WELLS FARGO FINANCIAL LOUISIANA, INC.
BETTY MONTGOMERY GALLOWAY, VALERIE SENNETTE GALLOWAY AND GREGORY LOUIS GALLOWAY
FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2016-03487,
DIVISION "I-14" Honorable Piper D. Griffin, Judge
E. Morris DEAN MORRIS, L.L.C. COUNSEL FOR PLAINTIFF/APPELLEE.
Eddy, III ATTORNEY AT LAW COUNSEL FOR DEFENDANT/APPELLANT.
composed of Judge Daniel L. Dysart, Judge Rosemary Ledet,
Judge Regina Bartholomew Woods)
ROSEMARY LEDET, JUDGE
a suit on a promissory note and mortgage. From the trial
court's judgment granting, in part, the peremptory
exception of prescription filed by the defendants, Betty
Galloway and her two children (Valerie Sennette Galloway and
Gregory Louis Galloway) (collectively the
"Galloways"), the Galloways appeal. For the reasons
that follow, we convert the appeal to an application for
supervisory writ, grant the writ, reverse the trial
court's judgment, and remand with instructions.
AND PROCEDURAL BACKGROUND
April 7, 2016, Wells Fargo Financial Louisiana ("Wells
Fargo"), as successor to Norwest Financial America,
Inc., commenced this suit, entitled "Petition to Enforce
Security Interest by Ordinary Process, " against the
Galloways. The basis for the suit was two-fold. First,
December 1, 1999, the Galloways, as co-owners of a certain
immovable property in New Orleans, Louisiana, executed a
multiple indebtedness mortgage (the "Mortgage").
Second, on August 14, 2002, Betty Galloway executed a note in
the original principal amount of $58, 652.28 (the
"Note") and a security agreement; the Note was
secured by the Mortgage.
petition, Wells Fargo averred that "[t]he obligor has
defaulted on the note and security agreement and mortgage by
failing to pay, when due, the monthly installments required
by the note and security agreement and mortgage." Wells
Fargo further averred that it gave notice of default to the
obligor, Betty Galloway. Wells Fargo still further averred that
it had exercised its right to accelerate, pleading as
Obligor has failed to timely pay all amounts required to cure
their default, and plaintiff [Wells Fargo] has exercised its
right to accelerate the entire indebtedness due on the note
and security agreement and mortgage, including the monthly
installment due February 19, 2009 and all successive monthly
Fargo prayed for a judgment for the "principal of $45,
852.94 with interest thereon . . . from January 19, 2009,
response, the Galloways filed various exceptions, including a
peremptory exception of prescription. The basis for their
exception of prescription was the five-year prescriptive
period for actions on promissory notes in La. C.C. art. 3498.
The Galloways contended that "the last payment made on
the obligation alleged to have been created on August 14,
2002 was made by Betty Galloway on May 15, 2010. . . .
[N]o further payments were made on the note
therefore the entire remaining obligation has
Fargo countered that the Note was not prescribed because the
Galloways had acknowledged the debt. Wells Fargo contended
that in various correspondence between the parties after the
date of Betty Galloway's last payment-May 15, 2010-the
Galloways acknowledged the debt, which interrupted the
prescriptive period. In the alternative, Wells Fargo
contended that only the payments due more than five years
before the suit was filed had prescribed.
a hearing, which was held on July 27, 2016, the trial court
granted, in part, the exception of prescription. The trial
court found that "anything due prior to April 7, 2011
[five years before the suit was filed] is hereby prescribed,
but all mortgage payments due on or after April 7, 2011 are
deemed exigible." From this judgment, the Galloways
appeal, contending that the trial court erred in failing to
find the entire debt was prescribed. Before addressing the
merits, however, it is necessary for us to address a
reaching the merits of an appeal, an appellate court has a
duty to determine, on its own motion, whether subject matter
jurisdiction exists." Moulton v. Stewart
Enters., Inc., 17-0243, 17-0244, p. 3 (La.App.
4 Cir. 8/3/17), 226 So.3d 569, 571 (citing Moon v. City
of New Orleans, 15-1092, 15-1093, p. 5 (La.App. 4 Cir.
3/16/16), 190 So.3d 422, 425). Accordingly, we initially must
determine whether the judgment granting in part and denying
in part the Galloways' peremptory exception of
prescription is properly before us on appeal.
court's appellate jurisdiction extends to "final
judgments." Kirby v. Poydras Ctr., LLC,
15-0027, 15-0391, p. 8 (La.App. 4 Cir. 9/23/15), 176 So.3d
601, 606 (citing La. C.C.P. art. 2083). "=[A] judgment
that determines the entirety of the merits of the action is
appealable under La.Code Civ.Proc. art. 2083, but a judgment
that only partially determines the merits of the action is a
valid partial final judgment (and therefore appealable) only
if authorized by Article 1915.'" Rhodes v.
Lewis, 01-1989, p. 3 (La. 5/14/02), 817 So.2d 64, 66
(quoting Douglass v. Alton Ochsner Med. Found.,
96-2825 (La. 9/13/97), 695 So.2d 953).
right to appeal a partial final judgment is governed by La.
C.C.P. art. 1915, which has two subparts. "Subpart A of
La. C.C.P. art. 1915 designates certain categories of partial
judgments as final judgments subject to immediate appeal
without the necessity of any designation of finality by the
trial court." Quality Envtl. Processes, Inc. v.
Energy Dev. Corp., 16-0171, 16-0172, p. 6 (La.App. 1
Cir. 4/12/17), 218 So.3d 1045, 1053. "Subpart B of La.
C.C.P. art. 1915 provides that when a court renders a partial
judgment, partial motion for summary judgment, or exception
in part, it may designate the judgment as final when there is
no just reason for delay." Id.; see also Favrot v.
Favrot, 10-0986, pp. 2-3 (La.App. 4 Cir. 2/9/11), 68
So.3d 1099, 1102.
B of La. C.C.P. art. 1915 has two subparts. The first subpart
provides that "the judgment shall not constitute a final
judgment unless it is designated as a final judgment by the
court after an express determination that there is no just
reason for delay." La. C.C.P. art. 1915(B)(1). The
second subpart provides that "[i]n the absence of such a
determination and designation, any such order or decision
shall not constitute a final judgment for the purpose of an
immediate appeal and may be revised at any time prior to
rendition of the judgment adjudicating all the claims and the
rights and liabilities of all the parties." La. C.C.P.
art. 1915(B)(2); see also La. C.C.P. art. 1911(B)
(providing, in part, ...