COREY DAVID TREAS * NO. 2019-CA-0390
VERSUS * COURT OF APPEAL CHANTAL ELIZABETH * KOERNER FOURTH CIRCUIT * STATE OF LOUISIANA *******
APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2017-00714, DIVISION “D” Honorable Nakisha Ervin-Knott, JUDGE ****** Judge Dale N. Atkins ****** (Court composed of Judge Terri F. Love, Judge Rosemary Ledet, Judge Dale N. Atkins)
Stephen M. Petit, Jr. ATTORNEY AT LAW 1939 Hickory Avenue, Suite 208 Harahan, LA 70123
COUNSEL FOR PLAINTIFF/APPELLEE
Louis R. Koerner, Jr. KOERNER LAW FIRM 1204 Jackson Avenue New Orleans, LA 70130-5130
COUNSEL FOR DEFENDANT/APPELLANT
REVERSED IN PART; AFFIRMED IN PART; AND REMANDED
NOVEMBER 13, 2019 This appeal involves the partition of property, whose municipal address is
120 Alden Place, New Orleans, Louisiana 70119 (“the property”), co-owned by
Chantal Elizabeth Koerner, (“Koerner”) and her former boyfriend, Corey David
Treas (“Treas”). Koerner appeals the trial court’s judgment of December 14, 2018
(“December 2018 judgment”), denying her “Motion for Judgment on the Pleadings
for Partition by Licitation…through Public Sale,” (the “Motion”), granting Treas’
Motion for Reconsideration of Private Sale, finding Koerner in contempt, ordering
her to vacate the property by noon on December 17, 2018, and assessing a fine for
each additional day she remained at the property and failed to comply with the
order.
For the reasons that follow, we reverse in part the trial court’s December
2018 judgment, denying the Motion and granting of Treas’ Motion for
Reconsideration of Private Sale. We affirm in part the trial court’s December 2018
judgment, granting Treas’ Rule for Contempt and finding Koerner in constructive
contempt of court. We remand for further proceedings.
1 FACTUAL AND PROCEDURAL BACKGROUND
Koerner and Treas were involved in a romantic relationship. On June 8,
2016, during the course of their relationship, Treas purchased the property, through
the Veterans Administration (“VA”), in his name only, due to the couple’s marital
status and Treas’ ability to qualify for VA guaranteed financing, for one-hundred
percent (100%) of the purchase price. The property was secured by a mortgage
through Pacific Union Financial. On June 14, 2016, Treas executed a quitclaim
deed in favor of Koerner for “fifty-percent (50%) interest” in the property.1
Upon dissolution of the relationship, Treas left the property in January
2017.2 On January 24, 2017, Treas filed a Petition for Partition by Licitation
requesting partition of the property co-owned with Koerner and to “buy-out”
Koerner’s interest or, in the alternative, partition by licitation or by private sale.
Treas also requested exclusive use of the property pending the resolution of the
matter. In response, Koerner filed a domestic pleading alleging physical and
emotional abuse by Treas.3 Koerner also answered the petition for partition and
filed a reconventional demand, alleging several claims including claims for
damages and claims pursuant to the Louisiana Unfair Trade Practice and Consumer
Protection Act (“LUPTA”).
Koerner filed, on April 25, 2017, an Amended Answer and Reconventional
Demand asserting an affirmative defense alleging abuse by Treas and asserting the
right to revoke a donation of movables to Treas on the grounds of ingratitude. In 1 The parties do not dispute that Koerner is not a signatory on the mortgage. 2 Treas’ reason for leaving the property is disputed in this matter. Treas argues he voluntarily left the property. However, Koerner argues that Treas abandoned the property. 3 Koerner’s allegations of abuse are not at issue in this appeal.
2 response, Treas filed exceptions of improper cumulation and no right of action. On
June 30, 2017, the trial court denied Treas’ exception of improper cumulation, but
granted his exception of no right of action and ordered Koerner to amend her
claims.
Subsequently, on November 8, 2017, Koerner filed a Motion for Partial
Summary Judgment based on Treas’ failure to respond to her requests for
admission. Treas filed, on November 30, 2017, an opposition to Koerner’s Motion
for Partial Summary Judgment, reasserted his exceptions of no right of action and
no cause of action, and filed a Motion for Bifurcation, for Authority to Place
Immovable Property for Sale, for Additional Time to Answer Discovery and for
Status Conference.
