Succession of Abner L. Tritt v. South Johnson Street Holdings, LLC

• Court: Louisiana Court of Appeal
• Decided: February 3, 2022
• Docket: 2021-CA-0245
• Status: Published

Opinion

SUCCESSION OF ABNER L. * NO. 2021-CA-0245 TRITT * VERSUS COURT OF APPEAL * SOUTH JOHNSON STREET FOURTH CIRCUIT HOLDINGS, LLC * STATE OF LOUISIANA *******

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2020-01678, DIVISION “E” Honorable Omar Mason, Judge ****** JUDGE SANDRA CABRINA JENKINS ****** (Court composed of Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins, Judge Regina Bartholomew-Woods)

Peter S. Title Jack M. Alltmont SESSIONS FISHMAN NATHAN & ISRAEL, L.L.P. 400 Poydras Street, Suite 2550 New Orleans, LA 70130

COUNSEL FOR PLAINTIFF/APPELLEE

DaShawn P. Hayes THE HAYES LAW FIRM, PLC 1100 Poydras Street Suite 1530 New Orleans, LA 70163

COUNSEL FOR DEFENDANT/APPELLANT

MOTION TO DISMISS APPEAL GRANTED; APPEAL DISMISSED FEBRUARY 3, 2022 SCJ RML RBW This appeal arises from an executory proceeding. South Johnson Holdings,

LLC (“South Johnson”) appeals the trial court’s November 24, 2020 judgment

denying its request for a preliminary injunction as moot, and sustaining the

peremptory exception of no cause of action filed by the Succession of Abner L.

Tritt (the “Succession”). While this appeal was pending, the Succession filed a

Motion to Dismiss Appeal, arguing that the appeal should be dismissed as moot.

For the reasons that follow, we grant the Motion to Dismiss and dismiss the appeal

as moot.

FACTUAL AND PROCEDURAL HISTORY

On February 19, 2020, the Succession filed a petition for executory process,

naming South Johnson as the defendant. The Succession alleged that it was the

present holder and owner of a $300,000.00 promissory note executed by South

Johnson and Gerard P. McGovern, jointly, severally and in solido, payable to the

order of Abner L. Tritt and any future holders of the promissory note. The

promissory note was secured by an act or mortgage on property located at 6332

South Johnson Street, New Orleans, Louisiana.

1 On February 19, 2020, the trial court ordered the issuance of a writ of

seizure and sale. The Orleans Parish Sheriff’s Office made several attempts to

serve the writ of seizure and sale to South Johnson through its registered agent,

Gerard P. McGovern.

On May 18, 2020, the Succession filed a motion to appoint a private process

server. After unsuccessful service attempts by the private process server, the

Succession filed a supplemental petition to authorize service of process upon the

Louisiana Secretary of State and for the appointment of an attorney to represent the

absent defendant. The trial court appointed Gerald Calogero (“Mr. Calogero”) as

curator. On September 11, 2020, a writ of seizure and sale was served upon the

Louisiana Secretary of State; and the curator was served on October 9, 2020. After

fulfilling his duties as curator and attempting to contact South Johnson, Mr.

Calogero filed a motion to withdraw as curator.

On November 13, 2020, South Johnson filed a petition for temporary

restraining order, preliminary injunction, and permanent injunction to arrest the

sheriff’s sale of the property. The property was sold on November 19, 2020. On

November 23, 2020, the Succession filed an exception of no cause of action.

On November 24, 2020, the trial court denied as moot, South Johnson’s

petition for temporary restraining order, preliminary injunction, and permanent

injunction to arrest the sheriff sale of the property, and sustained the Succession’s

exception of no cause of action.

This appeal followed, to which the Succession filed a motion to dismiss the

appeal.

Motion to Dismiss

2 “‘It is well established that appellate courts will not render advisory opinions

from which no practical results can follow.’” Enmon Enterprises, LLC v. City of

New Orleans ex rel. New Orleans Aviation Bd., 2015-0763, p. 2 (La. App. 4 Cir.

5/4/16), 194 So.3d 709, 711(quoting Whitney Nat. Bank of New Orleans v. Poydras

Ctr. Associates, 468 So.2d 1246, 1248 (La. App. 4 Cir.1985)).

In Fidelity Bank v. Succession of Dowden, 2020-0241, p. 7 (La. App. 4 Cir.

10/7/20), --- So.3d. ----, ----, 2020 WL 5939215, *4, this Court dismissed an appeal

as moot because the property was sold before the appellant took his appeal. The

Court noted, “it is now impossible for this Court to grant injunctive relief or stay

the sale of the property, and no judgment that this Court could render on the merits

of the appeal can be made effective.” Id. The Court further noted that an

“‘[i]njunction may be used to prevent but not to correct the wrong; it cannot be

employed to redress an alleged consummated wrong or undo what has already

been done.’” Fidelity Bank, 2020-0241, p. 7, 2020 WL 5939215, *3 (quoting

Verdun v. Scallon Brothers Contractors, Inc., 263 La. 1073, 1078, 270 So.2d 512,

513 (1972)).

South Johnson’s petition for injunctive relief sought to arrest the seizure and

sale of the property, in accordance to La. C.C.P. art. 2642(A). 1 However, the

property was sold on November 19, 2020, before South Johnson took this instant

appeal. As such, the action cannot be enjoined. “‘[N]o order issued by this court on

an appeal from a preliminary injunction could act to stop what has already been

accomplished.’” Jackson, 2015–0505, p. 4, 182 So.3d at 1121 (quoting City Stores

1 La. C.C.P. art. 2642(A) provides that a defendant in an executory proceeding may seek an injunction from the trial court to halt the seizure and sale of property by executory process.

3 v. Gervais F. Favrot Co., Inc., 315 So.2d 370, 372). Appellant’s appeal is therefore

dismissed as moot.

MOTION TO DISMISS APPEAL GRANTED; APPEAL DISMISSED