C & C Classic Homes, Inc. Versus Janet Marie Stewart, Individually and as Tutrix of Sari Collier

• Court: Louisiana Court of Appeal
• Decided: December 30, 2024
• Docket: 24-CA-244
• Status: Unknown

Opinion

C & C CLASSIC HOMES, INC. NO. 24-CA-244

VERSUS FIFTH CIRCUIT

JANET MARIE STEWART, INDIVIDUALLY COURT OF APPEAL AND AS TUTRIX OF SARI COLLIER STATE OF LOUISIANA

ON APPEAL FROM THE SECOND PARISH COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 139-093, DIVISION "A" HONORABLE SHARLAYNE JACKSON PREVOST, JUDGE PRESIDING

December 30, 2024

FREDERICKA HOMBERG WICKER JUDGE

Panel composed of Judges Fredericka Homberg Wicker, John J. Molaison, Jr., and Scott U. Schlegel

AFFIRMED FHW JJM SUS COUNSEL FOR PLAINTIFF/APPELLANT, C & C CLASSIC HOMES, INC. Irl R. Silverstein

COUNSEL FOR DEFENDANT/APPELLEE, JANET MARIE STEWART, INDIVIDUALLY AND AS TUTRIX OF SARI COLLIER Shermin S. Khan WICKER, J.

This is an appeal by C&C Classic Homes, Inc. (“C&C”) from a judgment of

the Second Parish Court, Parish of Jefferson, denying the Rule for Possession filed

by C&C against Janet Stewart, individually, and as Tutrix of Sarah Collier,

erroneously referred to in the caption of these proceedings as “Sari” Collier. For the

reasons stated below, we affirm.

STATEMENT OF THE CASE

As indicated by the court below, this matter has an “extensive procedural

history” that involves litigation in the Second (Jefferson) Parish Court, the Seventh

Justice of the Peace Court (the “7th JP Court”), Jefferson Parish, and in the Twenty-

Fourth Judicial District Court for Jefferson Parish (the “24th JDC”). The litigation

involves a dispute over ownership and the right to possess the property located at

1214 Industry Street, Bridge City, Louisiana 70094 (the “Property”). Janet Stewart

and her now deceased sister, Angelnell Stewart (“Stewart”),1 have been purchasing

the Property, pursuant to a duly recorded bond for deed contract (the “Bond for

Deed”), entered into by them and Faith Hatch Hooter (“Hooter”), the then owner of

the Property, on October 22, 2008. C&C claims to be the current owner of the

Property by virtue of a General Warranty Deed (the “Warranty Deed”) executed in

its favor on December 19, 2022, by Hooter.

Thereafter, on January 4, 2023, Charlotte and Clayton Miller, representing

themselves as “owners,” posted an eviction notice on the Property. On January 11,

2023, the Millers filed an eviction action (the “Eviction Action”) against “Dorothy

Stewart and Occupants” in the 7th JP Court (Case No. 01112023) and a Rule to Show

1 Angelnell Stewart had a daughter, Sarah Collier, who is a minor. Janet Stewart is the child’s Tutrix.

24-CA-244 1 Cause for Eviction was issued to “Dorothy Stewart and Occupants” on behalf of the

Millers on the same date, setting an eviction hearing for January 18, 2023.2

On January 24, 2023, C&C filed a Rule for Possession (the “First Rule”)

against Stewart in the Second Parish Court.3 That action, entitled C&C Classic

Homes, Inc. v. Janet Marie Stewart, No. 138-180 “B,” on the docket of the Second

Parish Court, was transferred to the 24th JDC on March 2, 2023, for lack of subject

matter jurisdiction. C&C filed a Motion for New Trial but on April 6, 2023,

dismissed the First Rule.

On February 13, 2023, Stewart filed a Petition for Declaratory Judgment (the

“Declaratory Judgment Action”)4 against the Millers (who had represented

themselves in the Eviction Action as the owners of the Property) and Hooter, seeking

to be declared the owner of the Property and to have the court enjoin the defendants

from pursuing eviction or otherwise disturbing Stewart’s peaceable possession of

the Property. The Millers responded to the Declaratory Judgment Action by filing

Exceptions of No Cause of Action, Improper Use of Summary Proceedings and

Failure to Join an Indispensable Party, which were granted on June 13, 2023.

