Opinion
2017 CA 1216
02-22-2018
SCOTT BRAME v. JACQUES M. DODSON, SR.
John Swanner Devon B. McKnight Baton Rouge, Louisiana Counsel for Plaintiff-Appellee Scott Brame Nina S Hunter Baton Rouge, Louisiana Counsel for Defendant-Appellant Jacques M. Dodson, Sr.
NOT DESIGNATED FOR PUBLICATION ON APPEAL FROM THE NINETEENTH JUDICIAL DISTRICT COURT
NUMBER 579029, SECTION 24, PARISH OF EAST BATON ROUGE
STATE OF LOUISIANA HONORABLE R. MICHAEL CALDWELL, JUDGE John Swanner
Devon B. McKnight
Baton Rouge, Louisiana Counsel for Plaintiff-Appellee
Scott Brame Nina S Hunter
Baton Rouge, Louisiana Counsel for Defendant-Appellant
Jacques M. Dodson, Sr. BEFORE: WHIPPLE, C.J., McDONALD AND CHUTZ, JJ.
Disposition: AFFIRMED.
CHUTZ, J.
Defendant-appellant, Jacques M. Dodson, Sr., appeals the trial court's grant of an involuntary dismissal of his nullity claim, which sought to invalidate the seizure and sale of immovable property by executory process in a foreclosure of a mortgage held by plaintiff-appellee, Scott Brame. We affirm.
Subsequent to foreclosure of his immovable property, located in East Baton Rouge Parish, Dodson filed this nullity action, seeking to nullify the seizure and sale of the property alleging a lack of proper notice, defects in the executory process, and an error in the property description. After a trial, the trial court granted Brame's motion for an involuntary dismissal of the nullity action.
La. C.C.P. art. 1672B provides the basis for an involuntary dismissal at the close of a claimant's case in an action tried by the court without a jury. In determining whether an involuntary dismissal should be granted, the appropriate standard is whether the claimant has presented sufficient evidence on his case-in-chief to establish his claim by a preponderance of the evidence. On appeal, an involuntary dismissal based on La. C.C.P. art. 1672B should not be reversed in the absence of manifest error. Robinson v. Dunn , 96-0341 (La. App. 1st Cir. 11/8/96), 683 So.2d 894, 896, writ denied, 96-2965 (La. 1/31/97), 687 So.2d 410.
Dodson first contends that he was not an absentee and that Brame failed to undertake a diligent search for his whereabouts so as to support the appointment of a curator for service of notice of the seizure and sale of the immovable property. Therefore, he claims service on the curator was insufficient and since he did not receive proper notice of the seizure and sale of his property, he is entitled to a rescission of the sale.
See La. C.C.P. art. 2721B and La. R.S. 13:3852, requiring the sheriff to serve upon the defendant a written notice of the seizure of the property and stipulating its form; see also La. C.C.P. art. 2721, official comment (b), explaining why the sheriff's notice of seizure cannot be waived.
La. C.C.P. art. 2674(1) provides that the court shall appoint an attorney at law to represent an unrepresented defendant in an executory proceeding when the defendant is an absentee. La. C.C.P. art. 5251(1) includes in its definition of "absentee" a person "whose whereabouts are unknown, or who cannot be found and served after a diligent effort, though he may be domiciled or actually present in the state."
A creditor must make a reasonable and diligent effort to determine the whereabouts of a defendant domiciled in Louisiana to support an allegation that the defendant's whereabouts are unknown and to support the appointment of a curator. Security Homestead Ass'n v. Fuselier , 591 So.2d 335, 339 (La. 1991). Whether a creditor's efforts constituted a diligent search is a question of fact. See First Nat. Bank of Jefferson Parish v. Samuels , 618 So.2d 444, 447 (La. App. 5th Cir.), writ denied, 623 So.2d 1336 (La. 1993).
