Opinion
2016 CA 0919
04-18-2017
NEWTEK SMALL BUSINESS FINANCE, LLC AS SUCCESSOR IN INTEREST BY MERGER TO NEWTEK SMALL BUSINESS FINANCE, INC. v. ROBERT A. BAKER AND ELSA M. BAKER
Jill S. Willhoft New Orleans, Louisiana Counsel for Plaintiff-Appellee Newtek Small Business Finance, LLC Andrew T. Lilly New Orleans, Louisiana Counsel for Defendants-Appellants Robert A. Baker and Elsa M. Baker
NOT DESIGNATED FOR PUBLICATION ON APPEAL FROM THE TWENTY-SECOND JUDICIAL DISTRICT COURT
NUMBER 2016-10884, DIVISION H, PARISH OF ST. TAMMANY
STATE OF LOUISIANA HONORABLE ALLISON H. PENZATO, JUDGE Jill S. Willhoft
New Orleans, Louisiana Counsel for Plaintiff-Appellee
Newtek Small Business Finance, LLC Andrew T. Lilly
New Orleans, Louisiana Counsel for Defendants-Appellants
Robert A. Baker and Elsa M. Baker BEFORE: HIGGINBOTHAM, THERIOT, AND CHUTZ, JJ.
Disposition: MOTION TO DISMISS APPEAL GRANTED
CHUTZ, J.
Defendants, Robert and Elsa Baker, appeal the trial court's judgment, which granted a preliminary injunction, revoking a writ of seizure and enjoining the sheriff from selling immovable property. The judgment also denied the Bakers' request to convert the executory proceedings initiated by plaintiff, Newtek Small Business Finance, LLC (Newtek), to ordinary proceedings. Because the Bakers' complaints do not relate to the preliminary injunction but instead seek review of the trial court's interlocutory ruling denying their request to convert the nature of the proceedings, we grant the motion to dismiss the appeal.
It is undisputed in this appeal that Newtek Small Business Finance, LLC is successor to Newtek Small Business Finance, Inc.
On March 7, 2016, Newtek filed a petition for executory process naming the Bakers as defendants and averring entitlement to an immediate writ of seizure and sale of the Bakers' immovable property to satisfy outstanding debts owed by Baker Sales, Inc. (BSI). According to Newtek, it is the holder of two agreements executed by the Bakers guaranteeing payment and performance of promissory notes owed by BSI. The petition further averred that Newtek holds two duly recorded conventional mortgages executed by the Bakers. According to the allegations, Newtek secured a first mortgage on the land and improvements on residential property located at 28480 Roan Lane in Lacombe, Louisiana, situated on Lot 128 in the Lacombe Harbor Subdivision. Newtek also claimed an interest in adjacent property, Lot 127 in the Lacombe Harbor Subdivision, which the Bakers owned in their personal capacities. Newtek requested seizure and sale of the property to satisfy the total outstanding balance.
Newtek specifically alleged outstanding principal balances of $727,949.76 and $1,157,925.15; outstanding interest balances of $192,133.19 and $172,337.86; and that the Bakers were liable for NSF fees totaling $30,052.43, for a total outstanding balance of $2,280,398.39. --------
On March 14, 2016, a writ of seizure was issued directing the St. Tammany Parish Sheriff to seize and sell, without appraisement, Lot 127 and Lot 128 to satisfy the outstanding balance. The Bakers filed a petition for an injunction to arrest the seizure and sale of their immovable property, asserting that because Newtek had already foreclosed on mortgages which secured the same debt without appraisal, it was barred under the Louisiana Deficiency Judgment Act (LDJA), see La. R.S. 13:4106, from further collection or enforcement attempts. Alternatively, the Bakers pointed out that they were entitled to an injunction because the executory procedure had not been properly followed. See La. C.C.P. art. 2751 (providing that the defendant in the executory proceeding may arrest the seizure and sale of the property by injunction when, among other things, the debt secured by the security interest is legally unenforceable or if the procedure required by law has not been followed).
