Janet Stewart Versus Charlotte Miller, Clayton Miller & Faith Hatcher Hooter

JANET STEWART NO. 23-CA-535

VERSUS FIFTH CIRCUIT

CHARLOTTE MILLER, CLAYTON MILLER & COURT OF APPEAL
FAITH HATCHER HOOTER
STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 837-712, DIVISION "L"
HONORABLE DONALD A. ROWAN, JR., JUDGE PRESIDING

May 29, 2024

JUDE G. GRAVOIS
JUDGE

Panel composed of Judges Jude G. Gravois,
Scott U. Schlegel, and Timothy S. Marcel

REVERSED IN PART; AFFIRMED AS AMENDED IN PART;
REMANDED
JGG
SUS
TSM

COUNSEL FOR PLAINTIFF/APPELLANT,
JANET STEWART
Shermin S. Khan

COUNSEL FOR DEFENDANT/APPELLEE,
CHARLOTTE MILLER & CLAYTON MILLER
Irl R. Silverstein

GRAVOIS, J.

The issues in this appeal are whether the trial court erred by
granting an exception of no cause of action and dismissing all of the
plaintiff’s claims with prejudice, and by granting an exception of
nonjoinder of an indispensable party without allowing the plaintiff
leave to amend to add the parties at issue. We conclude the court
erred in granting the exception of no cause of action because the
plaintiff adequately stated a cause of action for declaratory relief
pursuant to La. C.C.P. art. 3654. We further conclude the court erred
in granting the exception of nonjoinder of an indispensable party
without allowing the plaintiff leave to amend. Therefore, we reverse
the part of the judgment which granted the exception of no cause of
action and enter judgment denying the exception based on the reasons
provided below. We further amend the judgment in part with respect
to the exception of nonjoinder of an indispensable party to allow
amendment of the petition. We remand for further proceedings.

PROCEDURAL BACKGROUND AND
FACTS ESTABLISHED BELOW

On February 13, 2023, plaintiff/appellant, Janet Stewart, filed a
“Petition for Declaratory Judgment Petitory Action” against
defendants Charlotte Miller, Clayton Miller, and Faith Hatcher
Hooter, alleging both Hooter and the Millers were “staking claim to
one immovable property,” located at 1214 Industry Street, Bridge
City, Louisiana 70094 (Jefferson Parish). Stewart claimed ownership
of the property by virtue of a “Bond for Deed” contract she and her
deceased sister, Anglenell Stewart, had entered into with Hooter in
2008. She alleged she continued making payments towards the
purchase of the property until May of 2022, which was months after
insurance checks for damages to the property from Hurricane Ida had
been received by Hooter, but which checks were never conveyed to
her, nor used to make the extraordinary repairs necessary for the
home’s proper habitation.

The petition alleged in December of 2022, Hooter sold the
property to the Millers, and on January 11, 2023, the Millers filed an

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eviction proceeding against Stewart in the 7th Justice Court (justice of
the peace court) in Jefferson Parish. According to the petition, the 7th
Justice Court found it did not have subject matter jurisdiction over the
matter and signed an order granting Stewart continued habitation of
the property.

Stewart claimed she had “just title” to the property by virtue of
the Bond for Deed contract. She claimed she had peaceful and
uninterrupted possession of the property for over ten years, as per La.
C.C.P. art. 3651, which governs petitory actions. However, she also
claimed she had never been evicted or ceased to possess/occupy the
property and her possession had always been open and obvious. She
prayed for: (1) a declaratory judgment in her favor, declaring her to be
the owner of the property; (2) an injunction against defendants
preventing them from making attempts to evict or disrupt her
possession; and (3) all other general and equitable relief as allowed by
law, including court costs and reasonable legal fees. She attached a
hearing order to her petition, and after an initial continuance, the
matter was set for hearing on May 1, 2023.

On March 8, 2023, defendants Charlotte Miller and Clayton
Miller filed exceptions of No Cause of Action, Improper Use of
Summary Proceedings, and Failure to Join an Indispensable Party.
Attached to the exceptions was a certified copy of a “General
Warranty Deed” evidencing a sale of the subject property from Hooter
to C & C Classic Homes, Inc., signed by its directors, the Millers.

The exceptions were also set for a hearing on May 1, 2023.
Stewart and her counsel were not present in court for the hearing
when the trial court orally granted the exceptions. Thereafter, Stewart
filed an unopposed motion for a new trial on the exceptions, asserting
the date of the hearing had been miscommunicated to her and her
counsel. Stewart also filed an opposition to the exceptions, attaching
a multitude of exhibits to her memorandum in opposition. The
exceptions were heard on June 13, 2023 in open court. The court
admitted Stewart’s exhibits over the objection of defense counsel.

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The court issued a written judgment that same day, granting all of the
exceptions. This appeal followed.

