172 So. 3d 84
La. Ct. App.2015Background
- Lake Air filed executory process on May 28, 2013 to enforce a promissory note secured by the Pereras’ home; sheriff’s sale was scheduled for Sept. 5, 2013.
- Pereras filed Chapter 13 bankruptcy on Aug. 30, 2013, staying the sale; bankruptcy plan default led Lake Air to obtain a lift of stay on Jan. 31, 2014.
- Sale was rescheduled for April 17, 2014. Pereras sought reinstatement of the stay (denied Apr. 14) and filed for injunctive relief in state court on Apr. 15, less than two days before the sale.
- Trial court set the preliminary injunction hearing for Apr. 25 under La. C.C.P. arts. 2752 and 3602; temporary restraining order was prohibited by art. 2752. The Pereras’ emergency writ was denied by this court; the Supreme Court later declined review as untimely.
- Sheriff’s sale proceeded Apr. 17, 2014; Lake Air acquired title and, after Pereras refused to vacate, obtained eviction on June 11, 2014. Pereras appealed, arguing the sale was a nullity due to denial of due process and statutory conflict.
Issues
| Issue | Plaintiff's Argument (Pereras) | Defendant's Argument (Lake Air) | Held |
|---|---|---|---|
| Whether the sheriff’s sale is void because Pereras were denied a hearing before sale | Pereras: Article 2752 and 3602 should permit a hearing before sale; denial deprived them of due process and makes the sale a nullity | Lake Air: Pereras delayed and failed to timely invoke injunctive remedy; statutory timelines prevented hearing before sale where notice was late | Court: Sale valid — Pereras failed to timely seek relief; art. 3602 notice requirements barred an earlier hearing |
| Whether La. C.C.P. art. 2752 is unconstitutional as applied | Pereras: Prohibition on TROs in executory process and timing rules are confusing/unconstitutional and effectively deny opportunity to be heard | Lake Air: Statute is valid and was properly applied; Pereras did not timely plead unconstitutionality below or notify AG | Court: Declined to reach facial unconstitutionality; Pereras failed to properly raise/serve challenge in trial court |
| Whether Pereras’ procedural delay excuses noncompliance with art. 3602 timing | Pereras: Emergency justified late filing | Lake Air: No emergency; Pereras had months’ notice and acted too late | Court: No excuse — lack of diligence cannot create an exception to mandatory timing; no due process violation |
| Application of law-of-the-case from prior writ denial | Pereras: Implicitly rely on prior proceedings to re-litigate | Lake Air: Prior writ denial should preclude re-argument | Court: Denial of writ has no precedential effect; law-of-the-case not applied but outcome affirmed on merits |
Key Cases Cited
- Hall v. Folger Coffee Co., 874 So.2d 90 (La. 2004) (standard for manifest error review)
- S.J. v. Lafayette Parish School Board, 41 So.3d 1119 (La. 2010) (articulation of two-part inquiry for manifest error)
- Duhon v. Briley, 117 So.3d 253 (La.App. 4th Cir. 2013) (standard for legal error review)
- State v. Davis, 30 So.3d 201 (La.App. 4th Cir. 2010) (denial of writ has no precedential value)
- Eastern Savings Bank v. Pharr, 156 So.3d 92 (La.App. 4th Cir. 2013) (interaction of arts. 2752 and 3602)
- Vallo v. Gayle Oil Company, Inc., 646 So.2d 859 (La. 1994) (requirement to plead and particularize constitutional challenges)