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Henderson v. Ruffino

Court of Appeals of Louisiana, Fifth Circuit

October 25, 2017





          Panel composed of Judges Fredericka Homberg Wicker, Robert M. Murphy, and Hans J. Liljeberg


         The plaintiff, Rahmon Iturbe Henderson (hereinafter "Rahmon"), appeals from an adverse judgment rendered on December 9, 2016 in favor of the defendant, Sharlene Ray Ruffino (hereinafter "Sharlene"), wherein the trial court dismissed Rahmon's motion to strike and granted the following brought by Sharlene: (1) motion to quash ex parte motion for voluntary substitution; (2) peremptory exception of no right of action; and, (3) motion for voluntary substitution. For the following reasons, we affirm the trial court's judgment.


         Wyonea Henderson Rolland (hereinafter "Wyonea") was the mother of Rahmon and the grandmother of the defendant, Sharlene.[1] In 2004, while Sharlene was living in Australia, Wyonea desired to purchase a home located at 8905 26thStreet, Metairie, Louisiana, in Sharlene's name. In order to accomplish this, Sharlene gave Wyonea a power of attorney to act on her behalf in the purchase of the home. Wyonea used her own money, which she purportedly donated to Sharlene, in order to purchase the home in Sharlene's name.[2] At the end of 2004, when Sharlene returned to Metairie, she moved into the home with Wyonea and began caring for her. When Hurricane Katrina hit in 2005, Wyonea evacuated to Houston and then settled in Tucson, Arizona. Sharlene split her time between Arizona and Louisiana while trying to find a home on the Northshore where she and her grandmother could live.

         Before Wyonea could join Sharlene in Louisiana, Rahmon went to Arizona and took his mother and all of her belongings with him to Mexico.[3] Prior to her death in 2011, Wyonea never returned to live in the United States.

         Rahmon filed a petition for damages on November 22, 2006 on behalf of his mother, Wyonea, pursuant to a power of attorney she executed in Rahmon's favor.[4]The petition alleged that Wyonea's granddaughter, Sharlene, owed damages for conversion and breach of fiduciary duty as a result of her alleged unauthorized taking of immovable and movable property belonging to Wyonea following Hurricane Katrina.[5] In March 2009, Rahmon amended the petition, wherein he reasserted the prior claims for conversion and breach of fiduciary duty, and asserted an alternative claim for revocation of any alleged donation inter vivos made by Wyonea to Sharlene based on nullity for want of form, failure to reserve enough property for subsistence, and nonperformance of conditions.

         Wyonea died on October 14, 2011 during the course of these proceedings. Thereafter, on May 11, 2015, Rahmon filed an ex parte motion for voluntary substitution claiming to be the sole and universal heir of Wyoena. In support of his motion, Rahmon attached an "Open Public Testament, " allegedly executed on April 19, 2011 by Wyonea in Mexico naming him as Wyonea's sole and universal heir (hereinafter the "Mexican will"). On May 18, 2015, in accordance with La. C.C. art. 801, the trial court granted an ex parte motion to substitute Rahmon for Wyonea as the plaintiff.[6]

         On September 22, 2015, Sharlene filed a motion for summary judgment seeking dismissal of the claims made against her. By judgment dated December 10, 2015, the trial court granted Sharlene's motion for summary judgment, in part, dismissing the claims for breach of fiduciary duty and conversion, leaving solely before the court "any claims for revocation of donations inter vivos of any movables."[7]

         On August 1, 2016, Sharlene filed: (1) a motion to quash Rahmon's motion for voluntary substitution on the basis that the 2011 Mexican will was invalid under the laws of the Mexican State of Baja California Sur; (2) a peremptory exception of no right of action; and (3) a motion for voluntary substitution based on a 2003 Last Will and Testament allegedly executed by Wyonea making Sharlene her universal successor. In response, Rahmon filed a motion to strike claiming Sharlene's motions were untimely pursuant to the deadlines set forth in the court's scheduling order. Rahmon also filed an opposition to the motions and exception urged by Sharlene.

