Judgment rendered August 27, 2025. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
No. 56,345-CA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
RELIABLE LIFE INSURANCE Plaintiff-Appellee COMPANY, INC.
versus
DARRYL MILLER Defendant-Appellant
Appealed from the Fourth Judicial District Court for the Parish of Ouachita, Louisiana Trial Court No. C-2023-2738
Honorable Frederick D. Jones, Judge
DIANNE HILL Counsel for Appellant
S. HUTTON BANKS Counsel for Appellee
Before PITMAN, STEPHENS, and ELLENDER, JJ. PITMAN, C. J.
Defendant Darryl Miller appeals the judgment of the trial court
granting summary judgment in favor of Plaintiff Reliable Life Insurance
Company (“RLIC”) and determining the rights of the parties under written
instruments related to immovable property in Ouachita Parish. For the
following reasons, the judgment of the trial court is affirmed.
FACTS
RLIC is a company based in Monroe, Louisiana, and its authorized
representative and officer is Cleo Miller. RLIC filed a petition for damages
and declaratory relief against Darryl Miller,1 seeking a determination
regarding its rights under written instruments relating to immovable property
in Ouachita Parish located at 3702 Gouville Drive. Its suit sought a
determination of whether Darryl leased or purchased the property from it
and also sought a judgment returning its property because he had stopped
making payments in 2022.
RLIC purchased the property in May 2013 for $225,000, which was
paid to the seller at closing. In June 2014, acting through its authorized
representative Joseph Miller, it executed a written lease agreement leasing
the residential property to Darryl for $1,062.50 per month for a term of
48 months, and then month-to-month thereafter. The terms of the lease
required rent to be paid on the first of the month or a late charge of
10 percent would become due if not paid by the fifth day of the month and
another 10 percent if not paid by the tenth of each month. The lease stated
that Darryl waived his right to any notice and agreed to vacate the property
1 Darryl Miller is the son of Joseph and Cleo Miller. He was a former employee of RLIC until he was terminated. in the event the lessor declared the lease terminated. He also agreed to pay
reasonable attorney fees and costs.
Darryl took possession of the property and remained in possession.
He signed a promissory note on September 1, 2015, promising to pay RLIC
$198,00 plus interest in monthly installments of $1,062.50 as per the written
lease agreement. The promissory note further provided that in the event he
failed to make a single monthly payment, the holder of the note had the
option to accelerate the entire obligation without providing notice of default
to him.
In addition to the promissory note, Darryl, misidentified as
“Mortgagee,”2 also executed a collateral mortgage allowing RLIC,
misidentified as “Mortgagor,” to secure funds from Darryl, who declared
and acknowledged a debt of $225,000, less $27,000 previously paid by him
to it in the form of monthly rent toward the down payment on this mortgage
note represented by the promissory note. The mortgage also states that
RLIC warrants that record title to the mortgaged property shall be in the
name of the “Mortgagee.”3 Another clause states that in the event the
“Mortgagee” defaults, the “Mortgagor,” without making a demand and
without putting him in default, may seize all or part of the mortgaged
property and have it sold by executory process or any other legal process.
2. The promissory note was attached to a purported collateral mortgage that references the sale by which RLIC purchased the property in 2013. RLIC’s petition alleged that the collateral mortgage Darryl signed presumably misidentifies him as the “Mortgagee” and RLIC as the “Mortgagor.” RLIC also alleged that there are no written instruments conveying any ownership interest in the property to him. These instruments create confusion, especially because the designations of the parties are reversed.
3. The “mortgage property” is not identified until the last page as the house Darryl rented on Gouville Drive. Darryl is made responsible for all property taxes and assessments made on the home.
2 The mortgage also contains a clause providing that if any proceedings are
instituted to enforce the mortgage, “either by executory process or by
ordinary suit, any and all declarations of fact made by authentic act by a
person declaring such facts lie within his knowledge shall constitute
authentic evidence of such facts for the purpose of the proceeding.” Despite
all of the allusions to a purported act of sale of the home from RLIC to
Darryl, no act translative of title was ever created.
In its petition, RLIC alleged that regardless of whether Darryl owed
the rent under a lease or pursuant to monthly installments due on a sale, he
stopped making payments of any kind in any amount around June 9, 2022,
although he continued to occupy the property. RLIC alleged that for
109 months of consecutive occupancy, the amount due was $115,812.50,
excluding late fees, penalties and/or interest, and he had paid only
$91,599.00.
