Appealed from the Fourth Judicial District Court for the Parish of Ouachita, Louisiana. Trial Court No. 2011-2657. Honorable Carl Van Sharp, Judge.
VACATED AND REMANDED.
WILLIE HUNTER JR., Counsel for Appellant, Sharon Martin.
ROBERT A. LEE, Counsel for Appellee, John Alexander, Martin Sr.
Before STEWART, LOLLEY and GARRETT, JJ.
[49-573 La.App. 2 Cir. 1]
Sharon Reneau Martin, widow of John Alexander Martin Jr. (" John Jr." ), appeals from a trial court judgment in favor of John Alexander Martin Sr. (" John Sr." ), against the unopened succession of John Jr., for one-third of the value of a house donated to John Jr. and Sharon by John Sr. and his wife, Ruby Aikens Martin. For the following reasons, we vacate the
judgment of the trial court and remand for further proceedings.
John Sr. and Ruby Martin lived in West Monroe and were the parents of three adult children, John Jr., Desaree Martin Ross, and Denise Lynn Martin. John Jr. and Denise lived in the West Monroe area. Desaree lived in Indiana. Ruby developed Alzheimer's disease. In 2008, she executed a general power of attorney to Desaree. John Sr.'s health began to decline and he found it increasingly difficult to care for Ruby. In 2009, Desaree determined it was necessary to take her parents to Indiana to care for them in her home.
In March 2009, John Sr. and Ruby, with Desaree acting as her mother's agent under the power of attorney, made a donation inter vivos of their house to John Jr. and his wife Sharon. In the donation, the parties estimated the value of the house to be $40,000. Within a few days of the donation, Desaree took John Sr. and Ruby to live in Indiana.
Approximately two years later, in April 2011, John Jr. was diagnosed with cancer. He passed away August 21, 2011. On August 25, 2011, John [49-573 La.App. 2 Cir. 2] Sr., Desaree, individually and as agent for Ruby, and Denise filed a " Petition to Nullify Donation" against the unopened succession of John Jr. and Sharon to annul the donation.
The plaintiffs alleged that John Sr. had multiple health problems and lacked capacity to make the donation. The petition asserted that Desaree lacked the requisite donative intent to make the donation on behalf of her mother. They also alleged that John Sr. and Ruby did not reserve enough for subsistence and, therefore, under La. C.C. art. 1498, the donation was null. No other allegations were made by the plaintiffs. The petition was served on Sharon. The petitioners expressly noted on the petition that " Service is to be withheld on the unopened succession of John Alexander Martin Jr. until a succession representative has been identified." The record does not show that a succession representative was identified or that any service was ever requested or made on the succession of John Jr.
The petition was answered by Sharon " individually and as testimony [sic] legatee." An exception of no right of action was filed against Desaree and Denise by Sharon, " individually and on behalf of the unopened succession of John Jr.," claiming Desaree and Denise had not alleged an ownership interest in the property. The trial court granted this exception and dismissed Denise and Desaree as plaintiffs.
Sharon, " individually and on behalf of the unopened succession of John Jr.," also filed an exception of no cause of action alleging that John Sr. and Ruby had approximately $2,800 per month in income from retirement [49-573 La.App. 2 Cir. 3] and Social Security and, therefore, had sufficient income for subsistence. This exception was denied.
Sharon alone then filed a motion for summary judgment, again asserting that John Sr. and Ruby had sufficient funds remaining after the donation and that the donation was not a nullity under La. C.C. art. 1498. The trial court denied this motion.
On December 17, 2012, Ruby passed away. No legal successor was ever substituted for Ruby in this suit.
Pursuant to a motion filed by Sharon alone, the matter was set for trial, which began on March 28, 2013. Desaree testified that her parents lived in the house at issue for more than 40 years. According to Desaree, when she came to Louisiana to move her parents, John Jr. inquired about what would happen to the house. She claimed that John Jr. badgered John Sr. until he consented to give the house to John Jr. and Sharon. John Jr. wanted the house to be in his name before he moved into it. Desaree stated that John Jr. arranged for donation documents to be drafted and contended that she advised her father not to execute the donation. Desaree said her father consented because he " wasn't in his right mind." John Sr. was " not doing things right" and " could hardly drive." Desaree claimed he had been given the wrong medication, but his mind cleared up when he got to Indiana and stopped taking some of the medications prescribed for him in Louisiana. Desaree signed the donation on behalf of her mother, " Because my dad made me. I didn't know what condition my dad was in really at the time that this took place." Desaree asserted that she told the notary that she did [49-573 La.App. 2 Cir. 4] not want to sign the document. She claimed her father did not know he was signing an act of donation.
Desaree claimed that John Sr. had an agreement with John Jr. whereby John Jr. would have the house appraised and a " letter wrote up," signed, notarized and witnessed that " if anything happened to both of them that the house would still be split three ways." No such agreement was ever executed by the parties. She acknowledged that John Jr. and Sharon lived in the house for more than two years with no objection from any of the parties.
Wilbur S. Hill Jr., the nephew of John Sr., testified that his uncle told him that John Jr. got the house, but was supposed to have it appraised and pay Desaree and Denise. He also said his uncle told him he gave the deed to his house to John Jr., who was supposed to take care of the girls' part later. John Sr. also told Wilbur that John Jr. would not move into the house without the deed.
Denise Martin testified that, at the time Desaree took her parents to Indiana, her mother had Alzheimer's and her father wasn't thinking clearly. Denise stated that her parents were not in their right minds when the donation was executed. She acknowledged there was nothing wrong with Desaree's mind, but did not know if anyone " twisted Desaree's arm" to make her sign the donation. Denise was unaware that Desaree had her mother's power of attorney and she was not aware of the donation at the [49-573 La.App. 2 Cir. 5] time it was made. Denise found out about the donation after John Jr. was diagnosed with cancer. She testified that, when she found out about the donation, she told Sharon she wanted her out of the house.
Lori Wilds, the notary who notarized the donation, testified that she would not have notarized the document if anyone had objected to it. She could not remember if she drafted the document, but did not think she did.
John Sr. offered no testimony. At the time of trial, he was not able to travel to Louisiana. He had a broken hip and was in a rehabilitation facility in Indiana recuperating from that injury. The plaintiffs' attorney sent questions to John Sr., which a notary ...