         The matter, originally set for trial September 12, 2016, came for hearing on November 2, 2016, at which time the trial court conducted an extensive evidentiary hearing. The evidence presented focused primarily on the validity of the Mexican will purporting to make Rahmon the universal successor of Wyonea. The trial court considered expert testimony presented by both parties regarding the laws of Mexico, in addition to testimony from fact witnesses as to Wyonea's eyesight and ability to speak Spanish. Over Rahmon's objection, the court also admitted into evidence the transcript of a recorded telephone conversation in which Rahmon, Wyonea, and Sharlene all took part. Additionally, after review by both parties as to accuracy and there being no objection, the trial court allowed a translator to read into the record translations of the relevant Mexican laws at issue.

         The following is a summary of the testimony and evidence presented at the hearing.

         Testimony of Sharlene Ray Ruffino

         Sharlene testified that as a young girl, she lived with her brother and parents in a four-plex owned by Wyonea. When she was sixteen months old, her mother, who was Wyonea's daughter, committed suicide. Following her mother's death, Sharlene continued to live with her father, brother, and Wyonea in the four-plex for years. According to Sharlene, Wyonea was like a mother to her. Even after Sharlene and her family eventually moved out of Wyonea's property, they continued to spend almost every weekend with Wyonea, as well as extended periods of time over the summer. As Sharlene lived in different places, they maintained their close relationship by speaking on the phone often and writing letters to each other. Sharlene testified that when she was in high school, she sought help from Wyonea for her Spanish class. Although Wyonea knew a few words of Spanish, Sharlene stated that Wyonea was unable to help her with the class. Sharlene visited Mexico with Wyonea when she was growing up, and though Wyonea was able to speak a few words in Spanish while there, Wyonea never engaged in a conversation in Spanish with anyone. Sharlene further testified that Wyonea was an avid reader until she developed Macular Degeneration[8] and, by 2004, Wyoena was no longer able to read. According to Sharlene, when she lived with Wyonea in 2004 and 2005, Wyonea was no longer able to watch television due to her inability to see the television.

         Sharlene also testified that Wyonea had become very forgetful during 2005. In support of this testimony, Sharlene introduced a document, dated November 9, 2005, entitled "Mini-Mental State Examination ("MMSE"), " which was accepted into evidence. The report of this examination indicated that Wyonea had developed mild dementia.

         Sharlene testified that she lived in Australia for a period of time in 2004. While there, Wyonea contacted her and explained that she was selling the four-plex and desired to buy a house in Sharlene's name. In order to accomplish this, Sharlene stated that she had to execute a power of attorney in Australia and send it to Wyonea. Once the power of attorney was properly in place, Wyonea then purchased a home located in Metairie, Louisiana in Sharlene's name. When Sharlene returned to the United States in the fall of 2004, she went to live in this home with Wyonea.

         Sharlene testified that, on August 27, 2005, two days before Hurricane Katrina struck south Louisiana, she went to Los Angeles, leaving Wyonea in the care of Vincent, Sharlene's brother. Vincent evacuated with Wyonea to Houston and when they learned they would not be able to return to the Metairie home, they proceeded to Tucson, Arizona. According to Sharlene, she met Vincent and Wyonea in Tucson, where they were assisted by Treena Cross in caring for and finding an assisted living facility for Wyonea. Sharlene testified that she returned to Metairie and then found a place for her and Wyonea to live on the North Shore. Before Wyonea could join Sharlene in Louisiana, however, Rahmon went to Arizona and took his mother and all of her belongings with him to Mexico. According to Sharlene, Rahmon prevented Wyonea from speaking to her on the phone after Wyonea went to live with him in Mexico. Wyonea never returned to live in the United States.

         Recorded Telephone Conversation

         Sharlene testified regarding a telephone conversation she recorded that took place between Rahmon, Wyonea and herself in the summer of 2005. Over Rahmon's objection, the recording of the conversation was played and a transcript of the conversation was admitted into evidence. In this conversation, Rahmon suggested that Wyonea come to live with him in Mexico and that she rent the Metairie house for $1, 600.00 per month. Wyonea responded by advising Rahmon that the Metairie house belonged to Sharlene. Rahmon referenced a conversation he had with Wyonea the previous day wherein he told Wyonea that he would come to Metairie on August 15 to help her pack up the Metairie house. Wyonea became upset and denied having ever told Rahmon that the house was in both her name and Sharlene's name. Wyonea repeated that the house was in Sharlene's name only and that Sharlene could sell the house right now. Rahmon suggested to Wyonea that she have Sharlene sign a document stating that the house would belong to Wyonea until she died, at which time Sharlene would then own the house. Wyonea refused to follow his suggestion. Rahmon then stated that there was $7, 500.00 "in that house which belongs to me." Rahmon reminded Wyonea that she had "5 or 6 grandchildren, just not one." Rahmon suggested for a second time that Wyonea agree to live with him and rent out the Metairie house. Wyonea responded that she did not want to rent out the house and stated "[t]his is my home. This is where I live." Sharlene and Rahmon then discussed Wyonea going to Mexico to visit in September when the weather would be cooler.

