Clark v. Simmons

167 So. 3d 140, 14 La.App. 5 Cir. 133, 2014 La. App. LEXIS 3035, 2014 WL 7338491
CourtLouisiana Court of Appeal
DecidedDecember 23, 2014
DocketNo. 14-CA-133
StatusPublished
Cited by2 cases

This text of 167 So. 3d 140 (Clark v. Simmons) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Clark v. Simmons, 167 So. 3d 140, 14 La.App. 5 Cir. 133, 2014 La. App. LEXIS 3035, 2014 WL 7338491 (La. Ct. App. 2014).

Opinion

MARC E. JOHNSON, Judge.

12Plaintiff/Appellant, Vivian M. Clark, appeals a judgment from the 29th Judicial District Court, Division “C,” that denied certain reimbursement claims against the defendants/appellees, Irma Jean Mott Simmons and Joseph Charles Mott, for properties which they co-owned in indivisión. For the following reasons, we reverse in part and affirm as amended.

FACTS AND PROCEDURAL HISTORY

This is the second appeal involving these parties and the immovable properties located along and near U.S. Highway 90 in Des Allemands, Louisiana. The underlying facts of this matter can be found in Simmons v. Clark, 08-431 (La.App. 5 Cir. 1/27/09); 8 So.3d 102, writ denied, 09-416 (La.4/13/09); 5 So.3d 166. In Simmons, this Court reviewed judgments from the trial court that annulled the purported conveyance of the properties in question to Ms. Clark and Malcolm, restoring Ms. Simmon’s and Mr. Mott’s interests in the properties; found that a mortgage in favor of Ameriquest Mortgage did not affect the undivided one-half (1/2) interest of Ms. Simmons and Mr. Mott; found that the actions of Ms. Clark | ¡¡and Malcolm constituted fraud and Ms. Simmons and Mr. Mptt were entitled to attorney’s fees in the amount of $15,000.00 pursuant to La. C.C. art. 1958; and assessed all costs against Ms. Clark and Malcolm. After reviewing the evidence, this Court reversed the trial court on the portion of the judgment that ordered Ameriquest’s mortgage not to affect the undivided one-half interest of Ms. Simmons and Mr. Mott. Id. The judgment was affirmed in all other respects.

Subsequent to the rendering of the opinion in Simmons, supra., Ms. Clark filed a Petition for Reimbursement Claims and Other Relief. In the petition, Ms. Clark alleged she was entitled to reimbursement from Ms. Simmons and Mr. Mott (hereinafter collectively referred to as “the defendants”), as co-owners in indivisión, for their pro rata share of the expenses she expended for house and bar/hall commencing from 2004. In a judgment dated October 22, 2013, the trial court found Ms. Clark was entitled to reimbursement from the defendants for taxes and utilities for the period of 2008-2012. The trial court denied and dismissed Ms. Clark’s other reimbursement claims for taxes and utilities, insurance, mortgage payments and materials and labor used in repairing the properties. Ms. Clark filed the instant [142]*142appeal, seeking review of the trial court’s October 22, 2013 judgment.

ASSIGNMENTS OF ERROR

On appeal, Ms. Clark alleges the trial court erred in: 1) failing to award reimbursement for the value of the repairs made to the structures; 2) failing to award reimbursement for taxes and utilities paid from 2004-2007; 3) failing to award reimbursement for insurance premiums paid from 2004-2007; and 4) failing to assign a specific dollar amount to the portion of the judgment rendered in her favor.

|4LAW AND ANALYSIS

Reimbursement for Repairs

Ms. Clark alleges the trial court erred in failing to award reimbursement for renovation work performed on the properties by her son, Malcolm, in the amount of $165,832.00. Ms. Clark contends the trial court was erroneous in concluding that the evidence she presented did not prove the renovation supplies were purchased for use in the bar/hall or with the knowledge of the co-owners. She avers that the evidence presented was consistent with the restorations of the structures to a condition consistent with their uses. She further avers the defendants knew about the renovations and never took any action to stop the work, and their consent was not an imperative factor in determining an award for reimbursement. Ms. Clark also contends the trial court was erroneous in failing to follow the provisions of La. C.C. art. 804 and failing to determine whether the work performed by Malcolm was consistent with the use of the properties.

The defendants argue the trial court was correct in its ruling because Ms. Clark failed to prove the value of the enhancements to the bar/hall or the house. The defendants maintain Ms. Clark performed substantial improvements in bad faith that went well beyond the necessary steps for preservation and, in turn, failed to prove that over $133,000.00 was necessary to bring the bar/hall into compliance with the Parish of St. Charles code requirements. The defendants also maintain that Ms. Clark’s admission that she did not pay Malcolm for the renovations and that she and Malcolm did not have any agreement as to how much he would charge for the work proved that she did not incur any expenses necessitating reimbursement.

Pursuant to La. C.C. art. 800, a co-owner may, without the concurrence of any other co-owner, take the necessary steps for the preservation of the thing that is Ifiheld in indivisión. Substantial alterations or substantial improvements to the thing held in indivisión may be undertaken only with the consent of all of the co-owners. La. C.C. art. 804. When a co-owner makes substantial alterations or substantial improvements consistent with the use of the property, though without the express or implied consent of the co-owner, the rights of the parties shall be determined by La. C.C. art. 496. Id. However, when a co-owner makes substantial alterations or substantial improvements inconsistent with the use of the property or in spite of the objections of the co-owners, the rights of the parties shall be determined by La. C.C. art. 497. Id.

La. C.C. art. 496 provides,

When constructions, plantings, or works are made by a possessor in good faith, the owner of the immovable may not demand their demolition and removal. He is bound to keep them and at his option to pay to the possessor either the cost of the materials and of the workmanship, or their current value, or the enhanced value of the immovable.

La. C.C. art. 497 further provides,

When constructions, plantings, or works are made by a bad faith posses[143]*143sor, the owner of the immovable may keep them or he may demand their demolitions and removal at the expense of the possessor, and, in addition, damages for the injury that he may have sustained. If he does not demand demolition and removal, he is bound to pay at his option either the current value of the materials and of the workmanship of the separable improvements that he has kept or the enhanced value of the immovable.

A co-owner who on account of the thing held in indivisión has incurred necessary expenses, expenses for ordinary maintenance and repairs, or necessary management expenses paid to a third person, is entitled to reimbursement from the other co-owners in proportion to their shares. La. C.C. art. 806. If the co-owner who incurred the expenses had the enjoyment of the thing held in indivisión, the reimbursement shall be reduced in proportion to the value of the enjoyment. Id.

|fiA trial court is granted wide discretion in assessing the probative value of evidence and is free to accept or reject, in whole or in part, the testimony of any witness. Gregoire v. Louisiana Dept. of Wildlife and Fisheries, 11-321 (La.App. 5 Cir. 4/10/12); 92 So.3d 932, 935 (citation omitted). The appellate court must not reweigh the evidence or substitute its own factual findings because it would have decided the case differently. Id.

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Cite This Page — Counsel Stack

Bluebook (online)
167 So. 3d 140, 14 La.App. 5 Cir. 133, 2014 La. App. LEXIS 3035, 2014 WL 7338491, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clark-v-simmons-lactapp-2014.