ATKINS v. MOREAU (2026)

Plaintiff-Relator, Missy Ann Atkins, seeks supervisory review of a trial court judgment denying summary judgment in her action for partition of co-owned immovable property by licitation. This court previously granted the writ for the purposes of further briefing and oral argument if desired. Atkins v. Moreau, 25-385 (La.App. 3 Cir. 10/28/25) (unpublished writ decision). Neither party has requested oral argument; thus, this matter is ripe for resolution. For the reasons herein, we grant the writ, making it peremptory, and reverse, render, and remand for further proceedings.

STATEMENT OF THE CASE

Plaintiff is the stepdaughter of Defendant-Respondent, Autry Gene Moureau, who married Plaintiff's mother in 1977, when Plaintiff was a child. Plaintiff's mother passed away in February 2019. Defendant has no biological children.

On April 8, 2019, Plaintiff and Defendant executed a Cash Sale Deed (“the Cash Sale”), wherein they purchased “Lot five (5) of Willowbend Subdivision” (“the property”), which was recorded in the Lafayette Parish conveyance records. They also executed a mortgage, which was recorded in the Lafayette Parish mortgage records, along with a Title Insurance Rider. Defendant thereafter resided in a home located on this property.

On June 16, 2022, Plaintiff filed a Petition to Partition Immovable Property, alleging that she and Defendant each own an undivided one-half interest in the property and that Defendant had not responded to her requests to buy out her interest in a voluntary partition. Her petition seeks a judgment, inter alia, “[o]rdering the public sale of the property ․ by the sheriff of this parish, after the advertisements required by law, to effect its partition by licitation[,]” and “[a]ppointing a notary public of this parish to make this partition in accordance with law[.]” The petition further seeks attorney fees to be taxed as costs.

On July 1, 2022, Defendant filed an Answer, Affirmative Defenses, and Counterclaims (collectively referred to as “Answer”), in which he alleged that Plaintiff is not a co-owner of the property because the property was purchased using only his funds, without any consideration from her, and because he and Plaintiff are not related by blood. Defendant further alleged that he was diagnosed with dementia in 2014, and as such, he lacked the requisite capacity and intent to “donate” any of the property to Plaintiff. Defendant suggested that Plaintiff “schemed” to obtain a power of attorney over him and that she is impermissibly using that power to claim co-ownership of the property and to force its partition, which will divest him of his only home. Defendant further alleged that he “had no reason to donate his home, while he is still living or thereafter, to a[n] unliked stepdaughter with whom he has had a fraught relationship.”

Defendant also alleged that the Cash Sale and mortgage are defective and null because they resulted from various vices of consent including duress, undue influence, lack of capacity, error and mistake, failure of consideration, abuse of the fiduciary relationship, and fraud. While Defendant does not seek to nullify the Cash Sale in its entirety, he does request that a judgment be rendered declaring the Cash Sale null and void “insofar as it purports to make Atkins a co-owner of Mr. Moreau's home and property.”

The Answer further contends that Plaintiff wrongfully converted Defendant's moveable property, including Certificates of Deposit, savings accounts, and Social Security payments, as well as threatened to cut off his utility services, and it seeks a judgment ordering Plaintiff to “disgorge, pay, and reimburse Mr. Moreau damage for the taking of his immovable and movable property[.]”

On November 15, 2024, Plaintiff filed a Motion for Summary Judgment seeking “a judgment partitioning the subject property as a matter of law.”¹ She argued that it is undisputed that the parties each executed the Cash Sale, that they are listed as co-owners, and that there is no evidence supporting Defendant's defenses. A hearing on the motion was set for February 10, 2025. Defendant filed an opposition and supporting documentation on February 6, 2025.

At the February 10, 2025 hearing, Plaintiff objected to Defendant's opposition and supporting documentation because it was not filed timely in accordance with La.Code Civ.P. art. 966(B)(2), and also because the documentation was not verified or authenticated as required by La.Code Civ.P. art. 966(A)(4)(a).² In response, the trial court stated that it was not going to restrict Defendant's argument in opposition to the motion; however, it did not specifically rule on Plaintiff's objections or otherwise admit Defendant's supporting documentation into evidence. The minutes from the hearing were not provided to this court.

