July 31, 2015
IRIS HOPKINS TATE
PAULINE A. TATE
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
declaratory judgment against Pauline,
Lisa, Susan, and Justification (hereinafter collectively
referred to as " defendants" ), seeking a decree
that the February 15, 2001 cash sale and the subsequent
transfers of the property were null and void. An answer to
the petition was filed by Lisa in which she denied the
allegations of the petition. On March 12, 2014, a trial
pursuant to the remand was held, following which the trial
court rendered judgment holding that the transfer of the
property from Iris to Pauline was a remunerative donation and
that no fraud was involved in the subsequent transfers of the
property. Thus, the trial court again dismissed Iris's
petition to rescind the sale in a judgment signed July 23,
2014. Iris now appeals that judgment.
appeal, Iris alleges that the trial court committed the
1. The trial court erred when it held that the February 15,
2001 " Cash Sale" was a remunerative donation.
2. The trial court erred when it held that the ordinary
services the appellee claims to have rendered to her mother
[since] age 13, went beyond the usual parent-child
3. The trial court erred when it overruled the
appellant's Exception of No Cause of Action and the
Motion to Strike.
4. The trial court erred by failing to follow the dictates of
the Louisiana Supreme Court on remand.
third assignment of error, Iris asserts that the trial court
should have sustained her exception raising the objection of
no cause of action and barred the defendants from presenting
any evidence to establish their claim that the 2001 act of
sale was a remunerative donation. We find no merit in this
remand, the trial court ordered the parties to file a joint
pre-trial order by March 18, 2013. The defendants filed their
inserts for the pre-trial order on that [2014-1622 La.App. 1
Cir. 6] date, although the inserts were required to be
submitted to plaintiff's counsel on or before March 4,
2013. The trial court's scheduling order, which initially
set the matter for a bench trial for the week of April 15,
2013, provided that in the event the final pre-trial order
was not timely filed with the clerk of the district court,
" the matter will be continued and sanctions may be
imposed." (Emphasis in original.) The case was
eventually reset for a bench trial held on March 12, 2014. In
the inserts untimely submitted by the defendants for the
joint pre-trial order, the defendants raised, for the first
time, that the transaction between Iris and Pauline was, at a
minimum, a combination onerous and remunerative donation.
defense asserted in a pre-trial procedure gives fair, notice
of the nature of the defense, prevents surprise, and
satisfies the duty established in La. C.C.P. art. 1005 to
affirmatively assert the defense. Boudreaux v. State,
Department of Transportation and Development, 00-0050,
p. 5 (La.App. 1st Cir. 2/16/01), 780 So.2d 1163, 1166, writ
dismissed, 01-1329 (La. 2/26/02), 815 So.2d 7. Moreover, the
remanded trial of this matter was continued for almost a year
following the defendants' assertion of their donation
defense in their untimely pre-trial inserts. Hence, we find
no error in the trial court's failure to sustain the
peremptory exception asserting no cause of action.
jointly presents several arguments in support of her first
of error. First, she argues that the trial court erred in
holding that the act of cash sate was a remunerative donation
because neither party testified that the property was
transferred to Pauline for any services that she had rendered
to Iris. Iris contends that the record is clear that she did
not transfer the property to Pauline because she felt that
she owed compensation to Pauline or that she intended to
compensate Pauline for any services rendered. Thus, we must
consider whether the evidence shows that Iris had the
requisite donative intent at the time the transaction
occurred. On remand, the testimony and evidence introduced at
the [2014-1622 La.App. 1 Cir. 7] first trial was considered
as already in evidence for the purposes of the trial on
remand. See La. C.C.P. art. 1978.
