365 So.3d 521
La. Ct. App.2020Background
- In 2012 Geraldine O. Dowden borrowed $60,000 from Fidelity and gave a mortgage on property at 7811 Brevard Avenue; she paid until her death on July 16, 2018.
- Her son, Coreygerard Dowden, was appointed independent administrator of the succession and made some payments but defaulted.
- Fidelity filed a petition for executory process Jan. 31, 2019; a writ of seizure and sale issued Feb. 13, 2019.
- Service difficulties led to appointment of an attorney ad hoc; Dowden filed a pro se petition for a preliminary injunction July 15, 2019 to stop the seizure and sale.
- The trial court temporarily stayed the sale Oct. 4, 2019 due to service/address issues, but Fidelity personally served Dowden on Oct. 28, 2019; the court lifted the stay Nov. 22, 2019 and the property sold Dec. 19, 2019.
- Dowden filed a notice of appeal Dec. 27, 2019; Fidelity moved to dismiss the appeal as moot and untimely, and the appellate court granted the motion and dismissed the appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mootness: can appellate court grant injunctive relief after sale? | Dowden sought to overturn denial of injunction and halt sale; alleged fraud/RICO and lack of service. | Fidelity: property already sold; injunction relief is impossible and appeal is moot. | Appeal dismissed as moot because sale occurred before appeal, so injunctive relief cannot be granted. |
| Timeliness: was the appeal timely under executory-proceeding rules? | Dowden filed notice of appeal Dec. 27, 2019. | Fidelity: under La. C.C.P. art. 2642(B) defendant must take suspensive appeal within 15 days of service; Dowden was served Oct. 28, 2019, so appeal was late. | Appeal untimely; appellate court lacks jurisdiction to hear it. |
| Merits: did trial court abuse discretion denying preliminary injunction? | Dowden claimed predatory lending, fraud, RICO violations, lack of valid service. | Fidelity maintained the debt was valid and executory-procedure requirements were met. | Merits not reached: court noted abuse-of-discretion standard for injunctions but dismissed appeal on mootness/untimeliness grounds. |
| Service validity: was service sufficient to permit writ and end stay? | Dowden disputed service and earlier indicated wrong address was used. | Fidelity produced proof of personal service (photos) Oct. 28, 2019 and relied on ad hoc appointment for service attempts. | Trial court lifted stay after finding Dowden had been served; appellate court accepted untimeliness despite earlier service disputes. |
Key Cases Cited
- Meredith v. I Am Music, LLC, 265 So.3d 1143 (La. App. 4 Cir. 2019) (abuse-of-discretion review of injunction rulings)
- Jackson v. Dobard, 182 So.3d 1119 (La. App. 4 Cir. 2015) (preliminary injunction preserves status quo pending trial)
- Enmon Enterprises, LLC v. City of New Orleans ex rel. New Orleans Aviation Bd., 194 So.3d 709 (La. App. 4 Cir. 2016) (appeal from denial of injunction is moot if the act sought to be enjoined is completed)
- Allums v. Allums, 221 So.3d 191 (La. App. 4 Cir. 2017) (appellate jurisdiction lapses when controversy becomes moot)
- Whitney Nat. Bank of New Orleans v. Poydras Ctr. Associates, 468 So.2d 1246 (La. App. 4 Cir. 1985) (injunction cannot undo a completed act)
- Verdun v. Scallon Brothers Contractors, Inc., 270 So.2d 512 (La. 1972) (injunction prevents but does not correct consummated wrong)
- Mr. Pizza, Inc. v. Furlow, 230 So.2d 649 (La. App. 4 Cir. 1970) (appeal dismissed where property was sold before appeal)
- Dew v. Blankenship, 150 So.3d 934 (La. App. 5 Cir. 2014) (timeliness of appeal is jurisdictional; delays cannot be extended)