Jim Walter Homes, Inc. v. Jessen

732 So. 2d 699, 1999 WL 182368
CourtLouisiana Court of Appeal
DecidedMarch 31, 1999
Docket98-1685
StatusPublished
Cited by62 cases

This text of 732 So. 2d 699 (Jim Walter Homes, Inc. v. Jessen) 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
Jim Walter Homes, Inc. v. Jessen, 732 So. 2d 699, 1999 WL 182368 (La. Ct. App. 1999).

Opinion

732 So.2d 699 (1999)

JIM WALTER HOMES, INC., Plaintiff-Appellant,
v.
Sherry Lynn JESSEN, aka Sherry Lynn Martin, as Tutrix of the Minor Children, Lauren Aline Storm and Jordan Scott Storm, Defendants-Appellees.

No. 98-1685.

Court of Appeal of Louisiana, Third Circuit.

March 31, 1999.

*700 Robert Waller Tillery, Hammond, for Jim Walter Homes, Inc.

John Haas Weinstein, Opelousas, for Sherry Lynn Jessen et al.

BEFORE: THIBODEAUX, PETERS, and PICKETT, Judges.

THIBODEAUX, Judge.

The plaintiff, Jim Walter Homes, Inc., appeals from a judgment denying it a preliminary injunction to enjoin Sherry Lynn Jessen, in her capacity as tutrix, from selling a house built under contract between Jim Walter Homes and Jessen, individually, and Jessen's former husband. The house is situated on land owned by Jessen's children from a previous marriage, and Jessen has no ownership interest in the land. Jessen's financial obligation to Jim Walter Homes, Inc., was discharged in bankruptcy as an unsecured debt. In this suit seeking a money judgment, we find that the plaintiff has made no showing of irreparable harm or that it is likely to prevail on the merits of an unjust enrichment claim. Accordingly, we must affirm the trial court's denial of the *701 preliminary injunction sought by Jim Walter Homes, Inc.

I.

ISSUES

We must decide:

1) whether the plaintiff must and did make a showing of irreparable harm; and
2) whether the plaintiff made a showing that it is likely to prevail on the merits of its claim of enrichment without cause.

II.

FACTS

Sherry Lynn Storm Martin Jessen (Sherry) was married to Billy Joe Storm prior to his death in September 1989. Before his marriage to Sherry, Mr. Storm purchased a small piece of land valued at approximately $3,000.00 on Johnson Bayou in Cameron Parish, Louisiana. This separate property of the deceased, Mr. Storm, went into the possession of the couple's minor children, Lauren Aline Storm and Jordan Scott Storm, in January of 1994. Sherry had, by that time, married Jonathan Martin, and together in January 1994, they signed a building contract, promissory note and an act of mortgage with Jim Walter Homes, Inc. ("Jim Walter" or "Jim Walter Homes") to construct a house on the children's land.

Sherry is the biological mother and natural tutrix of the Storm children, ages six and eight, and she was subsequently confirmed in that tutorship. She signed the Jim Walter documents in her capacity as an individual. Sherry testified that she made it clear to Jim Walter Homes that she did not own the land, and that the company's representative in Beaumont told her that the mortgage would be on the house only. However, the act of mortgage incorporates a description of the parcel of land owned by the Storm children. At trial, a different representative of Jim Walter Homes testified that borrowers are required to own the lot upon which the Jim Walter house is built.

Notwithstanding, Jim Walter built the house. The amount financed was $66,575.00. Sherry and Jonathan Martin paid approximately $15,000.00 in notes on the loan through July of 1996 but became insolvent and filed separate bankruptcy petitions under Chapter Seven in January 1997. At some point they were divorced. The bankruptcy petition of Jonathan Martin indicated that the obligation to Jim Walter was a secured debt, and that he intended to surrender the house. The petition of Sherry Storm Martin listed the obligation to Jim Walter Homes as an unsecured debt, and it was discharged in her bankruptcy proceedings. The record does not contain any explanation regarding the listing of the Jim Walter debt as a secured obligation on Jonathan's petition, and as an unsecured obligation on Sherry's petition for bankruptcy. Nor does the record reflect that any issue was made of this discrepancy or that any complaint was lodged in the bankruptcy court regarding the discharge of the debt in Sherry Martin's bankruptcy.

During the delinquency of the loan payments prior to the filings of bankruptcy petitions, Jim Walter Homes apparently did not attempt to foreclose upon, attach or sequester the property, or to file a materialman's lien or otherwise get a judgment against the Martins for non payment of the loan. The record does not contain any information explaining Jim Walter Homes' apparent failure to act, that is, whether it was related to problems with the act of mortgage, which described land that did not belong to Sherry and Jonathan Martin, or whether Jim Walter simply did not act upon the delinquency. Likewise, the record does not contain any information regarding whether the mortgage was ever recorded in Cameron Parish. This court can only infer that the bankruptcy court found the mortgage completely *702 invalid or unrecorded and accepted the debt classification as unsecured.

Approximately one month after the debt was discharged in bankruptcy, and approximately thirteen months after the Martins stopped paying the notes, Jim Walter Homes filed a petition against the Storm children and their mother as tutrix (now Sherry Jessen), for compensation because of enrichment without cause. Sherry has remarried, and the record reflects that the house has been vacant for over two years. Attempts have been made by Sherry Jessen to sell the house. Jim Walter Homes is now seeking a preliminary injunction against the defendants to enjoin them from selling the house until a trial on the merits can resolve the enrichment claim. The trial court denied the injunction, and this appeal was lodged. For the following reasons, we affirm the trial court's denial of the preliminary injunction.

III.

LAW AND DISCUSSION

Standard of Review

Our Supreme Court has recently reiterated the standard of review on appeal in Syrie v. Schilhab, 96-1027, p. 4 (La.5/20/97); 693 So.2d 1173, 1176 (citations omitted) as follows:

A court of appeal may not set aside a trial court's finding of fact in the absence of "manifest error" or unless it is "clearly wrong." This court has announced a two-part test for the reversal of the factfinder's determinations: (1) the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and (2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous). The issue to be resolved by the reviewing court is not whether the trier of fact is right or wrong but whether the factfinder's conclusion was a reasonable one.... The reviewing court must always keep in mind that if the trial court's findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as trier of fact, it would have weighed the evidence differently.

In the present case, Jim Walter Homes urges that another standard of review is applicable in this case wherein its assignments of error assert that the trial court made reversible errors of law. Appellate review of a question of law is simply a decision as to whether the lower court's decision is legally correct or incorrect. Ducote v. City of Alexandria, 95-1269 (La.App. 3 Cir. 7/17/96); 677 So.2d 1118. If the trial court's decision was based on its erroneous application of law, rather than on a valid exercise of discretion, the trial court's decision is not entitled to deference by the reviewing court. Kem Search, Inc. v. Sheffield, 434 So.2d 1067 (La.1983).

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Cite This Page — Counsel Stack

Bluebook (online)
732 So. 2d 699, 1999 WL 182368, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jim-walter-homes-inc-v-jessen-lactapp-1999.