Goldking Properties Co. v. Primeaux

477 So. 2d 76
Supreme Court of Louisiana·Decided October 21, 1985·No. 85-CC-0335·Published·Cited by 6 cases

Opinion

477 So.2d 76 (1985)

GOLDKING PROPERTIES COMPANY
v.
Roland U. PRIMEAUX, in his capacity as Clerk of Court and Ex Officio Recorder of Mortgages for the Parish of Cameron, and Florence Streater Taussig, et al.

No. 85-CC-0335.

Supreme Court of Louisiana.

October 21, 1985.

William E. Shaddock, Bernard H. McLaughlin, Jr., William B. Monk, Stockwell, Sievert, Viccellio, Clements & Shaddock, Lake Charles, for defendant-applicant.

J.B. Jones, Jones, Jones, & Alexander, Cameron, John M. McCollam, Philip N. Asprodites, Andrew McCollam, III, Gordon, Arata, McCollam, Stuart & Duplanits, New Orleans, for respondents.

MARCUS, Justice.

On August 13, 1984, a money judgment was rendered in the district court, after a *77 trial on the merits, in favor of Florence Streater Taussig and others and against Goldking Properties Company.[1] The same day, plaintiffs in that action recorded the judgment in the mortgage records for the Parish of Cameron. Subsequently, Goldking perfected a suspensive appeal of the judgment. An appeal bond was provided in the amount of $1,500,000. Goldking, which engages in the exploration and development of oil and gas prospects, then sought to sell an interest in certain of its producing properties in this state. The purchasers withheld part of the purchase price pending resolution of the litigation, contending that the recorded judgment created a cloud on the title of the property. Goldking petitioned for a writ of mandamus directing the clerk of court to cancel the judgment from the mortgage records. The trial court denied Goldking's request. The court of appeal reversed and ordered that the recorded judgment be cancelled. On application of Taussig and others, we granted certiorari to review the correctness of that decision.[2]

The sole issue presented for our consideration is whether a judgment recorded in the mortgage records can be cancelled after a suspensive appeal from that judgment has been perfected.

The Code of Civil Procedure sets forth the provisions for suspensive appeals. It defines such an appeal as one that "suspends the effect or the execution of an appealable order or judgment." La.Code Civ.P. art. 2123. Neither the Code of Civil Procedure nor the Civil Code, however, defines what constitutes an "execution" or an "effect" of a judgment.[3]

The word "effect" was added to the definition of a suspensive appeal in 1960 when the Code of Civil Procedure was enacted. The earlier Codes of Practice simply provided that a suspensive appeal "shall stay execution and all further proceedings" until a definitive judgment could be rendered on the appeal.[4] In a number of cases before 1960, this court sought to determine what constituted "an execution" of a judgment. A very early case held that the recordation of a judgment was not an execution of it.[5] Later, in a series of cases from 1903 until 1927, this court concluded that the recordation of a judgment, in fact, did constitute an execution of that judgment. A judgment debtor, therefore, could cancel the judgment from the mortgage records after a suspensive appeal from the judgment had been perfected.[6]

*78 If we were to find that recordation of a judgment was an execution of it, as did the previous decisions of this court, then under La.Code Civ.P. art. 2252, a judgment could not be recorded during the delay for a suspensive appeal, even if no suspensive appeal were taken.[7] That article provides that the judgment creditor may proceed with the execution of a judgment only after the delay for a suspensive appeal has elapsed. This issue recently was addressed by the Louisiana Legislature which amended La.Code Civ.P. art. 2252 to provide:

A judgment creditor may proceed with the execution of a judgment only after the delay for a suspensive appeal therefrom has elapsed; however, recordation of a judgment in the mortgage records prior to the lapsing of the delay for a suspensive appeal does not begin proceedings for the execution of the judgment.

1985 La. Acts No. 523 (portion added in 1985 is underlined). Although the amendment postdates this case, and therefore does not apply to it, we find it unnecessary to decide whether the recordation of a judgment constituted an execution of that judgment prior to the amendment. If recordation were an execution of a judgment before the 1985 amendment, the recorded judgment would be suspended by the perfection of a suspensive appeal. Even if recordation did not constitute an execution of the judgment, it would still be suspended because recordation is an effect of a judgment. We find that when the definition of a suspensive appeal was changed in 1960,[8] the legislature intended the added word "effect" to have a meaning independent from the word "execution." While the 1985 amendment to article 2252 provides that recordation of a judgment is not an execution of it, the recordation still constitutes an effect of that judgment.[9] Since the effect of the judgment is suspended during the pendency of a suspensive appeal, the recorded judgment is null and void during that period. A judgment creditor can secure the cancellation of the judgment after he has perfected a suspensive appeal.

*79 This result accords with the definition of a judicial mortgage in the Civil Code.

La.Civ.Code art. 3321 provides:
The judicial mortgage is that resulting from judgment [judgments] (whether these be rendered on contested cases or by default, or whether they be final or provisional), in favor of the person obtaining them.
La.Civ.Code art. 3322 provides:
The judicial mortgage takes effect from the day the judgment is recorded in the manner hereinafter directed.

According to these articles, a provisional, as well as a final, judgment can be recorded, and the resulting judicial mortgage has an effect from the date of recordation. The Code of Civil Procedure complements the definition of a judicial mortgage by providing that this effect of the judgment, its recordation, is suspended upon perfection of a suspensive appeal.

Our holding also provides the most equitable result. The bond posted to perfect a suspensive appeal amply protects the judgment creditor. Although the judgment creditors in the instant case complain that the amount of the bond is inadequate, they have not sought to test the sufficiency of the bond in the trial court. If a judgment debtor who perfected a suspensive appeal from a recorded judgment was not allowed to obtain cancellation of the judicial mortgage, he would be placed in an intolerable position. Not only would he have to post a bond, but all of his immovable property in any parish where the judgment was recorded would be essentially taken out of commerce. Therefore, equity, as well as the Civil Code and the Code of Civil Procedure, mandates that a judgment debtor be allowed to cancel a judicial mortgage after a suspensive appeal from the judgment has been perfected.

This holding, however, may seem in conflict with La.Civ.Code arts. 3323, 3324 and 3381.[10] These articles contemplate that a recorded judgment will remain on the mortgage records even after an appeal has been taken.

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Goldking Properties Co. v. Primeaux, 477 So. 2d 76 (La. 1985).

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