INITIAL MATTER CONCERNING THE JUDGMENT

Upon lodging of the appeal with this Court, our customary
review of the record indicated the judgment signed by the trial court
on June 13, 2023 was insufficient to invoke this Court’s appellate
jurisdiction because it lacked the appropriate and necessary decretal
language. Accordingly, this Court issued an order to the trial court,
ordering it to amend the judgment of June 13, 2023 to include the
appropriate and necessary decretal language and to supplement the
appellate record with the amended judgment. The court amended the
judgment on March 21, 2024 and the amended judgment was lodged
with this Court in a supplemental record.

Though the court amended the judgment to contain decretal
language sufficient to invoke this Court’s appellate jurisdiction, the
particular decretal language used by the court appears to dismiss the
entire suit, when by granting the exception of no cause of action, the
court should have only dismissed Stewart’s claims against the Millers.
Stewart filed this suit against not only the Millers, but also against
Hooter, who, on the face of the appellate record, has not made an
appearance in the suit. The Millers did not file the exceptions also on
Hooter’s behalf. Accordingly, to the extent the court in the amended
judgment dismissed Stewart’s entire case against all defendants, the
court erred, and should have only dismissed Stewart’s claims against
the Millers.

However, because we find merit to the appeal and reverse the
court’s granting of the Millers’ exception of no cause of action, the
court’s error in dismissing Stewart’s suit in its entirety is rendered
moot.

EXCEPTION OF NO CAUSE OF ACTION

Regarding the exception of no cause of action, the Millers
asserted that a petitory action may only be brought by one who claims
ownership but who is not in possession, as per La. C.C.P. art. 3651.

23-CA-535 3

They argued the petition failed to indicate Stewart was not in
possession of the property, and as such, failed to assert a cause of
action for a petitory action.

The Millers also argued Stewart failed to assert a cause of
action for a possessory action under La. C.C.P. art. 3655, because she
did not allege in her petition that she possessed the immovable
property for herself. They argued she had never acquired a possessory
interest in the property through the 2008 Bond for Deed contract.
Possession under a bond for deed contract, the Millers argued, makes
Stewart a precarious possessor, who may not assert a possessory or a
petitory action. The court apparently agreed, granting the exception
of no cause of action.

In her opposition before the lower court, Stewart argued that
La. C.C.P. art. 3654 provides that a person who is in possession of
immovable property may institute an additional action for declaratory
judgment for recognition of her ownership against a person who
claims ownership of the same property.

An exception of no cause of action is designed “to question
whether the law extends a remedy against the defendant to anyone
under the factual allegations of the petition.” Heirs of John Beckwith
LLC v. Sims, 20-476 (La. App. 4 Cir. 3/10/21), 315 So.3d 306, 315.
“An exception of no cause of action should be granted only when it
appears beyond doubt that the plaintiff can prove no set of facts in
support of any claim which would entitle him to relief.” Id. (citation
omitted). Denial of an exception of no cause of action is reviewed de
novo because the question of whether a petition states a cause of
action is a question of law. Ordoyne v. Ordoyne, 07-0235 (La. App. 4
Cir. 4/2/08), 982 So.2d 899, 902. No evidence may be introduced at
any time to support or controvert the objection that the petition fails to
state a cause of action. La. C.C.P. art. 931.

“The objection of no cause of action raises the question of
whether the law affords any remedy to plaintiff under the allegations
of the petition. It is triable on the face of the petition. For purposes of
its determination, all well-pleaded facts are accepted as true and all

23-CA-535 4

doubts are resolved in favor of the sufficiency of the petition.”
Johnson v. Edmonston, 383 So.2d 1277, 1281-82 (La. App. 1 Cir.
2/25/1980), citing La. C.C.P. arts. 927, 931; Elliot v. Dupuy, 242 La.
173, 135 So.2d 54 (1961); Bielkiewicz v. Rudisill, 201 So.2d 136 (La.
App. 3d Cir. 1967). (Emphasis added.)

Stewart’s petition, while inartfully entitled “Petition for
Declaratory Judgment Petitory Claim,” alleged, among other
things, she and her now-deceased sister entered into a Bond for
Deed contract concerning the property with Hooter in 2008,
with the goal of ultimately obtaining unencumbered ownership
of the property. She alleged she made payments towards the
purchase of the property until May, 2022, when a dispute arose
between her and Hooter over insurance checks that had been
received by Hooter for damages to the property caused by
Hurricane Ida, which insurance proceeds were never conveyed
to Stewart, nor used to make the extraordinary repairs necessary
for proper habitation of the property. She also alleged the
Millers instituted an eviction proceeding against her in the 7th
Justice Court to obtain possession of the property from her.
She further alleged she had a “Breach of Contract” claim
against Hooter, seeking specific performance and damages,
because once she fulfilled her promise to pay Hooter, Hooter
should have timely conveyed title to her. She asserted Hooter
failed to convey title to her as rightful owner of the property
and instead attempted to circumvent her legal responsibilities
by conveying title to her (Hooter’s) friends, the Millers.
Stewart stated in her petition that she reserved her rights to
bring the breach of contract claim, and “instead allege[d] lawful
possession based on Acquisitive Prescription.” Stewart also
prayed for a declaratory judgment declaring her to be the owner
of the property.