James Berry Reichman, the attorney who represented Brame in the foreclosure proceedings, testified that around the time he filed the foreclosure proceeding, Dodson called his office looking for financial information. According to Reichman, he did not talk to Dodson but soon after his office advised Dodson that foreclosure proceedings had been instituted, attorney R.J. (Bob) Cologne contacted Reichman and told Reichman that he represented Dodson. Cologne said that he would be filing a response to the foreclosure lawsuit, and Reichman sent Cologne an entire set of the filed pleadings.
When Cologne did not file anything into the foreclosure proceeding on behalf of Dodson, Reichman initiated service of the notice of seizure and sale on Dodson through the sheriff. Reichman directed that service be made on Dodson at the address stated on the loan application, which was the site of the immovable property. Because the sheriff's return denoted that service had been posted, indicating that the property was vacant, Reichman realized that this attempt was insufficient service. He then checked Dodson's place of employment as stated in the loan application. The same address that Dodson had provided as his residence was also set forth as Dodson's place of employment. Thereafter, the appointment of a curator was requested. Although Reichman acknowledged that he knew Cologne was Dodson's attorney, he did not contact Cologne because he did not believe the attorney would provide an address to him.
In reaching its conclusion that service of the seizure and sale through the curator was effective against Dodson, the trial court noted that Dodson had actual knowledge of the foreclosure proceedings. The trial court also found that service on Cologne would not have been proper because he was not an attorney of record and had not filed a pleading on behalf of Dodson in the foreclosure proceeding. Because a reasonable factual basis exists to support the trial court's conclusion that, through Reichman's efforts, Brame made a diligent search for Dodson's address, that factual finding is not manifestly erroneous. See Stobart v. State , Through Dept. of Transp. and Dev., 617 So.2d 880, 882 (La. 1993) (the issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder's conclusion was a reasonable one). Therefore, the trial court correctly denied Dodson nullity relief on the basis of a lack of notice.
Although Dodson asserts that the trial court erred by implicitly concluding that Reichman's failure to ask Cologne for Dodson's address showed that Brame was not sufficiently diligent so as to permit appointment of a curator, he cites no authority to support his assertion. Moreover, we note Reichman's belief that Cologne would not be forthcoming with Dodson's address is not clearly without foundation. See e.g., First Nat. Bank of Jefferson Parish , 618 So.2d at 446 (although debtor's attorney testified that he had recommended that debtor accept service of the foreclosure and that he had given debtor's address to the creditor's counsel, creditor's counsel denied having received the address and testified that debtor's attorney told him the city in which debtor lived but stated he did not have the exact address).
Raising the issue for the first time on appeal, Dodson next complains that neither the mortgage he executed nor the assignment of the mortgage to Brame was made by authentic act. To the extent that the issue is properly before us in this appeal, see La. U.R.C.A. Rule 1-3 (courts of appeal will review only issues which were submitted to the trial court), Dodson's contentions are without merit. Dodson failed to timely seek either an arrest of the seizure and sale, as provided in La. C.C.P. arts. 2751-2754, or a suspensive appeal from the order directing the issuance of the writ of seizure and sale. See La. C.C.P. art. 2642. Additionally, because the record shows that the sheriff executing the foreclosure has filed both the proces verbal of the sale as well as the sale for recordation in the conveyance records of East Baton Rouge Parish, Dodson's complaints are untimely. See La. R.S. 13:4112 (no action may be instituted to set aside or annul the judicial sale of immovable property by executory process by reason of any objection to form or procedure in the executory proceedings, or by reason of the lack of authentic evidence to support the order and seizure, where the sheriff executing the foreclosure has either filed the proces verbal of the sale or filed the sale for recordation in the conveyance records of the parish).
Although the mortgage agreement was between First Fidelity Mortgage, Inc. d/b/a Southern Funding Mortgage and Dodson, it was subsequently assigned to Brame.
