Lucinda Charles A/K/A Lucinda Landry, Et Ux. v. Charles Ray Landry

• Court: Louisiana Court of Appeal
• Decided: March 10, 2010
• Docket: CA-0009-1161
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

09-1161

LUCINDA CHARLES A/K/A LUCINDA LANDRY

VERSUS

CHARLES RAY LANDRY

************

APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. 2008-2642 HONORABLE THOMAS R. DUPLANTIER, DISTRICT JUDGE

DAVID E. CHATELAIN* JUDGE

Court composed of James T. Genovese, Shannon J. Gremillion, and David E. Chatelain, Judges.

APPEAL DISMISSED.

Thomas A. Budetti Attorney at Law 556 Jefferson Street, Suite 200A Lafayette, Louisiana 70501 (337) 269-9499 Counsel for Defendant/Appellee: Charles Ray Landry

Marcus A. Allen, Sr. Attorney at Law 840 South Washington Street Lafayette, Louisiana 70501 (337) 289-1762 Counsel for Plaintiff/Appellant: Lucinda Charles a/k/a Lucinda Landry

* Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore. CHATELAIN, Judge Pro Tempore.

Plaintiff, Lucinda Charles a/k/a Lucinda Landry (Lucinda), appeals the trial

court’s judgment that granted peremptory exceptions of prescription and no cause of

action in favor of the defendant, Charles Ray Landry (Mr. Landry). For the following

reasons, we dismiss the appeal of Lucinda Charles.

FACTS AND PROCEDURAL HISTORY

The relevant facts in this matter are not in dispute. Lucinda and Mr. Landry are

former spouses who divorced in 1983. In their community property settlement

recorded in 1984, Lucinda transferred to Mr. Landry her ownership interest in the

community home, which was subject to a $13,000 mortgage in favor of the United

States Department of Agriculture, Farmers Home Administration (FHA). Conversely,

Mr. Landry agreed to fully assume the mortgage and to hold Lucinda harmless for all

indebtedness owed on the home. The community property settlement, however, did

not require the home to be re-mortgaged, and, thus, both Lucinda and Mr. Landry

remained listed as obligors on the FHA mortgage.1

In the fall of 1989, Mr. Landry stopped paying the FHA indebtedness and

moved out of the home. The FHA instituted foreclosure proceedings against

Mr. Landry and Lucinda in 1992.2 Because neither could be located, a curator ad hoc

was appointed to represent them in the suit. The curator was unable to contact

Mr. Landry; however, she did contact Lucinda, who was now married to Russell

Charles (Mr. Charles). When Lucinda informed the FHA that she should not be held

liable for the mortgage because she had transferred her interest in the home to

1 According to the petition, the transfer of the home’s ownership occurred without the knowledge, consent, or authorization of the FHA. 2 See Civil Docket No. 92-1724 filed in the Fifteenth Judicial District Court in Lafayette Parish, Louisiana, entitled U. S., Dep’t of Agric., Farmers Home Admin. v. Landry.

1 Mr. Landry in their community property settlement, she was told that because the

transfer of home’s ownership occurred without the knowledge, consent, or

authorization of the FHA, she was still jointly liable with Mr. Landry for payment of

the mortgage note. Negotiations ensued between Lucinda and the FHA, and the FHA

agreed to dismiss the foreclosure suit without prejudice. According to the petition in

the present case, it is alleged that Lucinda and Mr. Charles “repurchased the property

back from the [FHA] via the form of a ‘short sale’” and began cleaning and

refurbishing the home.3 Lucinda did not submit any evidence to substantiate her

assertion that she “repurchased” the home. Indeed, Mr. Landry remained as the

record owner of the immovable property.

In February of 2008, Mr. Landry sold the home to Curtis Viator (Mr. Viator)

for $25,000. As a result, Lucinda brought this suit against Mr. Landry seeking

damages for loss of use and ownership of the property; loss of money for the

repurchasing, refurbishing, and maintaining of the property; fraudulent unilateral

conveyance of the property; mental anguish and emotional distress; and

embarrassment and humiliation. Mr. Landry answered the suit, claiming therein that

Lucinda’s petition failed to state a cause of action and that her claims against him

were prescribed.

