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Tanner v. Succession of Bourland

Court of Appeals of Louisiana, Second Circuit

November 20, 2019

MELODYE TANNER Plaintiff-Appellee
v.
SUCCESSION OF THOMAS R. BOURLAND Defendant-Appellant

          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

          DAVID L. WHITE Counsel for Appellee

          Before WILLIAMS, MOORE, and STEPHENS, JJ.

          MOORE, J.

         Patricia 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.

         FACTUAL BACKGROUND

         Tom Bourland was an independent forestry consultant who rented office space from Ms. Tanner, or from her LLC, Biotech South, in Ruston, Louisiana.[1] 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.

         Between 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."

         Despite 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.

         In June 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."

         Bourland passed away in March 2017.

         PROCEDURAL HISTORY

         Ms. 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.

         Ms. 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.

         Ms. 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.

         The 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.

         Ms. 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."

         At a 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.[2] Ms. Tanner argued that her name, not her LLC's, appeared on every document; Bourland's acknowledgment of the debt overrode his earlier ...


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