Iris and Pauline testified regarding Iris's intent in
executing the act of cash sale. At the original trial,
Pauline testified that her mother asked her to enter into the
act of cash sale so that her mother would " feel
safe." Iris, who only testified at the original trial,
stated that she transferred the property to Pauline for
Pauline to " make out a will for all my children as her
father would have done. I wanted her to take care of the
place and make out the will for all my children because that
would be out of my life." When asked why she would ask
somebody else to do something she could have done herself,
Iris replied " [b]ecause I don't have the mind
to." Iris also explained that she " wanted Pauline
to take care and make out the will to all of my children. Not
just for her, but for all of my children. For the will to be
made out so that the land when I die, the will was going to
be for all of my children. Not just her."
trial on remand, Pauline again testified that her mother put
the property in her name so that her mother would " feel
safe" and also because the " other ones,"
Pauline's siblings, were not visiting Iris. Pauline said
that her mother's reason for placing the property in her
name was because Iris trusted Pauline to see that nobody
removed Iris from the home. Pauline disparaged her
mother's statements claiming that she (Iris) transferred
the property to Pauline so that Pauline could arrange for a
will leaving the property equally to all of Iris's
children as making " no sense," since that result
would have occurred on Iris's death, even without a will.
Pauline acknowledged that she helped her mother out " a
great deal," and she believed that her mom thought there
was a value to what Pauline was doing. Nevertheless, Pauline
acknowledged that she and her mother did not discuss Pauline
being compensated for the things she did for her mother, and
Pauline stated that she never expected any compensation for
anything she did.
La.App. 1 Cir. 8] Based on this evidence, we find merit in
Iris's assertion that there was no proof of Iris's
intent to remunerate Pauline by executing the act of sale.
While the rules peculiar to donations inter vivos do not
apply to a remunerative donation, we have been unable to
find any authority that states that such donations are
nevertheless exempt from establishing a donative intent. Our
review of cases involving remunerative donations all recite
facts wherein the donor expressed an intent to convey the
property in remuneration for service rendered. See Succession
of Jackson, 537 So.2d 736, 737(La.App. 1st Cir. 1988), writ
denied, 541 So.2d 857 (La. 1989) (in the cash deed wherein
the alleged donor
conveyed money and property to the alleged donees, the donor
stated that the consideration for the transfer were the
personal services rendered by the donees since 1972);
Schindler v. Schindler, 13-361, p. 7 (La.App. 5th
Cir. 12/19/13), 131 So.3d 439, 443 (wherein the donee
testified regarding an agreement between her and the donor
that she would be paid for caring for him); Succession of
Lawrence, 94-977, p. 2 (La.App.3d Cir. 2/1/95), 650 So.2d
398, 399, writ denied, 95-0571 (La. 4/21/95), 653 So.2d 572
(wherein the court found two acts by the donor -- one of
adding the donee as an alternate payee on his financial
accounts and a second of executing a notarized document
wherein the donor declared he wanted the donee to have his
property, established the donor's intent); Succession of
Theriot, 532 So.2d 260, 263 (La.App.3d Cir. 1988) (wherein a
witness testified the donor had repeated on several occasions
that she would " fix" the donee " up
financially" ); and Maleig v. Maleig, 435 So.2d
496, 499 (La.App. 4th Cir.), writ denied, 441 So.2d 765
(1983) (wherein the evidence showed that the donor had
discussed with several persons her intent to transfer
property to her son, the donee, to reward him for his labor
over the years).
La.App. 1 Cir. 9] In Schindler v. Biggs, 06-0649, p.
7 (La.App. 1st Cir. 6/8/07), 964 So.2d 1049, 1053-54, the
defendant argued that funds he was alleged to have wrongfully
converted were actually donated to him by the plaintiff in
remuneration for services he had rendered. The facts
established that the defendant and his girlfriend had helped
care for the plaintiff, but the plaintiff disputed giving the
defendant any money and filed suit alleging conversion. The
trial court rendered summary judgment in favor of the
plaintiff finding that the defendant had converted the
plaintiff's funds. On appeal, this court reversed the
summary judgment, finding that genuine issues of material
fact existed regarding whether the plaintiff had donative
intent, as the record contained conflicting evidence
regarding the plaintiff's intent. This court further
observed that the donee has the burden of proving the
donation and the proof must be strong and convincing.