On January 11, 2018, Koerner filed Amended Affirmative Defenses,
Amended Reconventional Demand, and Request for Stay for Partition Pendite Lite
and Opposition to Treas’ Motion for Bifurcation and for Authority to Place
Immovable Property for Sale Subject to Partition. Further, Koerner filed, on April
20, 2018, a Motion to Strike Treas’ Opposition to her Motion for Partial Summary
Judgment. Koerner also filed a Motion to Strike or Seal a Portion of Treas’
Supplemental Memorandum.
All of these various motions and exceptions came for hearing before the trial
court on June 29, 2018. On the same date, the trial court rendered its ruling. As to
this appeal, the relevant part of the trial court’s oral ruling is granting Treas’ Rule
Why the Immovable Property Should Not Be Listed for Private Sale. However, it
should be noted, in its written reasons for judgment, issued on July 10, 2018, the
trial court reversed its ruling granting the partition of the property by private sale,
and denied the request for private sale, citing that it lacked the authority to order a
3 private sale of the property. Koerner sought supervisory review, by this Court, of
the trial court’s judgment rendered on July 10, 2018. This Court denied Koerner’s
writ application. Treas v. Koerner, 2018-0621 (La. App. 4 Cir.
9/11/18)(unpublished).
On September 6, 2018, Treas filed a Motion to Compel More Complete
Answers to Interrogatories and Requests for Production. Treas also filed, on
September 20, 2018, a Motion for Exclusive Use of the property. Koerner filed, on
October 12, 2018, her opposition to Treas’ Motion for Exclusive Use of the
property. In her opposition, Koerner argued that she had paid all mortgage
payments and had taken care of all other expenses for the maintenance of the
property.4 On October 19, 2018, the matter on Treas’ motions came for hearing
before the trial court. On the same date, the trial judge orally ruled as follows:
(1) Granted Treas’ Motion to Compel More Complete Answers to Interrogatories and Requests for Production;
(2) Ordered Koerner to produce the responsive documents and answers to interrogatories;
(3) Granted Treas’ Motion for Exclusive Use;
(4) Ordered Koerner to vacate the property by October 31, 2018, by noon; and
(5) Ordered Koerner not to cause any damage to the property or remove any movables from the property subject to dispute of ownership.
Thereafter, on October 25, 2018, Koerner again sought supervisory review by this
Court, of the trial court’s October 19, 2018, judgment (“October 2018 judgment”).
This Court denied Koerner’s writ application on October 30, 2018. Treas v.
4 Despite Koerner’s contentions, she did not provide any supporting evidence in her opposition in asserting this claim.
4 Koerner, 2018-0934 (La. App. 4 Cir. 10/30/18)(unpublished). On the same date,
Koerner filed the Motion.
On November 2, 2018, Koerner filed a motion for a new trial. In her motion,
Koerner argued that a new trial was warranted because the trial court erroneously
declared that Treas had been the sole payor of the mortgage on the property. To
support her argument, she provided her bank statements and mortgage loan
statements showing the payments she made on the property.
The trial court, on November 5, 2018, issued its judgment and written
reasons denying Koerner’s motion for a new trial. In its written reasons, the trial
court stated Koerner failed to assert during the course of the hearing that she had
been the sole payor of the mortgage after Treas left the property.5 Further, the trial
court stated its finding that Treas’ status as the sole payor of the mortgage was not
a substantial basis for granting Treas’ Motion for Exclusive Use, but was merely
one of its reasons for judgment.
Again, on November 14, 2018, Koerner filed a writ application seeking
supervisory review by this Court of the trial court’s judgment rendered on
November 5, 2018, denying her motion for new trial. On the same date, Koerner
filed a Motion for Appeal and requested a stay of the “dispossession/eviction
injunction” rendered by the trial court in its October 2018 judgment. The trial court
denied Koerner’s motion for appeal reasoning that it was an “improper use of
appellate court procedure.” On November 15, 2018, this Court denied Koerner’s
5 It should be noted that the hearing transcript in the record indicates that Koerner’s counsel did assert that she had been paying for everything in reference to maintenance of the home and the mortgage loan payments on the home were “completely up to date.”
5 writ application, in which she sought review of the trial court’s November 5, 2018,
judgment. Treas v. Koerner, 2018-0971 (La. App. 4 Cir. 11/15/18)(unpublished).
On November 21, 2018, Koerner filed an application for supervisory writ to
the Louisiana Supreme Court. While this matter was before the Louisiana Supreme
Court, Treas filed, on December 6, 2018, in the trial court, a Motion for
Reconsideration of Private Sale and Opposition to Defendant’s Rule for Judgment
on the Pleadings, a Rule for Contempt, and supporting memorandum. Koerner
filed, on December 10, 2018, an opposition to Treas’ Motion for Reconsideration
of a Private Sale and a reply memorandum in support of the Motion. In Koerner’s
reply memorandum and opposition, she argued that Treas failed to cite any law
authorizing a private sale or that controverted the trial court’s judgment and
reasons declaring it lacked authority to order a private sale.