Stewart appealed the 24th JDC ‘s judgment granting the exceptions to this Court.5

By Judgment dated May 29, 2024, we reversed the district court’s judgment, in part,

and affirmed, in part, as amended, and held that Stewart had stated a cause of action

for declaratory relief under La. C.C.P. art. 3654, but that she had failed to join an

indispensable party – C&C – and should be given a chance to amend her petition to

add C&C as a defendant.

On June 20, 2023, C&C filed another Rule for Possession against Stewart in

the Second Parish Court (No. 139-093 “A”) (the “Second Rule”), identical to the

2 The record does not indicate contain any Ruling on the Eviction Rule, but it is clear from the record that no eviction occurred. 3 C&C is wholly owned by the Millers. 4 24th JDC Docket No. 837-792, “L.” 5 Stewart v. Miller, 23-535 (La. App. 5 Cir. 5/29/24), 388 So.3d 1264.

24-CA-244 2 First Rule, claiming ownership of the Property and requesting that Stewart be

ordered to vacate the Property. In response, Stewart filed a Dilatory Exception of

Prematurity, Peremptory Exception of No Right of Action and Peremptory

Exception of No Cause of Action. On November 7, 2023, the court conducted a trial

on the merits on Stewart’s exceptions and C&C’s rule for possession. Following the

hearing, the court took the matter under advisement and the parties submitted post-

trial briefs. On February 27, 2024, the court entered judgment overruling Stewart’s

exceptions and denying C&C’s rule for possession. C&C timely filed a motion for

devolutive appeal and this appeal followed.

STATEMENT OF FACTS

Hooter was the owner of the Property, having acquired same by an Act of

Donation Inter Vivos dated April 1, 2006, and recorded in the public records of

Jefferson Parish on April 5, 2006 in COB 3162, pg. 966. Thereafter, Hooter listed

the Property for sale with real estate agent, Joycelyn Cheramie, who ultimately also

acted as Stewart’s agent. Hooter executed a Property Disclosure Statement for the

Property on December 4, 2007 (the “Disclosure Statement”).

The Disclosure Statement was provided to Stewart on July 28, 2008. That

same day, Stewart executed a Louisiana Residential Agreement to Buy or Sell (the

“Purchase Agreement”), pursuant to which Stewart offered to purchase the Property

in accordance with the terms and conditions thereof. The Purchase Agreement had

a Bond for Deed Addendum, providing that the manner of purchase would be by

Bond for Deed, with a purchase price of $150,000, $8,900 of which would be paid

at closing as a down payment. The remaining balance would bear interest at the rate

of 6.50%, amortized over 30 years, payable in monthly installments for five years,

with a balloon payment of the remaining principal balance due at the end of five

years. The Purchase Agreement, including the Bond for Deed Addendum was

24-CA-244 3 accepted by Hooter on August 4, 2008. Stewart paid Hooter $1,000 in conjunction

with the Purchase Agreement.

A Bond for Deed was executed by Stewart and Hooter on October 22, 2008

and recorded in the public records of Jefferson Parish on October 24, 2008, at COB

3238, pg. 300; MOB 4388, pg. 504.6 The Bond for Deed incorporated the terms of

the Bond for Deed Addendum and provided for monthly payments of $891.85, plus

a monthly escrow payment for property taxes and insurance of $326.92 to be made

to the escrow agent (Southern Escrow and Title Services (the “Escrow Agent”)).

The first payment was to be due on November 20, 2008, with monthly payments

being due on the 20th of each month thereafter for a period of 59 months, with the

then remaining principal balance being due and payable on or before November 1,

2013. Upon full payment of the Purchase Price, title would be transferred to

Stewart.7

Stewart made the down payment at closing and made monthly payments in

accordance with the Bond for Deed to the Escrow Agent for several years.8 By letter

dated January 13, 2013 (the “January 13, 2013 Letter”), the Escrow Agent sent a

letter to Stewart, referencing a default notice of September 4, 2013, and the passage

6 An Act of Correction was filed in the public records of Jefferson Parish (COB 3242, pg. 186, MOB 4397, pg. 164) by the closing notary on January 22, 2009 to correct the property description contained in the Bond for Deed. 7 Although Stewart testified that the sisters believed that they were purchasing the Property when they executed the Bond for Deed. If indeed that is the case, their belief was not reasonable under the circumstances, as the Bond for Deed states the following:

IT CLEARLY UNDERSTOOD AND AGREED THAT THIS DOCUMENT IS NOT A SALE, TRANSFER OR CONVEYANCE, BUT ONLY A WRITTEN AGREEMENT TO SELL, TRANSFER AND CONVEY THE HEREIN DESCRIBED PROPERTY IN THE FUTURE; PROVIDED ALL OF THE TERMS, CONDITIONS, PAYMENTS AND OBLIGATIONS SET FORTH HEREIN AFE FULLY, COMPLETELY AND TIMELY MET BY PURCHASERS. 8 A schedule of payments allegedly made by Stewart on the Bond for Deed contained in the record, indicates that in January 2013, Stewart began making payments to Walton Hooter, rather than the Escrow Agent. The payment amount increased to $1,250 per month to account for taxes and insurance. Stewart testified that the change in the payee was instigated by Hooter. The Statement of Account prepared by the Escrow Agent and appearing in the record indicates, however, that payments were made to the Escrow Agent through August, 2013.

24-CA-244 4 of more than 45 days since the mailing of the notice. The letter demanded payment

within 10 days of all allegedly past due amounts totaling $8,789.46, including

monthly payments due for August, 2013 through January, 2014, late fees and a

reinstatement fee. The January 13, 2013 Letter did not mention any balloon payment

coming due or having come due, nor does it appear from the record that Hooter ever

made any effort to enforce the balloon payment provision of the Bond for Deed. The

record does not reflect what occurred as a result of the January 13, 2013 Letter. It

is clear however that Stewart did not make a balloon payment on or before

November 1, 2013. A Statement of Account prepared by the Escrow Agent indicates

that Stewart continued to make monthly payments towards the purchase of the

Property through June 2022.9

On September 7, 2017, Angelnell Stewart died intestate. No administrator of

her estate was appointed until March 28, 2023, pursuant to a Petition to Appoint

Administrator, when Janet was appointed as administrator.

The Property was damaged by Hurricane Ida, which made landfall in Jefferson

Parish on August 29, 2021. The Property was insured by Stewart with State National

Fire Insurance Company. Stewart filed a claim against the insurance for damages to

the Property, but the insurer promptly became insolvent, leaving Stewart with no

funds with which to conduct repairs to the Property.

Stewart testified that sometime in 2022, she began asking Hooter for the deed

to the Property. Stewart stated that they had been paying on the Property for many

years and she believed that they would have had fully paid for the Property and were

entitled to the deed. Thereafter, according to Stewart, Hooter ceased communicating

9 In its Reasons for Judgment, the court below stated that it found “strange” the fact that Hooter “had the title company send out a Notice of Default in 2013 but did not follow up with a cancellation of the bond for deed and instead continued to collect payments pursuant to the Bond for Deed from 2008 through 2022, right before she sold the property to [C&C]” and also that Hooter would “forgo a balloon payment provision and continue to collect monthly installments for another nine (9) years without re-negotiating the terms of the Bond for Deed….”

24-CA-244 5 with them. Because of Hooter’s silence, Stewart decided to stop paying the monthly

Bond for Deed payments. A schedule submitted on behalf of Stewart shows

payments having been made through May 2022.10

On November 21, 2022, the Louisiana Insurance Guaranty Association

(“LIGA”) issued two checks, both payable to Stewart and Hooter, one for

$20,125.20 and one for $1,118.25, for a total of $21,243.75. The “insured” and the

“claimant” as listed on both checks is Stewart. Stewart testified that she received

the checks and had her sister, Dorothy, call Hooter to make arrangements for Hooter

to sign the checks. Hooter told Dorothy to have Janet sign the checks and mail them

to her, which she did. Hooter never returned the insurance checks to Stewart and

never paid Stewart the proceeds of the checks.

On December 7, 2022, Hooter filed a Cancellation of Bond for Deed on

Default (the “Cancellation”). On December 19, 2022, Hooter purportedly sold the

Property to C&C, which is owned by her friends, the Millers, under the Warranty

Deed, for a purchase price of $10,000. The Warranty Deed was filed for recordation

in the public records of Jefferson Parish on January 6, 2023 and appears of record at

COB 3480, pg. 518.

