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Treas v. Koerner

Court of Appeals of Louisiana, Fourth Circuit

November 13, 2019

COREY DAVID TREAS
v.
CHANTAL ELIZABETH KOERNER

          APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2017-00714, DIVISION "D" Honorable Nakisha Ervin-Knott, JUDGE

          Stephen M. Petit, Jr. ATTORNEY AT LAW COUNSEL FOR PLAINTIFF/APPELLEE

          Louis R. Koerner, Jr. KOERNER LAW FIRM COUNSEL FOR DEFENDANT/APPELLANT

          Court composed of Judge Terri F. Love, Judge Rosemary Ledet, Judge Dale N. Atkins

          DALE N. ATKINS JUDGE.

         This appeal involves the partition of property, whose municipal address is 120 Alden Place, New Orleans, Louisiana 70119 ("the property"), co-owned by Chantal Elizabeth Koerner, ("Koerner") and her former boyfriend, Corey David Treas ("Treas"). Koerner appeals the trial court's judgment of December 14, 2018 ("December 2018 judgment"), denying her "Motion for Judgment on the Pleadings for Partition by Licitation…through Public Sale," (the "Motion"), granting Treas' Motion for Reconsideration of Private Sale, finding Koerner in contempt, ordering her to vacate the property by noon on December 17, 2018, and assessing a fine for each additional day she remained at the property and failed to comply with the order.

         For the reasons that follow, we reverse in part the trial court's December 2018 judgment, denying the Motion and granting of Treas' Motion for Reconsideration of Private Sale. We affirm in part the trial court's December 2018 judgment, granting Treas' Rule for Contempt and finding Koerner in constructive contempt of court. We remand for further proceedings.

         FACTUAL AND PROCEDURAL BACKGROUND

         Koerner and Treas were involved in a romantic relationship. On June 8, 2016, during the course of their relationship, Treas purchased the property, through the Veterans Administration ("VA"), in his name only, due to the couple's marital status and Treas' ability to qualify for VA guaranteed financing, for one-hundred percent (100%) of the purchase price. The property was secured by a mortgage through Pacific Union Financial. On June 14, 2016, Treas executed a quitclaim deed in favor of Koerner for "fifty-percent (50%) interest" in the property.[1]

         Upon dissolution of the relationship, Treas left the property in January 2017.[2] On January 24, 2017, Treas filed a Petition for Partition by Licitation requesting partition of the property co-owned with Koerner and to "buy-out" Koerner's interest or, in the alternative, partition by licitation or by private sale. Treas also requested exclusive use of the property pending the resolution of the matter. In response, Koerner filed a domestic pleading alleging physical and emotional abuse by Treas.[3] Koerner also answered the petition for partition and filed a reconventional demand, alleging several claims including claims for damages and claims pursuant to the Louisiana Unfair Trade Practice and Consumer Protection Act ("LUPTA").

         Koerner filed, on April 25, 2017, an Amended Answer and Reconventional Demand asserting an affirmative defense alleging abuse by Treas and asserting the right to revoke a donation of movables to Treas on the grounds of ingratitude. In response, Treas filed exceptions of improper cumulation and no right of action. On June 30, 2017, the trial court denied Treas' exception of improper cumulation, but granted his exception of no right of action and ordered Koerner to amend her claims.

         Subsequently, on November 8, 2017, Koerner filed a Motion for Partial Summary Judgment based on Treas' failure to respond to her requests for admission. Treas filed, on November 30, 2017, an opposition to Koerner's Motion for Partial Summary Judgment, reasserted his exceptions of no right of action and no cause of action, and filed a Motion for Bifurcation, for Authority to Place Immovable Property for Sale, for Additional Time to Answer Discovery and for Status Conference.

         On January 11, 2018, Koerner filed Amended Affirmative Defenses, Amended Reconventional Demand, and Request for Stay for Partition Pendite Lite and Opposition to Treas' Motion for Bifurcation and for Authority to Place Immovable Property for Sale Subject to Partition. Further, Koerner filed, on April 20, 2018, a Motion to Strike Treas' Opposition to her Motion for Partial Summary Judgment. Koerner also filed a Motion to Strike or Seal a Portion of Treas' Supplemental Memorandum.

         All of these various motions and exceptions came for hearing before the trial court on June 29, 2018. On the same date, the trial court rendered its ruling. As to this appeal, the relevant part of the trial court's oral ruling is granting Treas' Rule Why the Immovable Property Should Not Be Listed for Private Sale. However, it should be noted, in its written reasons for judgment, issued on July 10, 2018, the trial court reversed its ruling granting the partition of the property by private sale, and denied the request for private sale, citing that it lacked the authority to order a private sale of the property. Koerner sought supervisory review, by this Court, of the trial court's judgment rendered on July 10, 2018. This Court denied Koerner's writ application. Treas v. Koerner, 2018-0621 (La.App. 4 Cir. 9/11/18)(unpublished).

