Salvagio et al v. Madison Realty Capital, L.P. et al
Filing
132
MEMORANDUM AND ORDER denying 117 Opposed MOTION to Abate, denying 116 Opposed MOTION to Amend 101 Memorandum and Order. (Signed by Judge Ewing Werlein, Jr) Parties notified.(kcarr, )
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
JAMES D. SALVAGIO and FAY M.
BOURGEOIS, AS TRUSTEES OF GULF
COAST ARMS,
Plaintiffs,
CIVIL ACTION NO. H-11-2183
MADISON REALTY CAPITAL, L.P,
WILLIAM G. LAWHON, STEPHEN C.
PAINE and BEVERLY VEAL, EACH
AS SUBSTITUTE TRUSTEES,
Defendants.
MEMORANDUM AND ORDER
Pending are Plaintifffs Motion to Amend (Document No. 116) and
Motion to Abate Judgment Pending Appeal
(Document No. 117), to
which Defendant Madison Realty Capital, L.P.
filed responses in opposition.
("Defendant") has
Both motions will be denied, for
the reasons that follow.
Plaintiff James Salvagio, acting as trustee of Gulf Coast
Arms, ("Plaintiff") moves to amend the Court's Memorandum and Order
of November
5, 2012, by
deleting that portion of
dissolving the Notice of L i s Pendens.
the Order
At the bench trial, however,
Plaintiff not only made no objection to dissolving the Notice of
L i s pendens'
but also expressly agreed to such dissolution when the
Court summarized its understanding of the partiesf agreements at
See Trial Tr. 10:3-24, October 25, 2012.
the close of the trial:
The Court: All right. Well, I accept the agreement made
by the parties here in open court.
I will make the
determination on the legal issue that has been presented
after receiving the rejoinder that will be filed by 5:00
ofclock today by plaintiffrs counsel.
Once that decision has been made, then in the event that
legal issue is decided in favor of plaintiff, the
deficiency to be entered in favor of defendant would be
$2,890,155.90.
In the event that the legal issue is
decided in favor of defendant, the deficiency due would
be $4,390,155.99.
Plus, on either finding, interest under New York law, in
agreement of the documents, 24 percent per annum from the
date of sale--that was sale date figures--until the date
of judgment and a waiver of attorney's fees by the
plaintiff--by the creditor suing on the notes. And,
further, that the lis pendens notice will be dissolved
upon the final judgment.
Is that all?
Ms. Cook:
Yes, Your Honor.
Mr. Borunda:
The Court:
That's the sum of it for both sides?
Yes, Your Honor.
Yes.
All right.
All right. I accept that, and this case is then under
submission. That concludes this hearing. The Court will
be in recess. Thank you.2
Plaintiff' s counsel, Mr. Jorge Borunda, affirms the foregoing in
his own affidavit in support of the present motion:
At the end of the trial, the Court described both
Agreement of Parties and Madison's counsel request
the dissolving of the L i s P e n d e n s and asked
confirmation that the summary was the sum total of
Trial Tr. 29:4 - 30:4 (emphasis added) .
the
for
for
the
matters discussed for both sides. Both Ms. Cook and I
affirmed that the summary was ~ o r r e c t . ~
Plaintiff thus stood by without objecting to an opponent's request
for relief on the Notice of Lis Pendens, thereby permitting the
Court to understand that Plaintiff implicitly agreed, and Plaintiff
then positively affirmed that there was in fact an agreement made
in open court "that the Lis Pendens notice will be dissolved upon
final judgment." The Memorandum and Order reflected accurately the
agreement of the parties at trial.
It is too late now to reopen
the trial simply for Plaintiff to make a different decision.
Plaintiff does not move for relief under Rules 59 or 60 from
the Final Judgment's
order that the Notice of Lis Pendens is
dissolved and vacated, but if he intended such, Plaintiff fails to
meet the standard for relief under either Rule.4
Document No. 116-1
ΒΆ
7 (Borunda Af f .)
Plaintiff's
.