On December 14, 2018, the following motions came before the trial
court:
(1) Koerner’s Motion for Judgment on Pleadings for Partition of Licitation through Public Sale at Treas’ Cost and Initiation;
(2) Treas’ Motion for Reconsideration of Private Sale; and
(3) Treas’ Rule for Contempt.
The trial court rendered judgment, on the same date, and issued written
reasons in which it:
(1) Denied the Motion filed by Koerner;
(2) Granted Treas’ Motion for Reconsideration of Private Sale;
(3) Granted Treas’ Rule for Contempt ordering Koerner to pay a fine in the amount of $500.00, to vacate the property by December 17, 2018, and
6 (4) Ordered that Koerner pay a fine in the amount of $50.00 for each additional day she remained on the property until she complied with the order, and ordered Koerner not to damage or destroy the property and not remove any personal property and movables from the home over which there is dispute as to ownership.
Koerner sought expedited supervisory review of the December 2018
judgment, by this Court. On December 17, 2018, prior to this Court’s ruling on
Koerner’s expedited writ application, the Louisiana Supreme Court denied
Koerner’s writ application in which she sought supervisory review of the trial
court’s November 5, 2018, judgment denying her motion for new trial. Treas v.
Koerner, 2018-1891 (La. 12/17/18), 258 So.3d 600. Thereafter, on December 20,
2018, this Court denied Koerner’s expedited writ application seeking supervisory
review of the December 2018 judgment. Treas v. Koerner, 2018-1080 (La. App. 4
Cir. 12/20/18)(unpublished). It is from the December 2018 judgment that Koerner
now appeals.
DISCUSSION
Koerner raises these seven (7) assignments of error:
(1) The trial court erred in granting Treas’ Motion for Exclusive Use in its judgment of October 19, 2018;
(2) The October 19, 2018, judgment constitutes injunctive relief;
(3) The trial court was in error as to the October 19, 2018, judgment and reasons for judgment;
(4) The trial court erred in denying a motion for new trial based on mandatory grounds, including newly- discovered/newly-relevant evidence;
(5) the December 14, 2018, judgment granting Treas’ “Motion for Reconsideration of Private Sale” constituted
7 a mandatory injunction that could not be issued in a summary proceeding;
(6) The trial court erred in denying the Motion filed by Koerner and ordering, in the absence of consent of both co-owners, the private sale of property; and
(7) Factual errors, used by the trial court in informing its discretion, demonstrate an abuse of discretion that cannot explain or excuse its errors of law.
This Court has determined that all assignments of error can be resolved by
addressing three issues: (1) whether the December 2018 judgment is a final,
appealable judgment; (2) whether the trial court erred in ordering the private sale
of the property, and, therefore, erred in denying Koerner’s Motion for
Judgment on the Pleadings; and (3) whether the trial court committed manifest
error in granting Treas’ Rule for Contempt and finding Koerner in constructive
contempt of court. We will address these issues accordingly.6
Issue Number 1 - Jurisdiction- Final Appealable Judgment
We must first address whether the December 2018 judgment is a final,
appealable judgment. Prior to addressing the merits of the appeal, appellate courts
have the duty to determine sua sponte whether our appellate court’s jurisdiction
has been properly invoked by a valid final judgment. Bayer v. Starr Int'l Corp.,
2017-0257, p. 3 (La. App. 4 Cir. 8/15/17), 226 So.3d 514, 517–8 (citing Moon v.
City of New Orleans, 2015-1092, p. 6 (La. App. 4 Cir. 3/16/16), 190 So.3d 422,
425; Tsegaye v. City of New Orleans, 2015-0676, p. 3 (La App. 4 Cir. 12/18/15),
183 So.3d 705, 710; Delta Staff Leasing, LLC v. South Coast Solar, LLC, 2014-
1328 (La. App. 4 Cir. 9/23/15), 176 So.3d 668).
6 Notably, we also find the issue of exclusive use, which the trial court granted to Treas, raised by Koerner meritorious. However, Koerner has declared that she no longer seeks review of the trial court’s October 2018 judgment granting Treas exclusive use of the property. As such, all assignments of error (#1-4) relating to the issue of exclusive use are moot.
