Preview:

FOR IMMEDIATE NEWS RELEASE

NEWS RELEASE # 15

FROM: CLERK OF SUPREME COURT OF LOUISIANA

The Opinions handed down on the 25th day of February, 2003 , are as follows:

BY TRAYLOR, J.:

2002-CC- 1813

MARY ANNA RIVET, MINNA REE WINER, EDMOND G, MIRANNE, AND EDMOND G.MIRANNE, JR. v. REGIONS BANK, WALTER L. BROWN, JR., PERRY S.BROWN, AND FOUNTAINBLEAU STORAGE ASSOCIATES (Parish of Orleans) For the foregoing reasons, the ruling of the court of appeal is reversed and the judgment of the trial court is reinstated. The matter is remanded to the trial court for disposition not inconsistent with this opinion. REVERSED AND REMANDED.

SUPREME COURT OF LOUISIANA No. 2002-CC-1813

MARY ANNA RIVET, MINNA REE WINER, EDMOND G. MIRANNE, AND EDMOND G. MIRANNE, JR. VERSUS REGIONS BANK, WALTER L. BROWN, JR., PERRY S. BROWN, AND FOUNTAINBLEAU STORAGE ASSOCIATES

ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FOURTH CIRCUIT, PARISH OF ORLEANS

TRAYLOR, Justice We granted certiorari in this matter to consider whether an action for the nullity of a default judgment may be brought by the use of summary proceedings. For the reasons which follow, we answer that question in the affirmative, reverse the court of appeal, and reinstate the judgment of the trial court. FACTS and PROCEDURAL HISTORY This matter arises from a series of property transactions which began over thirty-five years ago.1 In 1957, Lois Stern Brown, the predecessor in interest of Walter L. Brown, Jr., and Perry S. Brown ( the Browns), executed a lease in favor of the Pelican State Hotel Corporation. Subsequently, on September 15, 1983, Tulane Hotel Investors Limited Partnership (THILP), the plaintiffs' (the Mirannes2) investment vehicle, acquired a leasehold interest in the property. On that same day, THILP granted a first mortgage on the lease-hold to First Financial Bank (FFB),
This factual history has been summarized from the factual history contained in Regions Bank of Louisiana v. Rivet, 224 F.3d 483 (5th Cir. 2000). Our holding is not dependent upon this history, which is provided largely as an aid to understanding how this matter reached this court. Mary Ann Rivet is the widow of Edmond G. Miranne and Minna Ree Winer is the wife of Edmond Miranne, Jr. Ms. Winer is also THILP's president and general partner. 1
2 1

formerly controlled by the Mirannes, in order to secure a $15,000,000 collateral mortgage note pledged to the bank. On May 2, 1984, THILP granted to the plaintiffs (the Mirannes) a second collateral mortgage which was not recorded in the public records until August 17, 1984. THILP defaulted on its FFB loan causing the bank to attempt to enforce its mortgage on the leasehold estate. On October 5, 1984, THILP filed for protection under Chapter 11 of the Bankruptcy Code in the United States Bankruptcy Court for the Eastern District of Louisiana. After converting the proceeding to a Chapter 7 liquidation, the bankruptcy court ordered the sale of the leasehold estate at public auction, free and clear of all liens and mortgages, including specifically the Mirannes' collateral mortgage. The leasehold was sold at auction to FFB for the minimum bid of $5,250,000, and on August 14, 1986, the bankruptcy court approved the sale free and clear of all encumbrances. On December 29, 1993, Secor Bank, successor to FFB, purchased the property and thus terminated the 1957 lease as a matter of law by confusion. Immediately following the purchase, Secor sold the property to Fountainbleau Storage Associates (FSA), the current owner of the property. One year later, on December 29, 1994, the Mirannes filed a "Suit to Enforce Mortgage Via Ordinaria or Alternatively for Damages" in Civil District Court against Regions Bank (Secor's successor), the Browns, and FSA. On February 3, 1995, defendants removed the case to federal court. FSA filed an answer in federal district court on February 7, 1995, and the Browns filed their answer on February 14, 1995.3 The district court granted Regions' motion for summary judgment and this decision

The fact that the defendants filed answers in federal court is not disputed by the Mirannes. 2

3

was affirmed by the court of appeals.4 On February 24, 1998, the United States Supreme Court reversed and remanded the matter to state court for lack of subject matter jurisdiction.5 The clerk of the federal district court apparently forwarded only the order of remand to Civil District Court and did not include the answers filed in federal court by the Browns and FSA. On August 7, 1998, Regions, the Browns, and FSA filed an action in federal court under the All Writs Act, 28 U.S.C.

Download 2002-CC-1813 MARY ANNA RIVET, MINNA REE WINER, EDMOND G, MIRANNE, AND EDMOND G.

Louisiana Law