RLIC noted that during the Covid pandemic, Darryl applied for
emergency rental assistance from the Louisiana Emergency Rental
Assistance Program (“LERAP”) and verified that he was leasing the
property from it. Accordingly, LERAP paid RLIC $17,137.50 in partial
compensation for his delinquent rental payments. RLIC alleged that,
pursuant to this admission to the state that he was renting the property, he
was estopped from claiming he purchased, rather than leased, the subject
property. RLIC noted that as a condition of accepting the check for
emergency rental assistance from the state, it agreed it would not charge, and
would waive and forgive, penalties, interest and court costs owed for the
months from April 2020 through July 2022. It reserved the right to charge
him a $100 late fee for each month during that time period. 3 RLIC prayed for damages and for judgment under La. C.C.P.
art. 1871 declaring that RLIC did not sell Darryl any ownership interest in
the property and that any and all rights and obligations owed to it would be
found in the lease agreement. It also prayed that he be found to be in breach
of the lease and ordered to vacate the subject property in addition to paying
all costs. In the alternative, it prayed that he be declared to have breached
the promissory note and found liable to it for that breach.
Darryl’s answer alleged that he is the owner of the home although he
admits he signed a lease. He claimed he signed the promissory note under
his father’s instructions and was under the impression that a deed to the
house would be issued and recorded, but that deed never materialized. He
claimed because the mortgage was “defective,” he quit making payments
although he continued to occupy the home. He contended that Cleo and her
daughter applied for and received funds under the guise of rental assistance.
He also alleged that he was defrauded by RLIC and his father’s failure to
execute and record the deed of sale of the home to him.
In November 2023, RLIC filed a motion for partial summary
judgment on the issue of default. In support of this motion, it filed Cleo’s
affidavit citing the lease agreement and stating that she was not aware of any
written instrument purporting to grant, transfer or convey any ownership
interest in the property to Darryl. In addition, it attached the lease
agreement, the promissory note, the collateral mortgage and answers to
interrogatories. The affidavit affirmed that Darryl had not made any
payments due to RLIC since June 2022 and that RLIC had received over
$17,000 from LERAP.
4 Darryl responded and stated that RLIC sued him based on an alleged
debt under a contract he signed but then failed to prove a valid contract. He
claimed the mortgage superseded the lease agreement, but it was defective in
that it was never filed and neither was any act translative of title deeding the
house to him. He also argued that the mortgage was defective because he is
designated as the “Mortgagee” instead of the “Mortgagor.”
On May 1, 2024, the matter was heard, and both parties were
represented. The trial court considered the exhibits, the entire record, the
objections and arguments and granted RLIC’s partial summary judgment
finding Darryl in default on rental payments for the house. The judgment
was signed on May 30, 2024, and was not appealed.
On June 21, 2024, RLIC filed a pleading entitled “Motion for
Summary Judgment Declaring Dissolution and Awarding Possession,” in
which it prayed for judgment in its favor awarding it possession of the real
property. The certificate of service stated that a copy of the motion for
summary judgment was served on all counsel of record by email. Further, it
certified that RLIC requested the Ouachita Parish Sheriff to serve Darryl
with the motion, memo, exhibits and executed Rule to Show Cause. That
same day, RLIC’s attorney sent an email to Darryl’s attorney, Dianne Hill,
referenced as “MSJ with memo and exhibits.pdf.” The message said,
“Please find attached pleadings filed to day [sic] in the above captioned
matter.” Attached to the motion were sworn affidavits and Darryl’s answer
and admissions of fact regarding the lease agreement and that no written
instrument exists which purported to convey any ownership interest in the
property to him. The admissions also included that he had agreed to pay rent
for the home and that he had not made any payments since he was 5 terminated from employment with the company in June 2022. The executed
Rule to Show Cause setting the date for hearing on August 5, 2024, was
served upon Darryl by the sheriff’s deputy but not sent via email to Hill.
The directions for service ordered the sheriff to deliver everything,
including the executed order fixing the rule to show cause, to Darryl at his
home. A sheriff’s return states it was delivered to Darryl on June 27, 2024.
The attorney did not receive the notice setting the hearing date.