8 As such, we must analyze the December 2018 judgment from which
Koerner appeals. From this judgment, Koerner seeks review of the trial court’s
denial of her Motion for Judgment on the Pleadings for Partition by Licitation…
through Public Sale and the granting of Treas’ Motion for Reconsideration of
Private Sale and ordering Koerner in constructive contempt of court and assessing
a fine for her failure to comply with the order to vacate the property.
Here, the December 2018 judgment reads, in pertinent part, as follows:
On December 14, 2018, the following motions came before the Court for hearing:
1. Chantal Koerner’s Motion for Judgment on the Pleadings for Partition by Licitation of 120 Alden Place through a Public Sale as prayed for by Plaintiff, Corey Treas, at his Cost and Initiation; 2. Corey Treas’ Motion for Reconsideration of Private Sale; and 3. Corey Treas’ Rule for Contempt.
*** IT IS ORDERED, ADJUDGED, AND DECREED that Chantal Koerner’s Motion for Judgment on the Pleadings for Partition by Licitation of 120 Alden Place through a Public Sale as prayed for by Plaintiff, Corey Treas, at his Cost and Initiation is DENIED.
IT IS ORDERED, ADJUDGED, AND DECREED that Corey Treas’ Motion for Reconsideration of Private Sale is GRANTED.
IT IS ORDERED, ADJUDGED, AND DECREED that Corey Treas’ Rule for Contempt is GRANTED.
The only portion of this judgment that constitutes a final, appealable
judgment is the rule for contempt. “All contempt judgments are deemed final
judgments, subject to immediate appeal.” Cambrie Celeste LLC v. Starboard
Management, LLC, 2016-1318, pp. 9-10 (La. App. 4 Cir. 11/16/17), 231 So.3d 79,
85. Further, “[a] final, appealable judgment must contain the proper decretal
9 language. The judgment must name the party against whom and the party in favor
of whom the ruling is ordered, as well as the relief denied or granted.” Id. (quoting
Urquhart v. Spencer, 2015-1354, p. 3 (La. App. 4 Cir. 12/1/16), 204 So.3d 1074,
1077; Board of Supervisors of Louisiana State University v. Mid City Holdings,
L.L.C., 2014-0506, p. 3 (La. App. 4 Cir. 10/15/14, 151 So.3d 908, 910). Also, the
relief must be determinable “from the judgment itself—without any reference to an
extrinsic source—the specific relief granted.” Tsegaye, 2015-0676, p. 3, 183 So.3d
at 710.
As to the first element, which requires that the judgment name the party in
favor of whom each ruling is made, the judgment meets this element. The
judgment provides the name of the party of whom the ruling is ordered for each
motion and rule of contempt.
The second element requires that the judgment name the party against whom
the ruling is ordered. The judgment provides a list of the motions that were before
the trial court and the parties who filed each motion. Thus, while the judgment
does not explicitly provide the party against whom its ruling is ordered, it is
evident from the language of the judgment, without the reference to any extrinsic
source, to whom each ruling is ordered against.
The last element requires that the judgment state the specific relief denied or
granted. Accordingly, the judgment designates the specific relief rendered. For
instance, the judgment provides that “Corey Treas Rule for Contempt is Granted.”
This designation is explicit and determinable from the judgment itself.
Moreover, “[a] judgment that does not determine the merits but only
preliminary matters in the course of the action is an interlocutory judgment.”
Maqubool v. Sewerage and Water Board of New Orleans, 2018-0572, p. 3 (La.
10 App. 4 Cir. 11/14/18), 259 So.3d 630, 632; See La. C.C.P. art. 1841. Here, the
motions ruled on by the trial court constitute interlocutory judgments because
neither determines the merits of the case. On appeal, however, “[a]n appellant is
entitled to seek review of all adverse interlocutory judgments prejudicial to them,
in addition to the review of the final judgment when an unrestricted appeal is
taken.” Id., 2018-0572, p. 3, 259 So.3d at 632-3 (quoting Orleans Parish School
Board v. Lexington Insurance Company, 2011-1720, p. 10 (La. App. 4 Cir.
8/22/12), 99 So.3d 723, 729).
Here, the trial court’s ruling on Treas’ Motion for Reconsideration of Private
Sale and Koerner’s Motion for Judgment on the Pleadings for Partition by
Licitation…through Public Sale are both adversarial to Koerner as each deny the
relief she seeks, which is the partition of the property by public sale.
Thus, this Court’s appellate jurisdiction is properly invoked; and we may
review the entire judgment.