Ultimately, the trial court orally denied Plaintiff's motion, finding that there were genuine issues of material fact. It stated that because Defendant had granted a power of attorney in favor of Plaintiff, she owed him fiduciary duties. The trial court further suggested that if Plaintiff “was allowed to sell his house and take half the proceeds when she didn't put forth any of the proceeds, that would be an unjust enrichment.” It also pointed out that claims were made under La.Civ.Code art. 806 involving obligations between co-owners. Finally, the trial court stated, “By right, she can sue for the partition. But before we even get there, does she own part of it? So I'll see ya'll at trial.”

In her application for supervisory review, Plaintiff makes the following assignments of error:

1. The trial [c]ourt erred in failing to grant the Motion for Summary Judgment where the Plaintiff submitted and introduced proper documentary and affidavit evidence that Plaintiff was a co-owner of immovable property entitled to partition by licitation under law.

2. The trial [c]ourt erred in failing to grant the Motion for Summary Judgment where Defendant failed to file a timely opposition.

3. The trial [c]ourt erred in failing to grant the Motion for Summary Judgment where Defendant failed to introduce any documentary or affidavit evidence that Plaintiff (mover) was not entitled to a partition under [the] facts and laws.

4. The trial [c]ourt erred in failing to grant the Motion for Summary Judgment where Defendant failed [to] introduce any proper documentary or affidavit evidence of a vice of consent as alleged in its affirmative defenses alleged.

5. There are numerous legal errors regarding a right to partition never addressed by Defendant in its untimely opposition, and this Court, for any one of those legal errors, should accept the Writ and grant the Summary Judgment as moved.

DISCUSSION

That appellate review of summary judgments is de novo is well established:

Appellate courts review summary judgments de novo utilizing the same analysis employed by a trial court: do the pleadings, memoranda, affidavits, depositions, answers to interrogatories, and other documents that may properly be considered demonstrate that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law? La.Code Civ.P. art. 966; Litel Explorations, L.L.C. v. Aegis Dev. Co., L.L.C., 20-373 (La.App. 3 Cir. 11/12/20), 307 So.3d 1087, writ denied, 20-1428 (La. 2/9/21), 310 So.3d 184. De novo review is undertaken regardless of whether the matter arises from an appeal or in the exercise of our discretionary jurisdiction. Id.

Hood v. Sasol Chemicals (USA) LLC, 23-379, p. 7 (La.App. 3 Cir. 5/1/24), 389 So.3d 881, 885.

Plaintiff's motion for summary judgment seeks a ruling partitioning the property, a residential house and lot, by licitation. Louisiana Civil Code Article 807 states, in part, “[n]o one may be compelled to hold a thing in indivision with another unless the contrary has been provided by law or juridical act[,]” and “[a]ny co-owner has a right to demand partition of a thing held in indivision.” Further, “[t]he mode of partition may be determined by agreement of all the co-owners[,]” and “[i]n the absence of such an agreement, a co-owner may demand judicial partition.” La.Code Civ.P. art. 809.

Pursuant to La.Civ.Code art. 810:

The court shall decree partition in kind when the thing held in indivision is susceptible to division into as many lots of nearly equal value as there are shares and the aggregate value of all lots is not significantly lower than the value of the property in the state of indivision.

Additionally, La.Civ.Code art. 811 provides:

A. When the thing held in indivision is not susceptible to partition in kind, the court shall decree a partition by licitation or, as provided in Paragraph B of this Article, by private sale and the proceeds shall be distributed to the co-owners in proportion to their shares.

B. In the event that one or more of the co-owners ․ have not consented to a partition by private sale, the court shall order a partition by private sale and shall give first priority to the private sale between the existing co-owners, over the sale by partition by licitation or private sale to third persons. The court shall order the partition by private sale between the existing co-owners as identified in the conveyance records as of the date of filing for the petition for partition by private sale. The petition for partition by private sale shall be granted first priority, and the sale shall be executed under Title IX of Book VII of the Code of Civil Procedure.

“A co-owner who ․ has incurred necessary expenses,” maintenance expenses, and/or “management expenses paid to a third person is entitled to reimbursement from the other co-owners in proportion to their shares.” La.Civ.Code art. 806. However, “[i]f the co-owner who incurred the expenses had the enjoyment of the thing held in indivision, his reimbursement shall be reduced in proportion to the value of the enjoyment.” Id.

