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Pazmino v. Pazmino

Court of Appeals of Louisiana, Fifth Circuit

May 21, 2015

AIDA MERCEDES PAZMINO, CONSUELO PAZMINO, CECILIA DELCARMEN PAZMINO AND SERGIO ANTONIO PAZMINO
v.
SUCCESSION OF HENRIETTA CHRISTMAS PAZMINO AND ANYA M. BUREAU

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA. NO. 715-153, DIVISION " B" . HONORABLE CORNELIUS E. REGAN, JUDGE PRESIDING.

STEVEN J. KOEHLER, ATTORNEY AT LAW, Metairie, Louisiana, COUNSEL FOR PLAINTIFF/APPELLANT.

ERIC M. SCHORR, ROSE S. SHER, JOHN R. ELLIS, ATTORNEYS AT LAW, New Orleans, Louisiana, COUNSEL FOR DEFENDANT/APPELLEE.

Panel composed of Judges Marc E. Johnson, Robert A. Chaisson and Stephen J. Windhorst.

OPINION

Page 299

[14-822 La.App. 5 Cir. 2] STEPHEN J. WINDHORST, J.

Plaintiffs, Aida Mercedes Pazmino, Consuelo Pazmino, Cecilia Delcarmen Pazmino and Sergio Antonio Pazmino, appeal from a ruling of the trial court granting summary judgment in favor of defendants, Succession of Henrietta Christmas Pazmino and Anya M. Bureau, finding that the transfer of the land and improvements located at 1000 Melody Drive, Metairie, Louisiana, was a true and valid sale, and declaring that plaintiffs are not entitled to rescind the sale. We reverse the ruling of the trial court and remand for further proceedings.

The undisputed facts show that Sergio Pazmino (" Mr. Pazmino" ) was married to Henrietta Christmas Pazmino (" Mrs. Pazmino" ). Of that union, no children were born. The plaintiffs are Mr. Pazmino's children from a prior marriage. On July 9, 1982, Mr. Pazmino executed an Act of Donation, giving a one-half interest in his separate property located at 1000 Melody Drive, Metairie, Louisiana to Mrs. Pazmino.

Mr. and Mrs. Pazmino lived together at the Melody Drive property until Mr. Pazmino's death on August 16, 1990. Prior to his death, Mr. Pazmino executed a testament, giving Mrs. Pazmino as his wife, usufruct over his one-half interest in [14-822 La.App. 5 Cir. 3] the Melody Drive property. The testament also stated that " I expressly grant to Henrietta Christmas Pazmino, as usufructuary, the right to sell, mortgage, lease or otherwise dispose of all assets subject to the usufruct, whether the assets are consumable or nonconsumable things. Such disposition shall not require the consent of the naked owners." The testament specifically provided that in the event of such disposition, the usufruct did not terminate but attached to the proceeds thereof. The testament further provided that Mr. Pazmino left his entire estate to his four children in equal portions, subject to the usufruct of Mrs. Pazmino.

In 2010, Mrs. Pazmino stopped living at the Melody Drive property when she entered the Jefferson Healthcare Center. Mrs. Pazmino executed a Power of Attorney which gave her niece, Rebecca Jessup, the authority to sell property owned by Mrs. Pazmino. Ms. Jessup entered into a contract to sell the property to Mrs. Pazmino's great niece, Anya Bureau, for $124,000.00, with $15,000.00 as a deposit and a balance of $109,000.00 to be paid over the next 15 years. The Credit Sale and Mortgage document was signed on March 22, 2011. According to Ms. Jessup's affidavit, Mrs. Pazmino was aware of the sale and consented to its terms.

On July 11, 2011, Ms. Jessup engaged the services of Demand Realty in order to lease the Melody Drive property. Her signature on the property management agreement reads " Rebecca Jessup POA." However there is nothing in the agreement to indicate on whose behalf Ms. Jessup acted, and nothing to show whether Mrs. Pazmino or Ms. Bureau is the owner of the property. In addition, no document exists in the record to show that Ms. Bureau gave any power of attorney to Ms. Jessup.

Page 300

The property has been leased continuously since then.

[14-822 La.App. 5 Cir. 4] Mrs. Pazmino died on November 30, 2011. Plaintiffs instituted suit for an accounting, seeking to rescind the sale of the property to Ms. Bureau. Defendants filed a motion for summary judgment, the grant of which led to this appeal. In this appeal, plaintiffs contend that there are genuine issues of material fact on the ...


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