Property

April 6, 2019

Ascension Parish Homeowner Wins Lawsuit Against Construction Contractors Who Refused to Complete Building

visual-construct-1545402-1024x686 When you pay for a home to be built, it can be a stressful experience. That experience becomes even more stressful when you have fully paid for the construction of that home and the contractor ceases construction without even completing half of the construction. In such a situation, it takes an excellent lawyer to figure out who exactly is at fault for the failure to complete the job and how to get the money already paid back from the contractors.

Vernon Nicholas found himself in just such a situation when he paid for a house to be built in Ascension Parish, Louisiana and the builders stopped building after completing only approximately forty percent of the full construction project. They refused to complete the project or pay Mr. Nicholas back even though he had paid for the entire house to be completed. Luckily, Mr. Nicholas obtained a good attorney and was able to obtain a judgment against both the construction company, BBT Construction, and its manager, Ahmed Trench, individually despite the fact that neither showed up for the trial. Following an appeal by Mr. Trench contesting his individual liability, the Louisiana First Circuit Court of Appeal affirmed the trial court’s ruling.

Mr. Nicholas hired BBT to build his home and Mr. Trench signed the contract as the manager. Mr. Nicholas paid $332,418 upfront to BBT, which was the entire amount of the contract for the home. He also paid an additional $3,515 upfront for design fees. BBT completed about forty percent of the house before ceasing construction and refusing to complete the rest of the job. Having no other alternative, Mr. Nicholas filed a lawsuit to recover damages, costs and other expenses based upon the breach of contract and asserting unjust enrichment in failing to pay back the money taken for the full job. The contractors even refused to fix alleged defects in the construction.

April 5, 2019

Appeal Denied in Suit Involving Mortgage Superior to Homeowners’ Association Dues

by Berniard Law Firm

home-1221234-768x1024 It can be complex to determine the superiority of claims when a piece of property has a mortgage and various judgments against it. Superiority of claims means the order in which money is to be paid to different parties who are all owed money from the property or individual who owns it. Most people want their claim to be deemed more superior than others because it can help them receive money from the property before someone else, which is especially important in cases where there is a limited fund of money.

In 2009, the Lake Villas No. II Homeowners’ Association, Inc. (“Lake Villas”) obtained a judgement of over $37,000 against Elise LaMartina, for past due monthly dues and assessments, dating back over seven years, plus attorney fees, costs, and interests. When Lake Villas attempted to collect the judgment, it found that the condo had a conventional mortgage that was superior to its judgment. The record holder of the mortgage was Elisa LaMartina’s mother, Jane.

In June 2013, Lake Villas filed a motion seeking the sheriff to seize and sell Elisa LaMartina’s condominium. It also filed an order for her mother to show cause why the mortgage should not be canceled or, alternatively, that the court to fix the amount of the mortgage. Lake Villas believed judicial determination of the existence and amount of the mortgage was necessary before there sheriff could sell the condominium. La. C.C.P. art. 2291.

April 1, 2019

Road Granting a Landowner Access to His Property Declared for Public Use

by Berniard Law Firm

moor-land-3-1500234-1024x683 Having the town pave your road or conduct other maintenance may seem like a harmless occurrence. However, it can have a significant impact on determining whether your property can become public use.

One landowner, Thomas Bourque, Sr., needed access to the rest of his property, but two other landowners, Todd Gautreau and Gregory Scot Himel, resisted the idea that part of their lands would become public use in order for Bourque to access another part of his property. Bourque needed to access the southern part of his property in Ascension Parish because a bridge he had previously used for access was no longer usable. Bourque wanted to use the Hanson Road servitude for access to that property. Gautreau and Himel, the landowners who had established the Hanson Road servitude in 1992, did not want any further construction of Hanson Road for that purpose. The trial court declared the Hanson Road servitude to have been dedicated to public use with full access to Bourque. Himel and Gautreau appealed to the Louisiana First Circuit Court of Appeal. The First Circuit amended and affirmed the trial court’s judgment and concluded that the entirety of the 1992 servitude was tacitly declared as a public road.

