Amy Lavelle Versus David Armstrong

AMY LAVELLE NO. 24-C-521

VERSUS FIFTH CIRCUIT

DAVID ARMSTRONG COURT OF APPEAL

STATE OF LOUISIANA

November 06, 2024

Linda Wiseman
First Deputy Clerk

IN RE DAVID ARMSTRONG

APPLYING FOR SUPERVISORY WRIT FROM THE FORTIETH JUDICIAL DISTRICT COURT, PARISH
OF ST JOHN THE BAPTIST, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE ELLEN SHIRER
KOVACH, DIVISION "K", NUMBER 827-994

Panel composed of Judges Susan M. Chehardy,
Scott U. Schlegel, and Timothy S. Marcel

WRIT GRANTED

In this writ application, defendant, David G. Armstrong, seeks review
of the trial court’s November 4, 2024 judgment granting plaintiff, Amy
Lavelle, “the sole, exclusive authority to execute the Act of Sale for 4504
Barnett Street, Metairie, LA 70006 on November 7th, 2024 at Select Title on
behalf of David Armstrong should he not appear and execute the Act of Sale
on either November 5th or 6th, 2024.” According to the materials submitted
with the writ application, the parties came before the trial court on Ms.
Lavelle’s petition for partition and entered into a consent judgment on
March 7, 2023. In this consent judgment, the parties stipulated that “they
are co-owners of the immovable property located at 4504 Barnett Street,
Metairie, Louisiana.”1 The parties also agreed to a nonjudicial partition to
list the property for sale for $250,000.00 with a realtor whom they would
mutually agree upon in 10 days. Mr. Armstrong contends, however, that
shortly after entering into this consent judgment, the residential structure on
the property was demolished, requiring modification of the consent
judgment.

On July 19, 2023, the parties appeared in court on Mr. Armstrong’s
motion for authority to list the property for sale and Ms. Lavelle’s

1
Mr. Armstrong contends that the property at issue is “separately owned property purchased prior to the [parties’]
marriage.”

opposition. Following the hearing, the parties entered into another consent
judgment dated August 16, 2023, providing as follows:

IT IS ORDERED, ADJUDGED AND DECREED THAT Amy
Lavelle is granted exclusive permission to list the property at 4504
Barnett Street, Metairie, La. for sale, and she shall have sole authority
to sign all listing agreements, realtor contracts and disclosure forms,
associated with listing the property for sale.

On or about October 18, 2024, Ms. Lavelle filed an Emergency
Motion for Order of Authorization of Sale and Deposit of Sale’s (sic)
Proceeds In To (sic) The Registry of Court. Ms. Lavelle alleges in the
motion that on October 17, 2024, she received an offer on the property for
$160,000.00. She agreed to the offer on October 18, 2024, pursuant to the
attached Louisiana Residential Agreement to Buy or Sell. Ms. Lavelle
argued that Mr. Armstrong is unlikely to concur in the sale, so she asked the
trial court for exclusive sole authority to sign the act of sale for both parties
and to order that the proceeds be deposited in the registry of court for further
proceedings. Ms. Lavelle correctly noted that the August 16, 2023 consent
judgment did not provide her with the sole exclusive authority to execute the
act of sale on behalf of herself and Mr. Armstrong. It only provided her with
authority to “sign all listing agreements, realtor contracts and disclosure
forms.” At the conclusion of the hearing, the trial court granted Ms. Lavelle
the requested sole authority if Mr. Armstrong did not appear and execute the
act of sale on November 5th or 6th, 2024.

In his opposition to the emergency motion and in this writ application,
Mr. Armstrong contends that the consent judgment involves a nonjudicial
partition and the trial court did not have the authority to compel him to agree
to the terms of the sale. He contends that Ms. Lavelle did not present him
with the purchase offer at issue until she served him with the emergency
motion, and that she signed the purchase agreement without his consent, in
violation of the August 16, 2023 consent agreement. He also argues that the
trial court did not have the authority to grant Ms. Lavelle sole, exclusive
authority to execute an act of sale to sell the immovable property. He
contends that this constitutes a judicial partition by private sale pursuant to
La. C.C.P. art. 4607 without first following the statutory requirements.

After reviewing the plain language of the August 16, 2023 consent
judgment, we agree that it only granted Ms. Lavelle the authority to sign
documents “associated with listing the property for sale.” La. C.C. art. 2996
provides that the “authority to alienate, acquire, encumber, or lease a thing
must be given expressly.” The consent judgment does not authorize Ms.
Lavelle to enter into an agreement to sell or to execute an act of sale without
Mr. Armstrong’s consent as part of this nonjudicial partition. Thus, the trial
court erred by ordering Mr. Armstrong to appear and execute the act of sale,
and by granting Ms. Lavelle sole, exclusive authority to execute the act of

sale if he did not appear and execute the act of sale as ordered. Accordingly,
we grant this writ application and reverse the trial court’s November 4, 2024
judgment.

Gretna, Louisiana, this 6th day of November, 2024.

SUS
SMC
TSM

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
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX
www.fifthcircuit.org

NOTICE OF DISPOSITION CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN
TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS
DAY 11/06/2024 TO THE TRIAL JUDGE, THE TRIAL COURT CLERK OF COURT, AND AT LEAST ONE OF
THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY
COUNSEL, AS LISTED BELOW:

24-C-521
E-NOTIFIED
40th District Court (Clerk)
Honorable Ellen Shirer Kovach (DISTRICT JUDGE)
No Attorney(s) were ENOTIFIED

MAILED
David Armstrong (Relator) Amy Lavelle (Respondent)
In Proper Person In Proper Person
4713 Perry Drive 6535 Bellaire Drive
Metairie, LA 7006 New Orleans, LA 70124