Crosstex Lig, LLC v. John M. Clark

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-315

CROSSTEX LIG, L.L.C.

VERSUS.

JOHN M. CLARK, PETER CLARK, JAMES MELVIN CLARK, GABRIEL
CLARK, TARALETHA TURNER BURNETT, AMERICAN GENERAL
FINANCIAL SERVICES OF LOUISIANA, INC. A/K/A AMERICAN
GENERAL FINANCE, INC., COURTESY CHEVROLET INC., DBA
CHEVY LAND, STATE OF LOUISIANA -DEPARTMENT OF SOCIAL
SERVICES, GEORGE D. BLEWER, RONNIE G. BLEWER, JAMES
COPELLAR, JR., LINDA G. BOYD, ROCKY GLENN CARNEY,
MAGNOLIA STEEL AND SUPPLY, LLC, FOUR-F ENTERPRISES, INC.,
NATCHITOCHES TAX COMMISSION, DENISE MOON, BANK OF
COUSHATTA, MIKES AUTO SALES, INC., AND JAMES COPELLAR, JR.

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APPEAL FROM THE
TENTH JUDICIAL DISTRICT COURT
PARISH OF NATCHITOCHES, NO. C-84197
HONORABLE DEE A. HAWTHORNE, JUDGE

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J. DAVID PAINTER
JUDGE

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Court composed of John D. Saunders, Marc T. Amy, and J. David Painter, Judges.

APPEAL DISMISSED.

Mr. James Melvin Clark
159 Caspari Street
Natchitoches, LA 71457
Defendant-Appellant Pro Se

Mr. J. Todd Benson
P. O. Box 1764
Shreveport, LA 71166
Counsel for Plaintiff-Appellee:
Crosstex LIG, LLC

Mr. Kent Gill,
3825 Gilbert Drive, Suite 113
Shreveport, LA 71104
Counsel for Defendant-Appellee:
Mike's Auto Sales

Mr. Daniel T. Murchison, Jr.
P. O. Box 226
Natchitoches, LA 71458
Counsel for Defendants-Appellees:
Four-F Enterprises & Ronnie G. Blewer,

Mr. Robert E. Bethard
P. O. Box 1362
Coushatta, LA 71019
Counsel for Defendant/Appellee:
Bank of Coushatta

Mr. J. Q. Davis
P. O. Box 318
Coushatta, LA 71019
Counsel for Defendant-Appellee:
Rocky Glenn Carney d/b/a Magnolia Steel and Supply

Mr. J. Christian Henry
P. O. Box 693
Natchitoches, LA 71458-0693
Curator for Defendant-Appellee:
Denise Moon

Mr. George L. Celles, IV
P. O. Box 486
Natchitoches, LA 71458-0486
Curator for Defendant-Appellee:
Taraletha Burnett

Mr. James Rex Fair, Jr.
500 North St.,
Natchitoches, LA
Curator for Defendant-Appellee:
Linda Boyd

Mr. Gabriel Clark
166 Brickyard Rd.
Natchitoches, LA 71458-1228
Defendant-Appellee Pro se

Mr. Peter Clark
4877 Hwy. 486
Campti, LA 71411
Defendant-Appellee Pro Se

PAINTER, Judge

Defendant-Appellant, John M. Clark, appeals the trial court’s ruling ordering

certain property owned in indivision with Plaintiff, Crosstex, LIG, L.L.C.

(Crosstex) to be partitioned by licitation. Finding that the appeal is moot, we

dismiss it.

FACTS

In 1959, John and Mary Clark bought a tract of land in Natchitoches Parish,

Louisiana. John Clark died intestate in 1988, and Mary died, also intestate, in

2006. They were survived by their children, John M. Clark, Joseph Clark, James

Abraham Clark, James M. Clark, Gabriel Clark, Doris Clark Rachel, and Peter

Clark. In 2010, Crosstex bought Joseph, James Abraham, and Doris’s interests in

the property.

In March 2011, Crosstex filed this action to partition the property. The court

found that the property was not susceptible of partition in kind and ordered

partition by licitation. A trial was held on September 23, 2011, and on that same

day, the court signed a judgment ordering a partition by licitation. Appellant filed a

Motion for New Trial or Hearing and for Temporary Restraining Order in the Form

of a Preliminary Injunction. The motion was denied, and Appellant filed a timely

motion for a suspensive appeal. However, the appeal was converted from a

suspensive to a devolutive appeal due to failure to post an appeal bond.