Dedication of property for public use is done four ways: statutory dedication, formal dedication, implied dedication and tacit dedication. See Melancon v. Giglio, 712 So. 2d 535 (La. Ct. App. 1998). The formation of a public road may occur through a tacit order. See La. R.S. 48:491 (2017).

March 30, 2019

Ouachita Parish Right of Passage Lawsuit Not Barred by Res Judicata

by Berniard Law Firm

16-email-03-03-2019 Double jeopardy is not a television marathon featuring Alex Trebek, but protection against it is fundamental to the United States legal system. In the criminal justice system, double jeopardy means being put on trial for the same charge twice; the Fifth Amendment to the United States Constitution bans it. Res judicata, Latin for “a matter already judged,” is the civil version of double jeopardy. It means that someone cannot be sued for the same reason under the same circumstances twice. In this case, the Louisiana Second Circuit of Appeal found that res judicata did not bar a landowner from suing his neighbors twice for the same cause of action, obtaining a right of passage from a public road to his property.

In 2006, Entrada Company filed suit against three neighboring landowners to obtain a right of passage, alleging that it had no access to a public road. This form of relief allows a landowner to pass over the land of another in order to access his own land. In March 2014, Entrada Company filed another lawsuit against the same defendants for the same cause of action. In April 2014, two of the defendants filed a motion to dismiss on the ground of abandonment, which the trial court granted. Because Entrada Company had not pursued the first lawsuit, the court dismissed it with prejudice, meaning that it could not be refiled.20

The issue in this appeal is whether this dismissal with prejudice of the first lawsuit precludes the second lawsuit on res judicata grounds. Res judicata precludes a second action when: the judgment is valid, the judgment is final, the parties are the same, the cause of action existed at the time of the first judgment, and the cause of action in the second action arose out of the same circumstances as the cause of action in the first action. See La. R.S. 13:4231 (2017).

March 23, 2019

Court Affirms Rezoning of Terrytown Property

by Berniard Law Firm

69-Email-03-03-19-1024x512 Zoning issues can seemingly arise out of nowhere and affect the way you choose to use your property. It is important to stay up to date with local zoning ordinances and have a good lawyer to guide you with upcoming projects or changes that may be affected. It is equally important to also be aware of what happens when zoning changes do affect, and even cancel, these projects. The Fifth Circuit Court of Appeal for the State of Louisiana addressed this issue when a Terrytown, Louisiana property was rezoned by the Jefferson Parish Council on December 12, 2007.

The Berrys purchased two adjoining parcels of property in 1998 and 2000, consisting of over four acres of land located in the Elmwood Subdivision and on Behrman Highway along the west bank of Jefferson Parish. This property was zoned as a Multiple Use Corridor District (“MUCD”), allowing for diverse commercial use of the land. On October 13, 2006, the Berrys and Volunteers of America, Inc. (the “VOA”) entered a purchase agreement to develop the property into a high-density, multi-level housing facility for the elderly. While the VOA made preparations for the project, the Jefferson Parish Council executed a zoning and land use area study that covered 23.67 acres, including the property owned by the Berrys.

The VOA project came to a halt due to a moratorium, an order of postponement, on the issuance of building permits for the area within the study, as required by the Parish Code. When the study came to an end, the VOA project ended as well; the study concluded with the Parish Council changing the zoning of the front portion of the Berry property from MUCD to C-1 (Neighborhood Commercial District), and the rest of the property zoned as R-1A (Single-Family Residential). Though the zoning changes were consistent with the Parish’s 2003 Comprehensive Land Use Plan, they were inconsistent with the VOA project.

February 1, 2018

Wells Fargo Bank Fraudulently Sells Bossier City Home

by Berniard Law Firm

downtown-salt-lake-city-2-1446473-683x1024 Buying a home is a complex and stressful process. Not only must a homebuyer make sure he or she has the required funds to purchase the home, but must also thoroughly check that the home is in good condition. Generally, determining the condition of a home is relatively easy. Under the law, a home-seller is obligated to disclose certain defects. Failure to do so can result in a lawsuit. A recent case from the United States Fifth Circuit Court of Appeals illustrates the legal repercussions that can befall a home-seller when he or she withholds certain deficiencies in the condition of the home.

