Opinion
2015 CA 1427
04-15-2016
SUCCESSION OF JOSEPH EMMETT BELLANDE, JR.
A. Scott Tillery Metairie, Louisiana Attorney for Plaintiff/Appellees Joseph Emmett Bellande, Jr., Susan Bellande Vallee, Executrix of the Succession of Joseph Emmett Bellande, Jr., and Ella Marion Bellande Thomas Hogan, Jr. Hammond, Louisiana Attorney for Defendant/Appellants Nancy Jean Bellande Cuizio And Richard Eugene Cuizio, Sr.
NOT DESIGNATED FOR PUBLICATION
APPEALED FROM THE TWENTY-FIRST JUDICIAL DISTRICT COURT
IN AND FOR THE PARISH OF TANGIPAHOA
STATE OF LOUISIANA
DOCKET NUMBER 2011-0030277 HONORABLE ROBERT H. MORRISION, III, JUDGE A. Scott Tillery
Metairie, Louisiana Attorney for Plaintiff/Appellees
Joseph Emmett Bellande, Jr.,
Susan Bellande Vallee, Executrix
of the Succession of Joseph Emmett
Bellande, Jr., and Ella Marion
Bellande Thomas Hogan, Jr.
Hammond, Louisiana Attorney for Defendant/Appellants
Nancy Jean Bellande Cuizio
And Richard Eugene Cuizio, Sr. BEFORE: McDONALD, McCLENDON, AND THERIOT, JJ. McDONALD, J.
This is an appeal by Nancy Jean Bellande Cuizio and her husband, Richard Eugene Cuizio, Sr. (the Cuizios), from a trial court judgment evicting them from a house located at 17343 Oak Hollow Drive in Ponchatoula where they had previously resided with Mrs. Cuizio's parents, the late Joseph E. Bellande, Jr. (Mr. Bellande), and his surviving spouse, Ella Marion Bellande (Mrs. Bellande). For the following reasons, we affirm.
We note that the spelling "Cuizio" and "Ciuzio" are both found throughout the record.
In a previous opinion, Succession of Joseph Emmett Bellande, Jr., 2013-0578 (La. App. 1 Cir. 12/27/13), 2013 WL 7122700, writ denied, 2014-0615 (La. 4/25/14), 138 So.3d 1233 (unpublished), this court affirmed the dismissal of Mrs. Cuizio's petition to annul the will made by Mr. Bellande about four months prior to his death.
PRELIMINARY ISSUE
The appellees, Susan Bellande Vallee (Ms. Vallee), Executrix of the Succession of Mr. Bellande, and Mrs. Bellande, assert that this appeal should have been dismissed and that this court's order signed November 19, 2015, granting an extension of time to file appellants' brief beyond the abandonment period was error. They rely upon State through Dept. of Social Services v. Sonnier, 635 So.2d 1340 (La. App. 1 Cir. 4/15/94), in their argument that a notice of abandonment is not extensible.
Upon re-examination of the record, we find that, while technically Rule 2-8.6 of the Uniform Rules, Courts of Appeal, does not provide for an extension to file appellants' brief beyond the abandonment period, it was granted by this court. Pursuant to La. C.C.P. art. 2164, the appellate court can render any judgment which is just, legal, and proper upon the record upon appeal. Under the unique facts of this case, we decline to dismiss the appeal.
BACKGROUND AND PROCEDURAL HISTORY
Mr. Bellande died on August 27, 2011, at age 84. Mr. Bellande was survived by seven children from his marriage to Mrs. Bellande: Bonnie Bellande Englande, Joseph E. Bellande, III, Peggy Bellande Laborde, Kenneth J. Bellande, Ms. Vallee, Diane M. Bellande, and Mrs. Cuizio. Mrs. Bellande was the sole legatee of Mr. Bellande's will.
Mr. Bellande purchased the lot located at 17343 Oak Hollow Drive in Ponchatoula on July 31, 2002, from Raymond and Joan Tilyou for $25,000.00. Mr. Bellande took out a mortgage on the property for $183,500.00 with Federal National Mortgage Association (Fannie Mae) on September 12, 2003, apparently for the construction of the home that was subsequently built on the property.