         Deposition Testimony of Wyonea Henderson Rolland

         Wyoena's deposition, which was taken on May 13, 2008 when she was 89 years old, was admitted into evidence. At that time, Wyonea testified that she was not able to see people's features. She was unable to read any of the documents presented to her during the deposition. Wyonea appeared to be confused; she was unsure as to how many grandchildren she had, where she lived, how long she had been in Metairie, or where she was currently staying. Further, Wyonea could not remember any details concerning the purchase of the Metairie home. When asked whether she had made any phone calls while she was living in Mexico, she stated that she did not have "that much acknowledge [sic] of Spanish." Elaborating further, Wyonea testified that, "I understand a - Spanish a little bit. But not very much."

         Wyonea's deposition testimony regarding the allegations set forth in the lawsuit Rahmon filed on her behalf was very unclear. She testified that the Metaire house was her house and that Sharlene would have the house after she died. Wyonea denied that Sharlene had taken any of her property. When asked to describe the damages she suffered as a result of Sharlene allegedly taking her property, Wyonea could not think of any.

         Testimony of Teena Cross

         Teena Cross testified that she was a nurse and that she assisted Wyonea and Sharlene in Tucson following Hurricane Katrina. Specifically, Treena explained that she helped to find an assisted living facility where Wyonea could live. Treena testified that when she presented Wyonea with the lease for the assisted living community, Wyonea was unable to read it and that the lease had to be read to her. Teena explained that she and the business manager had to place their finger on the lease to show Wyonea where to sign and that without them doing so, Wyonea would not have known where to sign her name. Teena testified that she spoke Spanish fluently and was with Wyonea in the company of other persons who were conversing in Spanish. Teena stated that she never witnessed Wyonea engaging in Spanish conversation.

         Testimony of Homero Castaneda Munoz

         Over Rahmon's objection, Homero Castaneda was accepted by the court as an expert on Mexican law regarding "wills and testaments."[9] Mr. Castaneda testified that, although he was not a public notary in Mexico, he was an attorney located in California and was licensed to practice law in Mexico. He explained that he often assisted people who own property in Mexico with wills and helped "people probate wills in Mexico." Specifically, Mr. Castaneda testified that he was familiar with the Civil Code for the Mexican State of Baja California, which contains a specific chapter regarding the requirements for the issuance of wills. Mr. Castaneda testified that he reviewed the April 19, 2011 Mexican will prepared for Wyonea and, thereafter, prepared a "declaration" that set forth and explained his findings. This declaration was admitted into evidence. According to Mr. Castaneda, if Wyonea was blind at the time she executed the Mexican will, the will would be null and void because it does not comport with the requirements of the Civil Code for the Mexican State of Baja California pertaining to the preparation of a will for a blind person. Mr. Castaneda further testified that if the person executing a Mexican will was unable to speak Spanish, the Civil Code for the Mexican State of Baja California required that an interpreter be present for the issuance of the will and the signing of the will. He further explained that, in this instance, Mexican law requires that both the Spanish testament and the translated testament be attached as an exhibit to the formalized testament. Mr. Castaneda testified that there was no translated testament attached to the Mexican will prepared for Wyonea. He further testified that there was no indication that an interpreter or translator performed the requisite duties pursuant to the Civil Code for the Mexican State of Baja California for preparing a testament for a person who does not speak Spanish.

         Mr. Castaneda was questioned regarding a medical certificate that was attached to the Mexican will, which stated that Wyonea was "healthy" and "cognitive." He explained that it was not customary to issue a medical certificate in this broad and nonspecific way. Rather, customarily, the medical certificate, which under Mexican law is required to be attached to the testament, indicates the type of tests that were done and the results of those tests, based upon which a determination would be made as to the testator's physical and mental state at the time of executing the testament. The medical certificate attached to the Mexican will did not indicate what tests were completed in order to determine Wyonea's physical and mental condition at the time she executed the will.