Issue Number 2 - Partition of Co-Owned Property by Private Sale
Next, we address the crucial issue in this appeal of whether a trial court has
the authority to order partition of co-owned property through a private sale. On
December 14, 2018, the trial court denied the Motion filed by Koerner and granted
Treas’ Motion for Reconsideration of Private Sale. In granting Treas’ motion, the
trial court ordered the property to be sold by private sale. Koerner contends the
trial court’s December 2018 judgment was in error and that the Motion should
have been granted.
A motion for judgment on the pleadings presents solely a question of law.
Stonebridge Development, LLC v. Stonebridge Enterprises, LLC, 42,039, p. 3 (La.
App. 4 Cir. 4/4/07), 954 So.2d 893, 896. Questions of law are subject to de novo
11 standard of review. Daigre v. International Truck and Engine Corp., 2010-1379, p.
10 (La. App. 4 Cir. 5/5/11), 67 So.3d 504, 510.
La. C.C.P. art. 965 states, in pertinent part, that:
Any party may move for judgment on the pleadings…For the purposes of this motion, all allegations of fact in mover's pleadings not denied by the adverse party or by effect of law, and all allegations of fact in the adverse party's pleadings shall be considered true.
Further, “[i]n considering a motion for judgment on the pleadings, nothing
beyond the pleadings may be considered; supporting evidence may not be
considered.” Daigre, 2010-1379, p. 5, 67 So.3d at 508 (citing Gibbens v. Wendy's
Foods, Inc., 31,487, pp. 3–4 (La. App. 2 Cir. 1/20/99), 729 So.2d 629, 631–632).
When reviewing this issue, we shall apply a de novo standard of review.
Koerner argues that the trial court lacks the authority to order a partition of
the property by a private sale. Specifically, Koerner argues the La. C.C. arts. 8007,
8078, and 8099 through 81110 mandate that the trial court order judicial sale of the
property. Further, Koerner argues that the trial court does not have the authority to
order partition of the property by private sale absent an agreement between co-
owners. Welch v. Zucco, 27, 634 (La. App. 2 Cir. 12/6/95), 665 So.2d 697;
Thompson v. Celestain, 2005-1481 (La. App. 4 Cir. 6/28/06), 963 So.2d 219. As
such, Koerner asserts the trial court erroneously based its decision to order a
private sale on its discretion.
7 La. C.C. art. 800, Preservation of The Thing. 8 La. C.C. art. 807, Right to Partition; Exclusion By Agreement. 9 La. C.C. art. 809, Judicial and Extrajudicial Partition; La. C.C. art. 810, Partition in Kind. 10 La. C.C. art. 811, Partition by Licitation or By Private Sale.
12 In opposition, Treas argues the trial court has the discretion and legal
authority to order partition of the property by private sale. Further, Treas argues
La. C.C. art. 811 requires that the court decree partition by licitation or a private
sale when a thing cannot be divided. He, also, contends the parties agreed to
private sale of the property, but Koerner, subsequently, changed her position.
In denying the Motion filed by and granting Treas’ Motion to Reconsider the
Private Sale of the property, the trial court relied on La. Civ. Code art. 811 and La.
C.C.P. art. 4605, which state:
La. C.C. art. 811- Partition by Licitation or By Private Sale:
When the thing held in indivision is not susceptible to partition in kind, the court shall decree a partition by licitation or by private sale and the proceeds shall be distributed to the co-owners in proportion to their shares. (emphasis added).
La. C.C.P. art. 4605- Preference; Appointment of Notary; Discretion of Court:
A partition proceeding shall be tried with preference over other ordinary proceedings.
After the trial of the proceeding, if the court finds that the plaintiff is entitled to a partition of the property, the court shall appoint a notary to make the partition in accordance with law.
Except as otherwise provided in Article 4606, the court has discretion to direct the manner and conditions of effecting the partition, so that it will be most advantageous and convenient to the parties. (emphasis added).
Additionally, the trial court, in its written reasons, noted that the following
informed its decision to deny Koerner’s motion:
(1) that Koerner had not obtained financing for the home despite representations to Treas that she would do so;
13 (2) that, after several conferences in this matter, it was under the impression that the parties had arrived at an agreement for a private sale; and
(3) that Koerner informed the court that the property likely will not sell at a public sale due to the upside down mortgage over the property.
Relying upon the language of La. C.C. art. 811 and La. C.C.P. art. 4605, the
trial court determined that a private sale would be “the most advantageous and
convenient” option for the parties given the “unique” nature of this case. However,
Koerner argues that the trial court erroneously based its decision to order a private
sale on its discretion and erred in reversing its previous ruling which determined it
lacked the authority to order a private sale of the property. We agree.
