Appealed from the Twenty-First Judicial District Court. In
and for the Parish of Livingston State of Louisiana. Docket
Number 104,568. Honorable Elizabeth P. Wolfe, Judge.
M. Williams, Hammond, LA, Counsel for Plaintiff/Appellant,
Iris Hopkins Tate.
Burns, Denham Springs, LA, Counsel for
Defendant/Intervenors/Appellees, Pauline A. Tate, Lisa,
Duvall, and Justification, LLC.
GUIDRY, THERIOT, AND DRAKE, JJ.
[2014-1622 La.App. 1 Cir. 2] GUIDRY, J.
parent, who executed an act of sale with a counter letter to
convey property to one of her children, appeals a judgment
dismissing her petition to rescind the sale. For the
following reasons, we reverse.
AND PROCEDURAL HISTORY
February 15, 2001, Iris Tate executed an act of sale whereby
she allegedly sold property to her daughter, Pauline Tate,
for the sum of $70,000.00. The property conveyed contained
two lots, " L" and " M," in the
Shelly's Homesites subdivision in Denham Springs. Each
lot contained a residence with a separate municipal address.
The residence located on Lot M, with a municipal address of
308 Beech Street, was the family home in which Iris resided.
The residence located on Lot L, with a municipal address of
236 Beech Street, was a separate apartment home that was
occasionally rented out when various family members did not
reside in it. In a counter letter executed contemporaneously
with the act of sale, the parties to the act of sale, Iris
and Pauline, acknowledged that " in fact no sum was paid
to Seller [Iris] and further it was and is agreed between
Buyer [Pauline] and Seller that Seller may reside on the
subject property as long as she so desires." The act of
cash sale was duly recorded in the conveyance records for
Livingston Parish on February 15, 2001, but the counter
letter was not.
6, 2004, Iris filed a " Petition to Rescind Sale"
in which she alleged that Pauline never paid any money for
the conveyance of the property and that her granddaughter,
Lisa Duvall (Pauline's daughter), who claimed to have
Pauline's power of attorney, had been " threatening
to transfer ownership of the property to other unnamed
individuals." A notice of Lis Pendens was also filed on
the same date as the petition, giving notification that there
was litigation pending " affecting and regarding the
rightful ownership, and the percentages thereof," of the
[2014-1622 La.App. 1 Cir. 3] properties at issue. Pauline
answered the petition and generally denied the allegations
January 24, 2008, Justification, L.L.C., represented by Lisa
Duvalll as the managing member, filed a "
petition to Intervene, For Declaratory Judgment, and
Cross-Claim for Damages." In the petition, Justification
claimed to be the rightful owner of the property in dispute
by virtue of the following transactions:
o an Act of Donation, dated July 6, 2004, wherein Pauline
donated " Lot L" to her daughters, Lisa Juban
Duvall and Susan Michelle Lozier.
o an Act of Donation, dated August 5, 2004, wherein Susan
donated her interest in Lots L and M to Lisa.
o An Act of Exchange, dated August 6, 2004, wherein Lisa
transferred the properties to Justification.
sought judgment declaring it to be the rightful owner of Lots
L and M or alternatively declaring that Iris had no authority
to allow one of her grandsons to occupy the apartment on Lot
L pending resolution of the ownership dispute. Lastly,
Justification named Iris as a defendant in its cross claim,
wherein it sought an award of damages for loss of rent,
property depreciation, and loss of an opportunity to sell the
apartment located on Lot L, allegedly due to Iris's
actions of blocking any efforts to sell the property and the
alleged wrongful occupancy of the apartment by Iris's
grandson. Alternatively, in the event Justification was not
declared to be the owner of the properties, Justification
sought reimbursement for all property taxes it paid on the
to the matter proceeding to trial, the trial court signed a
" Judgment on Rule" on May 23, 2008, ordering any
occupant of the apartment home to vacate the premises and
recognizing Lisa's " discretion to use said
residence as she deems [2014-1622 La.App. 1 Cir. 4]
appropriate pending further orders of the court."
Following a trial on the merits, held July 10, 2009, the
trial court rendered a judgment in favor of Pauline, finding
that Iris failed to carry her burden of proof and dismissed
the action by a judgment signed August 13, 2009. Iris
appeal, this court recognized that although decreed a
directed verdict, the judgment of the trial court was
actually an involuntary dismissal granted pursuant to La.
C.C.P. art. 1672(B). This court then found that the
parties' transaction on February 15, 2001, was a relative
simulation whereby the act of sale was really an attempt to
donate the properties at issue. In evaluating whether the
transactions constituted a valid donation, it appeared that
acceptance of the donation had not occurred so as to perfect
a valid inter vivos donation of the properties. Nevertheless,
citing La. R.S. 9:2721(A), this court found that because the
counter letter was not recorded, " Justification,
L.L.C., the record owner of the property, is protected in its
ownership by the failure of the parties to record the
[counter letter]" and affirmed the judgment. See
Tate v. Tate, 09-2034, p. 6 (La.App. 1st Cir.
6/11/10), 42 So.3d 439, 443. Iris then filed an application
for a writ of certiorari and/or review to the Louisiana
Supreme Court, which vacated the judgments of the lower
courts and remanded the matter to the district court for a
new trial to consider whether the outcome would be affected
by the donations being gratuitous rather than onerous
transfers or to consider whether the notice of lis pendens
that was filed in the public records affected the subsequent
transfers of the property. Tate v. Tate, 10-1964
(La. 8/31/11), 68 So.3d 513.
La.App. 1 Cir. 5] On remand, Iris filed a petition for