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Farrar v. Whaley

Court of Appeals of Louisiana, Third Circuit

February 2, 2017




          Wilford D. Carter, COUNSEL FOR DEFENDANT/APPELLANT: Linda Faye Whaley.

          Annette F. Roach Roach & Roach, APLC, COUNSEL FOR DEFENDANT/APPELLANT: Linda Faye Whaley.

          Timothy O'Dowd, COUNSEL FOR PLAINTIFF/APPELLEE: Camilla Julianna Farrar, et al.

          Court composed of Elizabeth A. Pickett, Billy Howard Ezell, and John E. Conery, Judges.


         This appeal involves donations inter vivos made by Joyce Thompson to her caretaker, Linda Whaley. Camilla Farrar, as independent administratrix of Ms. Thompson's succession, filed suit on behalf of the succession against Ms. Whaley for the return of funds and assets she claimed were improperly transferred to Ms. Whaley from Ms. Thompson. Mrs. Farrar is Ms. Thompson's daughter. Ms. Whaley appeals the trial court judgment finding that an automobile was not properly donated to her and ordering her to return cash she withdrew after Ms. Thompson's death, representing the amount of bonds she claims Ms. Thompson donated to her before her death. She also claims the trial court erred in not reimbursing her for the payment of funeral expenses for Ms. Thompson and in assessing all court costs to her.

         Mrs. Farrar answered the appeal. Mrs. Farrar argues that the trial court used the wrong standard of review in analyzing the donations and asks that this court perform a de novo review of the testimony and evidence. She claims that the trial court erred in finding that there were multiple valid donations inter vivos of cash to Ms. Whaley. Mrs. Farrar further claims that interest on any of the sums due should run from the date of conversion as opposed to judicial demand.


         Ms. Thompson was admitted to Lake Charles Memorial Hospital in May 2012. At that time, Ms. Whaley's husband was working as an orderly at the hospital. Ms. Thompson asked Ms. Whaley's husband if he knew of someone who could take care of her when she got out of the hospital. He informed Ms. Thompson that his wife, who was a certified nursing assistant, could take care of her. Ms. Whaley began working for Ms. Thompson in June 2012 at the rate of $15.00 an hour.

         Ms. Whaley testified that sometime in August 2012, Ms. Thompson promised to leave her all her belongings if she would take care of her because she and her daughter did not get along. On August 24, 2012, a will was typed leaving everything to Ms. Whaley. The will shows the signatures of both Ms. Thompson and Ms. Whaley. Caroline Glenn and Natasha Minor signed the will as witnesses. Ms. Glenn is Ms. Whaley's sister, and Ms. Minor is Ms. Whaley's daughter.

         During her deposition, Ms. Whaley testified that one month before the execution of that will, Ms. Thompson wanted her to type a letter which specifically revoked all prior wills, listed her assets, and named Ms. Whaley as power of attorney. However, the content of the letter indicates it was written on October 7, 2012, a month-and-a-half after the will was written. Even more confusing, a separate handwritten page was signed by Ms. Whaley and dated August 24, 2012, indicating she wrote the letter.

         A second will with the exact wording and parties' signatures was also purportedly executed on August 24, 2012. Also, another typed letter with the exact wording as the October 2012 letter was also executed. However, this time both the will and letter were notarized by Wanella Gibson on August 24, 2012. It is not disputed that neither the first will nor the second will was sufficient for probate under Louisiana law.

         In February 2013, Ms. Thompson went to stay at Resthaven Nursing Home. On May 16, 2013, Ms. Thompson executed a general power of attorney naming Ms. Whaley to act on her behalf. The document was witnessed by Amanda Williams and Shelby Corbett and notarized by Lesa Higginbotham. A second power of attorney was executed four days later on May 20, 2013, because the first power of attorney was not detailed enough for the banks to allow Ms. Whaley to act on Ms. Thompson's behalf. This power of attorney was notarized by Wanella Gibson and witnessed by Carol Williams and Mary Jackson.

         Following Ms. Thompson's admittance to Resthaven Nursing Home, Ms. Whaley claimed that Ms. Thompson made several donations to her in the form of cash, U.S. savings bonds, and a car. Ms. Thompson died on September 5, 2013. Ms. Whaley testified that she did not notify Ms. Thompson's daughter of her death because Ms. Whaley asked her not to. Charles Farrar, Ms. Farrar's husband, testified that he was notified that Ms. Thompson died when an insurance agent called him to inform him that Ms. Whaley was trying to collect insurance that was in his son's name.

