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Tate v. Tate

Court of Appeals of Louisiana, First Circuit

July 31, 2015


Page 430

          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.

         Phyllis M. Williams, Hammond, LA, Counsel for Plaintiff/Appellant, Iris Hopkins Tate.

         Erik L. Burns, Denham Springs, LA, Counsel for Defendant/Intervenors/Appellees, Pauline A. Tate, Lisa, Duvall, and Justification, LLC.



Page 431

          [2014-1622 La.App. 1 Cir. 2] GUIDRY, J.

         A 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.


         On 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.

         On July 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 contained therein.

         On January 24, 2008, Justification, L.L.C., represented by Lisa Duvalll[1] 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[2] to Lisa.

Page 432

o An Act of Exchange, dated August 6, 2004, wherein Lisa transferred the properties to Justification.

         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 properties.

         Prior 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 appealed.

         On appeal, this court recognized that although decreed a directed verdict,[3] 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),[4] 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.

         [2014-1622 La.App. 1 Cir. 5] On remand, Iris filed a petition for ...

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