         On September 6, 2018, Treas filed a Motion to Compel More Complete Answers to Interrogatories and Requests for Production. Treas also filed, on September 20, 2018, a Motion for Exclusive Use of the property. Koerner filed, on October 12, 2018, her opposition to Treas' Motion for Exclusive Use of the property. In her opposition, Koerner argued that she had paid all mortgage payments and had taken care of all other expenses for the maintenance of the property.[4] On October 19, 2018, the matter on Treas' motions came for hearing before the trial court. On the same date, the trial judge orally ruled as follows:

(1) Granted Treas' Motion to Compel More Complete Answers to Interrogatories and Requests for Production;
(2) Ordered Koerner to produce the responsive documents and answers to interrogatories;
(3) Granted Treas' Motion for Exclusive Use;
(4) Ordered Koerner to vacate the property by October 31, 2018, by noon; and
(5) Ordered Koerner not to cause any damage to the property or remove any movables from the property subject to dispute of ownership.

         Thereafter, on October 25, 2018, Koerner again sought supervisory review by this Court, of the trial court's October 19, 2018, judgment ("October 2018 judgment"). This Court denied Koerner's writ application on October 30, 2018. Treas v. Koerner, 2018-0934 (La.App. 4 Cir. 10/30/18)(unpublished). On the same date, Koerner filed the Motion.

         On November 2, 2018, Koerner filed a motion for a new trial. In her motion, Koerner argued that a new trial was warranted because the trial court erroneously declared that Treas had been the sole payor of the mortgage on the property. To support her argument, she provided her bank statements and mortgage loan statements showing the payments she made on the property.

         The trial court, on November 5, 2018, issued its judgment and written reasons denying Koerner's motion for a new trial. In its written reasons, the trial court stated Koerner failed to assert during the course of the hearing that she had been the sole payor of the mortgage after Treas left the property.[5] Further, the trial court stated its finding that Treas' status as the sole payor of the mortgage was not a substantial basis for granting Treas' Motion for Exclusive Use, but was merely one of its reasons for judgment.

         Again, on November 14, 2018, Koerner filed a writ application seeking supervisory review by this Court of the trial court's judgment rendered on November 5, 2018, denying her motion for new trial. On the same date, Koerner filed a Motion for Appeal and requested a stay of the "dispossession/eviction injunction" rendered by the trial court in its October 2018 judgment. The trial court denied Koerner's motion for appeal reasoning that it was an "improper use of appellate court procedure." On November 15, 2018, this Court denied Koerner's writ application, in which she sought review of the trial court's November 5, 2018, judgment. Treas v. Koerner, 2018-0971 (La.App. 4 Cir. 11/15/18)(unpublished).

         On November 21, 2018, Koerner filed an application for supervisory writ to the Louisiana Supreme Court. While this matter was before the Louisiana Supreme Court, Treas filed, on December 6, 2018, in the trial court, a Motion for Reconsideration of Private Sale and Opposition to Defendant's Rule for Judgment on the Pleadings, a Rule for Contempt, and supporting memorandum. Koerner filed, on December 10, 2018, an opposition to Treas' Motion for Reconsideration of a Private Sale and a reply memorandum in support of the Motion. In Koerner's reply memorandum and opposition, she argued that Treas failed to cite any law authorizing a private sale or that controverted the trial court's judgment and reasons declaring it lacked authority to order a private sale.

         On December 14, 2018, the following motions came before the trial court:

(1) Koerner's Motion for Judgment on Pleadings for Partition of Licitation through Public Sale at Treas' Cost and Initiation;
(2) Treas' Motion for Reconsideration of Private Sale; and
(3) Treas' Rule for Contempt.

         The trial court rendered judgment, on the same date, and issued written reasons in which it:

(1) Denied the Motion filed by Koerner;
(2) Granted Treas' Motion for Reconsideration of Private Sale;
(3) Granted Treas' Rule for Contempt ordering Koerner to pay a fine in the amount of $500.00, to vacate the property by December 17, 2018, and
(4) Ordered that Koerner pay a fine in the amount of $50.00 for each additional day she remained on the property until she complied with the order, and ordered Koerner not to damage or destroy the property and not remove any personal property and movables from the home over which there is dispute as to ownership.

         Koerner sought expedited supervisory review of the December 2018 judgment, by this Court. On December 17, 2018, prior to this Court's ruling on Koerner's expedited writ application, the Louisiana Supreme Court denied Koerner's writ application in which she sought supervisory review of the trial court's November 5, 2018, judgment denying her motion for new trial. Treas v. Koerner, 2018-1891 (La. 12/17/18), 258 So.3d 600. Thereafter, on December 20, 2018, this Court denied Koerner's expedited writ application seeking supervisory review of the December 2018 judgment. Treas v. Koerner, 2018-1080 (La.App. 4 Cir. 12/20/18)(unpublished). It is from the December 2018 judgment that Koerner now appeals.

         DISCUSSION

         Koerner raises these seven (7) ...


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