After a hearing, the trial court granted a preliminary injunction on the alternative basis, finding that the procedure required by law for an executory proceeding has not been followed because Newtek had requested a writ of seizure and sale on both Lot 127 and Lot 128 but its guaranty and conventional mortgage agreements only included the land and improvements on the residential property located at 28480 Roan Lane in Lacombe situated on Lot 128. The trial court expressly denied a request by the Bakers to have the executory proceeding converted to an ordinary proceeding.
On June 1, 2016, the trial court signed a judgment that denied the request to convert the proceeding from executory to ordinary; dissolved the order approving of the use of executory process; revoked the writ of seizure; preliminarily enjoined the sale of Lot 127 and Lot 128; and ordered the St. Tammany Parish Sheriff to restore possession of the immovable property to the Bakers. The Bakers appealed the judgment.
In their appellate brief, the Bakers do not challenge the trial court's order enjoining the sale of the property. Instead, they assert that the trial court incorrectly found they had failed to make a prima facie case entitling them to an injunction on the basis that Newtek's security interest was legally unenforceable. Thus, the Bakers maintain the trial court erred in its conclusion denying their request to have the executory proceeding converted to an ordinary proceeding.
After this appeal was lodged, Newtek filed a motion to dismiss, urging that the trial court's conclusion that denies the request to convert the nature of the proceedings is an interlocutory ruling not subject to an appeal. And because the Bakers do not raise any complaint seeking to modify the issuance of the preliminary injunction, Newtek contends they are not entitled to an appeal.
La. C.C.P. art. 3612B provides that an appeal may be taken as a matter of right from an order or judgment relating to a preliminary injunction. An appeal is defined as "the exercise of the right of a party to have a judgment of a trial court revised, modified, set aside, or reversed by an appellate court." See La. C.C.P. art. 2082.
Here, the Bakers have not requested that this court revise, modify, set aside, or reverse the trial court's issuance of injunctive relief. They ask that we review the trial court's denial of the request to convert the nature of the proceedings, which necessarily entails a determination of the issue of whether Newtek is precluded from foreclosing on the property used to secure the guaranty and the conventional mortgage agreements under the provisions of the LDJA. Thus, insofar as its relation to the preliminary injunction, the Bakers' complaint challenges the reasons the trial court granted relief; it does not seek a modification of the relief itself. Mindful it is the judgment, not the reasons for judgment, that we review on appeal, see Wooley v. Lucksinger , 2009-0571 (La. 4/1/11), 61 So.3d 507, 572, we find that the Bakers are not entitled to appeal the trial court's order granting their request for injunctive relief under La. C.C.P. art. 3612B. Accordingly, the motion to dismiss the appeal is granted.
The Bakers ask in the alternative that this court review the trial court's denial of the conversion of the nature of the proceedings from executory to ordinary under our supervisory jurisdiction. Because the trial court dissolved the order approving of the use of executory process and there has been no viable amendment of Newtek's petition for executory proceedings, the issue of whether the Bakers are entitled to a conversion of the nature of the proceedings is premature and does not at this time raise a justiciable controversy. See In re E.W., 2009-1589 (La. App. 1st Cir. 5/7/10), 38 So.3d 1033, 1036-37. (Cases submitted for adjudication must be justiciable, ripe for decision, and not brought prematurely.) Therefore, we decline to exercise supervisory jurisdiction to review the propriety of the trial court's denial of the Bakers' request to convert the executory proceeding to an ordinary proceeding.
Although Newtek requested that this court assess the costs of the injunction proceeding in the trial court against the Bakers as damages for frivolous appeal, they failed to brief the issue and, therefore, it is considered abandoned. See La. U.R.C.A. Rule 2-12.4B(4) (the court may consider as abandoned any issue for review which has not been briefed).
DECREE
For these reasons, we grant the motion to dismiss and deny damages for frivolous appeal. Costs of this appellate review are assessed against defendants, Robert and Elsa Baker.
MOTION TO DISMISS APPEAL GRANTED; RELIEF REQUESTED IN ANSWER DENIED.