Under Louisiana law, a person may not be compelled to own property in
indivision with another and may petition a court of competent jurisdiction to
partition the property between its owners. Thompson 2005-1481, p. 5 936 So.2d at
222 (citing La. C.C. art. 807; Ainsworth v. Ainsworth, 2003-1626, p. 4 (La. App. 4
Cir. 10/22/03), 860 So.2d 104, 109)). If the property in question is not divisible in
kind, such as a house, it must be partitioned by licitation and put up for sale at
public auction. Id. (citing La. C.C. art. 811). The parties may agree, however, to a
private sale at any time before the auction is held. Id. (citing La. C.C.P. art. 4607).
Limitations on the right to partition are to be strictly construed. Ainsworth, 2003-
1626, p. 4, 860 So.2d at 109 (citing Campbell v. Pasternack Holding Co., Inc., 625
So.2d 477 (La. 1993)). It must be shown that an agreement by the parties not to
partition is definite and certain. Id. (citing Walker v. Chapital, 218 La. 663, 50
So.2d 641 (1951)).
Koerner and Treas were involved in a romantic relationship. During the
course of their romantic relationship, the record shows that Treas purchased the
14 property, in his name only. After purchasing the property, he executed a quitclaim
deed, conveying “fifty-percent (50%) of his interest,” in favor of Koerner. As such,
it is undisputed that Koerner and Treas are co-owners of “the property.” It is also
undisputed that the property, a house, is not divisible in kind.
This Court, in Thompson, addressed the same issue presented to us in this
appeal—partition of co-owned property between a former couple. Thompson
involved a petition for partition of immovable property brought by plaintiff, Leona
Thompson, against her former boyfriend, Alfred Celestain. The plaintiff alleged
that she was the owner of an undivided one-half interest in the house and that the
property was not susceptible to division in kind because the property included the
land and the house. As to the partition of the property at issue in Thompson, the
trial court rendered judgment in favor of the defendant and conveyed the plaintiff’s
undivided one-half interest to the defendant. The plaintiff appealed asserting the
trial court erred in ordering the transfer of her interests to the defendant instead of
partitioning the property. This Court vacated the trial court’s judgment and
remanded the matter. In its decision, this Court held:
[A] person may not be compelled to own property in indivision with another and may petition a court of competent jurisdiction to partition the property between its owners. If the property in question is not divisible in kind, such as a house, it must be partitioned by licitation and put up for sale at public auction. The parties may agree, however, to a private sale at any time before the auction is held. (internal citations omitted).
Thompson, 2005-1481, p. 5, 936 So.2d at 222.
Further, this Court concluded, “[i]n the absence of an agreement to privately
sell the property…the trial court was bound as matter of law to order the property
15 sold at auction…” and “an agreement to sell property in lieu of partition must be
‘definite and certain.”’ Id., 2005-1481, p.6, 936 So.2d at 222.
Treas contends there was an agreement between him and Koerner to sell the
property by private sale, but Koerner changed her position. To the contrary,
Koerner argues there was never such an agreement. The record does not reflect that
Treas and Koerner agreed to a private sale of the property. La. C.C.P. art. 4607
authorizes the parties to agree to a private sale at any time before the public sale.11
In the absence of an agreement of the co-owners to a private sale of the property, a
judicial partition is the only remedy. See La. C.C. art. 811; Ainsworth, 2003-1626,
860 So.2d 104; Welch, 27, 634, 665 So.2d 697; Thompson, 2005-1481, 963 So.2d
219. Furthermore, an agreement by the parties not to partition must be “definite”
and “certain.” Ainsworth, 2003-1626, p. 4, 860 So.2d at 109. The record on appeal
shows that the parties differ as to whether there was an agreement to sell the
property by private sale. Therefore, if there was an agreement, it was not “definite”
and “certain.” Id.; Thompson¸ 2005-1481, p. 6, 936 So.2d at 222.
The law does not provide for the result reached by the trial court in this
matter. It is not within the trial court’s discretion to grant a court ordered private
sale because it is an “advantageous and convenient option for the parties given the
unique nature of the case.” La. C.C. art. 811 and La. C.C.P. art. 4605, which the
trial court relied upon to order a private sale, have been interpreted by
11 La. C.C.P. art. 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.
16 jurisprudence to make no such provision. The Court of Appeal, Second Circuit
addressed the interpretation of these two articles in Welch, 27, 634, 665 So.2d 697.
