Articles Posted in Property

Could your contract to build a new home prevent you from bringing a negligence claim if there is negligent conduct?  While stressful, at the end of the day, buying and building a new home should be a positive thing that improves quality of life. When Glenn and Sandra Wilson designed and bought a new home, they felt otherwise. They believed their home had both design and construction deficiencies. Thus, they filed a lawsuit in East Baton Rouge Parish against several defendants involved in the design and construction of their home. Acadiana Home Design and Murry Daniels were alleged to have both provided design plans for the Wilsons’ home as well as failed to supervise construction.

Acadiana and Daniels responded to the Wilsons by filing a motion for summary judgment, which sought to dismiss the claims with prejudice (barring future action) before trial because the facts were so clearly in support of Acadiana and Daniels’ case. The motion was based on the following issues:

1. Daniels could not be held liable as Acadiana is a limited-liability corporation;

Buying property in “as is” condition can pose a substantial risk to the purchaser of the property. An “as is” sale means that once the sale is closed, the buyer has extremely limited recourse against the seller for any problems that might be later discovered with the property. Remorseful buyers may attempt to rescind a sale by claiming that the sellers failed to disclose defects with the property prior to the sale. But this strategy by no means ensures a favorable outcome for the buyer, as a case involving a house purchase in the City of Rosepine demonstrates.

In July, 2012, Reese Martin purchased a home in Rosepine, Louisiana from Raymond and Joanna DesJardins in an “as is” condition sale. Just over a year later, Martin filed a lawsuit against the DesJardinses and their real estate agent in the transaction, Steve Delia, seeking to rescind the sale. Martin’s lawsuit alleged that the DesJardinses and Delia had knowledge of and failed to disclose the previous flooding in the home. Martin claimed that he and his three children began to suffer from respiratory problems after moving in. Martin, looking for the cause of the respiratory problems, retained Air Marshals Environmental Consultants to inspect the home. Martin provided in his pleadings that the accredited mold-inspection company’s report revealed an unacceptably high humidity and moisture content in the home, and high or moderately high levels of surface mold. After Martin and his three children removed themselves from the home, Martin discovered that the home had a history of rainwater and sewage backups.

Both the DesJardinses and Delia filed motions for summary judgment. Delia asserted that he informed Martin of the prior sewage problems and the potential for flooding and argued that, regardless, Martin could not establish that the mold was caused by flooding or sewer problems. Delia provided affidavits and a deposition to support his motion. In their motion, the DesJardinses claimed that they had no communication with Martin pre-sale, but rather provided all of the information in their possession to Delia. They also argued that they had no responsibility because the sale was “as is,” and — echoing Delia’s point — that Martin could not establish that the mold resulted from the flooding events. The DesJardinses attached affidavits and a deposition in support of their motion. In response to the summary judgment motions, Martin filed a memorandum in opposition but included no evidence.

Land within subdivisions is often subject to various restrictions. It is important to know and follow these restrictions to avoid potential legal action. The following case in Desoto parish discusses some of the legal implications of neighborhood subdivision restrictions in Louisiana.

The plaintiffs, Roy L. Flippo and Robert C. Treadway were landowners in Ranchland Acres Subdivision in DeSoto Parish, the same subdivision as Natosha L. Mann. They claimed that Mann lived in a mobile home that violated the subdivision restrictions. Despite being given written notice to remove her mobile home in order to comply with the restrictions, Mann failed to comply with the restrictions. Therefore, the plaintiffs argued they were entitled to a mandatory injunction ordering Mann to remove the mobile home within 30 days in order to comply with the restrictions.

Mann responded, arguing that R.H. Lending, who had a mortgage and security interest in the property, should have been joined as a party so that it could protect its interest. Plaintiffs responded that R.H. Lending’s interest was personal between it and Mann and therefore should not be a party in the action. R.H. Lending subsequently assigned the mortgage to First Guaranty, so Mann filed a motion to make First Guaranty a party so that it could protect its financial and security interest in the Property.