The matter was originally set for trial on March 30, 2009. At a pretrial

conference on the morning of trial, the trial judge informed the parties that he

believed that the case presented legal, rather that factual, issues. The matter was reset

for April 27, 2009 for argument only, and the trial judge invited the parties to submit

briefs regarding whether Lucinda’s claims against Mr. Landry were prescribed and/or

3 The record does include a copy of a motion to dismiss the foreclosure suit which FHA filed; however, the motion is silent as to the reason why FHA desired to dismiss its suit.

2 whether she could recover based on community property or acquisitive prescription

laws, as well as any other relevant issues.

At the April 27, 2009 hearing, counsel for Lucinda conceded that, based upon

applicable law, she could not and did not acquire the home through acquisitive

prescription. Nevertheless, Lucinda claimed that she had acquired the home under

the legal principle of abandonment; that is, she claimed that Mr. Landry had

relinquished possession of the property with the intent of giving up ownership, and

she had possessed the property with the intent to own it. Following the hearing, the

trial court determined that Lucinda had paid off the FHA mortgage without having

title to the home in 1992, thus giving her a claim against Mr. Landry, but that she

simply waited too long to assert that claim in court. With regard to Lucinda’s claim

that she acquired the home due to Mr. Landry’s having abandoned it when he could

no longer afford to pay the mortgage, the trial court ruled that this claim, too, was

untimely asserted against Mr. Landry, given the fact that he no longer owned the

house at the time Lucinda filed suit against him. The trial court based this reasoning

on the fact that, despite Lucinda’s having satisfied the mortgage, Mr. Landry retained

title to the home in 2008 and was thus free to sell it to Mr. Viator. Accordingly, the

trial court granted Mr. Landry’s exceptions of prescription and no cause of action,

finding that title of the home had remained with Mr. Landry as a result of the

community property settlement and that Lucinda’s right to recover against

Mr. Landry was time-barred.4

4 The record contains two transcripts reflecting proceedings had on March 30, 2009. In the first transcript, beginning on page sixty of the record, the matter was reset to April 27, 2009. Accordingly, we have assumed, for purposes of this opinion, that the transcript beginning on page sixty-five of the record reflects the proceedings had on April 27, as opposed to March 30, 2009.

3 Lucinda now appeals, asserting in her sole assignment of error that the trial

court erred when it granted Mr. Landry’s exception of no cause of action because it

failed to consider her arguments regarding abandonment under La.Civ.Code art.

3418.

DISCUSSION

From the outset, we observe that the tack Lucinda has taken in perfecting her

appeal, by limiting her argument to an attack on the trial court’s ruling on

Mr. Landry’s peremptory exception of no cause of action and choosing not to argue

the correctness of the trial court’s ruling with regard to the peremptory exception of

prescription, poses a fundamental problem for appellate review. Because of the

posture of this appeal, we must first determine whether we are presented with only

a moot question.

An “[a]ppeal is the exercise of the right of a party to have a judgment of a trial

court revised, modified, set aside, or reversed by an appellate court.” La.Code Civ.P.

art. 2082. “An assignment of errors is not necessary in any appeal.” La.Code Civ.P.

art. 2129.5 Correlatively, an “appellate court shall render any judgment which is just,

legal, and proper upon the record on appeal.” La.Code Civ.P. art. 2164. Thus, an

appeal generally presents to the appellate court all of the issues, claims, or defenses

that were decided against the appellant by the trial court judgment.

Nevertheless, “[t]he Courts of Appeal will review only issues which were

submitted to the trial court and which are contained in specifications or assignments

of error, unless the interest of justice clearly requires otherwise.” Uniform

5 An exception to this statement is provided for when an appellant chooses to limit the issue(s) for the appellate court to decide by designating record portions and by stating the points relied upon. See La.Code Civ.P. arts. 2128, 2129.

4 Rules—Courts of Appeal, Rule 1–3. More particularly, the rules of the appellate

courts further state, in part, that the “brief of the appellant or relator shall set forth . . .

a specification or assignment of alleged errors relied upon, the issues presented for

review, [and] an argument confined strictly to the issues of the case.” Uniform

Rules—Courts of Appeal, Rule 2–12.4. Based upon those rules, this court has

repeatedly stated that it will not consider issues not contained in assignments of error.

See e.g., Shay v. Creative Poolscapes and Gardens, LLC, 09-256 (La.App. 3 Cir.