In Welch, the Second Circuit reversed and remanded a lower court’s decision to
order partition of property by a private sale. Similarly, as in this appeal, co-owners
were disputing over the partition of property. The trial court determined that the
matter presented two issues: (1) whether the plaintiffs were entitled to partition by
licitation or (2) if defendant was entitled to purchase plaintiffs’ interest at a
stipulated price. Welch, 27, 634, p. 2, 665 So.2d at 699. Ultimately, the trial court
ordered a partition by private sale, as it determined that it would be the “most
convenient and advantageous method of partition” for the parties. Id., 27, 634, p. 3,
665 So.2d at 699. The Second Circuit, however, disagreed with the lower’s court
ruling. In reversing the trial court, the Second Circuit concluded:
[W]e conclude that nothing in the code articles, comments thereto, or jurisprudence contemplates a court- ordered private sale as directed by the trial court in this matter. LSA—C.C. Art. 811, amended in the 1990 legislative session, indeed contemplates partition by private sale. Additionally, LSA—C.C.P. Art. 4607, also amended in the 1990 legislative session, directs that partitions by licitation be conducted at public auction but also provides that a nonjudicial partition may be agreed upon by the parties prior to a judicial sale.
Id., 27, 634, p. 5, 665 So.2d at 700.
The Second Circuit also concluded that, “[w]e believe the ‘private sale’ of
Art. 811 and the consensual sale in Art. 4607 are simply the sale defined by LSA–
C.C. Art. 2439, i.e., in order to effect the sale, there must agreement between the
parties as to thing, price and consent.” Id., 27, 634, p. 6, 665 So.2d at 700. Clearly,
absent an agreement between Koerner and Treas to sell the property by private
17 sale, the trial court was bound, as a matter of law, to order the property to be sold
at public auction.
To support his position that the trial court was correct in granting his Motion
for Reconsideration of a Private Sale and ordering a private sale of the property,
Treas argues that the property will sell for less at a public sale; a public sale will
not cancel the mortgage, which places a restriction on the sale of the property; and
at a public sale, the property will be transferred “subject to all mortgages and
liens.” Treas’ arguments are without merit.
La. C.C. art. 812 provides that: “[w]hen a thing held in indivision is
partitioned in kind or by licitation, a real right burdening the thing is not affected.”
Moreover, La. C.C. art. 815 states: “[w]hen a thing is partitioned by licitation, a
mortgage, lien, or privilege that burdens the share of a co-owner attaches to his
share of the proceeds of the sale.” Since the record does not reflect that the parties
agreed to a private sale of the property, the sale of the property must be effected by
partition by licitation, and Koerner and Treas will be “entitled to a portion of the
proceeds equal to their ownership share in the property, and further share
according to their ownership interest in the liability for any mortgages or
encumbrances on the property.” Thompson, 2005-1481, pp. 5-6, 936 So.2d at 222.
Moreover, in effecting the partition by licitation of the property, “[t]he trial
court has the discretion to direct the manner and conditions of effecting a partition
so that it will be most advantageous and convenient to the parties.” Vuskovich v.
Thorne, 466 So. 2d 619, 621 (La. App. 5th Cir. 1985). This discretion extends to
the trial court’s “right to set a minimum bid which the property must bring at
judicial sale.” Id. Thus, we deem it appropriate for the trial court to set a minimum
bid that the property must bring at the public sale. Id.
18 Issue Number 3 – Granting of Contempt Judgment
Lastly, Koerner argues the trial court’s December 2018 judgment, granting
Treas’ Rule for Contempt and finding her in constructive contempt of court should
be reversed. “Appellate courts review a trial court’s finding of contempt by a
manifestly erroneous standard.” State through Department of Children and Family
Services Child Support Enforcement v. James Knapp, 2016-0979, p. 11 (La. App. 4
Cir. 4/12/17), 216 So.3d 130, 139 (citing Jaligam v. Pochampally, 2014-0724, p. 5
(La. App. 4 Cir. 2/11/15), 162 So.3d 464, 467). Pursuant to La. C.C.P. art. 221,
“[a] contempt of court is any act or omission tending to obstruct or interfere with
the orderly administration of justice, or to impair the dignity of the court or respect
for its authority.” In Louisiana, there are two types of contempt of court, direct and
constructive. Id.; See Germain v. Germain, 2019-0067, p. 4 (La. App. 4 Cir.
9/11/19), __ So.3d __. Constructive contempt of court is a “[w]ilful disobedience
of any lawful judgment, order, mandate, writ, or process of the court…” La. C.C.P.
art. 224(2). In the trial court’s December 2018 judgment, Koerner was found to be
in constructive contempt of court for failure to comply with the trial court’s order
to vacate the property by noon on October 31, 2018.