Louisiana Code of Civil Procedure Article 966(D)(1) provides the burden of proof in a summary judgment motion, and the burden on the opposing party if the mover successfully establishes that he or she is entitled to summary judgment:

The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law.

Here, Plaintiff is the mover for summary judgment. “When the issue before the court on the motion for summary judgment is one on which the party bringing the motion will bear the burden of proof at trial, the burden of showing there is no genuine issue of material fact remains with the party bringing the motion.” Sanders v. Swiftships, Inc., 17-774, p. 7 (La.App. 1 Cir. 9/20/18), 393 So.3d 371, 376, writ denied, 18-1912 (La. 1/18/19), 262 So.3d 289. “Once the motion for summary judgment has been properly supported by the moving party, the failure of the nonmoving party to produce evidence of a material factual dispute mandates the granting of the motion.” Racine v. Moon's Towing, 01-2837, p. 5 (La. 5/14/02), 817 So.2d 21, 25. “The mandate that a nonmoving party's failure to produce evidence in response to a properly supported summary judgment motion dictates that summary judgment be granted is codified in La. C.C.P. art. 967(B).” MJH Properties, L.L.C. v. Farley, 23-142, p. 8 (La.App. 4 Cir. 10/4/23), 382 So.3d 910, 915, writ denied, 23-1521 (La. 1/17/24), 377 So.3d 248.

Louisiana Code of Civil Procedure Article 967(B) provides as follows:

When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him.

Plaintiff asserts that Defendant failed to oppose the summary judgment within the time provided for by law. Thus, she argues that the opposition and its attachments were improperly considered by the trial court. We agree.

Louisiana Code of Civil Procedure Article 966(B)(2) provides that “any opposition to the motion and all documents in support of the opposition shall be filed and served in accordance with Article 1313(A)(4) not less than fifteen days prior to the hearing on the motion.” Here, Defendant's opposition was filed on February 6, 2025. The hearing on the motion for summary judgment was set for February 10, 2025, and was heard and decided that same day.

In Auricchio v. Harriston, 20-1167, pp. 4-5 (La. 10/10/21), 332 So.3d 660, 662–63 (second alteration in original), the supreme court held that La.Code Civ.P. art. 966(B)(2)’s requirement that an opposition and its supporting exhibits to a summary judgment motion be filed at least fifteen days prior to the hearing on the motion, is mandatory and cannot be waived by the trial court:

“The starting point for the interpretation of any statute is the language of the statute itself.” Dejoie v. Medley, 2008-2223 (La. 5/5/09), 9 So.3d 826, 829. When a statute is clear and unambiguous and its application does not lead to absurd consequences, the provision must be applied as written, with no further interpretation made in search of the legislature's intent. Id.; La. Civ. Code art. 9; La. R.S. 1:4.

The clear and unambiguous language of Article 966(B)(2) says that, absent the consent of the parties and the court, an opposition shall be filed within the fifteen-day deadline established by the article. The word ‘shall’ [sic] is mandatory. La. R.S. 1:3. Under well-established rules of interpretation, the word “shall” excludes the possibility of being “optional” or even subject to “discretion,” but instead means “imperative, of similar effect and import with the word ‘must.’ ” Louisiana Fed'n of Tchrs. v. State, 2013-0120 (La. 5/7/13), 118 So. 3d 1033, 1051. This interpretation also does not lead to absurd consequences. Summary judgments are intended “to secure the just, speedy, and inexpensive determination of every action.” La. Code Civ. P. art. 966(A)(2). Limiting judicial discretion by setting a firm deadline for filing an opposition furthers this end. That is a rational legislative choice and must be applied as written.

The legislative history of Article 966(B) reinforces our interpretation of its clear wording. The 2015 amendment removed language that expressly gave the trial court the discretion, upon a showing of “good cause,” to afford additional time to oppose a motion for summary judgment. By removing the discretionary language and replacing it with mandatory language, we must assume the legislature intended to change the law to eliminate the previously afforded discretion. “[W]hen the legislature changes the wording of a statute, it is presumed to have intended a change in the law.” Borel v. Young, 2007-0419 (La. 11/27/07), 989 So.2d 42.