Acknowledging that the defects in the executory process of which he complains are procedural, Dodson avers that, despite the language of La. R.S. 13:4112, he is entitled to nullity relief, citing Reed v. Meaux , 292 So.2d 557 (La. 1973). In Reed , the supreme court allowed direct actions to annul executory proceedings which were based upon fundamental defects as opposed to minor defects of form or procedure. In 1975, the legislature added La. R.S. 13:4112, prohibiting actions to annul completed judicial sales of immovable property by executory process by reason of any objection to form or procedure or lack of authentic evidence in the executory proceeding. See Walter Mortgage Co., LLC v. Turner , 51,007 (La. App. 2d Cir. 11/16/16), 210 So.3d 425, 433 n.7 (citing First Guar. Bank , Hammond , La. v. Baton Rouge Petroleum Ctr., Inc., 529 So.2d 834, 840-41 (La. 1987)). A sale through executory process can be attacked, by a direct action filed after the sale has been completed, for defects in the proceedings that are substantive in character and that strike at the foundation of the executory proceeding. Chase Home Fin., LLC v. Vance , 2015-115 (La. App. 5th Cir. 10/14/15), 177 So.3d 136, 138, writ denied, 2015-2180 (La. 2/5/16), 186 So.3d 1166. Mindful that substantive defects are those based solely on substantive defects in the executory proceeding, such as fraud, lack of notice, or ill practices by the creditor, see Gulf Coast Bank & Trust Co. v. Warren , 2012-1570 (La. App. 4th Cir. 9/18/13), 125 So.3d 1211, 1217, we find no merit in Dodson's contention that he is entitled to nullity relief for alleged procedural defects in the executory process despite the filing of the proces verbal and the recordation of the sale in the conveyance records by the sheriff as set forth in La. R.S. 13:4112.
In his final challenge of the trial court's dismissal of his nullity claim, Dodson maintains that the property description attached to the mortgage is incorrect, and that he never intended to mortgage all of his property to secure the loan. Thus, he urges that this error supports nullity of the sale.
Dodson testified that in 1972, the 11.985-acre tract identified as Tract B, which was subject to the mortgage in favor of Brame, was subdivided into two smaller tracts, Tracts B1 and B2.
Consent may be vitiated by, among other things, error. La. C.C. art. 1948. Error vitiates consent only when it concerns a cause without which the obligation would not have been incurred and that cause was known or should have been known to the other party. La. C.C. art. 1949; Peironnet v. Matador Resources Co., 2012-2292 (La. 6/28/13), 144 So.3d 791, 807.
When only one party is in error, that is, when the error is unilateral, there is theoretically no meeting of the minds, but granting relief to the party in error will unjustly injure the interest of the other party if he is innocent of the error. Louisiana courts have often refused relief for unilateral error for this reason unless the unilateral error was known or should have been known to the other party as the reason or principal cause why the party in error made the contract. Peironnet , 144 So.3d at 807-08.
Contractual negligence is a defense to a claim for unilateral error. See Peironnet , 144 So.3d at 811. A prominent factor of the contractual negligence defense is that solemn agreements between contracting parties should not be upset when the error at issue is unilateral, easily detectable, and could have been rectified by a minimal amount of care. See Peironnet , 144 So.3d at 811.
A review of the record shows that the trial court implicitly applied the defense of contractual negligence. Thus, it found that the alleged error in the property description was easily detectable by Dodson and could have been rectified by a minimal amount of care on his part, i.e., by simply reading the document he signed and/or by requesting a change. Dodson did not overcome the presumption that the parties were aware of the contents of writings to which they affixed their signatures and/or bear his burden of proving with reasonable certainty that he was deceived. See Tweedel v. Brasseaux , 433 So.2d 133, 137 (La. 1983) (if a party can read, it behooves him to examine an instrument before signing it); see also Motta v. Brockton , 2016-0089 (La. App. 1st Cir. 9/16/16), 2016 WL 4942325, *4 (unilateral errors in the stated amount, allocation of liability individually to one of two debtors, and provision requiring repayment on demand was insufficient to support rescission of a promissory note). Accordingly, the trial court correctly rejected Dodson's claim that the property description constituted an error sufficient to vitiate his consent and warrant nullity of the sale of the property.
DECREE
For these reasons, the trial court's judgment is affirmed. Appeal costs are assessed against defendant-appellant, Jacques M. Dodson, Sr.