Prior to the recordation of the Warranty Deed, on January 4, 2023, the Millers,

representing themselves as “owners” posted a Notice to Vacate on the Property (the

“Notice to Vacate”). On January 6, 2023, the Escrow Agent filed a Request to

Cancel Inscription of the Bond for Deed. On January 11, 2023, the Millers filed the

Eviction Proceeding. On January 24, 2023, C&C filed the First Rule.

On April 6, 2023, C&C dismissed the First Rule on the grounds that “mover

has been provided information that calls into question the efficacy of the cancellation

10 As stated above, the schedule prepared by the Escrow Agent shows that Stewart paid the Bond for Deed through June 2022.

24-CA-244 6 of the Bond for Deed….” On April 10, 2023, Hooter sent a default letter (the “April

2023 Default Letter”) to Stewart, which Stewart received on May 3, 2023. In the

April 2023 Default Letter, Hooter claimed that Stewart was in default on the Bond

for Deed in an amount over $29,000. The April 2023 Default Letter alleges that

Stewart stopped making payments on the Bond for Deed in 2021. These allegations

were denied by Stewart at trial and C&C did not introduce any evidence

demonstrating that Stewart was in default on the Bond for Deed other than the

hearsay testimony of Ms. Miller.

As discussed above, C&C filed the Second Rule on June 13, 2023, trial on the

Second Rule and Stewart’s exceptions occurred on November 7, 2023. The only

witnesses to testify at trial were Charlotte Miller, who testified as to the purchase of

the Property by C&C and Janet Stewart, who testified as to the execution of the Bond

for Deed, payments made on the Bond for Deed and as to the insurance proceeds.

As stated above, the court below denied Stewart’s exceptions and C&C’s rule

for possession by Judgment dated February 27, 2023. C&C appeals herein the

portion of the Judgment denying its rule for possession.

DISCUSSION

An appellate court may not set aside a trial court’s findings of fact in the

absence of manifest error or unless it is clearly wrong. Rosell v. ESCO, 549 So.2d

840 (La. 1989). If a trial court's findings are reasonable based upon the entire record

and evidence, an appellate court may not reverse said findings even if it is convinced

that had it been sitting as trier of fact it would have weighed that evidence

differently. Housley v. Cerise, 579 So.2d 973 (La. 1991). A trial court’s conclusions

of law are reviewed de novo. Durio v. Horace Mann Ins. Co., 11-0084, p. 14 (La.

10/25/11), 74 So.3d 1159, 1168. “The proper standard of appellate review of

questions of law is simply whether the court's interpretive decision is legally

24-CA-244 7 correct.” Franklin Southland Printing Co. v. New Orleans Aviation Bd., 99-60, p. 8

(La. App. 5 Cir. 7/27/99), 739 So.2d 977, 981.

A bond for deed is “a contract to sell real property, in which the purchase price

is to be paid by the buyer to the seller in installments and in which the seller after

payment of a stipulated sum agrees to deliver title to the buyer.” La. R.S. 9:2941.

La. R.S. 9:2941.1 provides, in pertinent part:

A. Upon the recordation in the mortgage and conveyance records of a bond for deed contract…any sale, contract, counterletter, lease, or mortgage executed by the bond for deed seller, and any lien, privilege, or judgment relating to or purporting to affect immovable property that has not been filed previously for registry or recorded in the mortgage records shall be subject to the rights created by the bond for deed contract.

B. Following registry of the sale by bond for deed seller to the bond for deed purchaser, his successors or assigns, any such instrument or writing that was filed in the mortgage records after the filing of the bond for deed contract shall be cancelled by the clerk of court or the recorder of mortgages upon request by affidavit of any interested party, but only insofar as it affects the property described in the bond for deed and subsequent sale, after the note holder or lien holder has been given thirty days written notice and fails to execute a release. A copy of the sale by the bond for deed seller to the bond for deed purchaser or his successors or assigns, containing relevant recordation information, shall be attached to the request.

La. R.S. 9:2945 provides that if the buyer under a bond for deed fails to timely

make the payments in accordance with the bond for deed contract, the seller may, at

her option, and after service by certified mail of a written default notice on the bond

for deed purchaser giving the bond for deed purchaser 45 days to cure any default,

cancel the bond for deed.

There is no dispute that Hooter and Stewart entered into a Bond for Deed, that

the Bond for Deed was filed for recordation and that possession was delivered to

Stewart upon execution of the Bond for Deed. The issues relative to whether Stewart

defaulted on the Bond for Deed and whether it was properly cancelled are disputed.

