FROM 25TH JDC, PARISH OF PLAQUEMINES NO. 52-267 C\W 52-279,
52-942, DIVISION "A" Honorable Kevin D. Conner,
Michael Robert Carson Riess KINGSMILL RIESS, L.L.C. Phillip
A. Wittmann Dorothy H. Wimberly Brooke C. Tigchelaar STONE
PIGMAN WALTHER WITTMANN, LLC, David M. Hufft Timothy
Thriffiley PIVACH PIVACH HUFFT THRIFFILEY & DUNBAR,
L.L.C. COUNSEL FOR PLAINTIFF/APPELLANT
C. Lowe David M. Prados Jeffrey M. Hoffman LOWE, STEIN,
HOFFMAN, ALLWEISS & HAUVER, LLP COUNSEL FOR
composed of Chief Judge James F. McKay, III, Judge Edwin A.
Lombard, Judge Daniel L. Dysart
A. Lombard, Judge
the court in these consolidated cases are the cross-appeals
of Michael Edward Blake ("Mr. Blake") and Alicia
Victoria DiMarco Blake ("Ms.
DiMarco"). After review of the record in light of the
applicable law and arguments of the parties, we find Ms.
DiMarco's nullity action was untimely filed, reverse the
district court judgment of October 31, 2011, and vacate the
district court judgment of June 2, 2016.
Facts and Procedural History
parties were married on November 14, 2003. On March 8, 2005,
Mr. Blake filed a petition for divorce. On March 10, 2005,
Ms. DiMarco filed a petition for divorce. Pursuant to a
consent judgment signed on October 27, 2005, the community
property regime was terminated with an effective date of
March 8, 2005. The parties were divorced on November 21,
2005, reserving the community property partition issue to be
decided at a later date.
were two major assets at issue in the community property
partition: (1) the matrimonial domicile in Belle Chasse,
Louisiana, purchased by Mr. Blake with separate funds but
placed jointly in his name and Ms. DiMarco's on the act
of sale and property deed and an oil rig ("the Blake
505") purchased after the termination of the community
by a business entity organized and registered by Mr. Blake
during the marriage. Specifically, Mr. Blake (whose career in
oil related businesses is apparently quite financially
rewarding) registered Blake Offshore Drilling Company, LLC
("Blake Offshore Drilling") with the Louisiana
Secretary of State on February 18, 2005, approximately
fifteen months after marrying Ms. Blake and less than a month
before the parties each filed for divorce. In April 2005,
after the community property regime was terminated, Blake
Offshore Drilling acquired its major asset, the oil rig
subsequently named the Blake 505. Unlike Mr. Blake's
other business interests, Blake Offshore Drilling (and the
Blake 505) became subject to claims in the community
partition because it was organized during the brief marriage.
the discovery and document exchange related to the community
partition, the claim for Ms. DiMarco's half ownership of
Mr. Blake's interest in Blake Offshore Drilling was
communicated to Mr. Blake and, in response, a letter was sent
to Ms. DiMarco requesting payment to Mr. Blake of half of the
$874, 462.07 paid in "capital calls" by Mr. Blake
on behalf of Blake Offshore Drilling as of January 2006.
Shortly thereafter, on March 8, 2006, Mr. Blake (as managing
member of Blake Offshore Drilling) filed a lawsuit against
Ms. iMarcoalleging that, in light of Ms.
DiMarco's claimed community property ownership interest
in the company, the company's lack of income, and
significant capital infusion requirements for ongoing
operations, Ms. DiMarco was responsible for $437, 231.04 to
Blake Offshore Drilling for her portion of the past capital
contributions made by Mr. Blake through January 2006, as well
as future payments of approximately $46, 250.00 per month for
her portion of the monthly "capital calls."
review of the record indicates that the Blake 505 was a
primary focus during the discovery process and interchanges
between the parties prior to the compromise agreement
settling the community partition entered into by the parties:
(1) In a correspondence dated March 14, 2006, Ms.
DiMarco's counsel, Robert Lowe, advised Mr. Blake's
counsel: "Also, I want to have someone take a look
at the rig that is owned by the entity, Blake Offshore
Drilling Company, L.L.C. If you can tell me who our
expert should contact concerning the rig, he can make
his arrangements directly, as opposed to having it come
through this office." On March 14, 2006, Mr. Lowe faxed
a letter dated March 27, 2006, to Mr. Blake's counsel
requesting confirmation of the deposition schedule, adding:
Also I told you that I wanted an expert to go out and
look at the rig. I need an answer. I do not want to
have to file a Rule on this." A note on the cover
sheet (dated March 14, 2006) indicated that Mr. Lowe
"dictated this before we spoke today."
(2) By letter dated March 28, 2006, to Mr. Blake's
counsel, Mr. Lowe stated: "I need the name of the rig
that I previously corresponded with you about, and I also
need to know where it is located. As advised, we want to view
(3) On April 11, 2006, in a letter related to Mr. Blake's
Whitney Bank documents, Mr. Lowe confirmed Mr. Blake's
upcoming deposition scheduled for April 25, 2006, and the
trial date scheduled for May 30, 2006, advising Mr.
