Fabacher v. Hammond Dairy Co., Inc.

389 So. 2d 87
CourtLouisiana Court of Appeal
DecidedSeptember 19, 1980
Docket11562
StatusPublished
Cited by19 cases

This text of 389 So. 2d 87 (Fabacher v. Hammond Dairy Co., Inc.) 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
Fabacher v. Hammond Dairy Co., Inc., 389 So. 2d 87 (La. Ct. App. 1980).

Opinion

389 So.2d 87 (1980)

Hubert A. FABACHER et al.
v.
HAMMOND DAIRY COMPANY, INC., et al.

No. 11562.

Court of Appeal of Louisiana, Fourth Circuit.

September 19, 1980.

*88 Klein & Rouse, Henry L. Klein, New Orleans, for relators.

Gordon K. Konrad, Metairie, for respondents.

Before SAMUEL, GULOTTA and GARRISON, JJ.

SAMUEL, Judge.

Hubert A. Fabacher, Guerre I. Fabacher, Hubert Fabacher, Jr., the Hubert Fabacher, Jr. Trust, and the Guerre I. Fabacher Trust, seek to foreclose by executory process on a collateral mortgage on immovable property in St. Charles Parish, Louisiana. The mortgage had been given in pledge by Hammond Dairy Company, Inc. to secure a hand note by the other defendant, Vicon, Inc.[1] Both the collateral mortgage note and the hand note are dated January 3, 1977 and each is in the original amount of $350,000. The basis for plaintiffs' suit was Vicon's default by alleged untimely payment of an installment due on December 3, 1979 under the hand note.

Defendants were not notified of the order directing the issuance of the writ of seizure and sale until after the delay allowed by law for suspensive appeals from such orders.[2] On February 1, 1980 defendants filed a petition for an injunction to arrest the seizure and sale and a reconventional demand seeking $50,000 damages for wrongful seizure. In connection therewith, the trial court issued a temporary restraining order prohibiting the sheriff "from proceeding with the sale of the property . . ." and ordering a February 29, 1980 trial on *89 defendants' request for a preliminary injunction. On plaintiffs' motion the trial court continued the hearing on the preliminary injunction to March 10, 1980, and extended the temporary restraining order to that date. On March 7, 1980 plaintiffs filed a general denial to defendants' petition for injunctive relief.

The injunction proceeding was tried on March 10, 1980, and judgment was rendered on March 11, 1980, refusing to grant the preliminary injunction. On the same day the trial judge granted defendants a suspensive appeal and ordered all further proceedings stayed until the appeal had been decided.

On March 11, defendants learned the sheriff planned to proceed with the sale of the property pursuant to the writ of seizure and sale on the next day, March 12. On the morning of March 12, the trial judge denied as "Moot" defendants' request for an order to cancel the sale of the property on the ground that the sheriff acted illegally by advertising and appraising the property because he was forbidden from so acting by the temporary restraining order issued February 1, 1980. On the morning of March 12, plaintiffs filed a motion to dissolve the order of March 11, which granted defendants a suspensive appeal and stay order, and the trial judge set that matter for hearing on the same day. He then rendered judgment revoking the order of suspensive appeal and ordering the sheriff to proceed with the sale of the property on that day.

On the morning of March 12, defendants also filed an application to this court for supervisory writs, and this court ordered the proposed sheriff's sale cancelled and further proceedings stayed. The record was lodged in this court for defendants' devolutive appeal shortly thereafter, and we ordered simultaneous argument of the writ and the appeal.

By motion to dismiss, plaintiffs challenge the jurisdiction of this court. They point out this court's supervisory jurisdiction is limited to matters over which it has appellate jurisdiction, and argue this court has no appellate jurisdiction to hear an appeal from a judgment refusing a preliminary injunction. They further argue there is no right to appeal a judgment denying a preliminary injunction to arrest executory process of a writ of seizure and sale unless a suspensive appeal is taken in limine under C.C.P. Art. 2642.

Article 5, Section 10, of the Constitution of 1974 provides in part that a court of appeal has appellate jurisdiction of all "civil matters decided within its circuit..." and "... supervisory jurisdiction over cases in which an appeal would lie to it." Moreover, Civil Procedure Article 3612 provides in pertinent part as follows:

"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.
An appeal from an order or judgment relating to a preliminary injunction must be taken and a bond furnished within fifteen days from the date of the order or judgment. The court in its discretion may stay further proceedings until the appeal has been decided."

This article allows an appeal of right from a judgment "relating to" a preliminary injunction, and it does not restrict appeals only to judgments which grant injunctive relief. It has been held that a judgment denying a preliminary injunction is one "relating to" it within the meaning of Article 3612 so as to allow an appeal of right from such a denial.[3]

The gist of plaintiffs' argument is that this court has no jurisdiction to hear appeals from denials of preliminary injunctions attempting to stay execution of a writ of seizure and sale, and it has no constitutional *90 authority under Article 5, Section 10, to exercise supervisory jurisdiction over such cases. In support of this argument, plaintiffs cite two lines of cases. The first line stands for the authority that a suspensive appeal under Article 3612, even if accompanied by a stay order, only suspends or stays the injunction proceeding during the pendency of the appeal but has no effect whatever on the executory process proceeding.[4] The rationale of these cases is that the stay of the executory proceeding under Article 3612 would allow a suspensive appeal after the time therefor has passed, and would defeat the purposes of executory process. The other line of cases originate from a time when a suspensive appeal from a preliminary injunction was forbidden by law, the courts felt compelled not to exercise supervisory jurisdiction over cases involving such appeals, and it was either stipulated or apparent from the record that a devolutive appeal would be mooted by the sale of the property.[5]

As stated above, Article 3612 of the Code of Civil Procedure provides for, and gives this court jurisdiction over, appeals taken of right from orders or judgments "relating to" preliminary or final injunctions, and the jurisprudence has determined that a judgment denying a preliminary injunction is appealable of right under that article.[6] We conclude, therefore, that injunction proceedings are appealable to this court if decided within our geographical jurisdiction, and consequently we have supervisory jurisdiction over such cases.

The common element of the two lines of cases cited by plaintiffs is the assumption that by the time an appeal is decided by this court, the writ of seizure and sale will have been executed and the matter thereby rendered moot. Such a situation is not now before us, primarily because it appears from the face of the record the sheriff proceeded to advertise and appraise the property in violation of the trial court's temporary restraining order. This showing alone would justify the exercise of this court's supervisory jurisdiction. Moreover, plaintiffs do not refer to Utah-Louisiana Invest. Co. v. International Dev., Inc.,[7]

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Bluebook (online)
389 So. 2d 87, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fabacher-v-hammond-dairy-co-inc-lactapp-1980.