On July 30, 2024, Hill emailed RLIC’s attorney an untimely
opposition to the motion for partial summary judgment, but it did not
contain any supporting documentation authorized under La. C.C.P. art. 966.
On August 2, 2024, Hill sent an email to Marie Madison, the trial court’s
assistant, and with a copy to RLIC, stating, “I notice this case is on docket
for Mon 8/5.-I was never served and do not waive service. I submitted
memo expecting hearing 8/15.”4
On August 5, 2024, the hearing took place with only RLIC’s attorney
present. The trial court revealed that it had received a communication from
Hill that she had not been served with notice of the date of the hearing.
RLIC’s attorney objected to ex parte communication but also stated that
RLIC’s reply memorandum and objection were based upon the failure to
timely file Darryl’s opposition and that without a timely and properly filed
brief, no argument would be allowed in response to the motion for summary
judgment. He noted that there had been no formal opposition to hearing
being held or to the motion for partial summary judgment.
4 Hill’s memorandum in opposition to the motion for partial summary judgment does not appear in the record as filed and there was no objection in the record to the hearing taking place or indicating that she had not received service other than the email above. Thus, there was no opposition to RLIC’s motion for partial summary judgment. 6 While addressing service of notice, the attorney introduced his email
to Hill sending the pleadings and exhibits and the certificate of service and
the sheriff’s return of service to Darryl Miller. He argued that service on the
litigant is sufficient and is “always good.” Darryl was personally served by
citation and Hill was served by certificate of service by email.
The trial court found that Darryl had been properly served per La.
C.C.P. arts. 966(C)(1)(b) and 1314 and that no objection or opposition to
summary judgment had been legally raised. Therefore, the trial court ruled
in RLIC’s favor granting its partial summary judgment declaring dissolution
and awarding possession of the property to it. Darryl was cast with costs
related to the partial summary judgment. The judgment was signed on
August 21, 2024.
Darryl appealed this partial summary judgment awarding dissolution
and possession of the property; however, the trial court had not certified the
judgment as a partial final judgment, and this court recognized that absent a
certification of the judgment as a final judgment under La. C.C.P.
art. 1915(B)(1), the matter would be converted to a writ application for
supervisory review. The matter was subsequently certified by the trial court,
and it is now ripe for review as a partial final summary judgment.
DISCUSSION
Darryl argues that the trial court erred in granting a summary
judgment on dissolution and possession of the property in August 2024
without addressing the ambiguities and defects in the lease and the mortgage
in the May 2024 partial summary judgment. He argues that a declaration of
the rights and status of the parties requires interpretation of the contracts
they executed and that the trial court erred when it failed to address the 7 ambiguity between them. He also argued that the trial court used summary
judgment proceedings, found only that he had failed to make payments on
the house and granted judgment in RLIC’s favor.
Darryl contends the lease had already expired when the suit was
brought and that the same parties executed a mortgage and promissory note,
which he claims was an attempt to transfer title to him. He argues RLIC’s
proper remedy was to seek foreclosure; but, instead, it sought to revive the
lease to evict him from the house for nonpayment of rent. Darryl contends
either the lease is expired or there was a defective attempted sale, and
promissory notes cannot be enforced against a defective contract of sale. He
argues that these raise genuine issues of material fact which make summary
judgment inappropriate. He further argues that the Dead Man’s Statute,
which disallows parol evidence in certain cases when one of the parties to a
contract is deceased, is applicable to this case and that Cleo cannot give
evidence regarding the intent of the parties to the mortgage and promissory
note.
RLIC argues that Darryl has already been found to be in default on his
obligations to it and that he declined to seek review of that ruling. It
contends that although Darryl filed the notice of appeal related to the
judgment dated August 8, 2024, he now seeks review of the judgment
rendered in May 2024 regarding his default on the payment for his
possession of the house under the various contracts he signed. It asserts that
the judgment concerning default is final because appeal delays lapsed before
it filed the second motion for partial summary judgment regarding
dissolution of the contracts and possession. For that reason, it claims the
only issue pertinent to this appeal is the judgment rendered in August 2024, 8 pointing out that Darryl did not appear at the hearing and declined to oppose
the second motion for partial summary judgment. Because of these factors,
it asserts the trial court correctly ruled that the property should be returned to
it.
