Tanner v. Succession Bourland

• Decision Date: 20 November 2019
• Docket Number: No. 52,918-CA,52,918-CA
• Parties: Melodye TANNER, Plaintiff-Appellee v. SUCCESSION OF Thomas R. BOURLAND, Defendant-Appellant
• Court: Court of Appeal of Louisiana — District of US

285 So.3d 104

Melodye TANNER, Plaintiff-Appellee

v.SUCCESSION OF Thomas R. BOURLAND, Defendant-Appellant

No. 52,918-CA

Court of Appeal of Louisiana, Second Circuit.

Judgment rendered November 20, 2019

MIRAMON LAW, INC., By: Jordan N. Young, Patricia N. Miramon, Baton Rouge, Counsel for Appellant

DAVID L. WHITE, Counsel for Appellee

Before WILLIAMS, MOORE, and STEPHENS, JJ.

MOORE, J.

Patricia Miramon, executrix of the estate of Thomas Bourland, appeals a judgment that rejected her claim for a preliminary and permanent injunction to halt executory process filed by the plaintiff, Melodye Tanner, fixed the principal amount due at $162,000, and awarded Ms. Tanner an attorney fee of $15,421.50. For the reasons expressed, we affirm in part, reverse in part and remand.

FACTUAL BACKGROUND

Tom Bourland was an independent forestry consultant who rented office space from Ms. Tanner, or from her LLC, Biotech South, in Ruston, Louisiana.¹ According to affidavits filed in the case, he was behind in his rent and other fees to Ms. Tanner. He also had a flair for hunting and travel, going on three African safaris with Ms. Tanner between 2011 and 2013 and running up a bill of over $200,000, mostly advanced by Ms. Tanner. To satisfy these obligations, Bourland executed a promissory note ("the 2014 note") in favor of Ms. Tanner for $200,000 on June 13, 2014. According to the affidavit of her lawyer, Robert Dawkins, who drafted the 2014 note, the $200,000 figure was a negotiated amount, as the parties could not agree on the exact amount owed, but it was less than the actual amount. This note was unsecured.

Between July 2014 and December 2015, Bourland wrote three checks to Ms. Tanner, for a total of $38,000. On March 10, 2016, he emailed her saying that the 2014 note was to be collected from his life insurance "in the event of my demise during our last safari," that he had reimbursed her $38,000 for his portion of the safari costs advanced by her, and "I consider the matter closed."

Despite this email, less than two weeks later, on March 23, 2016, Bourland signed a packet of documents: (1) collateral mortgage note, to order of bearer, for $200,000, signed and notarized, and marked "ne varietur" for identification with (2) act of collateral mortgage, in favor of any future holder, for $200,000, affecting his house (Lot 17, Ellerbe Woods subdivision, Caddo Parish), signed, notarized and witnessed; (3) security agreement, listing Bourland as the debtor and Ms. Tanner as the secured party, acknowledging the act of collateral mortgage and pledging the collateral mortgage note to Ms. Tanner; and (4) acknowledgment typed on the bottom of the 2014 note, saying the principal balance due was $162,000. According to Ms. Tanner, Bourland made no more payments after this.

In June 2016, Ms. Tanner emailed Bourland's insurance agent asking to be listed as mortgage holder over the property. The agent copied this to Bourland, who emailed Ms. Tanner, on July 24, "I'm confused, since I have paid all obligations to you."

Bourland passed away in March 2017.

PROCEDURAL HISTORY

Ms. Tanner filed this petition for executory process about one month later, April 3, 2017. She cited the documents listed above, alleged the principal and interest due was $191,061.38, plus attorney fees, and demanded a writ of seizure and sale of the property.

Ms. Miramon, Bourland's attorney and the executrix of his succession, responded with a petition for temporary restraining order ("TRO") and rule to show cause for a preliminary and permanent injunction to halt the seizure and sale. She contended that Bourland had repaid everything he previously owed to Ms. Tanner; he never incurred the amount of debt alleged; and there was no proof of consideration. The district court issued the TRO and scheduled a hearing on the rule.

Ms. Tanner moved to dissolve the TRO, citing the acknowledgment that Bourland added to the 2014 note in March 2016. She also asked the court to reject all injunctive relief and award her attorney fees for having to defend these claims.

The parties agreed to submit the matter on affidavits. In early April 2018, Ms. Tanner filed seven, denying Ms. Miramon's contention that there was no consideration, asserting that by the time Bourland signed the 2014 note he actually owed her close to $230,000, and conceding that the principal balance due was $162,000.

Ms. Miramon then filed two affidavits, again asserting Bourland's March 2016 email denying that there was any balance left, and maintaining that he never told her (Ms. Miramon) about those 2016 documents, a fact that she considered "very unusual."

