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Tatum v. Riley

Court of Appeals of Louisiana, Second Circuit

May 6, 2015

KIMBERLY PEE TATUM, ROY PEE, TIMOTHY PEE and RAYMOND PEE, Plaintiffs-Appellants
v.
JOSEPH DANIEL RILEY, Defendant-Appellee

Appealed from the Third Judicial District Court for the Parish of Lincoln, Louisiana. Trial Court No. 51150. Honorable R. Wayne Smith, Judge.

LAW OFFICES OF T. J. ADKINS, By: T. J. Adkins, Counsel for Appellants.

NAPPER, MADDEN & ROGERS, By: Ryan Madden, Counsel for Appellee.

Before STEWART, DREW and LOLLEY, JJ.

OPINION

Page 381

[49,670 La.App. 2 Cir. 1] STEWART, J.

[49,670 La.App. 2 Cir. 2] The defendant, Joseph Daniel Riley (" Riley" ), pursuant to the authority granted to him under a power of attorney, donated his mother's property to himself days before her death. His half-siblings (Kimberly Pee Tatum, Roy Pee, Timothy Pee, and Raymond Pee), the plaintiffs, filed suit to annul the donation on the grounds that it divested their mother of all her property and was not authorized by the power of attorney. Following a trial, the district court rendered a judgment in favor of Riley and dismissed the plaintiffs' demands. Plaintiffs appealed. Finding no error in the district court's judgment, we affirm.

FACTS

On April 4, 2006, the plaintiffs sued Riley to nullify an inter vivos donation of property that belonged to their mother, Barbara McManus Forney (" Barbara" ). The plaintiffs are the children of Barbara's first marriage to Lurlie Dell Pee, and Riley is the child of her subsequent marriage to Danny Riley. The plaintiffs alleged that Riley, utilizing a general power of attorney granted to him by Barbara and acting as her agent, donated all of her property to himself leaving her without subsistence in violation of La. C. C. art. 1498. Amending their petition, the plaintiffs alleged that the power of attorney did not expressly authorize Riley to donate Barbara's property to himself or in violation of the public policy underlying La. C. C. art. 1498.

In answer, Riley denied that the donation left Barbara without sufficient funds for her subsistence. He asserted that he acted to carry out her wishes and that the power of attorney authorized him to contract with [49,670 La.App. 2 Cir. 2] himself as to the whole or any part of her property. Finally, Riley asserted that the plaintiffs lacked standing to nullify the donation.

A trial took place on February 26, 2009. Both the power of attorney and the act of donation were introduced into evidence. The power of attorney was executed by Barbara and accepted by Riley on December 5, 2004. The provisions of the power of attorney relevant to this dispute state:

Page 382

The acts which AGENT is authorized to do and the power granted them by this instrument is not limited to matters of administration and without in any manner, restricting or limiting the authority of the AGENT, such authority shall include, but is not limited to the performance or doing of the following:
***
(2) To do the following things and perform the following acts with respect to PRINCIPAL's interest (whether PRINCIPAL's interest be of the whole or of part or an undivided interest) in all kinds of things or property, whether movable or immovable, personal or real, corporeal or incorporeal, tangible or intangible, wheresoever situated, and whether presently owned or hereafter acquired, under such terms, provisions and conditions and for such price or consideration or reason, usual or unusual, as are acceptable to the said AGENT or Attorney-in-Fact;
***
(f) To assign, sell or otherwise dispose of the same in any manner, including, without being limited thereto, making gratuitous, onerous or ...

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