Spiers v. Roye
| Decision Date | 10 February 2006 |
| Docket Number | No. 2004 CA 2189.,2004 CA 2189. |
| Citation | 927 So.2d 1158 |
| Parties | Angela SPIERS, d/b/a Act Dealer Services v. Lorraine ROYE and Interstate Motors, Inc. |
| Court | Court of Appeal of Louisiana — District of US |
Leonard E. Yokum, Jr., Hammond, Counsel for Plaintiff/Appellee Angela Spiers, d/b/a ACT Dealer Services.
E. Wade Shows, Jo Ann Lea, Baton Rouge, Counsel for Defendants/Appellants Lorraine Roye and Interstate Motors, Inc.
Before: CARTER, C.J., DOWNING, and GAIDRY, JJ.
This is an appeal of a money judgment and prior sequestration orders in a dispute arising from an alleged business agreement between the adverse parties. We dismiss the appeal in part, but remand this matter to the trial court for further proceedings before determining the remaining issues on appeal.
FACTS AND PRIOR PROCEEDINGS
The plaintiff-appellee, Angela Spiers, instituted this litigation on April 25, 2003, by filing a verified petition seeking damages for defamation, injunctive relief, and sequestration of property. She alleged that the defendant-appellant, Lorraine Roye, defamed her on April 15, 2003 at a used car auction by publicly accusing her of stealing that defendant's automobile dealer "tag." She also alleged the existence of a prior business arrangement with Ms. Roye and the other defendant-appellant, Interstate Motors, Inc., of which Ms. Roye was the sole stockholder. According to plaintiff's petition, the parties were engaged in a joint venture, the terms of which provided that plaintiff would purchase automobiles on behalf of the defendant corporation using her own funds, and those automobiles would then be sold by the corporation. Upon each sale, plaintiff would be repaid the funds expended in its purchase and additionally receive one-half of all monthly installment payments made to the corporation by the purchaser. Plaintiff further alleged that Ms. Roye unilaterally terminated the joint venture shortly prior to April 15, 2003. Plaintiff sought an injunction prohibiting defendants from disposing of any funds received from monthly payments and as sequestration of "at least three" vehicles purchased with her funds and still on the business premises.
On April 30, 2003, the trial court signed an order issuing a writ of sequestration of the three vehicles described in the petition and ordered a hearing on the request for an injunction. That hearing, set for June 23, 2003, was continued due to the incomplete status of discovery.
On May 22, 2003, defendants filed an answer in proper person, consisting of a one-page general denial. On the same date, plaintiff filed a request for a trial date, and a telephone conference was scheduled pursuant to the trial court's local rules. No trial date was assigned as the result of that conference. Defendants' original attorney moved to enroll as their counsel of record by motion filed July 15, 2003, and the order granting that motion was signed July 18, 2003.
On September 10, 2003, defendants filed another detailed answer and reconventional demand. In their reconventional demand, defendants alleged that no business arrangement existed between the parties and that plaintiff, as an employee, misappropriated approximately $41,000.00 in cash payments made by business customers. No answer to the reconventional demand was ever filed by plaintiff.1
On December 19, 2003, plaintiff filed a verified petition for sequestration in the same proceeding, referencing her original petition and seeking a second sequestration order directing the seizure of all movables, records, and funds of the defendant corporation. On the same date, the trial court ordered the issuance of the requested writ of sequestration.
On January 26, 2004, defendants filed a motion to dissolve the sequestration orders and alleged that the orders were wrongfully issued, entitling them to recovery of damages and attorney's fees. Defendants' motion was heard on February 25, 2004, and denied by the trial court in an oral ruling.
On February 27, 2004, defendants filed a motion requesting a status conference to set discovery deadlines and a trial date.
On March 1, 2004, the trial court signed its judgment denying defendants' motion to dissolve the sequestration orders and dismissing their claims for damages and attorney's fees. Defendants moved for a new trial on March 10, 2004.
On March 25, 2004, the telephone status conference requested by defendants was held. The case was set for trial during the week of June 21, 2004.2 The trial order was signed and filed the same date, bearing the directive to "[p]lease send notice to all counsel of record[.].
On May 13, 2004, a petition of intervention was filed by the Louisiana Used Motor Vehicle and Parts Commission on behalf of consumers who had initiated complaints concerning their inability to receive the certificates of title to vehicles purchased from the defendant corporation. The record does not contain any answer to the petition of intervention by either plaintiff or defendants.