case, Iris testified that she executed the act of sale for
the purpose of having Pauline arrange for the equal
distribution of the property to all of her children. Pauline,
on the other hand, stated that Iris executed the act of sale
to " feel safe" and to see that no one removed Iris
from her home. More importantly, however, Pauline
acknowledged that she and Iris never discussed Iris
compensating Pauline for any services Pauline performed for
Iris. Based on this evidence, we do not find that Pauline
established Iris's intent to remunerate Pauline by strong
and convincing proof.
we also find merit in Iris's argument alleging the trial
court erred in holding that the act of cash sale was a
remunerative donation because Pauline failed to establish the
value of the services she rendered to Iris.
Succession of Jackson, this court reversed and remanded the
case to the trial court based on the failure of the record to
establish the value of the services rendered to support the
finding that the donation in that case was remunerative. This
court expressly held the burden of proof is first on the
donee to prove that in [2014-1622 La.App. 1 Cir. 10] fact a
donation is remunerative or onerous, which proof includes
proving the value of the services rendered. It is only once
the donee has met this initial burden that the burden
switches to the party attacking the donation. Succession of
Jackson, 537 So.2d at 740. As this court further observed,
" [i]f all that were required of the donee would be
proof that remunerated
services and/or onerous charges had been performed to place
the burden of proof under LSA-C.C. art. 1526 upon a party
attacking the donation, then the language of LSA-C.C. arts.
1524 and 1525 is superfluous."  Succession of
Jackson, 537 So.2d at 739.
record before us does not contain any evidence regarding the
value of the services that Pauline testified that she
performed for Iris. While it is undisputed that such services
were provided, there is no basis in the record wherein to
establish what value should be assessed for those services.
In Schindler v. Schindler, 13-361 at p. 7, 131 So.3d
at 443, the donee testified that the donor had agreed to
compensate her at the rate of $13 per hour, but she was never
paid on that basis. Instead, the only compensation she
received were the contested donations. In Succession of
Lawrence, 94-977 at p. 3, 650 So.2d at 399, the court
observed that " [t]he testimony assigned and explained
values for each" of the services the donee had performed
for the donor. In Succession of Theriot, 532 So.2d at 264,
the court accepted the testimony of the donee as to the value
of her services.
record before us, there is absolutely no such testimony or
other evidence presented on which to base a determination of
the value of the services Pauline performed. Absent such
evidence, we agree that it was error for the trial court to
find that Pauline successfully proved that the act of cash
sale was a [2014-1622 La.App. 1 Cir. 11] remunerative
we find that the evidence in the record before us fails to
support the trial court's finding that the act of sale
was a remunerative donation. There is no strong and
convincing evidence of Iris's intent to donate the
property nor is there any evidence regarding the value of the
services rendered. Accordingly, we reverse the judgment of
the trial court finding the act of cash sale to be a
remunerative donation and hereby declare the act of cash sale
to be invalid. See Stevens v. Stevens, 476 So.2d
883, 889 (La.App.2d Cir.), writ denied, 478 So.2d 908 (La.
final assignment of error, Iris criticizes the trial
court's failure to follow the dictates of the Louisiana
Supreme Court in remanding the matter. In remanding this
matter, the Louisiana Supreme Court expressly instructed that
the transactions at issue be considered in light of "
the law at the time of the transfers." The act of cash
sale between Iris and Pauline was executed in 2001. The
subsequent transfers of the property between Pauline, her
daughters, and Justification all occurred in 2004. Prior to
January 1, 2006, jurisprudence interpreting the existing laws
regarding recordation and the public records doctrine held
that in order for third parties to be protected based on the
strength of the public records, it must be shown that an
innocent third party purchased the immovable property, for
value, in reliance on the public records. See Owen v.