The case centers around a home purchased in Bossier City, Louisiana. The home-purchaser, Britney N. Jones bought a foreclosed house from Wells Fargo Bank (“Wells Fargo”). After purchasing the house, Ms. Jones discovered that it contained mold. The mold was discovered after an environmental assessment of the property. The assessment was undertaken because Ms. Jones’s children had developed respiratory and other health issues.

After discovering that the home she purchased contained mold, Ms. Jones brought a lawsuit against Wells Fargo alleging claims of redhibition and fraud. In Louisiana, a seller warrants a buyer against redhibitory defects. For a defect to be considered redhibitory it must render the thing useless or diminish its value in such a way that it could be presumed that the buyer would have not bought it or would have bought it at a much lower price. La. C.C. art. 2520 (2016). Defects that a buyer either knew of or that were apparent are excluded from the warranty of redhibition. When a defect is concealed within a home’s structure it is considered unapparent. See Amend v. McCabe, 664 So. 2d 1183 (La. 1995).

September 11, 2017

Jefferson Parish Homeowners Unable to Sue Because of Missed Procedural Deadlines

by Berniard Law Firm

house-i-1491881-1-1024x768 In law, deadlines and rules of procedure are very important. Good cases can be lost because someone missed a deadline or did not understand and follow a procedural rule. That is why it is so important to ensure you have a good attorney who understands the rules of procedure and who keeps close track of deadlines, especially those for appeals.

This importance is aptly illustrated by a recent decision from the Fifth Circuit Court of Appeal for the State of Louisiana. The case, Hawkins v. Willow Inc., involved 250 owners of homes located in the Village Green subdivision in Jefferson Parish. The homeowners sued several entities, including the developer of the subdivision and the insurer of their home warranties, alleging that the subdivision was built on land that was unsuitable for building and that the homeowners’ homes were damaged as a result.

Unfortunately for the homeowners, the warranty mandated arbitration of disputes, a step which the homeowners failed to take before filing suit. Because the homeowners failed to arbitrate their dispute, the trial court dismissed the home warranty company from the lawsuit and ordered arbitration of all claims. The homeowners did not seek review of the trial court’s ruling. Instead, the homeowners waited over two years to address the ruling. The homeowners then requested the trial court to grant them a new trial to pursue claims against the home warranty company and for the trial court to rescind its arbitration order because of newly discovered evidence. The home warranty company contested the homeowners’ requests. It asserted that the trial court did not have jurisdiction over the matter because the court previously dismissed the case. The trial court agreed with the home warranty company, ruling that it did not have jurisdiction and additionally denying the request for a new trial. The homeowners, displeased with the result, appealed the trial court’s decision.

September 10, 2017

Louisiana Court Returns Horse Island Residents’s Camp Yard

by Berniard Law Firm

fiji-islands-1370935-1024x741 Imagine buying land and then realizing that it was already occupied. What can the purchaser do when faced with this situation? What rights do the occupants of the purchased land have? Recently, the Third Circuit Court of Appeal for the State of Louisiana addressed these questions when deciding whether Saline Lakeshore, LLC (Saline Lakeshore) owned Horse Island after it purchased the property.

It all started in 2013 when Saline Lakeshore purchased Horse Island, which is land near the Saline Lake and Saline Bayou in Avoyelles Parish. At the time of the purchase, four individuals, Marlon Littleton, Buddy Cannon, Frank Morace, and Eric Morace, lived on the island in “camps.” These camps were housing structures which the four used to float to Horse Island. These houseboats were built in a way to float whenever Horse Island flooded, which was a frequent occurrence. When the island was not flooded, the four occupants would take care of the dry land by clearing and maintaining the camp yard. Additionally, the four occupants built docks, sheds, pavilions, roast pig cookers, fish skinning rocks, and water wells on the property. All of these improvements occurred prior to Saline Lakeshore purchasing Horse Island.