11/10/09), 25 So.3d 155; Pomier v. Moreland, 06-1117 (La.App. 3 Cir. 2/7/07), 951

So.2d 486; Maricle v. Sunbelt Builders, Inc., 05-398 (La.App. 3 Cir. 11/2/05), 916

So.2d 1226, writ denied, 05-2506 (La. 3/31/06), 925 So.2d 1261.

Putting aside for the moment the question of whether an assignment of error

is necessary to preserve appellate review of an issue,6 Uniform Rules—Courts of

Appeal, Rule 2–12.4 further provides that “[a]ll specifications or assignments of error

must be briefed” and that the “court may consider as abandoned any specification or

assignment of error which has not been briefed.” Based upon that rule, this court has

time and again stated that “[w]here a party advances no argument whatsoever for one

of [its] alleged specific assignments of error, the court may consider that assignment

of error abandoned.” Velazquez v. Landcoast Insulation, Inc., 08-804, p. 8 (La.App.

3 Cir. 12/10/08), 999 So.2d 318, 323, writ denied, 09-66 (La. 3/6/09), 3 So.3d 490.

See also, Friendship Hunting Club v. Lejeune, 08-671 (La.App. 3 Cir. 12/10/08), 999

So.2d 216, writ denied, 09-79 (La. 3/13/09), 5 So.3d 121; DeBaillon v. Consol.

6 For an interesting discussion of the seeming conflict between La.Code Civ.P. art. 2129 and the Uniform Rules—Courts of Appeal, see Judge Pro Tempore Culpepper’s partial dissent in Mayo v. Nissan Motor Corp. in U.S.A., 93-852 (La.App. 3 Cir. 6/22/94), 639 So.2d 773, writs granted and remanded, 94-1978, 94-1990 (La. 11/11/94), 644 So.2d 661.

5 Operating Co., Inc., 07-1117 (La.App. 3 Cir. 1/30/08), 975 So.2d 682; Smith v.

Morris & Dickson, 05-1120 (La.App. 3 Cir. 3/1/06), 924 So.2d 1217.

Notwithstanding Lucinda’s failure to abide by Uniform Rules—Courts of

Appeal, Rules 1–3 and 2–12.4, even should we find that the issue of prescription is

properly before us, we are still faced with the fact that she failed to brief that issue.

Under well-settled jurisprudence interpreting Uniform Rules—Courts of Appeal,

Rule 2–12.4, we find Lucinda’s failure to advance any argument whatsoever on the

propriety of the trial court’s granting of the peremptory exception of prescription

constitutes an abandonment of that issue.

It is well settled that “[t]he function of the peremptory exception is to have the

plaintiff’s action declared legally nonexistent, or barred by effect of law, and hence

this exception tends to dismiss or defeat the action.” La.Code Civ.P. art. 923. It is

likewise well established that the peremptory exceptions of no cause of action and

prescription are distinct pleas. Succession of Thompson, 186 So. 1 (La.1938).

Moreover, the peremptory “exception of no cause of action can not be made to fill the

place of an exception or plea of prescription.” Id. at 3. Applying this body of law

and Lucinda’s abandonment of the prescription issue, we find that the portion of the

trial court’s judgment granting Mr. Landry’s peremptory exception of prescription has

become final. See La.Code Civ.P. art. 1841; La.Code Civ.P. art. 2087. As such,

regardless of how we might assess Lucinda’s argument about abandonment and the

propriety of the trial court’s granting of the peremptory exception of no cause of

action, the peremptory exception of prescription defeats Lucinda’s claim against

Mr. Landry. Accordingly, we pretermit any discussion of Lucinda’s assignment of

error regarding abandonment and its basis for her attack against the trial court’s

6 granting of Mr. Landry’s peremptory exception of no cause of action. To do

otherwise would require us to render an advisory opinion “from which no practical

results can follow.” Wood v. Fontenot, 04-1174, p. 4 (La.App. 3 Cir. 3/2/05), 896

So.2d 323, 326, writ denied sub nom. City of New Iberia v. New Iberia Fire and

Police Civil Serv. Bd., 05-801 (La. 5/13/05), 902 So.2d 1023.

DECREE

For the foregoing reasons, the appeal of Lucinda Charles is dismissed. All

costs of this appeal are assessed to Lucinda Charles.