The hearing on defendants' motion for a new trial was held on May 17, 2004. At the conclusion of the hearing, the trial court denied defendants' motion. Its judgment in that regard was signed on May 26, 2004, and notice of that judgment was mailed the following day.
The day after the hearing on defendants' motion for new trial, May 18, 2004, defendants' prior counsel filed an ex parte motion to withdraw from their representation. The order accompanying the motion was signed by the trial court on May 26, 2004.
The trial on the merits was held on June 24, 2004.3 Defendants did not appear for trial. Prior to the taking of testimony and evidence, the trial court ordered the severance of the trial on the intervention.
On August 19, 2004, defendants filed a motion for a devolutive appeal from the judgment on the merits.
ASSIGNMENT OF ERRORS
Defendants have specified seven errors on the part of the trial court, which we summarize as follows:
(1) The trial court erred in granting a sequestration of property since plaintiff failed to prove an ownership interest, right to possession, security interest, or privilege relating to the property.
(2) The trial court erred in proceeding to trial prior to issue being joined on all demands asserted by all parties.
(3) The trial court erred in allowing the ex parte withdrawal of defendants' prior counsel after the case had been assigned for trial, as his motion to withdraw did not comply with Rule 9.13 of the Louisiana Rules for District Courts.
(4) The trial court erred in proceeding to trial and rendering judgment, since defendants had no notice of trial.
(5) The trial court erred in rendering judgment in the nature of a confirmation of a default judgment, since defendants filed an answer.
(6) The trial court erred in signing a written judgment which was materially inconsistent with its oral ruling at the conclusion of the trial.
(7) The trial court's judgment was manifestly erroneous since it was based upon insufficient evidence.
DISCUSSION
Because our determination of some assigned errors is dependent upon the determination of others, we address these issues in a sequence different from that presented above.
Sequestration
Sequestration is a provisional remedy available for the seizure of property as to which the seizing party claims a property, possessory, or security interest, to prevent the disposal or concealment of the property by another party. La. C.C.P. arts. 3571, et seq. The writ of sequestration is conservatory in nature, used to preserve a creditor's right to execute on a judgment against a debtor on the merits of a principal demand. Sarpy Properties, Inc. v. Diamond Shoe Stores of Louisiana, Inc., 99-1304, p. 6 (La.App. 5th Cir.5/17/00), 761 So.2d 769, 774, writ denied, 00-1760 (La.9/22/00), 768 So.2d 604. It is thus ancillary to the principal demand for a money judgment. Carrier Leasing Corporation v. Ready-Mix Companies, Inc., 372 So.2d 601, 605 n. 6 (La.App. 4th Cir.), writ denied, 375 So.2d 943 (La.1979).
An order or writ of sequestration is an interlocutory judgment, and therefore not appealable in the absence of a showing of irreparable injury. See La. C.C.P. art. 2083 and Big Four Crane Service, Inc. v. Owl Construction Co., Inc., 471 So.2d 992 (La.App. 1st Cir.), writ denied, 476 So.2d 350, 351 (La.1985). However, when a motion to dissolve an interlocutory sequestration order also seeks damages and attorney's fees for wrongful sequestration under La. C.C.P. art. 3506, the demand for damages is the equivalent of an incidental demand. Sarpy Properties, 99-1304 at p. 7, 761 So.2d at 774. Thus, the trial court's judgment of March 1, 2004, denying defendants' motion to dissolve the sequestration orders, was a final and appealable judgment. Id. See also Carrier Leasing Corporation, 372 So.2d at 603 n. 3.
The record shows that notice of the judgment of May 26, 2004 denying defendants' motion for new trial was mailed on May 27, 2004, and the names of plaintiff's counsel and defendants' former counsel appear on the notice. The clerk's signed certificate expressly states that the notice was also sent to "such of the litigants, if any, who are not represented by counsel," although defendants' names do not appear on the notice. Defendants have not raised any issue of failure to receive notice of that judgment.
Because defendants' devolutive appeal was taken over sixty days from the date of mailing of the notice, defendants cannot appeal the judgment denying their motion to dissolve the sequestration orders. They likewise cannot appeal the interlocutory sequestration orders as part of their appeal of the judgment on the merits, as the judgment denying their motion to dissolve the sequestration orders determined the identical issues.4 See La. R.S. 13:4231(3). Accordingly, this court lacks jurisdiction to consider the issues determined by the trial court's judgment of ...
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