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Gulfsouth Credit, Inc. v. Wiley

Court of Appeals of Louisiana, First Circuit

January 9, 2020

GULFSOUTH CREDIT, INC.
v.
JEFFREY WILEY IN HIS CAPACITY OF SHERIFF OF THE PARISH OF ASCENSION

          APPEALED FROM THE 23rd JUDICIAL DISTRICT COURT ASCENSION PARISH, LOUISIANA DOCKET NUMBER 123, 406 HONORABLE THOMAS J. KLIEBERT, JR., JUDGE

          Richard D. Bankston Baton Rouge, Louisiana Attorney for Plaintiff/Appellant Gulfsouth Credit, Inc.

          Brandon M. Bourque Robert Ryland Percy, III Gonzales, Louisiana Attorneys for Defendant/Appellee Jeffrey Wiley in His Capacity of Sheriff of the Parish of Ascension

          BEFORE: McDONALD, THERIOT, and CHUTZ, JJ.

          MCDONALD, J.

         After a sheriff refused to execute a city court's writ of fieri facias, the creditor who obtained the writ filed a petition for mandamus asking the district court to direct the sheriff to execute the writ. The district court denied the mandamus petition, and the creditor filed this appeal. We affirm.

         FACTUAL AND PROCEDURAL BACKGROUND

         In April 2017, Gulfsouth Credit, Inc. obtained a money judgment in Baton Rouge City Court against Carrie Ward, an Ascension Parish resident. At Gulfsouth's request, the city court issued a writ of fieri facias (fifa) to the Ascension Parish Sheriff's Office (APSO) directing APSO to seize and sell Ms. Ward's property "in the manner prescribed by law" to satisfy the judgment. Gulfsouth's attorney arranged to meet a Gulfsouth representative and an APSO officer at Ms. Ward's residence to execute the writ. On the scheduled day, however, the APSO officer told the Gulfsouth representative that his superiors directed him not to execute the writ. Later, APSO's attorney wrote a letter to Gulfsouth's attorney indicating APSO was unable to execute the writ, because the "writ [did not] contain a sufficient description of particular items of property subject to seizure."

         On October 3, 2018, Gulfsouth filed a petition for mandamus against Jeffrey Wiley in his capacity as Ascension Parish Sheriff. Gulfsouth sought a mandamus directing Sheriff Wiley to execute the writ of fifa. Sheriff Wiley answered Gulfsouth's petition, admitting that APSO had refused to execute the writ because APSO believed the writ insufficiently described the items to be seized. The district court held a hearing on the matter, at which Gulfsouth introduced the entire record into evidence. After the parties' argument, the district court stated that it would deny the mandamus petition, because Gulfsouth needed to identify what items it wanted seized. On February 19, 2019, the district court signed a judgment denying Gulfsouth's mandamus petition. Gulfsouth appeals.

         DISCUSSION

         Mandamus is an extraordinary remedy to be applied where the law provides no relief by ordinary means or where the delay involved in obtaining ordinary relief may cause injustice. La. C.C.P. art. 3862; Hoag v. State, 04-0857 (La. 12/1/04), 889 So.2d 1019, 1023. Further, a writ of mandamus directed to a public officer is proper only to compel him to perform a ministerial duty required by law. See La. C.C.P. art. 3863. A ministerial duty is a simple, definite duty, arising under conditions admitted or proved to exist, and imposed by law, and which leaves no element of discretion to the public officer. Hoag, 889 So.2d at 1024. When the judgment denying mandamus does not turn on factual findings, the appellate court reviews the judgment under the abuse of discretion standard. City of Baton Rouge v. Douglas, 16-0655 (La.App. 1 Cir. 4/12/17), 218 So.3d 158, 164, n.6.

         Gulfsouth argues that Sheriff Wiley has a ministerial duty to execute the writ of fifa in this case, because La. C.C.P. art. 321 states that a sheriff "shall execute writs" directed to him by certain courts. However, Gulfsouth's remedy for Sheriff Wiley's failure to perform this alleged "ministerial duty" is set forth in La. C.C.P. art. 334, which states that "the refusal of a sheriff ... to perform any ministerial duty subjects him to punishment for contempt of court." Thus, even if Sheriff Wiley's duty to execute the subject writ of fifa is ministerial, the extraordinary remedy of mandamus is not appropriate, because La. C.C.P. art. 334 allows Gulfsouth to obtain relief against Sheriff Wiley via a contempt proceeding. See La. C.C.P. arts. 221 etseg. Accord State ex re/. Pittman v. Conerly, 12-0468 (La.App. 4 Cir. 9/12/12), 100 So.3d 339, 341 (finding mandamus was not an appropriate remedy to compel a court reporter to produce a transcript when plaintiff could pursue contempt proceedings against the court reporter); Webre v. Wilson, 95-1281 (La.App. 1 Cir. 4/4/96), 672 So.2d 1124, 1131-32) (finding use of mandamus proceedings to collect money allegedly due was inappropriate when plaintiff could have used a suit for a money judgment instead). Thus, the district court did not abuse its discretion in denying Gulfsouth's mandamus petition in this case.[1]

         CONCLUSION

         For the above reasons, the February 19, 2019 judgment denying Gulfsouth Credit, Inc.'s petition for mandamus is affirmed. We assess ...


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