There are times when a Trial Court may issue partial judgments that are non-appealable. But this does not always mean the lawsuit is over. When this happens it is important to have an excellent attorney to navigate the complex procedural processes to allow a party to reach the stage where an Appellate Court may review the factual issues of their case. That was the case for a Lafayette area man who ran into problems with a home he recently purchased.

Adam Bordelon purchased a manufactured home from Evangeline Home Center which was manufactured by Cappaert Manufactured Housing. Shortly after the purchase Mr. Bordelon noticed problems with the house. Mr. Bordelon alleged that the problems with the home were due to defects from Cappaert’s construction of the home. He also alleged that he requested these defects to be repaired but the repairs were never done.

Mr. Bordelon filed a lawsuit against Cappaert, the manufacturer, and Evangeline Home Center, the retail seller, for these unsatisfactory conditions and sought rescission of the sale. Mr. Bordelon also sought damages and attorney’s fees. Cappaert filed a motion to compel arbitration and for stay in the proceedings. Cappaert and Evangeline also argued that the dilatory exception of prematurity should dismiss the lawsuit. The dilatory exception of prematurity is a defensed used by defendants essentially saying that the lawsuit is not ripe for a court to make a ruling on. La.C.C.P. art. 933.

This is a continuation of a previous post on the “DE Property,” an enclosed estate in St. Martin Parish.

Where there is an enclosed estate, which is a property that cannot get to a public road, Louisiana law allows the owner of the estate to force an adjoining property owner to allow them to cross their property. La. C.C. art. 689. That passage usually has to be taken in the shortest manner across the other person’s property. La. C.C. art. 692. Once a trial court determines the choice of route that should be granted, any review by an appellate court is a manifest error standard. May v. Miller, 941 So.2d 661 (La. Ct. App. 2006).

A consent judgment is a functional contract between two parties that puts an end to a lawsuit. Plaquemines Par. Gov’t v. Getty Oil Co., 673 So.2d 1002 (La. 1996). Because it is a contract, a consent judgment has no effect on a third party unless otherwise provided by law. La. C.C. art. 1985. Louisiana public policy encourages settlements, including by consent judgments. Domingue v. Luke Fruge, Inc., 379 So.2d 490 (La. Ct. App. 1979). Louisiana law also recognizes that a consent judgment may not be attacked through an appeal of a collateral judgment, as an appeal is inappropriate for relief from a consent judgment. Lee v. Marksville Ford L/M, Inc., 741 So.2d 122 (La. Ct. App. 1999). A consent judgment can only be attacked collaterally for the reasons listed in La. C.C.P. art. 2002.

Imagine your property surrounded by land and water on all sides. Imagine that this land and water do not belong to you. To get to your own property, you use a wood trail, and you have used this trail regularly for four decades. But one day the surrounding land is sold, and the new owners want more privacy. They set up fences and “No Trespassing” signs to keep you off their property. Now your only access to your property is a public canal. Can the courts protect you? The Louisiana Third Circuit Court of Appeal (“Appellate Court”) intends to do so.

Nestled in St. Martin Parish near Herman Dupuis Road and buttressed by a public borrow canal is a piece of land known as the Ovide Daigle, Sr. Estate (“the DE Property”). This property has been co-owned by Harvey Altemus for over 55 years. Since that time, the land surrounding the DE Property has changed hands, and at the time of litigation, the surrounding land was owned by Helene Jeanne Boudreaux, Faye Guidry Hebert, Shelby Guilbeau, Michael Kidder (D/B/A Kidder Corporation), Michael and Phyllis Marks, and the State of Louisiana. Each of these individuals owned a separate piece of property surrounding Mr. A’ property. Except for Michael and Phyllis Marks (“the Markses”), the property belonging to the owners was previously owned by ALC Corp. The DE Property is almost completely landlocked by properties not belonging to its owner. In fact, the only pieces of the DE Property not surrounded by other people’s property is the area buttressed by the public borrow canal. Mr. A cannot access HD Road, the nearest roadway, without crossing another owner’s land or using the canal.

