State of Louisiana, Division of Administration, Office of Community Development - Disaster Recovery Unit Versus David McCrea A/K/A David Michael McCrea

STATE OF LOUISIANA, DIVISION OF NO. 21-CA-698
ADMINISTRATION, OFFICE OF
COMMUNITY DEVELOPMENT - DISASTER FIFTH CIRCUIT
RECOVERY UNIT
COURT OF APPEAL
VERSUS
STATE OF LOUISIANA
DAVID MCCREA A/K/A DAVID MICHAEL
MCCREA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 813-045, DIVISION "G"
HONORABLE E. ADRIAN ADAMS, JUDGE PRESIDING

May 16, 2023

ROBERT A. CHAISSON
JUDGE

Panel composed of Judges Susan M. Chehardy,
Jude G. Gravois, Marc E. Johnson, Robert A. Chaisson, Stephen J. Windhorst, John J.
Molaison, Jr., and Cornelius E. Regan, Pro Tempore

DISMISSED
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COUNSEL FOR PLAINTIFF/APPELLEE,
STATE OF LOUISIANA, DIVISION OF ADMINISTRATION, OFFICE OF
COMMUNITY DEVELOPMENT - DISASTER RECOVERY UNIT ('OCD -
DRU")
Mary C. Cali
John C. Walsh
Caroline M. Tomeny
William J. Wilson
John C. Conine, Jr.
Drew D. Lyons
Hunter Farrar

COUNSEL FOR DEFENDANT/APPELLANT,
DAVID M. MCCREA
Christopher H. Szeto
Ian Dunbar

CHAISSON, J.

This appeal arises from an action brought by the State of Louisiana, Division

of Administration, Office of Community Development – Disaster Recovery Unit

(“OCD-DRU”) against David McCrea seeking enforcement of a $30,000.00

stipulated damages provision of a Road Home Program Grant Elevation Incentive

Agreement under which Mr. McCrea, whose home had been damaged by

Hurricanes Katrina and Rita, received federal disaster relief funds in exchange for

agreeing to elevate his home at or above base flood elevations published by

FEMA.

BACKGROUND

On June 23, 2008, David McCrea signed an Elevation Incentive Agreement

with OCD-DRU Road Home Program representatives, wherein he received a grant

of $30,000.00 in exchange for promises to elevate his home within three years and

to make all repairs in conformity with the minimum standards set by the 2003

International Residential Building Code.

On December 11, 2020, OCD-DRU filed this suit for breach of contract

against Mr. McCrea seeking $30,000.00 in stipulated damages, attorney’s fees and

costs, as well as “any sums … which may be due by the Defendant pursuant to any

other Grant, Incentive, or Mitigation Program…” for his alleged failure to

demonstrate compliance with the work set forth in the Elevation Incentive

Agreement. Subsequently, the State filed a motion for summary judgment against

Mr. McCrea.

On August 25, 2021, following a hearing, the trial court rendered judgment

granting the State’s motion for summary judgment and ordering Mr. McCrea to

pay $30,000.00, as well as legal interest and $1,000.00 in attorney’s fees and all

costs of the proceedings. The State subsequently recorded the judgment in its

22-CA-245 1

favor in the mortgage records of Jefferson Parish at Book 4956 Folio 69. Mr.

McCrea filed an appeal from this judgment.

On May 3, 2023, the State filed a Motion and Order to Remand for

Dismissal requesting that the judgment of the lower court be vacated and that the

matter be remanded to the trial court “so that OCD-DRU may dismiss its suit

against Defendant – Appellant DAVID MICHAEL MCCREA and cancel the

recorded judgment.”1 The State attached to its motion a copy of the Motion and

Order for Dismissal to be filed with the trial court, which states that this

proceeding is to be dismissed with prejudice at the State’s costs. Also attached to

its motion is a copy of the Request to Cancel Inscription and a copy of the Release

by Obligee of Record of an Unparaphed Obligation, which the State indicates it

will file with the Clerk of Court and Recorder of Mortgages, in order to cancel the

inscription of the judgment in the mortgage records of Jefferson Parish.

