128 So. 3d 383
La. Ct. App.2013Background
- Bank of America (appellee) filed a petition for executory process to seize and sell mortgaged property for unpaid loan payments; the trial court issued a writ of seizure and sale.
- Appellants Erazo filed, in response, a combined filing: a reconventional demand (damages and other claims), and a motion for preliminary/permanent injunction to arrest the sale; appellants served that filing and the court’s order by certified mail.
- Appellees opposed, raising exceptions: insufficiency of service of process (as to the injunction), improper cumulation of actions and unauthorized use of summary proceedings (as to the reconventional demand), a motion to strike, and an exception of no cause of action to dismiss appellants’ LUTPA claim.
- At the September 18, 2012 hearing the trial court sustained all appellees’ exceptions and granted the motion to strike, then dismissed all of appellants’ claims without ruling on the merits of the injunction.
- On appeal, the Fifth Circuit reversed the insufficiency-of-service ruling as to the injunction, reversed dismissal of the injunction (remanding for merits), affirmed that the reconventional demand was improperly cumulated with the executory proceeding but reversed dismissal of the reconventional demand and ordered severance into a separate suit, and limited the no-cause-of-action ruling to the LUTPA claim only.
Issues
| Issue | Plaintiff's Argument (Erazo) | Defendant's Argument (Bank of America) | Held |
|---|---|---|---|
| 1. Sufficiency of service of process for injunction | Service by certified mail to appellees’ counsel satisfied La. C.C.P. art. 1313 requirements | Injunction required sheriff service under La. C.C.P. art. 1314 (insufficiency) | Reversed: certified mail to counsel and delivery receipt met art. 1313(C); service sufficient, remand for merits of injunction |
| 2. Proper cumulation of reconventional demand (damages) with executory proceeding | Reconventional demand may be brought in the same proceeding or severed into a new suit | Cumulation improper because reconventional demand uses ordinary, not executory, procedure | Affirmed that cumulation was improper; reconventional demand must be severed, not simply dismissed |
| 3. Unauthorized use of summary/executory proceedings for ordinary damages claim | Appellants argued damages claim could be asserted as defense or in related proceedings | Appellees argued executory proceedings cannot host ordinary damages claims | Sustained exceptions: damages claims are ordinary procedure and not proper in executory process; severance required |
| 4. Motion to strike reconventional demand | Reconventional demand sufficiently pleaded | Motion to strike appropriate because claim improperly cumulated and procedurally defective in executory context | Motion to strike as filed in executory proceeding sustained; court must allow severance into new action |
| 5. No cause of action (LUTPA claim) | LUTPA claim states a cause of action against appellee | Appellee exempt under La. R.S. 51:1406(1); LUTPA claim was insufficient | Trial court sustained exception as to LUTPA claim only; appellate court did not reach other tort/constitutional claims (those were not challenged by exception) |
Key Cases Cited
- Dalke v. Armantono, 40 So.3d 981 (La. App. 1st Cir.) (service issue where plaintiff had not submitted to court jurisdiction)
- Abadie v. Cassidy, 581 So.2d 657 (La. 1991) (requirement that cumulated actions employ same form of procedure)
- Mortgage Electronic Registration Systems, Inc. v. Wells, 930 So.2d 117 (La. App. 4th Cir.) (trial court must sever improperly cumulated claims rather than dismiss them)
- Deutsche Bank Trust Co. America v. Ochoa, 120 So.3d 735 (La. App. 5th Cir.) (distinction between ordinary and executory procedure in cumulation analysis)
- Bank of New York Mellon v. Smith, 71 So.3d 1034 (La. App. 3d Cir.) (courts should sever improperly cumulated claims under La. C.C.P. art. 464)