Harriston missed the deadline to file her opposition. Nevertheless, she argues Plaintiffs were not prejudiced by the late filing. But, prejudice is irrelevant. The statute mandates compliance without regard to cause or prejudice. While the trial court could have considered equitable concerns and continued the summary judgment hearing for “good cause” under Article 966(C)(2), all discretion to consider the late-filed opposition was eliminated when the continuance was denied. Thus, we remand for the trial court to rule on Plaintiffs’ motion for summary judgment without considering Harriston's late-filed opposition.

After performing a de novo review of the record, we find that Plaintiff clearly satisfied her burden of establishing a prima facie case for the partition of the home by a co-owner. In Fairbanks v. Development, LLC v. Johnson, 20-1031, p. 4 (La. 9/30/21), 330 So.3d 183, 186, the supreme court addressed whether a party could be deemed the sole owner of property even though the act of sale lists two co-owners:

An authentic act constitutes full proof of the agreement it contains, as against the parties, their heirs, and successors by universal or particular title. La. Civ. Code art. 1835. Testimonial or other evidence may not be admitted to negate or vary the contents of an authentic act or an act under private signature. La. Civ. Code art. 1848. However, in the interest of justice, testimonial or other evidence may be admitted to prove such circumstances as a vice of consent or to prove the written act was modified by a subsequent and valid oral agreement. See id.

Plaintiff established her co-ownership via a notarial act, and Defendant failed to timely oppose the motion or file any authorized opposition evidence. Accordingly, the trial court erred in considering the untimely-filed opposition evidence submitted by Defendant. Further, there is no proof of any vice of consent, as evidenced by Plaintiff's filings and Defendant's admissions as to his own mental status. Plaintiff was not even present at the time Defendant signed the deed evidencing the purchase. According to the properly-submitted summary judgement evidence, Defendant signed the Cash Sale personally before an attorney/notary and two witnesses, while Plaintiff likewise signed as purchaser in the State of Florida also before a notary and witnesses. No power of attorney was involved with the execution of the Cash Sale.

In addition, we find no issue of material fact as to whether a partition by licitation is necessary. Louisiana Civil Code Article 811(A) provides, in part, that “[w]hen the thing held in indivision is not susceptible to partition in kind, the court shall decree a partition by licitation or ․ by private sale and the proceeds shall be distributed to the co-owners in proportion to their shares.” There is no dispute that the lot purchased includes a house. Thus, it is not practically subject to a partition in kind among co-owners.

The evidence submitted by Plaintiff in support of her motion included her affidavit, the affidavit of her husband, Barry Atkins, and excerpts from Defendant's deposition. Plaintiff's affidavit establishes that the lot purchased included a “home,” with the following being attested to:

Plaintiff did all of the “leg work” for the Defendant required to purchase the home, including but not limited to obtaining the inspections, homeowners’ insurance, flood insurance, and all other legal and procedural functions needed to purchase the home. Plaintiff located and secured the lender, including agreeing to becoming a mortgagor.

(Emphasis added.)

Plaintiff further attested to the following facts:

Resulting from the deterioration of the relationship, the Plaintiff offered to sell her interest in the co-owned property to the Defendant, who declined the offer. A demand letter was sent to the Defendant on June 11, 2022, stating that the Defendant was in violation of the co-ownership laws in Louisiana and that he could not restrict her use and occupancy of the home. With no response, this litigation was instituted on June 16, 2022.

(Emphasis added.)

Mr. Atkins's affidavit attested to the following:

In January 2019, Missy was asked by the Defendant to help get his credit cleaned up so that he could buy a house. Missy asked me to help, and I agreed.

On February 19, 2019, Missy provided me with a copy of a $148,000 Judgment against the Defendant. The Judgment needed to be negotiated, resolved and cancelled of record in order to gain approval of a mortgage on a new home.

(Emphasis added.)

Defendant's deposition includes the following colloquy acknowledging the nature of the property as a residence:

Q. Okay. And this is a Cash Sale of the house where you live; is that correct?

A. Yeah.

Q. Lot 5, Willow Bend Subdivision?

A. 204 Amanda Drive.

Q. Okay. And can you tell me if are you [sic] the only person buying this house?

A. Yeah, I was the only person.

Q. Okay. Well, is there another name next to your name?

A. Yeah, Missy Atkins, but that -- the deal was that she was -- said, We're going to buy a house for you to have, and if somehow that you died, then I would get the house. I says [sic], Okay. I'll go with that. But I didn't sign for it to have her name on the house because if my name is only on the house, I don't have to pay taxes because I'm a veteran.

