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Laviolette v. Dubose

Court of Appeal of Louisiana, Fifth Circuit

December 23, 2014

GEORGETTE LAVIOLETTE
v.
VICKIE CHARLES DUBOSE

ON APPEAL FROM THE TWENTY-NINTH JUDICIAL DISTRICT COURT, PARISH OF ST. CHARLES, STATE OF LOUISIANA. NO. 65,864, DIVISION " E" . HONORABLE MICHELE R. MOREL, JUDGE PRESIDING.

EXCEPTION OVERRULED; JUDGMENT SET ASIDE; REMANDED.

DAVID A. DALIA, ATTORNEY AT LAW, New Orleans, Louisiana, COUNSEL FOR PLAINTIFF/APPELLEE.

GREGORY A. MILLER, ATTORNEY AT LAW, Norco, Louisiana, COUNSEL FOR DEFENDANT/APPELLANT.

Panel composed of Judges Marc E. Johnson, Stephen J. Windhorst, and Hans J. Liljeberg.

OPINION

MARC E. JOHNSON, J.

Page 146

[14-148 La.App. 5 Cir. 2] Defendant/Appellant, Vickie Charles Dubose, seeks review of the judgment of default in favor Plaintiff/Appellee, Georgette Laviolette, that annulled and revoked a donation inter vivos from the 29th Judicial District Court, Division " E" . For the following reasons, we overrule the exception of no cause of action, set aside the judgment of default, and remand the matter for further proceedings.

FACTS AND PROCEDURAL HISTORY

This is the second appeal between the parties involving the property located at 134 Pitre Drive in St. Rose, Louisiana. The following facts are taken from the opinion rendered in Laviolette v. Dubose, 07-916 (La.App. 5 Cir. 3/25/08); 983 So.2d 160, 161-62:

Georgette Laviolette filed a Petition for Damages, Injunction, and For Revocation of Donation on June 7, 2007. Alleging " assault and battery and subsequent course of conduct [by defendant] designed to intentionally inflict emotional distress upon the plaintiff," plaintiff sought damages for personal [2] injuries, permanent injunctive relief [against defendant], and revocation of a " certain donation." After obtaining a preliminary default against defendant on July 3, 2007, plaintiff confirmed the default judgment in proceedings dated July 13, [14-148 La.App. 5 Cir. 3] 2007. Following testimony from the plaintiff, the trial court granted plaintiff

Page 147

a permanent injunction against defendant and ordered that the described donation from plaintiff to defendant be annulled and revoked. However, the trial court, expressing concern for " the prescription issue," deferred ruling on the personal injury claim of plaintiff pending introduction of additional admissible evidence and a memorandum on the issue of prescription. The Judgment of Default, consistent with the trial court's comments and reasons set forth in the transcript, reflects a partial judgment. The district court did not rule on the claim for personal injuries and did not sign that portion of the proposed judgment that had included an order granting an award for personal injuries.
Vickie Charles Dubose filed her Motion and Order of Devolutive Appeal on September 17, 2007. The appeal only addresses the revocation of the donation inter vivos. Defendant/Appellant [3] also filed Peremptory Exceptions of Prescription and No Cause of Action in this Court. Plaintiff/Appellee has filed a Motion to ...

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