This case presents a procedural problem that has not yet been
addressed by this court. The May 2024 partial summary judgment addresses
only the issue of default and was not appealed. Therefore, it remains a
partial summary judgment that is considered an interlocutory judgment
which may be revised at any time prior to rendition of the judgment
adjudicating all the claims, rights and liabilities of all the parties. La. C.C.P.
art 1915(B)(2).5
The second partial summary judgment is that of August 2024, which
was certified as a partial final judgment and is one from which an immediate
appeal may be taken under La. C.C.P. art. 1915(B)(1).
5 As of August 1, 2025, La. C.C.P. art 1915 has been amended and states in pertinent part as follows: B. If an appeal is taken from any judgment rendered in accordance with Paragraph A this Article, the trial court shall retain jurisdiction to adjudicate the remaining issues in the case. C. Except as otherwise provided by law, when a court grants a judgment or summary judgment, or sustains an exception in part, as to one or more but fewer than all of the claims, demands, issues, or theories by or against a party, whether in an original demand, reconventional demand, cross- claim, third-party claim, or intervention, that judgment is an interlocutory judgment. Comment (a) to the 2025 amendment states: These amendments largely restore the Article to its pre-1997 form. The revisions remove from Paragraph B of this Article the authority of the trial court to designate a judgment as final and appealable after an express determination that there is no just reason for delay. As a result, Paragraph A of this Article now provides a list of judgments from which an appeal may be taken. This change seeks to remove uncertainty as to whether an appeal or a supervisory writ should be taken from a judgment that does not grant the successful party or parties all of the relief prayed for or may not adjudicate all of the issues in the case. Comment (b) to the 2025 amendment states, in part: Paragraph B of this Article retains much of the language of former Paragraph C. The language of Paragraph C of this Article is new and provides for interlocutory judgments that are not appealable. See Article 2083(C). 9 When an unrestricted appeal is taken from a final judgment
determinative of the merits, an appellant is generally entitled to seek review
of all adverse interlocutory judgments prejudicial to him, in addition to the
review of the final judgment. Stevens v. St. Tammany Par. Gov’t, 16-0534
(La. App. 1 Cir. 1/18/17), 212 So. 3d 568. In the case of an appeal from a
partial final judgment or partial summary judgment designated as final under
La. C.C.P. art. 1915(B), an appellant may also appeal an interlocutory
judgment involving the same or related issues. Id. In Stevens, the court
found that because the trial court’s interlocutory ruling on the issue of
protective order was incorporated and interrelated with the trial court’s
contempt judgment, it was appropriate to consider the merits of the
petitioners’ second assignment of error.
In order to assist the appellate court in its review of designated final
judgments, the trial court should give explicit reasons, either oral or
written, for its determination that there is no just reason for delay. R.J.
Messinger, Inc. v. Rosenblum, 04-1664 (La. 3/2/05), 894 So. 2d 1113. For
purposes of judicial efficiency and economy, the proper standard of review
for an order designating a judgment as final for appeal purposes when
accompanied by explicit reasons is whether the trial court abused its
discretion. Id. If no reasons are given but some justification is apparent
from the record, the appellate court should make a de novo determination
of whether the certification was proper. Id.
Based on the foregoing jurisprudence, this court will conduct a de
novo review of both partial summary judgments because the first is an
interlocutory judgment which may be reviewed now that the second has
been properly certified for appeal. Without the first one finding Darryl in 10 default, the second would not have been rendered. Even though there is still
an outstanding issue, i.e., if, and how much, Darryl owes RLIC, he is still
subject to losing possession of the home now.
La. C.C.P. art. 966(D)(1) states that the burden of proof on summary
judgment rests with the mover. If the mover will not bear the burden of
proof at trial on the issue that is before the court on the motion for summary
judgment, the mover’s burden on the motion does not require him to negate
all essential elements of the adverse party’s claim, action or defense, but,
rather, to point out to the court the absence of factual support for one or
more elements essential to the adverse party’s claim, action or defense. Id.
The burden is on the adverse party to produce factual support sufficient to
establish the existence of a genuine issue of material fact or that the mover is
not entitled to judgment as a matter of law. Id.
We review the grant of a motion for summary judgment de novo.