At a hearing in May 2018, Ms. Miramon argued that the only debt was $38,000, which Bourland had paid in full; if there was any rent claim, the proper party to claim it was Ms. Tanner's LLC, not Ms. Tanner; and the acknowledgment was not in authentic form, so it could not support executory process.² Ms. Tanner argued that her name, not her LLC's, appeared on every document; Bourland's acknowledgment of the debt overrode his earlier email denying it; and nobody had challenged the validity of Bourland's signature on the acknowledgment, so it was valid.

The court asked if there were any receipts for the alleged debts, and continued the case so the parties could file them.

The parties then filed counter-affidavits, with attached receipts, lists of payments, copies of checks, and printouts of emails.

ACTION OF THE TRIAL COURT

When the hearing resumed in July 2018, the court held that the acknowledgment was an act under private signature, none of the affidavits disputed Bourland's signature, and it was therefore true and genuine under La. C.C. art. 1836. The court also found that $162,000 reflected the difference between the note and the payments.

The court later rendered judgment granting Ms. Tanner's motion to dissolve the TRO, dismissing Ms. Miramon's petition for TRO and rule to show cause for a preliminary and permanent injunction, decreeing that the principal amount due was $162,000, and awarding Ms. Tanner attorney fees of $15,421.50.

Ms. Miramon filed a timely motion for suspensive appeal, but later converted it to devolutive. Ms. Tanner filed a motion to dismiss the appeal, which this court denied by order of July 3, 2019.

DISCUSSION

Motion to Dismiss Appeal

By her motion to dismiss, Ms. Tanner showed that defenses and objections to an executory proceeding may be brought either through an injunction to arrest the seizure and sale or by a suspensive appeal. La. C.C.P. art. 2642. She argued that because Ms. Miramon converted her appeal to a devolutive one, the appeal must be dismissed.

Contrary to Ms. Tanner's claim, La. C.C.P. art. 3612 B specifically provides, "An appeal may be taken as a matter of right from an order or judgment relating to a preliminary or final injunction, but such an order or judgment shall not be suspended during the pendency of an appeal unless the court in its discretion so orders." Any party aggrieved by the grant or denial of a preliminary injunction is entitled to an appeal. State ex rel. Guste v. City of New Orleans , 363 So. 2d 678 (La. 1978) ; Cush & Son Grocery v. City of Shreveport , 26,262 (La. App. 2 Cir. 4/7/95), 653 So. 2d 242. Given the express provision of Art. 3612, the motion to dismiss was (and remains) denied.

Denial of Permanent Injunction

By her first assignment of error, Ms. Miramon urges the court committed manifest error by denying and dismissing her permanent injunction to halt the seizure and sale of the property. As noted, an injunction is the correct procedural device to raise a defense or objection against executory process. La. C.C.P. art. 2642 ; General Motors Accept. Corp. v. Daniels , 377 So. 2d 346 (La. 1979). She argues that even though the issues may overlap, permanent injunction requires its own trial on the merits. Ouachita Parish Police Jury v. American Waste & Pollution Control Co. , 606 So. 2d 1341 (La. App. 2 Cir.), writ denied , 609 So. 2d 234 (1992), cert. denied , 508 U.S. 909, 113 S. Ct. 2339, 124 L.Ed.2d 249 (1993). She concludes the court was plainly wrong to deny her permanent injunction on the basis of evidence for a preliminary injunction , and is entitled to a full hearing on the former.³ This argument has merit.

A preliminary injunction is a procedural device interlocutory in nature and designed to preserve the existing status pending a trial of the issues on the merits of the case. La. C.C.P. art. 3601 ; Levine v. First Nat'l Bank of Commerce , 2006-0394 (La. 12/15/06), 948 So. 2d 1051, fn. 4 ; Ouachita Parish Police Jury v. American Waste , supra . The principal demand, however, is determined on its merits only after a full trial under ordinary process, even though the summary proceedings for the preliminary injunction may touch on or tentatively decide issues on the merits. Levine v. First Nat'l Bank of Commerce , supra ; Ouachita Parish Police Jury v. American Waste , supra . Although the trial court may consider evidence that would later be submitted for the case on the merits regarding a permanent injunction, it does not actually decide the case on the merits when it grants or denies a preliminary injunction. Branch Props. LLC v. Doctor's Point Dev. LLC , 52,687 (La. App. 2 Cir. 5/22/19), 273 So. 3d 573. Only when the parties have expressly agreed to submit the case for a final decision at the hearing on the rule for a preliminary injunction may the court rule on the merits at that hearing. Ray Anding Const. Inc. v. Monroe City Sch. Bd. , 38,228 (La. App. 2 Cir. 3/5/04), 867 So. 2d 1005, and citations therein; Zachary Mitigation Area LLC v. Tangipahoa Parish Council , 2016-1675 (La. App. 1 Cir. 9/21/17), 231 So. 3d 687, and citations therein.

We have closely examined the record and find no express agreement or other stipulation that the parties would submit the merits of the case on the hearing for preliminary injunction. On this showing, the district court committed legal error in dismissing Ms. Miramon's...