Generally, there are four grounds upon which a Rule 59(e)
motion to alter or amend judgment may be granted: (1) the judgment
was based on a manifest error of fact or law; (2) the movant
presents newly discovered or previously unavailable evidence;
(3) the need to prevent manifest injustice; or (4) an intervening
change in controlling law. See Schiller v. Phvsicians Res. Group,
Inc., 342 F.3d 563, 567-68 (5th Cir. 2003) . A Rule 59 (e) motion
"cannot be used to raise arguments which could, and should, have
been made before the judgment issued."
I . at 567 (citation
d
omitted). Under Rule 60(b), a district court may relieve a party
from final judgment on the basis of (1) mistake, inadvertence,
surprise, or excusable neglect; (2) newly discovered evidence which
by due diligence could not have been discovered in time to move for
a new trial under Rule 59(b); (3) fraud, misrepresentation, or
other misconduct of an adverse party; (4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged; or
(6) "any other reason that justifies relief ."
FED. R. CIV. P.
4
motion to amend (Document No. 116) is therefore DENIED.
Plaintiff separately moves to abate that portion of the Final
Judgment dissolving and vacating the Notice of Lis Pendens pending
an appeal by Plaintiff.
Rule 62 (d) allows Plaintiff to obtain a
stay of the Final Judgment by filing a supersedeas bond approved by
the Court.
;
See FED. R. CIV. P. 62 (d) Hebert v. Exxon Corp., 953
F.2d 936, 938 (5th Cir. 1992) (stating that Rule 62 (d) "entitles a
party appealing a money judgment to an automatic stay upon posting
a supersedeas bond").
However, Plaintiff has not moved
for
approval of a supersedeas bond.
If Plaintiff's motion is considered as one for a discretionary
stay of a portion of the Final Judgment pending appeal, for which
Plaintiff has cited to no legal authority, the Court would consider
such a request based on the following elements:
"(1) whether the
movant has made a showing of likelihood of success on the merits;
he
60 (b). Relief under Rule 60 (b) is an extraordinary remedy; " [t]
desire for a judicial process that is predictable mandates caution
in reopening judgments." In re Pettle, 410 F.3d 189, 191 (5th Cir.
2005) (citing Carter v. Fenner, 136 F.3d 1000, 1007 (5th Cir.
With regard to "excusable neglect," the Fifth Circuit
1998)) .
explained:
[A] party cannot have relief under Rule 60 (b)(1) merely
because he is unhappy with the judgment. Instead he must
make some showing of why he was justified in failing to
avoid mistake or inadvertence. Gross carelessness is not
enough. Ignorance of the rules is not enough, nor is
ignorance of the law.
Chick Kam Choo v. Exxon Corp., 699 F.2d 693, 695 (5th Cir. 1983),
cert. denied, 104 S. Ct. 98 (1983) (citation omitted) .
(2) whether the movant has made a showing of irreparable injury if
the stay is not granted; (3) whether the granting of the stay would
substantially harm the other parties; and (4) whether the granting
of the stay would serve in the public interest."
In re ~ i r s t
South
Savinq-sAssfn, 820 F.2d 700, 709 (5th Cir. 1987).
Plaintiff would be required to establish all of these four
Indeed,
elements in his favor, and Plaintiff has not met the test.
there is no showing to demonstrate that Plaintiff has a likelihood
of success on the merits.
meritless
contentions
in
Plaintiff has over a term of years made
court
filings
here--and
in
other
proceedings--to perpetuate his practice of collecting cash rents
from tenants who
Plaintiff's
occupy
payment
the mortgaged
property
that
secured
of a $4 million note--a note upon which
Plaintiff defaulted long ago and upon which he has made no payments
for more than four years.
The Court's prior Memoranda and Orders
have amply explained why Plaintiff is not entitled to recover on
the merits, and Plaintiff has presented nothing new to support a
discretionary stay. Moreover, a partial stay of the Final Judgment
would substantially harm Defendant Madison by causing it further
unjust delay in realizing the value of its security.
It would also
disserve the public interest by potentially delaying Madisonfs sale
of this HUD-subsidized property to a party better able to manage
HUD-subsidized properties.
In sum, Plaintiff has wholly failed to
show itself entitled to a discretionary stay of any portion of the
Final Judgment.
The motion
to abate
5
(Document No.
117) is
therefore DENIED.
It is so ORDERED.
The Clerk will enter this Order and provide a correct copy to
all parties.
SIGNED at Houston, Texas, on this
day of January, 2013.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?