Gregory Swafford Family Trust v. Graystar Mortgage, LLC, Jb 430 Holdings LLC, and the Honorable Marlin H. Gusman in This Official Capacity as the Orleans Parish Sheriff

GREGORY SWAFFORD * NO. 2021-CA-0200
FAMILY TRUST
*
VERSUS COURT OF APPEAL
*
GRAYSTAR MORTGAGE, FOURTH CIRCUIT
LLC, JB 430 HOLDINGS LLC, *
AND THE HONORABLE STATE OF LOUISIANA
MARLIN H. GUSMAN IN THIS *******
OFFICIAL CAPACITY AS THE
ORLEANS PARISH SHERIFF

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2019-10896, DIVISION “J”
Honorable D. Nicole Sheppard,
******
Judge Edwin A. Lombard
******
ON REMAND FROM THE SUPREME COURT

(Court composed of Judge Edwin A. Lombard, Judge Roland L. Belsome, Judge
Rosemary Ledet)

Gregory Swafford
ATTORNEY AT LAW
4734 Franklin Avenue
New Orleans, LA 70122-6112

COUNSEL FOR PLAINTIFF/APPELLANT

C. Michael Pfister, Jr.
Andrew D. Weinstock
DUPLASS ZWAIN BOURGEOIS PFISTER & WEINSTOCK
3838 North Causeway Blvd., Suite 2900
Metairie, LA 70002

COUNSEL FOR DEFENDANT/APPELLEE, JB 430 HOLDINGS, LLC

Steven A. Watts
LAW OFFICE OF STEVEN A. WATTS, LLC
3925 N. I-10 Service Rd., Suite 230
Metairie, LA 70002

COUNSEL FOR DEFENDANT/APPELLEE, GRAYSTAR MORTGAGE,
L.L.C.
AFFIRMED
MARCH 21, 2022

EAL
On remand from the Louisiana Supreme Court, Swafford v. Graystar,2022-
RLB
0059 (La. S.Ct. 3/15/2022), we consider the merits of the appeal filed by the
RML
Gregory Swafford Family Trust (“Swafford”) and, after de novo review in light of

the applicable law, confirm the district court judgment of September 8, 2020,

sustaining the peremptory exception of res judicata filed by Graystar Mortgage,

LLC (“Graystar”) and dismissing Swafford’s petition for injunctive relief.

Relevant Facts and Procedural History

This matter originated in in 2018 as an executory proceeding in Orleans

Parish Civil District Court wherein Graystar obtained a Writ of Seizure and Sale

ordering the Civil Sheriff of Orleans Parish to seize and sell the property located at

4734 Franklin Avenue due to the Swafford’s failure to make payments under the

terms of a promissory note secured by a collateral mortgage on the property, to

provide proof of insurance, and to pay property taxes. The actual sale was delayed

by litigation but in July 2019, the property was purchased by JB 430 Holdings,

LLC. (“JB 430”). The Sheriff’s Sale Deed was recorded on September 22, 2020.

After unsuccessfully filing a petition to annul the sale of the property,

Swafford filed the instant lawsuit on October 16, 2019, naming as defendants

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Graystar, JB 430, and Marlin Gusman in his capacity as the Sheriff of Orleans

Parish (“Sheriff Gusman”). In addition, Swafford sought a temporary restraining

order (TRO) and injunctive relief to prevent Sheriff Gusman from recording the

sale.

On October 22, 2019, Graystar responded, filing a motion to dissolve the

TRO and a peremptory exception of res judicata, asserting that the July 2019

district court judgment that the executory process was not defective and the sale

could proceed excluded Swafford from litigating the issue again.

After a hearing on November 14, 2019, the district court issued a judgment

on December 18, 2019, maintaining Graystar’s exception of res judicata and

dismissing with prejudice Swafford’s petition for injunctive relief.

On January 1, 2020, Swafford filed a motion for a new trial.

On January 22, 2020, JB 430 filed its opposition to Swafford’s motion for a

new trial, as well as motions to compel inspection of the property and for Swafford

to vacate the property, for Swafford to post security, and for sanctions. After a

contradictory hearing on September 8, 2020, the district court ruled orally,1

denying Swafford’s motion for a new trial, granting JB 430’s motion to compel

and ordering Swafford to allow inspection of the property and vacate the premises

by September 15, 2020.2

Swafford did not comply. Instead, on September 22, 2020,3 Swafford filed a

motion to set aside the district court judgment of September 8, 2020 (denying

1
The written judgment was signed on October 1, 2020.
2
The district court held that the motion to compel Swafford to post security was moot and
deferred the motion for sanctions.
3
That same date, the Sheriff’s Sale Deed transferring the property to JB 430 was recorded

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Swafford’s motion for a new trial), a notice of intent to file a writ application, and

a request for a stay.