Blake's counsel (emphasis added): "As we discussed
with the Judge, I want to have an expert review the
rig, which you claim was the "old Jedco." If
there is something you want the expert to sign, such as the
hold harmless you mention, get me a draft of it. The
expert's name is Dave Sanderson." (emphasis
deposition of Mr. Blake, wherein Mr. Blake's business and
financial interests were discussed extensively,
Blake 505 was a major point of questioning. Mr. Blake answers
in response to specific questions related to the value and
potential of Blake Offshore Drilling and its primary asset,
the Blake 505, were equivocal, referencing the cost of the
rig, the necessity and expense of refurbishing it (seventeen
million dollars), the difficulties in selling the rig
(because it was not designed to operate in the Gulf of Mexico
and needed to be refurbished), and financing of the rig by
Whitney Bank. It should be noted, however, that Mr.
Blake's valuation of the rig was in the context of
repeated assurances made by Ms. DiMarco's counsel to Mr.
Blake's counsel, that as exemplified by the following
colloquy, an independent maritime expert had been retained on
behalf of Ms. DiMarco and that an independent appraisal was
MR. LOWE: David, I don't know what the Whitney has; but
obviously on this thing, we're going to have to get the
organizational documents, the capitalization documents, and
that type of thing.
MR. HUFFT: My best advice is to subpoena them from Mike Riess
[Mr. Blake's business counsel] and let him make a return
on that subpoena.
MR. LOWE: Well, you got -
MR. HUFFT: I can call and ask him.
MR. LOWE: You got to tell him to just produce the stuff to
us; because, to go through a lawyer, it's a little bit
more difficult. So you are agreeing that he can produce all
the documents whatever in reference to that company.
MR. HUFFT: That is fine. Because that is a - that technically
has the community interest.
MR. LOWE: I'm not sure what it is or what it has, was
capitalized or what it's worth; and, I've been asking
you in writing. We have had this thing set in a little bit
more than a month. I need to get somebody to go out and look
at this thing. I retained somebody, and I need - and
they need to go see it. (emphasis added).
MR. HUFFT:: I understand. And we're going to give you
some documents to sign and everything.
MR. LOWE: Well, you got to get them to me.
MR. HUFFT: We will.
MR. LOWE: Because I don't control this guy's
MR. HUFFT: I understand.
MR. LOWE: And we need to do it pretty quickly and I've -
and I've been asking. It's in Pascagoula somewhere.
MR. BLAKE: Shipyard.
Blake also confirmed, in response to questioning about the
formation of Blake Offshore Drilling and its asset, the Blake
505, that funding for the business entity and its primary
asset was based solely on Mr. Blake's personal guarantee
to Whitney Bank for eleven or twelve million dollars, that
Ms. DiMarco was not involved in the project and made no
personal guarantees on the project, and that as a
"protective measure" he never discussed Blake
Offshore Drilling with Ms. DiMarco after the
"Declaration of Separateness" was recorded in April
2005. When asked why he formed a business in February 2005
(shortly before filing for divorce) that would be a
"community entity, " Mr. Blake conceded that he did
not think of the community property implications at the time
he formed Blake Offshore Drilling. Rather, he formed the
entity to purchase the oil rig in anticipation of an
"overseas contract, " but the potential contract
did not come to fruition and, since then, Mr. Blake and his
partner (in Blake Offshore Drilling) had "[b]een
trying" to sell it to "[j]ust anybody that would
have it." Mr. Blake was not asked, however, as to any
specific parties previously or currently expressing any
interest in purchasing the rig. When asked about details of
the Whitney Bank funding for Blake Offshore Drilling, the
"overseas contract" that "fell through, "
and about documentation related to ""the deal
[that] fell through, " Mr. Blake explained that there
had been no "deal" because "there is no
revenue produced by it, " and there was no documentation
of the potential sale because it was "verbal" with
"no contract signed."
questioned as to why it was necessary to refurbish the rig,
Mr. Blake explained it was "to get it in other parts of
the world where it could be used." When asked why they
were only "slowly working" on refurbishing the rig,
Mr. Blake explained that "it eats a lot of money, "
funds that came out of his "own pocket" which could
be verified by talking to his Chief Financial Officer, the
person handling the specific financial details and records
related to the rig. When asked why he was
"delaying" refurbishing the rig so that it could be
sold, Mr. Blake explained that, through his other companies,
he had "three rigs in a shipyard getting outfitted . . .
[s]o it's very expensive" and I'm limited on
what I can do cashwise." When asked "what support
do you have for the 17 million to refurbish" (the rig to
make it operational), Mr. Blake responded that his
"operational guy, " Rodney Meisetschlager
"produced" the budget for refurbishing. Finally,
when asked if "any offers had been made to buy the rig,
" Mr. Blake initially said "no, " but then
qualified his answer: "Well, I mean, we've -
we've talked to people; talked to brokers; trying to
bring people over there to buy it. Just hadn't got any
takers. Not in very good shape."
asked directly as to his selling price, Mr. Blake stated that
was something he'd have to discuss with his partner. When
asked his opinion as to what it was worth in its current
condition, Mr. Blake said "I don't have it. I
don't know." Mr. Lowe then asked about whether Mr.
Blake had done a personal financial statement subsequent to
June 14, 2005, and Mr. Blake deferred the question, ...