

Dixie filed an amended answer and petition in which it made a cross claim against the Pitres alleging that the Pitres' acts of negligence were a proximate cause of their loss and a bar to recovery. In an amended third party demand, Dixie made claims against Able, Labat's, and the Sheriff of St. John the Baptist Parish. Able filed a motion for summary judgment on the ground that is served merely as transporter of the mobile home which was the subject of the chattel mortgage.

On September 20, 1993, the Pitres again amended their petition to add The Home Insurance Company (Home), the comprehensive general liability insurer of Dixie, as defendant in a direct action. The petition also makes more specific allegations against all defendants including an allegation that Dixie violated the Louisiana Unfair Trade Practices Act, embodied in LSA-R.S. 51:1401 et seq. In response to that allegation, Dixie filed a motion for summary judgment and/or an exception of no cause of action. That motion was denied by the court on June 5, 1996.

The court conducted a trial on the merits on September 30, 1997. At the close of the plaintiffs' case, all defendants moved for involuntary dismissals on various grounds. The court rendered judgment as follows:

1) The Motion for Involuntary Dismissal urged by defendants, FDIC and The Home Insurance Co. as to violations of the unfair trade and consumer protection act, federal trade act, and usurious interest rates was not properly before the court, as those matters had been disposed of prior to trial. Motions for involuntary dismissal on any other ground is DENIED.

2) The Motion for Involuntary Dismissal on the ground of prescription, urged by defendant Labat Mobile Homes, Inc., is GRANTED. No evidence established that Labat Mobile Home, Inc. and Dixie Federal Savings and Loan were solidary obligors. Therefore, filing of suit against Dixie did not interrupt prescription as to Labat. Any action against Labat would had to have commenced within one year of the occurrence. Filing of suit on November 28, 1986 was not timely.

3) The Motion for Involuntary Dismissal urged by defendant, Able Mobile Home Transport Co. is GRANTED. The evidence presented falls short of establishing liability on the part of Able for the loss or damage to the Pitres' movables. There was no testimony presented that contradicted Mr. Levantino's testimony that he properly disconnected the electricity and secured the trailer before removing it from the location.

4) The Motion for Involuntary Dismissal urged by defendant, Sheriff of St. John the Baptist Parish is DENIED. The Writ of Seizure granted by this court only authorized the seizure of the mobile home and the following specified items, air conditioning, furniture, a range and a refrigerator.

Additionally, the court rendered judgment in favor of the Pitres and against defendants, FDIC, Home and the Sheriff in the amount of $7,926.11. The court further found the Pitres 25% liable for the damages and reduced the award accordingly. Motions for new trial were filed by the Sheriff and Home, both of which were denied by the court. The Sheriff filed an appeal from the December 30, 1997 judgment. The Pitres filed an appeal from the February 27, 1991 judgment granting partial summary judgment to Dixie and the December 30, 1997 judgment. Subsequently, the Pitres filed a motion for attorney's fees and to set costs. On September, 30, 1998, the court rendered a judgment denying the attorney's fees, but granting the motion to set costs. The Pitres also filed an appeal from that judgment.

At the trial on the merits, Cindy Pitre testified that after a dispute with Dixie concerning additional escrow amounts due for insurance on the trailer, the Pitres began making partial payments on their monthly note, and hired an attorney to solve the problem. Mrs. Pitre maintained that she and her husband paid every payment on the trailer until the dispute arose. She further testified that she paid the November, 1982 payment, although she was not certain if any payments were made after that. On cross-examination Mrs. Pitre admitted that the November, 1982 payment was not made until January, 1983.

She stated that two notices on Dixie's stationery were left on her door sometime before November 24, 1982 regarding the failure to make payments as required. On the day of the seizure, she received a telephone call from her husband to tell her that their home was being taken away. She left work and returned to find the trailer gone. She went immediately to her attorney's office, but was unable to speak to him as he was out of town. Mrs. Pitre testified that everything the family owned was in the trailer.

Several days later the Pitres went to Labat's to retrieve their personal belongs. Everything was in disarray and many items, including jewelry, razors, a hair dryer, an alarm clock, cameras, stereo equipment and kitchen appliances were missing. Other items, including a television set and a microwave oven, were damaged. A complete list of the missing and damages items was compiled and is contained in...