After buying the property, Saline Lakeshore sent Littleton, Cannon, and the Moraces a letter requesting that they remove themselves and their property from the island. Littleton and Cannon filed a possessory action against Saline Lakeshore, as did the Moraces. A possessory action is an action to stop the disturbance of property one possesses. To establish a possessory action, one must prove: 1) person had possession of the property, 2) the possession was uninterrupted for more than a year prior to disturbance, 3) the disturbance was a recognizable disturbance under Louisiana law, and 4) the action was instituted with a year of the disturbance. La. C.C.P art. 3658 (2016). The two separate actions were consolidated into one action for efficiency. Littleton, Cannon, and the Moraces then filed for summary judgment. The trial court granted the motion for summary judgment finding that the four occupants satisfied the requirements under Louisiana law. Summary judgment is when a trial court decides a case before it goes to trial. To obtain a summary judgment, both sides must agree on the material facts of the lawsuit. The trial court then makes the determination of the law, granting judgment to one side.

September 9, 2017

Motion To Dismiss Action As Abandoned Thwarted For Lack of Statutorily Required Affidavit

by Berniard Law Firm

cross-1442009-987x1024 Sometimes procedural rules are overlooked as merely a peripheral aspect of a lawsuit. However, nothing could be further from the truth. Oftentimes you need to overcome numerous procedural hurdles just to reach the merits of a case. The following case illustrates the importance of procedure in the practice of law.

The subject of this case centers on certain events that took place after the death of Alma Payton in New Orleans, LA; the plaintiffs are Payton’s heirs. Plaintiffs argued that Lake Lawn Park, Inc. (Lake Lawn) and Lawyer’s Title of Louisiana, Inc. (Lawyer’s Title) was negligent in connection with the distribution of Payton’s property after her death. Plaintiffs alleged that Lawyer’s Title failed to disburse payments to Lake Lawn that were intended to cover Payton’s burial. As a result, Lake Lawn moved Payton’s remains to a burial ground designated for indigents.

Eventually, Lake Lawn returned Payton’s remains to the original burial place at its own cost and the lawsuit against it was dismissed. However, the lawsuit against Lawyer’s Title was still pending, although not making any progress. As a result, Lawyer’s Title filed a motion to dismiss the action as abandoned nearly eight years after Plaintiffs filed their complaint. The District Court granted Lawyer’s Title’s motion. Subsequently, Plaintiffs filed a motion for devolutive appeal of the order of dismissal.

September 5, 2017

When Does The One-Year Peremptory Period For Fraud In Connection With Real Estate Transaction Begin To Run?

by Berniard Law Firm

house-1188265-1024x683 In Louisiana, a victim of fraud can recover actual damages resulting from the fraud, treble damages up to three times the amount of actual damages, and reasonable attorneys fees and costs. However, this potentially large recovery is barred by a peremptory period if the defrauded party doesn’t bring the lawsuit within one year. In certain cases, the issue of when exactly this one-year timer starts can be dispositive. The following case dealing with two real estate transactions illustrates the point.

Here, Amanda Adcock owned a home in West Monroe, Louisiana. Ms. Adcock lost her job and was unable to make her monthly mortgage payments to JP Morgan Chase (“Chase”). As a result, Chase initiated foreclosure proceedings against Ms. Adcock’s home in August 2011. Shortly afterward, Ms. Adcock filed for Chapter 13 bankruptcy, which halts any foreclosure already in process. Ms. Adcock then listed the home for sale as part of the bankruptcy estate. At the time of the bankruptcy, Ms. Adcock owed Chase $195,842.29.

In January 2012, Shane Wooten, a real estate agent, contacted Ms. Adcock and informed her that her home could be taken out of the bankruptcy estate and listed as a short sale. Three months later, Ms. Adcock wrote a letter to Chase to begin the short sale process and Chase cooperated (bank approval is required before a short sale can be completed). In June 2012, Tracy Ginn, the spouse of one of the real estate agents who worked for the same realty company as Mr. Wooten, offered to buy Ms. Adcock’s home for $190,000.