On August 9, 2002, an act of donation was executed stating that Mr. Bellande was donating the property to his daughter and son-in-law, the Cuizios, and that the Cuizios accepted full responsibility for the property. This act of donation was apparently filed into the conveyance records for Tangipahoa Parish on June 22, 2004. However, after Mr. Bellande defaulted on the mortgage to Fannie Mae, the property was seized by the sheriff's office on February 9, 2010, and placed for sale. Thereafter, on April 14, 2010, the property was sold at sheriff's sale to BAC Home Loans Servicing L.P., for $155,334.00. All mortgages were cancelled at that time.
BAC Home Loan Servicing L.P., apparently had an agreement with Fannie Mae regarding purchase of Fannie Mae's defaulted home loans on Fannie Mae's behalf.
On April 5, 2011, Mr. Bellande purchased the property back from Fannie Mae for $192,299.45 in cash. While the Cuizios asserted that their personal funds were used to re-purchase the property, this is a contested issue. Ms. Vallee, one of the decedent's daughters and the executrix, maintained at trial that the Cuizios had spent all of the Bellandes' funds, and that the succession was selling the property in order to pay its debts.
The Bellandes were married at the time of the purchase of the property, giving rise to a presumption that the property was community property. La. C.C. art. 2340.
On September 2, 2014, Mrs. Bellande and Ms. Vallee (as executrix of the succession) filed a rule to evict the Cuizios from the home at 17343 Oak Hollow Drive in Ponchatoula, asserting that it was owned by Mrs. Bellande. The rule maintained that the movers had delivered written notice to vacate the property to the Cuizios more than five days earlier, and they attached the notice to vacate as an exhibit. Further, the movers noted that a lis pendens notice had been filed on the property by the Cuizios, on May 16, 2014. The movers asserted that the notice was improper because the Cuizios did not have a claim to title to the property or a mortgage or privilege on the property. The movers asked that the lis pendens notice be cancelled.
The Cuizios filed an opposition to the rule, asserting that Mr. Bellande had donated his interest in the home to them, that they had provided funding to repurchase the property after foreclosure and seizure of the home, and that they had paid taxes, insurance and maintenance expenses on the property. The Cuizios maintained that the movers were seeking unauthorized use of a summary proceeding, and that the lis pendens notice was proper and should not be cancelled.
The matter proceeded to trial on November 3, 2014. On November 18, 2014, the trial court signed a judgment in favor of the movers, ordering that the Cuizios and other occupants vacate the home at 17343 Oak Hollow Drive and deliver possession onto Ms. Vallee, as Executrix of the Succession, within 30 days. The judgment further ordered cancellation of the lis pendens notice. The Cuizios appealed that judgment, and make the following assignments of error:
The trial court noted that while the Cuizios failed to prove ownership of the home as a defense to the eviction proceeding, they may have a claim for reimbursement against the succession.
1. The trial court erroneously concluded that the summary proceeding of eviction was appropriate in this case.
2. The trial court erroneously concluded that a judgment of eviction was warranted.
ASSIGNMENT OF ERROR NO. 1
In this assignment of error, the Cuizios maintain that the trial court erroneously concluded that the summary proceeding of eviction was appropriate in this case. In their argument they rely upon Millaud v. Millaud, 99-2145 (La. App. 4 Cir. 4/5/00), 761 So.2d 44. In Millaud, Mr. Millaud had the usufruct of a home by judgment of possession in his wife's succession and filed suit against his two sons for possession of the home. The sons filed an opposition, and the matter went to trial. Thereafter, judgment was rendered finding that Mr. Millaud owned a share in the home and enjoyed the usufruct over his deceased wife's portion of the home, and thus, he could institute the action against his sons, for the protection of his interests. The two sons each had a one-third interest in their mother's one-half share of the property. On appeal, the Fourth Circuit reversed the trial court, finding that since the sons had an undivided interest in the property, Mr. Millaud could not avail himself of the provisions of the eviction articles. Millaud, 761 So.2d at 46.
The Millaud court also noted that the First City Court lacked jurisdiction over the case, which should have been filed in district court.
We note that Millaud is not controlling and further that the Millaud case is distinguishable from the present case, as the defendants in Millaud had a judgment of possession that showed they were the naked owners of the property at issue. The Cuizios had no judgment of possession, rather, they relied upon their assertion that they had a verbal agreement with Mrs. Bellande to transfer the title of the property to them.
