Appealed from the First Judicial District Court for the
Parish of Caddo, Louisiana Trial Court No. 599, 854 Honorable
Ramon Lafitte, Judge
MIRAMON LAW, INC. By: Jordan N. Young Patricia N. Miramon
Counsel for Appellant
L. WHITE Counsel for Appellee
WILLIAMS, MOORE, and STEPHENS, JJ.
Miramon, executrix of the estate of Thomas Bourland, appeals
a judgment that rejected her claim for a preliminary and
permanent injunction to halt executory process filed by the
plaintiff, Melodye Tanner, fixed the principal amount due at
$162, 000, and awarded Ms. Tanner an attorney fee of $15,
421.50. For the reasons expressed, we affirm in part, reverse
in part and remand.
Bourland was an independent forestry consultant who rented
office space from Ms. Tanner, or from her LLC, Biotech South,
in Ruston, Louisiana. According to affidavits filed in the case,
he was behind in his rent and other fees to Ms. Tanner. He
also had a flair for hunting and travel, going on three
African safaris with Ms. Tanner between 2011 and 2013 and
running up a bill of over $200, 000, mostly advanced by Ms.
Tanner. To satisfy these obligations, Bourland executed a
promissory note ("the 2014 note") in favor of Ms.
Tanner for $200, 000 on June 13, 2014. According to the
affidavit of her lawyer, Robert Dawkins, who drafted the 2014
note, the $200, 000 figure was a negotiated amount, as the
parties could not agree on the exact amount owed, but it was
less than the actual amount. This note was unsecured.
July 2014 and December 2015, Bourland wrote three checks to
Ms. Tanner, for a total of $38, 000. On March 10, 2016, he
emailed her saying that the 2014 note was to be collected
from his life insurance "in the event of my demise
during our last safari," that he had reimbursed her $38,
000 for his portion of the safari costs advanced by her, and
"I consider the matter closed."
this email, less than two weeks later, on March 23, 2016,
Bourland signed a packet of documents: (1) collateral
mortgage note, to order of bearer, for $200, 000, signed and
notarized, and marked "ne varietur" for
identification with (2) act of collateral mortgage, in favor
of any future holder, for $200, 000, affecting his house (Lot
17, Ellerbe Woods subdivision, Caddo Parish), signed,
notarized and witnessed; (3) security agreement, listing
Bourland as the debtor and Ms. Tanner as the secured party,
acknowledging the act of collateral mortgage and pledging the
collateral mortgage note to Ms. Tanner; and (4)
acknowledgment typed on the bottom of the 2014 note, saying
the principal balance due was $162, 000. According to Ms.
Tanner, Bourland made no more payments after this.
2016, Ms. Tanner emailed Bourland's insurance agent
asking to be listed as mortgage holder over the property. The
agent copied this to Bourland, who emailed Ms. Tanner, on
July 24, "I'm confused, since I have paid all
obligations to you."
passed away in March 2017.
Tanner filed this petition for executory process about one
month later, April 3, 2017. She cited the documents listed
above, alleged the principal and interest due was $191,
061.38, plus attorney fees, and demanded a writ of seizure
and sale of the property.
Miramon, Bourland's attorney and the executrix of his
succession, responded with a petition for temporary
restraining order ("TRO") and rule to show cause
for a preliminary and permanent injunction to halt the
seizure and sale. She contended that Bourland had repaid
everything he previously owed to Ms. Tanner; he never
incurred the amount of debt alleged; and there was no proof
of consideration. The district court issued the TRO and
scheduled a hearing on the rule.
Tanner moved to dissolve the TRO, citing the acknowledgment
that Bourland added to the 2014 note in March 2016. She also
asked the court to reject all injunctive relief and award her
attorney fees for having to defend these claims.
parties agreed to submit the matter on affidavits. In early
April 2018, Ms. Tanner filed seven, denying Ms. Miramon's
contention that there was no consideration, asserting that by
the time Bourland signed the 2014 note he actually owed her
close to $230, 000, and conceding that the principal balance
due was $162, 000.
Miramon then filed two affidavits, again asserting
Bourland's March 2016 email denying that there was any
balance left, and maintaining that he never told her (Ms.
Miramon) about those 2016 documents, a fact that she
considered "very unusual."
hearing in May 2018, Ms. Miramon argued that the only debt
was $38, 000, which Bourland had paid in full; if there was
any rent claim, the proper party to claim it was Ms.
Tanner's LLC, not Ms. Tanner; and the acknowledgment was
not in authentic form, so it could not support executory
process. Ms. Tanner argued that her name, not her
LLC's, appeared on every document; Bourland's
acknowledgment of the debt overrode his earlier ...