Chapter I of Title II of the Code of Civil Procedure, is
entitled “Actions to Determine Ownership or Possession,” and
provides for three different actions through which one can
assert ownership or possession of real property. Gros v.

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Boisvert Farms, LLC, 13-16 (La. App. 1 Cir. 2/27/14), 142
So.3d 991, 995; Heirs of John Beckwith LLC v. Sims, supra,
315 So.3d at 315-16. La. C.C.P. art. 3651 provides for petitory
actions; La. C.C.P. art. 3654 provides for the determination of
ownership of immovable property or a real right therein in an
action for declaratory judgment; and La. C.C.P. art. 3655
provides for possessory actions. Id. Therefore, pursuant to La.
C.C.P. art. 3654, a “plaintiff who is in possession of the
property at issue can bring an action for declaratory judgment,
thereby raising issues of possession and ownership in the same
action.” Id.; Perkins v. Fowler, 17-392 (La. App. 3 Cir.
11/22/17), 234 So.3d 96, 99; Lafourche Realty Co., Inc. v.
Duard Eymard Co., Inc., 93-1278 (La. App. 1 Cir. 6/24/94),
638 So.2d 1138, writ denied, 94-1991 (La. 11/11/94), 644
So.2d 390; Liner v. Terrebonne Parish Sch. Bd., 519 So.2d 777
(La. App. 1 Cir. 1987), writ denied, 521 So.2d 1173 (La. 1988),
cert. denied, 488 U.S. 827, 109 S.Ct. 79, 102 L.Ed.2d 55
(1988).

Accepting the well-pleaded facts in Stewart’s petition as true
and resolving all doubts in favor of the sufficiency of the petition,
upon de novo review, we conclude the petition, at a minimum,
sufficiently states a cause of action for declaratory relief concerning
Stewart’s claim of ownership of the subject property based on her
alleged possession of the property and as a result of the actions
allegedly taken by the parties pursuant to the Bond for Deed contract.
The court erred in granting the exception of no cause of action and
dismissing the suit. We reverse this portion of the amended judgment
and remand for the court to proceed with the matter as an ordinary
proceeding.

EXCEPTION OF NONJOINDER OF A PARTY

Regarding the trial court’s grant of the Millers’ exception of
nonjoinder of an indispensable party, the Millers argued two
indispensable parties were missing from this litigation: C & C Classic
Homes, Inc., as the record owner of the property at the time the suit

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was filed, and the heirs/legatees of Stewart’s deceased sister,
Anglenell Stewart, with whom Stewart alleged she had entered into
the Bond for Deed contract. The court granted the exception, but
failed to grant Stewart leave to amend the petition to add the parties.

La. C.C.P. art. 934 is clear that if the grounds for the exception
may be cured by amendment of the petition, the judgment sustaining
the exception shall order such amendment within the delay allowed by
the court. Under the law and evidence presented herein, we conclude
the court erred as a matter of law when it did not allow Stewart time
to amend her petition to add the parties needed for a just adjudication
of the matter pursuant to La. C.C.P. art. 641 and 646.1

DECREE

The portion of the amended judgment granting the exception of
no cause of action is reversed. The judgment is amended to allow
Stewart 30 days from the date of this opinion to amend the petition to
add the parties needed for a just adjudication of the matter. The
matter is remanded for further proceedings as an ordinary proceeding.

REVERSED IN PART; AFFIRMED AS
AMENDED IN PART; REMANDED

1
La. C.C.P. art. 646 provides, in pertinent part:
When the failure to join a party … is pleaded successfully in
or noticed by an appellate court, the [appellate court] may
remand the case for such amendment and further evidence.

23-CA-535 7

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
STEPHEN J. WINDHORST LINDA M. WISEMAN
JOHN J. MOLAISON, JR.
FIRST DEPUTY CLERK
SCOTT U. SCHLEGEL
TIMOTHY S. MARCEL FIFTH CIRCUIT
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JUDGES 101 DERBIGNY STREET (70053)
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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 29, 2024 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT
REPRESENTED BY COUNSEL, AS LISTED BELOW:

23-CA-535
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE DONALD A. ROWAN, JR. (DISTRICT JUDGE)
SHERMIN S. KHAN (APPELLANT) IRL R. SILVERSTEIN (APPELLEE)

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