         Following Ms. Thompson's death, Ms. Farrar was appointed independent administratix of her mother's succession. On October 15, 2013, Ms. Farrar filed a petition for a temporary restraining order, preliminary injunction, and damages against Ms. Whaley seeking the return of assets and funds. A trial was held on December 10 and 11, 2015. The trial court found that any personal, movable items given to Ms. Whaley prior to Ms. Thompson's death were part of a completed donation. The trial court then found that the transfers of cash and bonds after Ms. Thompson's death were not valid and must be returned to her estate. The court further found that there was no evidence of any jewelry or coins in Ms. Thompson's possession at the time of death. Regarding Ms. Thompson's car, the trial court held that transfer of a vehicle must be completed by an authentic act. Since Ms. Thompson did not sign the transfer of title prior to her death, the trial court found that the car was not properly donated to Ms. Whaley.

         Ms. Whaley then filed the present appeal contesting some of the trial court's decisions. Ms. Farrar answered the appeal also complaining about the trial court's decisions.


         We must first address the motion to strike the appellee's brief in its entirety filed by counsel for Ms. Whaley. She argues that that the brief is both insulting and discourteous, not only toward Ms. Whaley and defense witnesses, but also toward defense counsel, particularly trial counsel, who is not appellate counsel, and the trial judge. Specifically, counsel objects to the repeated use of the terms "forge", "flimsy", and "scripted".

         Uniform Rules - Courts of Appeal, Rule 2-12.2(C) provides:

The language used in the brief shall be courteous, free from vile, obscene, obnoxious, of offensive expressions, and free from insulting, abusive, discourteous, or irrelevant matter or criticism of any person, class of persons or association of persons, or any court, or judge or other officer thereof, or of any institution. Any violation of this Subsection shall subject the author, or authors, of the brief to punishment for contempt of court, and to having such brief returned.

         Several of the documents relied upon by Ms. Whaley to prove Ms. Thompson's donative intent were examined by a court-appointed handwriting expert. As will be discussed further in this opinion, it was established that many of these documents appeared to be signed by Ms. Thompson but were actually a forgery of her signature. Even the trial court indicated at trial that it was concerned that Ms. Whaley's testimony and the supporting testimony of her witnesses was fabricated. We do not find Ms. Farrar's brief meets any of the parameters described in Uniform Rules - Courts of Appeal, Rule 2-12.2(C). Therefore, we deny the motion to strike her brief.


         We next address Ms. Farrar's argument that the trial court committed legal error by applying the standard for establishing a donation mortis causa in determining the intentions required for a donation inter vivos. Mrs. Farrar contends that a review of the trial court's reasons for judgment indicates that it considered evidence of Ms. Thompson's intent for donations mortis causa sufficient to establish the intent required for a donation inter vivos.

         Mrs. Farrar cites Butler v. Reddick, 431 So.2d 396 (La.1983), which held that the burden of establishing a donation inter vivos is on the donee which must be established with strong and convincing evidence. In its reasons for judgment, the trial court stated that "Whaley must show by strong and convincing evidence the donative intent of Ms. [Thompson]." The trial court then goes on further to state that "[i]f it were only a matter of Whaley's testimony as to what Ms. [Thompson] wanted to donate prior to her death, there would not be sufficient evidence. However, combined with verified documentations of her wishes, that evidence may be sufficient."

         We find that the trial court used the proper burden of proof in deciding whether there were valid donations inter vivos from Ms. Thompson to Ms. Whaley, proof by clear and convincing evidence. Proof by clear and convincing evidence "requires more than a 'preponderance of the evidence' but less than 'beyond a reasonable doubt.'" Succession of Wiggins, 08-63, p. 3 (La.App. 3 Cir. 6/4/08), 984 So.2d 948, 950, writ denied, 08-1355 (La. 9/26/08), 992 So.2d 989 (quoting Succession of Lyons, 452 So.2d 1161, 1165 (La.1984)). In other words, "[t]he existence of the disputed fact must be highly probable, that is, much more probable that is non-existence." Id. "This standard is usually employed 'where there is thought to be special danger of deception, or 'where the court considers that the particular type of claim should be disfavored on policy grounds.'" Id. Therefore, we will review the trial court's decision under the manifest error standard since donative intent is a factual issue. Succession of Love, 16-245 (La.App. 3 Cir. 9/28/16), 201 So.3d 1027.

[A] trial court's finding on this issue cannot be reversed unless an appellate court, after review of the entire record, finds both that no reasonable factual basis exists for the finding and that it is manifestly erroneous or clearly wrong. See Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993). In applying this standard, a trial court's credibility determinations are entitled to great deference. Hebert v. Rapides Parish Police Jury, 06-2001 (La. 4/11/07), 974 So.2d 635 (on rehearing). The reviewing court must keep in mind that if a trial court's findings are reasonable based upon the entire record and evidence, an appellate court may not reverse even if it is convinced that had it been sitting as trier of fact it would have weighed the evidence differently. Housley v. Cerise, 579 So.2d 973 (La.1991). This principle is grounded not only upon ...

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