Come to find out, I had to pay taxes. I went see an attorney, Well, why I'm paying taxes? Because you got Missy Atkins’ name on the house. I said, I didn't want her name on the house. I just wanted the house for me.

(Emphasis added.)

There being no material issue of fact in dispute that the property sought to be partitioned includes a residential structure, and thus, cannot be partitioned in kind, we find no reason to deny the motion for summary judgment on this basis.

In Cahill v. Kerins, 34,522, pp. 5-6 (La.App. 2 Cir. 4/4/01), 784 So.2d 685, 689–90, the second circuit held that a single dwelling home situated on one residential lot cannot be divided in kind in any way that would not seriously diminish the property value:

The general rule is that partition in kind is favored over partition by licitation; and, unless the property is indivisible by nature or cannot be conveniently divided, the court shall order the partition to be in kind. La. C.C. art. 810; La. C.C.P. art. 4606; Marsh Cattle Farms [v. Vining, 30,156 (La.App. 2 Cir. 1/23/98), 707 So.2d 111, writ denied, 98-478 (La. 4/24/98), 717 So.2d 1117]; Devco, Inc. v. Richey, 30,319 (La.App.2d Cir.2/25/98), 707 So.2d 161. When, however, the thing held in indivision is not susceptible to partition in kind, “the court shall decree a partition by licitation or by private sale and the proceeds shall be distributed to the co-owners in proportion to their share.” La. C.C. art. 811. Property cannot be conveniently divided when a diminution of its value, or loss or inconvenience of one of its owners would be the consequence of dividing it. La. C.C. art. 811; Marsh Cattle Farms, supra; Devco Inc., supra; Birdwell v. Jeffery, 486 So.2d 1094 (La.App. 2d Cir. 1986). Whether and how property is partitioned is fact-specific, considering such factors as the natural characteristics of the land, size of a tract, presence or absence of public road access, number of owners in indivision, and existence of any contamination. Pugh v. NPC Services, Inc., 97-2360 (La.App. 1st Cir. 11/6/98), 721 So.2d 1056, writ denied, 98-3052 (La. 2/5/99), 738 So.2d 4. The burden of proof is on the party seeking partition by licitation. Marsh Cattle Farms, supra; Devco, Inc., supra; Birdwell, supra. Where the record reflects clearly that the property cannot be divided in kind, there is no necessity to require additional testimony to that effect. McElwee v. McElwee, 255 So.2d 883 (La.App. 2d Cir. 1971), application denied, 260 La. 861, 257 So.2d 434.

As indicated, where it is clear from the record that the property cannot be divided in kind, no other testimony or evidence is needed to establish the fact. “In order to effect a partition in kind, the property must be divided into lots of equal or nearly equal value.” Tri-State Concrete Co., Inc. v. Stephens, 406 So.2d 205, 207 (La. 1981). In the instant case, the property in question is a single residential structure on an individual lot. Thus, it cannot be equally divided between two co-owners without seriously diminishing the value of the property. Accordingly, the judgment of the trial court is reversed, and judgment is rendered in Plaintiff's favor, ordering the partition of the house and lot by licitation.

DECREE

Finding that Plaintiff-Relator, Missy Ann Atkins, established a prima facie case for partition by licitation of the house and lot, and Defendant-Respondent's, Autry Gene Moreau's, failure to timely oppose the motion for summary judgment, we hereby grant the writ and make it peremptory. The judgment of the trial court is reversed, and judgment is rendered in favor of Missy Ann Atkins, ordering the partition of the house and lot by licitation. The matter is further remanded to the trial court for further proceedings consistent with this opinion.

WRIT GRANTED AND MADE PEREMPTORY. REVERSED; RENDERED; AND REMANDED.

FOOTNOTES

1.   We consider Plaintiff's motion to be a motion for partial summary judgement in that the resolution of such only disposes of the issue of whether she is entitled to an order partitioning the property. However, there are other claims such as for attorney fees and damages for conversion of property pending via the original petition and Defendant's counterclaim/reconventional demand. La.Code Civ.P. art. 966(E).

2.   Defendant attached unverified and/or uncertified medical records and a copy of the power of attorney to his opposition to Plaintiff's motion for summary judgment.

KYZAR, Judge.