Baker v. Baker

960 So. 2d 1264, 2007 WL 1760885
CourtLouisiana Court of Appeal
DecidedJune 20, 2007
Docket42,182-CA
StatusPublished
Cited by7 cases

This text of 960 So. 2d 1264 (Baker v. Baker) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Baker v. Baker, 960 So. 2d 1264, 2007 WL 1760885 (La. Ct. App. 2007).

Opinion

960 So.2d 1264 (2007)

Carol Ann BAKER, Plaintiff-Appellant,
v.
Christopher BAKER, Defendant.

No. 42,182-CA.

Court of Appeal of Louisiana, Second Circuit.

June 20, 2007.

*1265 Cook, Yancey, King & Galloway by Bernard S. Johnson, Michael K. Leachman, Shreveport, for Appellant.

Downer, Hammond & Wilhite, L.L.C. by Kevin W. Hammond, Shreveport, for Appellee/Intervenor, Gimme Sum of Louisiana, Inc.

Before BROWN, PEATROSS & LOLLEY, JJ.

PEATROSS, J.

The underlying action in this appeal was for executory process on a note and security agreement executed between mother, Carol Ann Baker, and son, Christopher Baker. Ms. Baker loaned Christopher funds to open and operate a restaurant franchise of Gimme Sum of Louisiana, Inc. ("Gimme Sum") in Bossier City. When Christopher defaulted on the note, Ms. Baker filed a Petition for Executory Process and Gimme Sum intervened seeking *1266 to enjoin the seizure and sale of certain restaurant equipment, asserting ownership of the collateral and alleging that the Bakers' loan documents were fraudulent. The petition for intervention and injunction was subsequently denied. Ms. Baker then sought an order for contempt and sanctions against Gimme Sum and three of its corporate representatives, which was subsequently denied by the court. Ms. Baker appeals from that adverse denial. For the reasons stated herein, we affirm.

FACTS

Ms. Baker loaned her son, Christopher, approximately $185,000 to help him open a Gimme Sum franchise restaurant in Bossier City. According to Ms. Baker, the funds were loaned during the period from September 2004 to November 2005. In December 2005, Christopher executed a promissory note calling for repayment of $122,173. A security agreement was also executed by Christopher, and signed by Ms. Baker as the secured party, specifically listing as collateral certain items of equipment located in the restaurant.

The franchise never opened with Christopher as owner. On February 24, 2006, during the construction of the premises, Gimme Sum evicted Christopher. Following the eviction, Gimme Sum assumed occupancy of the premises and used the equipment therein to open and operate the restaurant.

Ms. Baker had drafted the original note and security agreement, which, apparently, did not comply with the requirements for executory process in Louisiana. When Ms. Baker realized this problem, she had Christopher execute a "Reaffirmed Note" and "Reaffirmed Security Agreement" in order to comply with Louisiana law. Christopher ultimately defaulted on the note and, on April 10, 2006, Ms. Baker filed a Petition for Executory Process based on the reaffirmed instruments. That same day, the court issued a Writ of Seizure and Sale. Certain items were constructively seized on April 28, 2006, including items purchased by Christopher during construction of the restaurant.

Two weeks prior to the scheduled date of the sheriff's sale, on June 28, 2006, Gimme Sum filed a Petition of Intervention and Request for Preliminary Injunction to Arrest Seizure and Sale, alleging ownership of the equipment. It asserted that Christopher had removed certain items of equipment from the premises and that Gimme Sum had replaced the equipment. Gimme Sum further alleged that the loan documents between Ms. Baker and her son were fraudulent and a product of collusion. As a result of this filing, the sheriff's sale was upset.

At the hearing of the intervention proceeding, no evidence was taken and the trial court denied the relief sought in Gimme Sum's petition on the basis that the law of executory process provided a remedy to Gimme Sum and, therefore, intervention was not the appropriate procedure for Gimme Sum's redress. The trial court opined that La. C.C.P. art. 2751[1] governed the case; and, if the seizure was later determined to be wrongful, Gimme Sum would be afforded the remedies provided by law for wrongful seizure. The sheriff's sale was rescheduled for August 9, 2006. No appeal was taken from the denial of the petition for injunction.

*1267 Ms. Baker then filed a motion for contempt and sanctions against Gimme Sum on the following grounds (verbatim):

1. Gimme Sum's allegations in its petition of intervention and request for preliminary injunction were not "well grounded in fact" and were made without performing a reasonable inquiry in violation of La.Code Civ. P. Art. 863;
2. Gimme Sum produced falsified documents in response to discovery requests in violation of La.Code Civ. P. Art. 1420; and
3. Gimme Sum provided false testimony in its deposition in violation of La.Code Civ. P. Art. 1420.

Ms. Baker sought sanctions under articles 863(D) and 1420(D), including the entire cost of defending the intervention and proceeding with the motion for sanctions and contempt. She further sought to have the court find Gimme Sum's Vice President of Operations, Alan Benjamini, and two of its representatives, John deVries and Ken Chaffee, in contempt under La. R.S.13:4611(1)(d). She alleged that the deposition testimony of these Gimme Sum representatives was false regarding the removal and replacement of certain restaurant equipment. Ms. Baker further alleged that Gimme Sum produced false documents which Gimme Sum claimed supported its ownership of certain equipment. Finally, she emphasized that none of the representatives of Gimme Sum provided any testimony in support of its allegation that the note and security agreement executed by her and Christopher were fraudulent or the product of collusion.

The trial court denied Ms. Baker's motion for sanctions and contempt stating that it was not "convinced that the intervenors knowingly offered false testimony or documents." This appeal is from that ruling.

DISCUSSION

Applicable law

Ms. Baker relies on the following codal articles and statutes:

La. C.C.P. art. 863, Signing of pleadings, effect:

B. Pleadings need not be verified or accompanied by affidavit or certificate, except as otherwise provided by law, but the signature of an attorney or party shall constitute a certification by him that he has read the pleading; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact; that it is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.
* * *
D. If, upon motion of any party or upon its own motion, the court determines that a certification has been made in violation of the provisions of this Article, the court shall impose upon the person who made the certification or the represented party, or both, an appropriate sanction which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, including a reasonable attorney's fee.

La. C.C.P. art. 1420, Signing of discovery requests, responses, or objections:

D. If, upon motion of any party or upon its own motion, the court determines that a certification has been made in violation of the provisions of this Article, the court shall impose upon the person who made the certification *1268

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Cite This Page — Counsel Stack

Bluebook (online)
960 So. 2d 1264, 2007 WL 1760885, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baker-v-baker-lactapp-2007.