CAMILLA JULIANNA FARRAR, ET AL.
LINDA FAYE WHALEY
FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF
CALCASIEU, NO. 2013-4648 HONORABLE ROBERT LANE WYATT,
IN PART; AFFIRMED IN PART; AMENDED IN PART; AND RENDERED.
Wilford D. Carter, COUNSEL FOR DEFENDANT/APPELLANT: Linda
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.
composed of Elizabeth A. Pickett, Billy Howard Ezell, and
John E. Conery, Judges.
HOWARD EZELL JUDGE.
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.
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
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.
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.
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
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
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
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.
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.
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.
TO STRIKE BRIEF
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".
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.
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.
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.
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
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 ...