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Brown v. Seeber

Court of Appeals of Louisiana, Fourth Circuit

August 14, 2019

KAREN BROWN, INDIVIDUALLY AND ON BEHALF OF 3705 IBERVILLE, L.L.C.
v.
STEVEN L. SEEBER AND 3705 IBERVILLE, L.L.C.

          APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2018-09885, DIVISION "B-1" Honorable Rachael Johnson,

          MATTHEW P. CHENEVERT ATTORNEY AT LAW -and-DESIREE M. CHARBONNET LAW OFFICE OF DESIREE M. CHARBONNET COUNSEL FOR PLAINTIFFS/APPELLEES

          STEPHEN M. WILES THE LAW OFFICES OF STEPHEN M. WILES, L.L.C. COUNSEL FOR DEFENDANTS/APPELLANTS, STEVEN L. SEEBER AND 3705 IBERVILLE, L.L.C.

          DAVID O'QUINN EDWARD W. TRAPOLIN ALEX ROBERTSON CHRIS WHELEN IRWIN FRICHIE URQUHART & MOORE LLC and BRIAN G. BIRDSALL BRIAN G. BIRDSALL, LLC COUNSEL FOR DEFENDANT/APPELLANT, STEVEN L. SEEBER

          Court composed of Chief Judge James F. McKay III, Judge Terri F. Love, Judge Edwin A. Lombard, Judge Rosemary Ledet, Judge Sandra C. Jenkins

          JAMES F. McKAY, III CHIEF JUDGE

         The defendant, Steven L. Seeber ("Seeber"), devolutively appeals the trial court's October 24, 2018 judgment granting the request for a preliminary injunction filed by the plaintiff, Karen Brown ("Brown"). After a review of the record before this Court, we find that the trial court erred in granting the preliminary injunction. Therefore, we reverse the trial court's ruling and vacate the issuance of the preliminary injunction.

         FACTS AND PROCEDURAL HISTORY

         On October 2, 2018, Brown on behalf of herself and 3705 Iberville, L.L.C. ("3705 Iberville")[1], filed a Petition for Accounting and Dissolution and Derivative Claim for Mismanagement, Conversion, Ultra Vires Acts, Appointment of Receiver, Injunctive and Other Relief against Seeber and 3705 Iberville, which owned and operated The Blind Pelican Restaurant and Bar ("Blind Pelican") located at 1628 St. Charles Avenue, in New Orleans, Louisiana. Seeber and Brown are co-owners of 3705 Iberville. On the same day the petition was filed, the trial court, in consideration of Brown's petition, issued a Temporary Restraining Order ("TRO") against Seeber and named a receiver, Joseph S. Bikulege, to take over the financial and business operations of the Blind Pelican.

         Additionally, on October, 2, 2018, relative to the request for a TRO, Brown's counsel filed a certification, pursuant to La. C.C.P art 3603(A)(2), as follows:

I HEREBY CERTIFIY that a review of the facts and the law in the captioned matter indicates that prior notice of this request for a temporary restraining order increases the risk of irreparable injury to the petitioners. As can be seen from a review of the petition, the company at issue is being managed by a person who is consistently under the influence of alcohol; is managing without the authority of the company or any operating agreement; has effectively excluded a co-equal owner from all information and management authority regarding the company's affairs; is wasting and alienating company assets at an alarming rate; and is hiding cash belonging to the company in a secret location to which only he has access. A critical part of the relief requested in the inventory and custodial hold of the cash pending further court orders. Petitioner believes that if defendant is notified in advance of this request, he will remove the cash from its current hiding place, which is known to Karen Brown, and place it out of the reach of company and the court so that the value of the loss will never be known or acknowledged.

         On October, 2, 2018, the trial court issued a TRO, which provided as follows:

a. A temporary restraining order is hereby issued prohibiting Seeber from representing himself to anyone as the managing member of the company;
b. A temporary restraining order is hereby issued prohibiting Seeber, or anyone acting on his behalf, from destroying any company records or property;
c. A temporary restraining order is hereby issued prohibiting Seeber, or anyone acting on his behalf, from alienating, leasing, encumbering, concealing or removing any company assets from the company's principal place of business at 1628 St. Charles Avenue, New Orleans, Louisiana or wherever they may be found.
d. The Court hereby appoints Joseph Bitech[sic] as receiver to manage the business until it can be judicially dissolved and the assets sold[2];
e. The Court hereby denies Brown from taking immediate control and management of the company, but grants an order allowing Brown immediate access to all computers in the Blind Pelican or elsewhere that contain data regarding the company's financial conditions and transactions which includes the right to preserve and /or copy all pertinent business information.
f. The Court hereby orders the Sheriff for the Parish of Orleans to immediately take custody of the cash and all contents of the repository in which Seeber has stored the company assets.
g. It is ordered that the Sheriff of Orleans Parish or Attorney Desiree Charbonnet inventory all the assets described in the immediately preceding paragraph and to deposit the cash in one or more appropriate financial institutions to preserve it until further orders of the court provide for its disposition;
h. It is ordered that Seeber provide the court's appointed representative accompanied by an Orleans Parish Sheriff access to the repository, which will be identified and pointed and located by Brown; and
i. If Seeber refuses to provide access to the repository, the Court orders the Orleans Parish Sheriff or Attorney Desiree Charbonnet authority to contact a locksmith or remove the entire receptacle and to secure it at an off-site location to preserve its contents.
j. It is ordered that the defendant, Steven Seeber show cause on the 15th day of October 2018 at 1:00 pm why the temporary restraining order issued herein should not be converted ...

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