Todd v. Angel, 48,687 (La. App. 2 Cir. 1/15/14), 132 So. 3d 453, writ
denied, 14-0613 (La. 5/16/14), 139 So. 3d 1027. A fact is material if it
potentially ensures or precludes recovery, affects a litigant’s ultimate
success or determines the outcome of the legal dispute. Id. A genuine issue
of material fact is one as to which reasonable persons could disagree; if
reasonable persons could reach only one conclusion, there is no need for trial
on that issue and summary judgment is appropriate. Id. Gauthier v. Foster
Homes, LLC, 53,143 (La. App. 2 Cir. 11/20/19), 284 So. 3d 1206.
We have conducted a de novo review of this record of the first partial
summary judgment rendered in May 2024 and find that the trial court did not
err in rendering judgment in RLIC’s favor. Although we cannot ascertain
the true intent of the parties to the promissory note and collateral mortgage, 11 there is no act translative of title to Darryl, and RLIC remains the legal
owner of the home. RLIC presented evidence that Darryl was occupying the
subject property under a lease and that he had not been making payments
under either the lease or on the promissory note/mortgage. Further, after the
signing of the promissory note and collateral mortgage, LERAP paid rent on
Darryl’s behalf to RLIC. Although Darryl denied having applied for these
funds, RLIC also denies having made the application and asserts that only
people renting could apply for these emergency funds. RLIC proved all
elements of its claim, and Darryl was unable to provide factual support in
opposition or to prove the existence of a material issue of fact that would
preclude this judgment. For these reasons, this assignment of error is
without merit.
Because of the foregoing decision, the assignment of error related to
application of the Dead Man’s Statute is pretermitted. Parol evidence is not
necessary to explain the validity or purpose of the promissory note and
collateral mortgage once the determination was made that, for whatever
reason, Darryl was occupying the home without making payments for years.
The partial summary judgment granted in August 2024 found that
RLIC was entitled to dissolution of the contracts between it and Darryl and
that the home should be returned to it as the owner. Darryl has raised an
issue in regard to this partial summary judgment and argues that because
service of notice of the date of the hearing was deficient, he was denied the
right to oppose the motion at the hearing on August 5, 2024; and, in fact, his
attorney did not file any timely opposition and did not appear to argue in
opposition to the motion.
12 Notice to Darryl by the Ouachita Parish Sheriff’s Office was properly
served per La. C.C.P. arts. 966(C)(1)(b) and 1314, and no objection or
opposition to summary judgment had been legally raised. La. C.C.P.
art. 966(C)(1)(b) provides that notice of the hearing date shall be served on
all parties in accordance with Article 1313(C) or 1314 not less than thirty
days prior to the hearing. La. C.C.P. art. 1314(A)(1) provides that a
pleading which is required to be served shall be served by the sheriff by
service on the adverse party in any manner permitted under La. C.C.P.
articles 1231 through 1266. La. C.C.P. art. 1231 provides that service of
citation or other process may be either personal or domiciliary and La.
C.C.P. art. 1232 provides that personal service is made when a proper officer
tenders the citation or other process to the person to be served. For the
foregoing reasons, we agree that service was proper, and this assignment of
error is without merit.
We have conducted a de novo review of the record regarding the
partial summary judgment ordering dissolution and awarding possession of
the property to RLIC. RLIC’s motion was filed along with supporting
documentation of its entitlement to the return of its property including all of
the documents previously filed indicating it is the present owner of the
subject property by virtue of the sale to it in 2013. The lease contains
clauses giving RLIC the right to enforce the terms in any mode provided by
law if any default occurs. It also contains a clause that RLIC has the right to
immediately declare the agreement terminated if the tenant fails to pay the
rent on time, and the tenant “shall immediately vacate the Property.”
There was no opposition to RLIC’s motion. It proved all the elements
necessary through documentation showing that it is the owner of the 13 property, that Darryl did not make payments for many years and that he was
legally found in default of the agreement. For these reasons, the trial court’s
judgment granting partial summary judgment dissolving the agreement
between them and restoring the property to RLIC was proper and is
affirmed. For the foregoing reasons, this assignment of error is without
merit.
CONCLUSION
For the above reasons, the judgments of the trial court granting the
motions for partial summary judgment in favor of Reliance Life Insurance
Company, Inc., finding Defendant Darryl Miller in default on payments for
occupancy of the home and declaring that the property should be returned to
its owner, are affirmed. Costs of this appeal are assessed to Darryl Miller.
AFFIRMED.