In 1974, the Markses allowed Mr. A to begin parking on their property, and ALC Corp allowed Mr. A to get into his land by way of  a 30 foot wide path that went over its land. This informal arrangement continued for 24 years until Mr. A learned in 1998 that ALC Corp planned to sell or donate its property surrounding the DE Property. On May 1, 2000, Mr. A and ALC Corp executed an “Access Permit” to give Mr. A official use of the path. ALC Corp then transferred all of its land abutting the DE Property to the State of Louisiana and sold several parcels of land bordering Herman Dupuis Road. The sale to Helene Jeanne Boudreaux (“Mr. B”) included reference to the Access Permit trail, even though this trail was not officially recorded at the time of execution. The rest of the property sold to Kidder Corporation, Shelby Guilbeau, and Faye Hebert were all made required to be subject to all previous servitudes and the like on the property. Mr. A continued using the trail until he met with Mr. B on this wood trail in 2010. After this meeting, Mr. B requested the State remove the Access Permit. The State agreed and sent a by sending Mr. A a letter to this effect. At this point, in 2011, Mr. A recorded the Access Permit, and Mr. B put up a fence blocking Mr. A’s access to his own property. Hebert and Guilbeau then put up signs on the property telling others entry was not allowed, blocking Mr. A’s opening to the trail. On September 4, 2013, Mr. A filed a Petition for Declaratory Judgment and for Damages against the State of Louisiana, Mr. B, Hebert, Guilbeau, and Kidder Corporation (the Markses were later joined in an amended petition) seeking a court recognition of the 30-foot trail as an apparent servitude giving Mr. A a right to cross the properties. Both the State and the Markses entered into Consent Judgments with Mr. A. The remaining property owners sought to strike these Consent Judgments. At trial, the court granted Mr. A his right-of-way and declined to award damages. Mr. B, Hebert, Guilbeau, and Kidder (collectively “Appellants”) appealed the decision of the Trial Court.

Families. While often a source of love and comfort, families can at times be the source of much conflict. Sometimes the death of a parent turns siblings against one another rather than binding them together.  Greed can cause people to fight over insignificant or even imaginary problems. Such was the case for a large Allen Parish sibling group when they engaged in a legal battle over cows following the death of their mother.  A battle that the Louisiana Third Circuit Court of Appeal refused to engage in.

The Martin family of Allen Parish, composed of six siblings, owned a plot of land indivision with one another (basically, each person owns the property equally). Sister Sheila grazed cattle on the land. The cows might have belonged to the siblings’ mother before she passed however Sheila claimed the cows were solely her property. There was no proof of ownership either way.  The family troubles began when sister Linda and her husband Carlos moved onto the property. Sisters Sheila and Amy alleged Linda and Carlos would purposefully leave gates open so the cattle could escape. In one unfortunate instance, a cow and the three baby calves she was pregnant died after allegedly escaping the pen due to Carlos’ activities. Sheila and Amy also claimed that Carlos stole several gates, purposefully left harmful food out for the cows, and blocked with his car portions of the property.    

Sheila and Amy filed a lawsuit in the Judicial District Court for the Parish of Allen claiming damages for the lost cow and eventually sought to hold defendants in contempt of court for failure to move his car from the land.  The District Court denied the claim for damages and contempt but ordered the return of the stolen gates. An appeal was filed to the Louisiana Third Circuit Court of Appeal.

Louisiana practices many legal concepts not typically found in other states. One such concept is the “usufruct.” An “usufruct” refers to a right given from one property owner to another person named the “usufructuary.” The usufructuary does not own the property, but is free to use it as he or she pleases (short of destroying it). An example of this would be a business owner who names his friend as the usufructuary of the business, and that friend would be permitted to run the business.

The following case illustrates a common usage of the usufruct: transferring property from one spouse to another and ultimately to their children.

Joyce Helms was a pragmatic woman, who thought about what to do with her property in the event of her death. During her marriage to Bobby Helms, Joyce wrote a will in 1976, dictating that her property be given to Bobby as an usufructuary. Additionally, Joyce gave their three children Billy, Lawrence, and Robert the remaining property, subject to the lifetime usufruct of Bobby. It is common for spouses to name their other spouse as an usufructuary to their property, so that the surviving spouse can rely on the income generated by the property.