         Testimony of Rahmon Iturbe Henderson

         At the hearing, Rahmon testified that his mother, Wyonea, married his father, a Mexican man, in 1937 and lived in Mexico for ten or twelve years. He stated that Wyonea spoke Spanish and was able to communicate in Spanish with his family and friends. When confronted with a greeting card he sent to Wyonea in 1990, which contained a handwritten English translation of the Spanish message in the card, Rahmon explained that when he saw a "nice message, " he translated it and spread it among his Mexican and English speaking friends. Rahmon elaborated that "if it was a card I wanted my mother to understand better yet, I would [translate] it."

         According to Rahmon, in 2006 and 2007, after Wyonea had moved with him to Mexico, she played bridge. When she stopped playing bridge, she played solitaire using a magnifying glass. Rahmon testified that Wyonea could read and that she used a magnifying glass to read letters from friends. Rahmon acknowledged that Wyonea had been diagnosed with Macular Degeneration. Further, Rahmon admitted that he had previously testified in his 2008 deposition that Wyonea did not socialize because "she can't see well."

         Rahmon testified that he was registered as a certified translator of the superior court of justice in La Paz, Mexico. Rahmon retained a notary to perform the April 19, 2011 Mexican will.

         Testimony of Raquel Iturbe

         Raquel, Rahmon's daughter, was called to testify on Rahmon's behalf. She claimed that when she was a child, Wyonea spoke to her and her siblings in Spanish. According to Raquel, during the time Wyonea lived in Mexico with Rahmon, from 2005 until 2011, she and Wyonea communicated in English, although she witnessed Wyonea communicating with her caretakers in Spanish. Raquel testifed that during the last several weeks of Wyonea's life, Wyonea came to stay with her in Oregon where she lives and, at that time, Wyonea was not blind, but was able to see Raquel and her children.

         Testimony of Anna Watt

         Anna, also Rahmon's daughter, testified that she had lived in the New Orleans area since 2001. Anna claimed that from 2001 until August 2005, she visited her grandmother, Wyonea, every weekend. She stated that Wyonea stayed with her for a few weeks in 2011 and, at that time, Wyonea was able to walk with a walker and was able to see. Anna acknowledged that Wyonea had been diagnosed with Macular Degeneration, a progressive disease, and that by 2008, Wyonea could not see well enough to read. Anna explained, however, that Wyonea was not like Helen Keller with "no sense of light." Anna also testified that when she was with her in 2011, Wyonea spoke Spanish. Further, Anna testified that, to her knowledge, Wyonea had not been diagnosed with either Alzheimer's disease or senility.

         Testimony of Jose Antonio Alegre Ochoa

         Mr. Alegre was called to testify, through an interpreter, as an expert witness on behalf of Rahmon. He testified that he is an attorney licensed to practice law in Mexico and lives in La Paz of California Baja Sur. The trial court accepted Mr. Alegre as an expert on "Mexican law, " however, it was established that Mr. Alegre, in fact, does not have a law license and, while his Mexican notary license allows him to intervene in contracts and commercial matters, it does not allow him to prepare wills.

         Mr. Alegre testified that Article 1418 of the Civil Code for the Mexican State of Baja California applies to a testator that is blind. According to Mr. Alegre, this provision is applicable to persons completely devoid of sight, not to persons with diminished sight. He further testified that Article 1422 applies to a testator that does not speak the Spanish language at all. When questioned regarding the medical certificate that was attached to the Mexican will, Mr. Alegre testified that he found it to be "completely normal" and, in his expert opinion, established that Wyonea "had physical and mental health" at the time she executed the Mexican will.

         On cross-examination, Mr. Alegre testified that he and Rahmon were friends and had known one another for over thirty years. Further, he conceded that the medical certificate attached to the Mexican will contained no information identifying the testing performed to support the conclusion that Wyonea was in good physical and mental health at the time she executed the will.

         An interpreter, who assisted the court in the testimony of Mr. Alegre, was asked by the trial court to translate into the record those provisions of the Civil Code for the Mexican State of Baja California pertaining to the execution of testaments by persons who are blind and by persons who are unable to speak Spanish. Article 1421 of the Civil Code for the Mexican State of Baja California was translated by the interpreter as follows:

[W]hen the testator is blind or cannot or does not know how to read, the testament will be read twice, once by the public notary as provided in Article 1417, and again in the same manner by one of the ...

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