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Garrison v. State Farm Fire and Casualty Co.

Court of Appeals of Louisiana, Second Circuit

April 5, 2017

ROCHUNDRA GARRISON, ET AL. Plaintiffs-Appellants
v.
STATE FARM FIRE AND CASUALTY COMPANY, ET AL. Defendants-Appellees

         Appealed from the Fourth Judicial District Court for the Parish of Morehouse, Louisiana Lower Court Case No. 2014486 Honorable Wilson Rambo, Judge

          ANTHONY J. BRUSCATO Counsel for Appellants, Rochundra Garrison and Sam Winston, Jr.

          K. DOUGLAS WHEELER Counsel for Appellee, State Farm Fire and Casualty Company

          MARCY L. ALLEN Counsel for Appellee, Duane T. Lucky, Jr.

          Before BROWN, WILLIAMS, and COX, JJ.

          WILLIAMS, J.

         The plaintiffs, Rochundra Garrison and Sam Winston, Jr., appeal a summary judgment in favor of defendants, State Farm Fire and Casualty Company and Duane Lucky, Jr. The district court also granted State Farm's exception of no right of action against Garrison and denied the insurer's motion to strike an affidavit. For the following reasons, we reverse in part and remand.

         FACTS

         Sam Winston, Jr. ("Winston"), was the owner of a 2004 Buick LeSabre. Winston lived with his adult daughter, Rochundra Garrison, and her children at a residence in Bastrop. Winston allowed Garrison to drive the vehicle, but he remained the title owner. The title documents were kept in the vehicle. The car developed a hole in the radiator and overheated when operated. Garrison contacted her friend, Clarence Hollins, a mechanic at Ray's Auto World ("Ray's Auto"), a used car lot in Bastrop, and he agreed to repair the car. Ray Waller was the owner of Ray's Auto. The vehicle was then towed to the Ray's Auto lot, where it remained for several weeks. When Garrison returned to ask about the repairs, Hollins told her that the car had been sold by Waller.

         The chain of title shows a sale of the 2004 Buick on October 15, 2013, from Winston to Waller, with Winston's signature witnessed by Duane T. Lucky, Jr. ("Lucky"), as notary. Then, on November 23, 2013, Waller sold the car to Mary Palmer, with Lucky again witnessing the signatures as notary. Winston denied signing the bill of sale or title. The plaintiffs, Winston and Garrison, filed a lawsuit against Waller for conversion and obtained a judgment against him. The plaintiffs then filed a petition against Lucky and State Farm Fire and Casualty Company ("State Farm"), which had issued a notary bond for Lucky, alleging that he had facilitated the conversion by notarizing the sale documents without confirming the identity of the person purporting to sign as Winston. The plaintiffs obtained an affidavit from Waller, who stated that he had taken the sale documents for the 2004 Buick to Lucky's office so that he "would notarize" the documents with his signature. Waller testified that he did not sign Lucky's name as notary.

         In his deposition, Lucky denied signing the documents as notary and asserted that his name was also forged. Lucky testified that after receiving a letter from plaintiffs' attorney regarding the forged signatures, he confronted Waller, who admitted that he had forged Lucky's name to the title and bill of sale. Lucky stated that he had done prior notary work for Waller and other used car dealers. Lucky acknowledged that he routinely notarized the signature of the dealer, as the vehicle seller, without requiring the seller to appear and sign before him.

         State Farm and Lucky filed a motion for summary judgment based on Lucky's testimony that he had not signed the documents as notary. In opposition, plaintiffs submitted the above affidavit from Waller. Lucky's attorney then obtained a second affidavit from Waller, in which he contradicts his initial affidavit. In the second affidavit, Waller stated that he had signed the name of Lucky on the bill of sale and title transferring the ownership of Winston's vehicle. State Farm filed a motion to strike Waller's initial affidavit and an exception of no cause of action as to Garrison.

         After a hearing, without giving reasons, the district court rendered judgment granting the exception of no cause of action and granting summary judgment in favor of State Farm and Lucky, dismissing plaintiff's claims. The court also denied State Farm's motion to strike. Plaintiffs appeal the judgment. ...


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