AFFIRMED. McDONALD, J., concurring.
I respectfully concur with the majority opinion for the following reasons.
Mr. Dodson claims the sale of his property via executory process should be nullified due to: (1) a lack of authentic evidence to prove the mortgage and mortgage assignment; (2) lack of notice; and (3) the attachment of an incorrect property description to the mortgage.
Before the property was sold, Mr. Dodson could have raised these defenses and procedural objections to the executory proceeding either through an injunction proceeding to arrest the seizure and sale under LSA-C.C.P. arts. 2751-2754, or a suspensive appeal from the order directing the issuance of the writ of seizure and sale, or both. LSA-C.C.P. art. 2642.
Although Mr. Dodson took neither of the actions described in LSA-C.C.P. art. 2642, he had a third option. A mortgagor who has failed to enjoin the sale of property via executory process, or who did not take a suspensive appeal from the order directing the issuance of the writ of seizure and sale, may bring a direct action to annul the sale based on substantive defects in the executory proceeding, such as fraud, lack of notice, or ill practices by the creditor, provided that the property was adjudicated to and remains in the hands of the foreclosing creditor (which is the case here). First Guaranty Bank, Hammond, La. v. Baton Rouge Petroleum Ctr., Inc., 529 So.2d 834, 840-41 (La. 1987); Reed v. Meaux, 292 So.2d 557, 574-75 (La. 1973) (Tate, J., concurring); Nationstar Mtg. LLC v. Parham, 51,102 (La. App. 2 Cir. 2/15/17), 216 So.3d 231, 235, writ denied, 17-0460 (La. 5/1/17), 220 So.3d 744 ; Vance v. Federal Nat. Mtg. Ass'n, 17-219 (La. App. 5 Cir. 12/20/17), ___So.3d.___, ___, 2017 WL 6503796 *3; Walter Mtg. Co., LLC v. Turner, 51,007 (La. App. 2 Cir. 11/16/16), 210 So.3d 425, 433. Also see Knox v. West Baton Rouge Credit, Inc., 08-1818 (La. App. 1 Cir. 3/27/09), 9 So.3d 1020, 1024. However, under LSA-R.S. 13:4112, once the sheriff executing the foreclosure files either the proces verbal of the sale or files the sale for recordation in the conveyance records, the mortgagor cannot attack the sale based on the lack of authentic evidence or as to minor defects of form or procedure. Vance, 2017 WL 6503796 *3; Walter Mtg. Co., LLC, 210 So.3d at 433; Gulf Coast Bank and Trust Co. v. Warren, 12-1570 (La. App. 4 Cir. 9/18/13), 125 So.3d 1211, 1217.
Based on First Guaranty Bank, Reed, and cases that followed them, as well as LSA-R.S. 13:4112, it appears the trial court correctly dismissed Mr. Dodson's nullity petition. Under LSA-R.S. 13:4112's express terms, Mr. Dodson could not raise the lack of authentic evidence as a defense, because he did not do so before the June 24, 2010 filing of the act of sale in the conveyance records. Under Reed, Mr. Dodson could raise a lack of notice as a defense, because such is a substantive defect that raises due process concerns. See Security Homestead Ass'n v. Fuselier, 591 So.2d 335, 340-41 (La. 1991). But, the trial court rejected Mr. Dodson's lack-of-notice defense based on its findings that Mr. Dodson had actual notice of the foreclosure proceeding and that appointment of the curator was proper. The record provides a reasonable basis for these factual findings. Lastly, even if an incorrect property description constitutes a substantive defense in the executory proceeding, the trial court determined that the alleged incorrect description here was not due to mutual error or fraud, and if there was error, it was solely on Mr. Dodson's part, and, as such, he could not use this to nullify the sale. I see no error in the trial court's decision on this issue either.
Thus, although I disagree with the majority's characterization of all of Mr. Dodson's objections as procedural, as discussed in footnote 5, I concur with the majority opinion, because I believe the trial court correctly dismissed Mr. Dodson's nullity petition.