Owen, 336 So.2d 782, 786-88 (La. 1976) and Mathews
v. Mathews, 35,984, pp. 4-5 (La.App.2d Cir. 5/8/02), 817
So.2d 418, 420-21; see also Sonnier v. Conner,
43,811, pp. 25-27 (La.App.2d Cir. 12/3/08), 998 So.2d 344,
360-61, writ denied, 09-0309 (La. 4/3/09), 6 So.3d 773.
La.App. 1 Cir. 12] As previously discussed, although this
court found that a valid donation of the property had not
been perfected in the original appeal, we nevertheless held
that Justification, as a third party, was protected in its
ownership of the property based on the protections of the
public records doctrine. On further consideration in light of
the law as it existed at the time the property was
transferred from Pauline to her daughters, and eventually to
Justification, and consistent with the supreme court's
instructions on remand, we find that Justification is not
entitled to be protected in its ownership as, unquestionably,
the transfers of the property from Pauline to her daughters
and eventually to Justification were purely gratuitous. Thus,
under the law as it existed at the time the property was
transferred to Justification, because Justification did not
purchase the property, for value, it is not entitled to be
protected in its ownership. See Mathews, 35,984 at pp. 4-5,
817 So.2d at 420-21.
on the determinations made herein, we find that the trial
court erred in holding that the act of cash sale validly
transferred the property at issue as a remunerative donation.
Accordingly, we reverse the judgment of the trial court and
further hold that Justification's ownership interest in
the property is not protected under the public records
doctrine. Thus, the 2001 act of cash sale and the subsequent
acts affecting the property executed between the defendants
are annulled. See Mathews v. Mathews, 43,806, p. 19
(La.App.2d Cir. 12/17/08), 1 So.3d 738, 748. [2014-1622
La.App. 1 Cir. 13] All costs of this appeal are cast to the
appellee, Justification, LLC.
Lisa Duvall is Pauline's daughter who
held a power of attorney to act on behalf of Pauline in the
subsequent donations of the property by Pauline to her
Although not referenced in the petition for
intervention, Pauline donated " Lot M" to her
daughters in an act of donation dated June 24, 2004. Both the
June 24, 2004 and the July 6, 2004 acts of donation were
actually signed by Lisa on behalf of Pauline as Pauline's
See La. C.C.P. art. 1810.
Louisiana Revised Statutes 9:2721(A) was
repealed by 2005 La. Acts, No. 169, § 8, but was in
effect at the time of the transactions. That statute formerly
provided " [n]o ... counter letter ... relating to or
affecting immovable property shall be binding on or affect
third persons or third parties unless and until filed for
registry in the office of the parish recorder of the parish
where the Land or immovable is situated. Neither secret
claims or equities nor other matters outside the public
records shall be binding on or affect such third
All of the named defendants were
represented by the same counsel.
This provision, which before 2008 was
contained in La. C.C. art. 1526, is not contained in La. C.C.
The provisions of former La. C.C. arts.
1524-1526 are now contained in La. C.C. arts. 1526 and
As for Iris's remaining argument
in support of her first two assignments of error, we find no
merit in her assertion that the services rendered by Pauline
were merely ordinary services, customary of the usual
parent-child gratuities, as it has been held that a
child's statutory duty to support her parent does not
preclude a finding of remunerative donation. Jennings v.
Goldsby, 480 So.2d 354, 357 (La, App.3d Cir.
At trial, Lisa testified that she donated
the land to Justification. She acknowledged that she already
held a hundred percent membership interest in the LLC at the
time she executed the act of exchange, although in the
document she recited, that she received the interest as a
consequence of executing the act of exchange. She explained
that she placed the property in the LLC because the property
was not insured and one of her cousins had a dog on the
property that they feared might cause harm as there was a
child living next door to the property.
Because of this finding that
Justification is not entitled to rely on the protections of
the public records doctrine, we do not reach the issue of the
effect of the Lis Pendens filed in the public records that
the supreme court also urged for consideration.