Stewart claims that she paid the Bond for Deed through May 2022 and claims

24-CA-244 8 ownership of the Property by virtue of having paid well in excess of the purchase

price under the Bond for Deed. 11 Conversely, C&C claims ownership of the Property

by virtue of the Warranty Deed.

Here, we are called upon to decide whether the court below correctly denied

C&C’s rule for possession, pursuant to La. C.C.P. art. 4731(A), after service of the

Notice to Vacate, with which Stewart refused to comply. An eviction proceeding

affords the owner of immovable property a remedy to evict an occupant from the

property once the purpose of the occupancy has ceased. La. C.C.P. art. 4702.

In this case, the record shows that the Notice to Vacate was left at the Property

on January 4, 2023, by the Millers, who represented themselves to be the “owners”

of the Property; however, the Warranty Deed purports to convey the Property from

Hooter to C&C, not the Millers. Thus, the Millers are not the owners of the Property

and the Notice to Vacate was defective.

Further, at the time the Millers posted the Notice to Vacate on the Property,

there had been no valid cancellation of the Bond for Deed by Hooter. Although she

filed a cancellation of the Bond for Deed on December 7, 2022, she failed to comply

with the mandatory procedures of La. R.S. 9:2945(A), by sending the required notice

and giving Stewart an opportunity to cure. See Williams v. Dixie Land Company,

231 La. 834, 93 So.2d 185, 186 (La. 1956). Accordingly, the cancellation of the

Bond for Deed was ineffective and any sale of the Property to C&C would, at a

minimum, be subject to the Bond for Deed under La. R.S. 9:2941.1(A). Moreover,

neither the Millers nor C&C is a party to the Bond for Deed and Stewart could not

have been in default of any obligation owed to the Millers or to C&C. Thus,

11 In its Reasons for Judgment, the court below stated that, based on the evidence introduced at trial, the court had calculated that Stewart had paid approximately $209,000 on the Bond for Deed, which had a total purchase price of $150,000 and had retained an additional amount of $21,243.75 received from LIGA.

24-CA-244 9 Stewart’s right to possession of the Property had not ceased at the time the Millers

posted the Notice to Vacate at the Property or at the time the request for cancellation

of the inscription of the Bond for Deed was filed on December 7, 2022.

As the court below correctly found, the testimony and evidence introduced at

trial by both C&C and Stewart related to a dispute over the ownership of the

Property. La. C.C.P. art. 4705 states that the eviction procedure shall not be

construed to conflict with the Louisiana Code of Civil Procedure articles relating to

actions to determine ownership or possession. It has been held that an eviction

proceeding is not a proper proceeding in which to determine disputed title to

property, where the defendant has a semblance of title. Tartan Transport & Const.,

Ltd. v. McDonald, 436 So.2d 1270 (La. App. 1st Cir.1983), writ denied, 442 So.2d

446 (La.1983). Instead, summary eviction procedure is designed for situations where

the possessor has no semblance of claim to title or possession. Foreman v. Luquette,

344 So.2d 1111 (La. App. 3d Cir.1977); Champagne v. Broussard, 401 So.2d 1060

(La. App. 3rd Cir.), writ denied, 409 So.2d 615 (La.1981); Northeast Realty v.

Jackson, 36,276 pp. 5-6 (La. App. 2 Cir. 8/14/02), 824 So.2d 1264, 1267-68.

We agree with the court below that the issues presented in this case relate to

ownership of the Property under the Warranty Deed and the Bond for Deed, and to

the right to possession of the Property under the Bond for Deed. Accordingly, the

court below correctly denied the Rule for Possession filed by C&C and its decision

in this regard is AFFIRMED.

AFFIRMED

24-CA-244 10 SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON STEPHEN J. WINDHORST LINDA M. WISEMAN JOHN J. MOLAISON, JR. FIRST DEPUTY CLERK SCOTT U. SCHLEGEL TIMOTHY S. MARCEL FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX www.fifthcircuit.org

NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY DECEMBER 30, 2024 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

24-CA-244 E-NOTIFIED 2ND PARISH COURT (CLERK) HONORABLE SHARLAYNE JACKSON PREVOST (DISTRICT JUDGE) IRL R. SILVERSTEIN (APPELLANT) SHERMIN S. KHAN (APPELLEE)

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