Johnson v. European Motors-Ali

129 So. 3d 697, 2013 WL 6091492, 2013 La. App. LEXIS 2391
CourtLouisiana Court of Appeal
DecidedNovember 20, 2013
DocketNo. 48,513-CA
StatusPublished
Cited by9 cases

This text of 129 So. 3d 697 (Johnson v. European Motors-Ali) 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
Johnson v. European Motors-Ali, 129 So. 3d 697, 2013 WL 6091492, 2013 La. App. LEXIS 2391 (La. Ct. App. 2013).

Opinion

PITMAN, J.

1 ]Appellee, Clemmie Johnson, was awarded a money judgment against Appellant, European Motors-Ali (Owner)1 (“Mr. Moghimi”). In the process of having the judicial mortgage cancelled, Mr. Moghimi filed several motions, including a rule to show cause and for damages, motions for written reasons, a motion to continue, a motion to compel discovery, a motion for contempt and two motions for new trial. Mr. Moghimi appeals the trial judge’s denials of his motions. For the following reasons, we affirm.

FACTS

Mr. Moghimi owns European Motors, a business that sells and installs car parts and also sells used cars. European Motors sold Mr. Johnson a motor and installed it in his car. After this installation, Mr. Johnson’s car no longer worked properly. Mr. Johnson filed suit against Mr. Moghi-mi, both of whom appeared pro se. The trial judge awarded Mr. Johnson $8,400 in damages — $8,400 for vehicle repairs, $2,500 for loss of use and $2,500 for mental anguish. Court costs were assessed to Mr. Moghimi. Mr. Moghimi filed an untimely appeal, and the appeal was dismissed. Johnson v. European Motors, 44,315 (La.App.2d Cir.3/24/09) (unpub. writ order).

On August 16, 2012, Mr. Moghimi filed a petition and rule requesting that Mr. Johnson show cause why the judicial mortgage should not be cancelled and why Mr. Johnson should not have to pay damages, costs and attorney fees for his refusal to cancel the judgment. In this petition, |2Mr. Moghimi alleged that he paid the judgment in full, but that the judicial mortgage had not been cancelled. This matter was set for a hearing on October 11, 2012.

At the October 11 hearing, the trial judge addressed and denied a motion to continue filed by Mr. Moghimi under an incorrect docket number. The trial judge then addressed Mr. Moghimi’s motion to compel discovery. Mr. Johnson acknowledged that the judgment had been paid in full. The trial judge did not award damages to Mr. Moghimi and ordered Mr. Johnson to file a motion of dismissal within ten days. The trial judge explained if Mr. Johnson did not timely file the motion, she would grant Mr. Moghimi’s motion for damages and also award court costs. That same day, Mr. Johnson filed a motion of dismissal, alleging that the judgment was paid in full. The trial judge signed an order on October 12, 2012, dismissing the action.

On October 11, 2012, Mr. Moghimi filed a motion for written reasons and notice of judgment requesting that the judge provide written reasons for the decision orally rendered in court that day. The trial judge filed a •written ruling on October 19, 2012.

On October 18, 2012, Mr. Moghimi filed a motion for new trial, arguing that the trial court’s judgment was made contrary to the laws and evidence. In a memorandum in support of the motion, Mr. Moghi-mi alleged that he was not allowed to prove damages, that he should have been awarded damages and that Mr. Johnson had not cancelled the mortgage.

[700]*700|3On October 25, 2012, a hearing was held to determine if Mr. Johnson complied with the court’s order to file a motion of dismissal. The trial judge stated that both a motion to dismiss and a request for cancellation were filed into the record. Noting that Mr. Johnson complied with the court’s order, the trial judge denied and dismissed Mr. Moghimi’s petition and rule. The trial judge cast the costs of filing the petition and rule upon Mr. Johnson.2 The trial judge also filed a written ruling.

On October 25, 2012, Mr. Moghimi filed a motion and order of appeal, alleging that the trial judge’s denials of his motion for continuance, motion to compel, rule for damages and costs, motion for written reasons and motion for new trial caused him irreparable harm, i.e., that he was unable to refinance his home mortgage and to obtain business loans.

On November 2, 2012, Mr. Moghimi filed a rule for contempt, arguing that, although Mr. Johnson filled out the proper paperwork to cancel the mortgage, he refused to record the cancellation and is, therefore, in contempt of the court’s October 11 order.

At a hearing on December 12, 2012, the trial judge addressed Mr. Moghimi’s motion for new trial and rule for contempt. During this hearing, Mr. Johnson explained the steps he took to cancel the mortgage, i.e., he went to the clerk of court’s office, he received help in the clerk’s office with filling out paperwork, he had the paperwork notarized and he mailed the paperwork to the clerk of court’s office for filing. The trial judge |,<denied both motions. On December 17, 2012, Mr. Moghimi filed a motion for written reasons and written findings of fact and written judgment. The trial judge filed written reasons for judgment on December 27, 2012, explaining that Mr. Moghimi did not prove that the court’s judgment was contrary to law and evidence and did not prove that Mr. Johnson failed to act in accordance with the court’s order.

A cancellation certificate and recording page were both filed into the record and certify that the judicial mortgage was can-celled on December 12, 2012.

On December 17, 2012, Mr. Moghimi filed a motion for new trial, alleging newly discovered evidence, i.e., that Mr. Johnson cannot read. The trial judge denied Mr. Moghimi’s motion on December 21, 2012.

On December 17, 2012, Mr. Moghimi filed a motion and order for devolutive appeal, appealing the trial judge’s December 12, 2012 judgment.

DISCUSSION

Petition and Rule, Damages and Costs

Mr. Moghimi argues that the trial judge erred in denying his petition and rule filed August 16, 2012, and in denying him the right to prove damages and costs. Mr. Moghimi contends that he is entitled to damages for the negative impact on his credit and should be awarded costs and expenses for his efforts to have Mr. Johnson cancel the mortgage. He explains that he was unable to refinance the mortgage on his home and obtain business loans. He further argues that the trial judge erred in refusing to allow him to introduce evidence of damages, e.g., a “turn down Isletter” from the mortgage company, and in allowing Mr. Johnson ten days to cancel [701]*701the mortgage. Mr. Moghimi also alleges that he incurred approximately $800 in costs — sending certified letters, filing motions and requesting subpoenas for a deposition — -when attempting to have Mr. Johnson cancel the mortgage.

The cancellation of a judicial mortgage is governed by La. C.C. arts. 8387 and 3366 and La. R.S. 9:5169. Article 3337 states: “The recorder shall cancel a mortgage or privilege from his records in the manner prescribed by law.” Article 3366 states:

A. The recorder of mortgages shall cancel, in whole or in part and in the manner prescribed by law, the recordation of a mortgage or privilege upon receipt of a written request for cancellation in a form prescribed by law and that:
(1) Identifies the mortgage or privilege by reference to the place in the records where it is recorded; and
(2) Is signed by the person requesting the cancellation.
B. The effect of recordation of the instrument ceases upon cancellation by the recorder pursuant to the provisions of this Article.

La. R.S. 9:5169 states:

A.

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Cite This Page — Counsel Stack

Bluebook (online)
129 So. 3d 697, 2013 WL 6091492, 2013 La. App. LEXIS 2391, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-european-motors-ali-lactapp-2013.