Further, “[a] court's finding that a person willfully disobeyed a lawful
judgment in violation of La. C.C.P. art. 224(2) must be based on a finding that the
accused violated an order of the court ‘intentionally, purposely, and without
justifiable excuse.’” Knapp, 2016-0979, p. 13, 216 So.3d at 140 (quoting Burst v.
Schmolke, 2010–1036, p. 6 (La. App. 4 Cir. 4/6/11), 62 So.3d 829, 833). “The trial
court is vested with great discretion in determining whether a party should be held
in contempt for disobeying a court order and the court's decision should be
19 reversed only when the appellate court discerns an abuse of that discretion.” Id.,
2016-0979, pp. 13-14, 216 So.3d at 140.
On October 19, 2018, the trial judge orally ruled, granting Treas exclusive
use of the property, and ordering Koerner to vacate the property by noon on
October 31, 2018. The written judgment was signed, by the trial judge, on October
29, 2018. The judgment, in pertinent part, as to the exclusive use of the property,
states:
IT IS FURTHER ORDERED that the Plaintiff’s Motion for Exclusive Use is GRANTED and Chantal Koerner is ordered to vacate the property located at 120 Alden Place, New Orleans, LA 70119 by October 31, 2018 by 12:00 p.m. noon.
Thereafter, on October 25, 2018, Koerner requested a stay of the
proceedings by the trial court and applied for supervisory writ before this Court.
The trial court denied Koerner’s request for stay. This Court denied Koerner’s
request for supervisory review of the October 2018 judgment. Treas v. Koerner,
2018-0934, (La. App. 4 Cir. 10/30/18)(unpublished). Subsequently, Koerner
sought supervisory writ to the Louisiana Supreme Court, which was denied. Treas
v. Koerner, 2018-1891 (La. 12/17/18), 258 So.3d 600. After the trial court’s
October 2018 judgment, Koerner filed various motions with the trial court.
Koerner sought supervisory review, by this Court, several times on various rulings
by the trial court, and each time Koerner requested the trial court to stay its
October 2018 judgment ordering her to vacate the property. Each time the trial
court denied Koerner’s request for stay.
The record on appeal is clear as to the trial court’s repeated denials to stay its
October 2018 judgment ordering Koerner to vacate the property by noon on
October 31, 2018. Furthermore, the record shows the trial court’s October 2018
20 judgment was not reversed by this Court. Therefore, the trial court’s October 2018
judgment remained in effect. Koerner was on notice, as of October 19, 2018, that
she was to vacate the property by noon on October 31, 2018. However, as of
December 14, 2018, Koerner had not vacated the property. Therefore, the trial
court granted Treas’s Rule for Contempt and found Koerner in contempt for failing
to comply with its October 2018 judgment. We agree.
Koerner had no justifiable excuse for her failure to comply with the trial
court’s October 2018 judgment, as no stay was granted by the trial court. The
judgment was valid and still in effect. Koerner chose to disobey the trial court’s
October 2018 judgment, which ordered her to vacate the property. Koerner failed
to show a justifiable excuse for remaining at the property. Her refusal to vacate the
property without a “justifiable excuse” was an “intentional” disregard of the trial
court’s order, as stated by the trial court in its written reasons for judgment dated
December 14, 2018. Thus, we do not find that the trial court committed manifest
error in finding Koerner in constructive contempt of court. Further, the trial court,
in its December 2018 judgment, properly ordered, pursuant to La. R.S.
13:4611(1)(d)(i),12 Koerner to pay a fine in the amount of five hundred dollars
($500) and a fine in the amount of fifty dollars ($50) for each additional day she
remained on the property after December 17, 2018.
Therefore, we find Koerner’s argument contesting the trial court’s granting
of Treas’ Rule for Contempt and finding her in constructive contempt of court to
be meritless.
12 La. R.S. 13:4611(1)(d)(i) provides, [f]or any other contempt of court, including disobeying an order for the payment of child support or spousal support or an order for the right of custody or visitation, by a fine of not more than five hundred dollars, or imprisonment for not more than three months, or both.
21 DECREE
For the foregoing reasons, we reverse in part the trial court’s judgment of
December 14, 2018, denying the Motion filed by Koerner and granting Treas’
Motion for Reconsideration of Private Sale.
We affirm in part the trial court’s judgment of December 14, 2018, granting
Treas’ Rule for Contempt and finding Koerner in constructive contempt of court.
We remand for further proceedings.