FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2017-01125,
DIVISION "I-14" Honorable Piper D. Griffin, Judge
Gregory Trapolin TRAPOLIN LAW FIRM COUNSEL FOR
Kast Shandy Arguelles Lindesey S. Olsen DE ST. GERMAIN LAW
OFFICE, LLC COUNSEL FOR DEFENDANT/APPELLEE
composed of Judge Edwin A. Lombard, Judge Rosemary Ledet,
Judge Tiffany G. Chase
A. LOMBARD JUDGE
plaintiff, Independent Real Estate Investment Group, LLC,
appeals the district court judgment of November 7, 2018,
wherein the district court (1) granted the declaratory
exception of insufficiency of service of process filed on
behalf of Darnay Kastl, the heir to the Succession of Bronwyn
Alfano, the named defendant in this matter; (2) granted the
peremptory exception of no cause of action filed on behalf of
Mr. Kastl; (3) dismissed the plaintiff's petition for
declaratory and miscellaneous relief; and (4) denied Mr.
Kastl's motion to cancel recordation of statement of lien
and privilege that was included within his pleading of
exceptions. After review of the record in light of the
applicable law and arguments of the parties, the district
court judgment is affirmed in part and vacated in part.
Facts and Procedural History
April 30, 2015, Ms. Alfano entered into a Bond for Deed with
the plaintiff wherein Ms. Alfano's immovable property
located at 315 North Bernadotte Street was sold to the
plaintiff for the sum of $139, 500.00 of which a portion was
paid immediately and the balance was to be paid by
installments as set forth in the Bond for Deed. See
La. Rev. Stat. 9:2941. In January 2016, Debra Francis Dretar
(plaintiff's sole manager-member) died. Shortly
thereafter (in March 2016), the plaintiff's office was
moved from the deceased Ms. Dretar's address at 3349
Ridglake Drive, Metairie, Louisiana to 5497 Canal Boulevard,
New Orleans, Louisiana, the home of Kenneth Dretar, Ms.
Dretar's Succession Administrator and plaintiff member.
that the plaintiff failed to make any of the required monthly
payments after August 1, 2015, and subsequently failed to
respond to the 45 day default notice mailed to the plaintiff
on May 24, 2016, Ms. Alfano filed a "Cancellation for
Bond for Deed" on October 5, 2016. No response was
received from the plaintiff by Ms. Alfano. However, on
November 3, 2016, the plaintiff filed and recorded a
Statement of Lien and Privilege against the North Bernadotte
property. Thereafter, Ms. Alfano died.
February 3, 2017, the plaintiff (now under control of Mr.
Dretar) filed a petition for a declaratory judgment and
miscellaneous relief against Ms. Alfano seeking a declaratory
judgment to void the Cancellation for Bond of Deed and to
re-establish the plaintiff as the "rightful
purchaser" pursuant to the Bond for Deed. The plaintiff
asserted that the "Cancellation for Bond for Deed"
was void because mailing the notice of default to the
deceased Ms. Dretar's address in Metairie and did not
constitute legal notice. Ironically, the plaintiff attempted
to serve its petition on the deceased Ms. Alfano.
August 30, 2018, in response to the plaintiff's petition
for a declaratory judgment, exceptions of insufficiency of
service of process and no cause of action were filed on
behalf of Mr. Kastl. A motion to cancel the plaintiff's
Statement of Lien and Privilege filed on the property at 315
North Bernadotte Street was improperly included in the filed
pleading of exceptions.
a hearing, the district court issued a judgment on November
7, 2018, granting the exceptions of insufficiency of service
and no cause of action, dismissing the plaintiff's
petition for declaratory judgment, canceling the Lis
Pendens that resulted from the filing of the petition,
and denying Mr. Kastl's motion to cancel the recordation
of the statement of lien and privilege on the North
Bernadotte Street property.
plaintiff filed this timely appeal.