The notice to vacate is an essential part of the summary eviction procedure provided for in La. C.C.P. art. 4701. Bowling U.S.A., Inc. v. Genco, 536 So.2d 814, 816 (La. App. 1 Cir. 1988). In this case, the summary proceeding was used with a notice to vacate as provided for in La. C.C.P. art. 4701. Louisiana Code of Civil Procedure article 4732 provides that if the court finds the owner entitled to the relief sought the trial court shall render immediately a judgment of eviction ordering the occupant to deliver possession of the premises to the owner. La. C.C.P. art. 4732. Thus, this assignment of error has no merit.
ASSIGNMENT OF ERROR NO. 2
In this assignment of error, the Cuizios maintain that the trial court erroneously concluded that a judgment of eviction was warranted. They assert that they presented "sufficient evidence of their ownership of the property in question via their reasonable reliance on [Mrs.] Bellande's promise to convey title of the property to them in exchange for their redeeming the property from the mortgagee."
At the hearing, Ms. Vallee testified that: the Cuizios had occupied the home with the permission of Mr. and Mrs. Bellande in order to care for them; that Mr. and Mrs. Bellande had left the residence and revoked the Cuizios' permission to reside in the home; that the Cuizios had paid no rent; and that, as Executrix of the Succession and as agent for Mrs. Bellande, she had demanded they vacate the property so that it could be sold to pay succession debts. Ms. Vallee's testimony established that the Cuizios were occupants of the property by permission of the owners, and that they had lost their right to occupancy, pursuant to La. C.C.P. arts. 4701 and 4704.
A document signed by Mrs. Bellande on April 19, 2012 appointed Ms. Vallee as her agent. --------
The Cuizios assert that Mrs. Bellande failed to testify at the hearing and there was uncontradicted evidence of an agreement that they had with Mrs. Bellande regarding ownership of the property. They assert that the transfer of ownership takes place between the parties by the effect of the agreement, citing La. C.C. art. 517. Louisiana Civil Code article 517 provides:
The ownership of an immovable is voluntarily transferred by a contract between the owner and the transferee that purports to transfer the ownership of the immovable. The transfer of ownership takes place between the parties by the effect of the agreement and is not effective against third persons until the contract is filed for registry in the conveyance records of the parish in which the immovable is located.
The Cuizios' assertion that a property owner's alleged verbal promise to convey title equals proof of the occupant's ownership and title sufficient to defeat summary eviction was raised by a defendant in a summary eviction proceeding and rejected by this court in Tartan Transport & Const. Ltd. v. McDonald, 436 So.2d 1270, 1271 (La. App. 1 Cir.), writ denied, 442 So.2d 446 (La. 1983). In Tartan, this court reversed a trial court's decision and ordered the eviction of a defendant who claimed ownership because she failed to prove that she possessed the property "under a semblance of title." This court found that a claim of verbal donation of immovable property is without legal effect. Id.
In order to defeat summary eviction with a defense of ownership the defendants must show that they are owners by producing evidence of ownership interest and a semblance of title. Tartan, 436 So.2d at 1271. See also Miller v. Borne, 496 So.2d 1084, 1086 (La. App. 4 Cir. 1986), writ denied, 501 So.2d 207 (La. 1987) (plaintiffs were record title holders who produced prima facie evidence that they owned the property and that the defendant possessed as an occupant. The plaintiffs were entitled to summary eviction despite defendant's claim that he was an owner of a one-fourth interest because defendant was not an owner in the title and failed to produce any evidence of his alleged ownership); Dowl v. Arias, 06-0874 (La. App. 4 Cir. 2/14/07), 953 So.2d 81, 83 (plaintiff, claiming he owned the property through a lien privilege that he equated to an act of sale, attempted to evict defendant, who had established ownership and title. The court rejected plaintiff's claim, and dismissed his attempt to evict the defendant who had established ownership and title. The appellate court acknowledged that a lien is not an act of sale and thus does not prove ownership).
The Cuizios' contention that they had a verbal agreement with Mrs. Bellande to transfer title to them is disputed, but even if true, a verbal agreement with Mrs. Bellande could not establish ownership or title because a transfer of immovable property must be in writing. La. C.C. art. 2440.
DECREE
After review, finding no manifest error of fact and no legal error, we affirm the November 18, 2014 judgment that evicted Nancy Jean Bellande Cuizio and Richard Eugene Cuizio, Sr. from the home located at 17343 Oak Hollow Drive in Ponchatoula, Louisiana and cancelled the lis pendens notice on the property. Costs of this appeal are assessed against Nancy Jean Bellande Cuizio and Richard Eugene Cuizio, Sr.
AFFIRMED.