On the same date that the State filed its Motion and Order to Remand for

Dismissal, Mr. McCrea’s counsel filed a letter with this Court indicating that he

“consents to the motion and order to remand for dismissal filed today by the

Appellee in this matter without objection” (emphasis added).2 Counsel’s letter

further states that they agree to the State’s motion because of “the inclusion of a

release and request for cancellation which states:

1
We take judicial notice of the fact that it has been widely reported by local media that the State,
with the concurrence of the U.S. Department of Housing and Urban Development, has agreed to
forego further legal actions and release 3,300 homeowners from their Road Home Program debt
obligations.
2
We note that Mr. McCrea consents to the State’s motion without objection, despite the fact that
the State’s Motion requests that the judgment be vacated. In a separate appeal pending before
this Court, State of Louisiana, Division of Administration, Office of Community Development –
Disaster Recovery Unit v. Kiesha N. Moreira, No. 22-CA-245, which concerns a judgment that
also arises out of the Road Home Grant Elevation Incentive Program, the State has filed a
Motion and Order to Remand For Dismissal in which the State requests that the judgment be
vacated by this Court. In that matter, Ms. Moreira, represented by the same counsel as Mr.
McCrea, has filed a Limited Opposition to the State’s Motion, correctly pointing out that “a
motion to vacate is not a proper procedural mechanism and does not exist under Louisiana law.”
We agree with this contention and, finding such action to be unnecessary in this Court in order to
dismiss this appeal, decline to do so.

22-CA-245 2

The undersigned [i.e. OCD-DRU] acknowledges that he/she
is liable to and shall indemnify the Recorder of Mortgages and any
person relying on this request for cancellation for any damages
they may suffer as a consequence of such reliance in accordance with
the provisions of La. R.S. 9:5174.” (emphasis in original letter).

Although Mr. McCrea grants his consent to the State’s motion conditioned

upon the inclusion of the above-quoted language, we find that his interpretation of

the nature of the quoted indemnification language is misplaced. This

indemnification provision is specifically to protect the Recorder of Mortgages, and

any other person who is damaged by reliance on the request for cancellation

(which, by its very nature, would not include Mr. McCrea himself), by virtue of an

erroneous request to cancel the inscription.

Consequently, the indemnification language quoted by Mr. McCrea’s

counsel in his letter of consent to the State’s motion is not the provision that

provides Mr. McCrea protection against any future liability on the judgment at

issue. Rather, it is the statement in the State’s motion that indicates it is moving to

dismiss the appeal and remand to the trial court for the express purpose of

dismissing the litigation, with prejudice, at the State’s cost, and the release

language in the attached Release by Obligee of Record of an Unparaphed

Obligation, which states that “the mortgage or privilege was paid, extinguished, or

otherwise satisfied” and that “the obligation secured by the mortgage or privilege

is hereby released” (emphasis added).3

3
We note that in Ms. Moreira’s opposition to the State’s Motion to Remand in State v. Moreira,
No. 22-CA-245, she indicates that she would consent to the State’s motion if it included a release
with indemnification like the one attached to the State’s motion in this matter. In the Moreira
case, a Request to Cancel Inscription and a Release by Obligee of Record of an Unparaphed
Obligation (pursuant to La. R.S. 9:5169) would not be appropriate, and frankly would be
meaningless to the Clerk of Court and Recorder of Mortgages because the judgment in that case
was not recorded in the mortgage records; however, we agree that including language in the
Motion to Remand for Dismissal stating that the “judgment was extinguished or otherwise
satisfied and the obligation is therefore released” would be appropriate to allay any concerns Ms.
Moreira may have regarding potential future liability on the judgment.

22-CA-245 3

DECREE

Accordingly, without consideration of the merits of this case, we hereby

partially grant the State’s Motion and Order to Remand for Dismissal insofar as we

dismiss this appeal and remand the foregoing matter to the trial court for the

express purpose of Plaintiff-Appellee, State of Louisiana, Division of

Administration, Office of Community Development – Disaster Recovery Unit,

dismissing the suit filed against Defendant-Appellant, David McCrea, with

prejudice and at its costs, and for cancellation of the inscription in the mortgage

records of Jefferson Parish at Book 4956 Folio 69. Further, we partially deny the

State’s motion insofar as it requests this Court to vacate the August 25, 2021

judgment of the trial court. All costs of these proceedings are assessed to

Appellee.

DISMISSED

22-CA-245 4

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
JOHN J. MOLAISON, JR.
CORNELIUS E. REGAN, PRO TEM FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
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GRETNA, LOUISIANA 70054 (504) 376-1400

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NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
MAY 16, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT
REPRESENTED BY COUNSEL, AS LISTED BELOW:

21-CA-698
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE E. ADRIAN ADAMS (DISTRICT JUDGE)
CAROLINE M. TOMENY (APPELLEE) DREW D. LYONS (APPELLEE) MARY C. CALI (APPELLEE)
WILLIAM J. WILSON (APPELLEE) CHRISTOPHER H. SZETO (APPELLANT) IAN DUNBAR (APPELLANT)

MAILED
HUNTER FARRAR (APPELLEE)
JOHN C. CONINE, JR. (APPELLEE)
JOHN C. WALSH (APPELLEE)
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