The property was sold at sheriff’s sale on April 4, 2012, where Crosstex

bought the property.

DISCUSSION

Appellant asserts that the trial court erred in ordering a partition by licitation.

Crosstex argues that the appeal is moot and should be dismissed.

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“A moot case is one which seeks a judgment or decree which, when
rendered, can give no practical relief.” United Cos. Lending Corp. v.
Hall, 97-2525, p. 4 (La.App. 1 Cir. 11/6/98), 722 So.2d 48, 50.

It is well established that appellate courts will not
render advisory opinions from which no practical results
can follow. United Teachers of New Orleans v. Orleans
Parish School Board, 355 So.2d 899 (La.1978). As a
result, Courts have established the rule that moot
questions will not be considered on appeal. State ex rel
Guste v. Louisiana Commission, 297 So.2d 750 (La.App.
1st Cir.1974). So strong is this prohibition that an
appellate Court, as a matter of judicial economy, has a
right to consider the possibility of mootness on its own
motion and to dismiss the appeal if the matter has
become moot. Aucoin v. Evangeline Parish Police Jury,
338 So.2d 789 (La.App. 3rd Cir.1976); Cain v. Board of
Supervisors, Ouachita Parish, 335 So.2d 711 (La.App.
2nd Cir.1976).

Wood v. Fontenot, 04-1174, pp. 3-4 (La.App. 3 Cir. 3/2/05), 896 So.2d 323, 325-

326, writ denied, City of New Iberia v. New Iberia Fire and Police Civil Serv. Bd.,

05-801(La. 5/13/05), 902 So.2d 1023, (citing Whitney Nat. Bank of New Orleans v.

Poydras Center Assoc., 468 So.2d 1246, 1248-49 (La.App. 4 Cir. 1985)).

Louisiana Code of Civil Procedure Article 4607 provides that:

When a partition is to be made by licitation, the sale shall be
conducted at public auction and after the advertisements required for
judicial sales under execution. All counsel of record, including
curators appointed to represent absentee defendants, and persons
appearing in proper person shall be given notice of the sale date. At
any time prior to the sale, the parties may agree upon a nonjudicial
partition.

A judicial or sheriff’s sale, if the proper formalities are observed, transfers

the property sold to the purchaser as completely as if the owner had sold it himself.

However, it transfers only the actual rights held by the debtor. See La.R.S. 9:3170.

This court in Cooley v. Merriman, 590 So.2d 718, 720 (La.App. 3 Cir. 1991)

(citation omitted), explained that: “Louisiana law is settled that a judgment

ordering a sale to effect a partition is executory after the expiration of the delay for

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a suspensive appeal, and all power to prevent the execution of the judgment is

lost.”

In Hagstette v. Wadsworth, 57 So.2d 222, 224 (La.1952), the Louisiana

Supreme Court stated:

[A] sale made under the mandate of the court to effect a partition is of
the same nature and character as other judicial sales and is governed
by the same rules. . . . [T]he judgment ordering the sale to effect a
partition becomes executory ten days after it is signed and that after
the expiration of the delay for a suspensive appeal, while the party
cast has the right to a devolutive appeal within one year, all power to
oppose or prevent the execution of the judgment is lost. . . . . If the
party cast fails to protect his rights by suspending the execution of the
judgment in the manner prescribed by law, the court can not undo
what has already been done by virtue of the judgment while it was
executory. It was pointed out therein that such a sale in pursuance of a
mandate of court transfers the property as completely as if the owner
had sold it himself

Thus, the judgment of the trial court ordering the property to be partitioned

by licitation became executory after the appeal was converted from suspensive to

devolutive. The fact that the sale has occurred renders moot Appellant’s devolutive

appeal of the order that the property be partitioned by licitation. See Messer v.

Harris, 442 So.2d 1284 (La.App. 3 Cir. 1983) and Devall v. Devall, 153 So.2d 114

(La.App. 1 Cir. 1963).

As was stated by this court in City Finance Co., Etc. v. Johnson,
410 So.2d 1189 (La.App. 3 Cir.1982), in a case involving a devolutive
appeal from a trial court's denial of injunctive relief to stop a
marshall’s sale “we know of no order or judgment this court could
render which would grant appellant the relief she seeks or undo that
which has already been done.”

Messer, 442 So.2d at 1286.

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CONCLUSION

Since the issue raised by Appellant’s is moot, we dismiss the appeal. All

costs of this appeal are assessed to Defendants-Appellants.

APPEAL DISMISSED.

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