On October 1, 2020, the district court denied Swafford’s motion to set aside

the judgment of September 8, 2020, granted Swafford thirty days (until October

30, 2020) to file a writ application for review of the judgment, and denied

Swafford’s request for a stay of the orders to inspect and vacate pending this

court’s decision in the matter. On October 21, 2020, Swafford filed its writ

application, requesting expedited consideration, seeking review of the district

court’s denial of its motion to set aside the judgment and granting JB430’s motion

to compel. That same day (October 21, 2020), this court denied Swafford’s writ

application. Meanwhile, on October 19, 2020, Swafford filed its motion and order

for a suspensive appeal from the district court judgment of December 18, 2019,

wherein the district court once again maintain Graystar’s exception of res judicata

and dismissed with prejudice Swafford’s petition for injunctive relief with regard

to the property located at 4734 Franklin Avenue in New Orleans.

Discussion

The district court judgment of September 8, 2020 judgment, which included

the ruling sustaining the peremptory exception of res judicata filed by Graystar

and dismissing Swafford’s petition for injunctive relief was a final, appealable

judgment. See La. Code Civ. Proc. art. 1915(A)(1); see also White v. Cox

Operating, LLC, 16-0901, pp. 3-4 (La. App. 4 Cir. 4/5/17), 229 So.3d 534, 537-38

(observing that a judgment granting a defendant’s exception of res judicata and

dismissing a plaintiff’s claims is a final, appealable judgment, notwithstanding a

pending reconventional demand). Swafford’s filing of a supervisory writ

application neither forestalled the finality of the trial court’s judgment nor

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postponed the deadline to file a motion for appeal.4 See Johnson v. Montero, 17-

0274, p. 1 (La. App. 4 Cir. 3/29/17), 215 So. 3d 479, 481 (observing that the

appellate court has jurisdiction over a district court judgment despite a pending

supervisory writ application seeking review of same judgment).

Reaching the substantive merits of Swafford’s appeal, we find no error in the

district court judgment sustaining Graystar’s peremptory exception of res judicata.

In Countrywide Home Loans Servicing, LP v. Thomas, 12-1304 (La. App. 4 Cir.

3/20/13), 113 So.3d 355, this court set forth the following elements necessary to

dismiss an action on the basis of res judicata:

(1) the judgment in the executory process lawsuit is valid;
(2) the judgment is final;
(3) the parties are the same;
(4) the cause or causes of action asserted in the present suit existed at
the time of the final judgment; and
(5) the cause or causes of action asserted in the present petition arose
out of the transaction or occurrence that was the subject matter of
the executory process lawsuit.

Id., 12-1304, p. 7, 113 So.3d at 359 (quoting Regions Bank v. Rauch, 12-0232, p. 3

(La. App. 1 Cir. 12/21/12), 2012 WL 6677790 (unpub.)).

Swafford only disputes the existence of the second of these elements,

arguing that the judgment in the executory process lawsuit is not final because he

pursued an unsuccessful injunction of the seizure and sale and an appeal of the

order of seizure and sale, which was dismissed as abandoned. In support, Swafford

points to dicta in Countrywide Home Loans, in which the court, in its conclusion

that the order of seizure and sale was a final judgment, observed that the debtor

had neither appealed the order nor filed an injunction to arrest the seizure and sale.

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The district court’s interlocutory rulings ordered that Swafford permit inspection
of the subject property and vacate it within one week of the trial court’s ruling.
Any complaints as to these orders became moot by the time Swafford’s appeal was
filed.

4

Id., 12-1304, pp. 7-8, 113 So.3d at 359-60. According to Swafford, because he,

unlike the debtor in Countrywide Home Loans, attempted to enjoin the seizure and

sale and unsuccessfully appealed the order of seizure and sale, the order is not final

for res judicata purposes.

As Judge Ledet observed in her original concurrence in this matter,

Swafford’s argument presents a distinction without a difference. Following the

denial of Swafford’s attempted injunction of the seizure and sale and the dismissal

of Swafford’s appeal in the executory process lawsuit, the order of seizure and sale

became final for purposes of res judicata. To hold otherwise would contravene the

intent of the doctrine of res judicata, which “promotes judicial efficiency and final

resolution of disputes.” Johnson v. Orleans Par. Sch. Bd., 14-0277, p. 9 (La. App.

4 Cir. 4/26/17), 219 So.3d 452, 462 (quoting Ave. Plaza, L.L.C. v. Falgoust, 96-

0173, p. 4 (La. 7/2/96), 676 So.2d 1077, 1079).

Moreover, the remaining elements necessary to dismiss an action for res

judicata are present in this case: Pursuant to the first element, the order of seizure

and sale was a valid judgment. The district court in the executory process lawsuit

possessed jurisdiction over both the subject matter and parties, and the order of

seizure and sale was rendered after proper notice was given. See Burguieres v.

Pollingue, 02-1385, p. 8 (La. 2/25/03), 843 So. 2d 1049, 1053. Regarding the third

element, Swafford and Graystar were both parties to the order of seizure and sale

and the instant action. Turning to the fourth element, the cause of action stated in

the instant lawsuit existed, and was unsuccessfully pursued, at the time of the

executory process lawsuit. Finally, the cause of action asserted here arose out of

the same occurrence that was the subject matter of the executory process lawsuit,

namely, Swafford’s default on the promissory note held by Graystar.

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Conclusion

The district court judgment sustaining Graystar’s peremptory exception of

res judicata is affirmed.

AFFIRMED

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