Edward Ralph Spigener v. Debbie Gayle Spigener, Christopher Ryan Spigener, and Debra Lynn Spigener

• Court: Louisiana Court of Appeal
• Decided: November 15, 2023
• Docket: 55,276-CA
• Status: Published

Opinion

Judgment rendered November 15, 2023. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.

No. 55,276-CA

COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA

*****

EDWARD RALPH SPIGENER Plaintiff-Appellant

versus

DEBBIE GAYLE SPIGENER, Defendants-Appellees CHRISTOPHER RYAN SPIGENER, AND DEBRA LYNN SPIGENER

Appealed from the Second Judicial District Court for the Parish of Claiborne, Louisiana Trial Court No. 42688

Honorable Walter Edward May, Jr., Judge

COLVIN, SMITH, MCKAY AND BAYS Counsel for Appellant By: Daniel N. Bays, Jr.

LAW OFFICES OF CHRIS L. BOWMAN Counsel for Appellees By: Chris L. Bowman

Before STONE, MARCOTTE, and ELLENDER, JJ.

ELLENDER, J., concurs with written reasons. STONE, J.

This case arises from the second Judicial District Court, the

Honorable Walter May presiding. The plaintiff-appellant is Edward R.

Spigener (“Edward”). The defendants-appellees are Debbie G. Spigener

(“Debbie”), Christopher Spigener (“Christopher”), and Debra Spigener

(“Debra”).1

FACTS AND PROCEDURAL HISTORY

Edward sues in the capacity of mortgagee/creditor on a “collateral

mortgage note,” payable to “order of bearer,” made by the defendants on

January 22, 2015. On June 3, 2022, Edward brought suit to foreclose using

executory process; he filed a verified petition and attached the collateral

mortgage note and a “collateral mortgage” as exhibits, but did not attach any

handnotes or other evidence of the actual amount of outstanding debt.

Nonetheless, Edward initially obtained a writ of seizure and sale. The

sheriff’s sale of the encumbered property was scheduled, but before it

occurred, Debbie filed an exception of no cause of action and a motion for

preliminary injunction, and the trial court signed a judgment purporting to

grant a preliminary injunction against the sheriff’s sale. Debbie also filed an

exception of prescription in this court.

DISCUSSION

Decretal language

Procedurally, the defense in an executory proceeding has only two

available avenues: (1) suspensive appeal from the order directing the

1 At oral argument, counsel indicated that Chris is the son of Edward and Debra, and is or formerly was married to Debbie. Counsel further stated that Chris and Debbie are or were recently in divorce proceedings. However, these matters are not in the record and form no part of the basis of this ruling. issuance of the writ of seizure and sale; or (2) injunction against the seizure

and sale. La. C.C.P. art. 2642. The defense may pursue either or both of

these. Id.

The defense in this case sought a preliminary injunction (but did not

file a suspensive appeal). Accordingly, the judgment on the preliminary

injunction must have decretal language sufficient for that form of relief.

“A[n] appealable judgment must contain the proper decretal language. The

judgment must name the party against whom and the party in favor of whom

the ruling is ordered, as well as the relief denied or granted.” Maqubool v.

Sewerage & Water Bd. of New Orleans, 2018-0572 (La. App. 4 Cir.

11/14/18), 259 So. 3d 630, 632. La. C.C.P. art. 3605 sets forth the decretal

language requirements for injunctions:

An order granting either a preliminary or a final injunction or a temporary restraining order shall describe in reasonable detail, and not by mere reference to the petition or other documents, the act or acts sought to be restrained. The order shall be effective against the parties restrained, their officers, agents, employees, and counsel, and those persons in active concert or participation with them, from the time they receive actual knowledge of the order by personal service or otherwise.

Thus, the judgment granting injunction must reasonably identify on its face:

(1) the act or acts restrained; and (2) the party or parties restrained. To

restrain an act relating to a certain immovable, that immovable must be

reasonably identified on the face of the judgment. Delta Duck Club v.

Barrios, 135 La. 357, 65 So. 489 (1914) (“to enjoin a person from going

upon a tract of land the boundaries of that tract of land must be given with

precision”); Dassau v. Seary, 158 So. 2d 243, 245 (La. Ct. App. 1963) (the

appellate court, in issuing injunction against sheriff’s sale of immovable

property, included full legal description of the property); Fed. Nat. Mortg. 2 Ass’n v. Williams, 427 So. 2d 640 (La. Ct. App. 1983) (the appellate court,

in issuing injunction against mortgagee which had purchased the subject

immovable property at sheriff’s sale, included full legal description of the

immovable). 2

The judgment in this case merely states that “the Sheriff’s sale is

enjoined from proceeding.” It provides no identification of the immovable

property whatsoever, and therefore fails to reasonably identify the act

restrained on its face. This lack of decretal language renders the purported

judgment a non-appealable non-judgment. We have no choice but to

remand.

Exception of prescription

In light of the fact that injunction against the sheriff’s sale is the only

avenue of relief invoked by the plaintiff, the exception of prescription can

serve only as a ground for the injunction. Therefore, it must be remanded as

part and parcel of the injunction proceeding.

CONCLUSION

The lack of an appealable judgment places this case outside the

jurisdiction of this court. Therefore, this case is REMANDED for further

proceedings.

2 Also, for comparison, La. C.C.P. art. 1919 provides that “[a]ll final judgments which affect title to immovable property shall describe the immovable with particularity.” Though article 1919 only applies to final judgments, not interlocutory judgments such as preliminary injunctions, the rationale is the same. 3 ELLENDER, J., concurring.

I respectfully concur with the majority finding that the judgment

issued lacks the necessary specificity required by La. C.C.P. art. 3605;

however, I write further to add clarity and direction on remand that this

technical, but fatal, procedural error should not diminish the substantive

finding of the trial court. In my view, seizure and sale by executory process

should not be allowed under these facts because the petition did not include

the handnote or pledge agreement evidencing the underlying debt that this

collateral mortgage secured. La. C.C.P. art. 2637(C) provides that the

enforcement of a collateral mortgage can be proved by providing, along with

the verified petition, “the note, bond, handnote, or other evidence

representing the actual indebtedness, attached as an exhibit.” (Emphasis

added.) A collateral mortgage note is not the actual indebtedness, the

handnote is, and the pledge agreement ties that handnote to the collateral

mortgage and collateral mortgage note. As this court stated in Alaska

Southern Partners v. Baxley, 35,206 (La. App. 2 Cir. 10/31/01), 799 So. 2d

680: “A collateral mortgage note standing alone is virtually meaningless, as

it has no intrinsic value and evidences no debt or obligation actually owed

by or to anyone.” Without evidence of the actual indebtedness, executory

process should not be available to enforce a collateral mortgage.