ELLEN M. COLE
LAUREN MICHELLE THOMAS
Appeal from the Twenty-First Judicial District Court In and
for the Parish of Livingston State of Louisiana No. 146, 164
Div. "A" The Honorable Jeffrey Johnson, Judge
Glenn Westmoreland Attorneys for Plaintiff/Appellee Sherman
Mack Ellen Cole Albany, LA
Patrick E. Henry Baton Rouge, LA Attorney for
Defendant/Appellant Lauren Michelle Thomas
J. DiVittorio Attorney for Defendant/Appellee Hammond, LA
BEFORE: HIGGINBOTHAM, HOLDRIDGE, PENZATO, JJ.
Lauren Michelle Thomas Lawrence, the naked owner of a parcel of
immovable property, appeals a judgment ordering her eviction
from the property rendered in favor of plaintiff, Ellen Cole,
the usufructuary of the property. We affirm in part and
reverse in part.
AND PROCEDURAL BACKGROUND
October 11, 2005, Mrs. Cole transferred ownership of a tract
of immovable property located in Denham Springs, Louisiana,
together with all buildings and improvements thereon, to her
granddaughter, Ms. Thomas, by virtue of an Act of Inter Vivos
Donation. The donated property, identified as "Tract
D-3-A, " is comprised of 0.954 acres of land. Mrs.
Cole's mailing address was listed in the Act of Donation
as 25878 Wax Road in Denham Springs. The Act of Donation was
recorded in the Livingston Parish mortgage records on October
Act of Donation, Mrs. Cole reserved the use and usufruct of
the donated property for life. Ms. Thomas later placed a
mobile home on the donated property behind a residence
occupied by Mrs. Cole, and moved onto the property. The
property on which the mobile home was placed has a municipal
address of 9715 J.C. Lane (the corner of J.C. Lane and Wax
Road). On October 29, 2007, Ms. Thomas executed an affidavit
to immobilize the mobile home, declaring that the
"mobile home shall be permanently attached to" the
donated property. Mrs. Cole signed the affidavit as a
nine years after the donation, on August 26, 2014, Mrs. Cole
filed this lawsuit against her granddaughter seeking to
dissolve the donation inter vivos pursuant to La. C.C. art.
1562, which provides for the dissolution of a donation
subject to a suspensive condition when the condition can no
longer be fulfilled. Mrs. Cole alleged that the donation was
given with the understanding that Ms. Thomas would care for
her; however, Ms. Thomas failed to fulfill that obligation by
failing to assist her in any manner whatsoever in the
preceding year. In the petition, Mrs. Cole stated that she
was filing this lawsuit in accordance with La. C.C. art.
1563, which permits dissolution of a donation by judicial
decree upon nonfulfillment of conditions or nonperformance of
charges that the donee can perform or prevent. Mrs. Cole
alleged that upon judicial dissolution of the donation, she
desired that Ms. Thomas be evicted and removed from the
property. Additionally and/or alternatively, Mrs. Cole asked
that the court order the eviction of Ms. Thomas because she
has a lifetime usufruct over the property and she no longer
desired Ms. Thomas to be on the property.
Cole filed a supplemental and amending petition in which she
added Whitney Bank, the holder of a Multiple Indebtedness
Mortgage against Ms. Thomas's naked ownership interest in
the subject property subject to Mrs. Cole's usufruct, as
a defendant in the lawsuit. Mrs. Cole alleged that Whitney
Bank's rights may be affected by the requested
dissolution of the donation and/or the eviction of Ms. Thomas
from the property. She asked the court to dissolve the
donation inter vivos and remove Ms. Thomas and her mobile
home from the premises, and alternatively, that Ms. Thomas be
evicted and removed from the property based on her lifetime
usufruct. Whitney Bank answered the petition, stating that it
took no position as to whether Ms. Thomas could be evicted
from the property and mobile home, but asserted that Ms.
Thomas could not remove the mobile home and Mrs. Cole could
not compel the removal of the immobilized mobile home.
Whitney Bank asserted that regardless of whether the donation
was revoked, its mortgage on Tract D-3-A and the immobilized
mobile home should remain valid and enforceable because Mrs.
Cole consented to the placement of and immobilization of the
mobile home on that tract of property. Whitney Bank also
claimed that the mobile home did not interfere with Mrs.
Cole's ability to exercise her usufruct. (R28)
joint pretrial order, the parties acknowledged that the Act
of Donation transferred Tract D-3-A from Mrs. Cole to Ms.
Thomas and that the mortgage made in good faith by Whitney
Bank remained enforceable against Tract D-3-A even if the
donation by Mrs. Cole to Ms. Thomas was revoked. They further
identified the following established facts: (1) Ms. Thomas,
as the naked owner of Tract D-3-A, placed the mobile home
thereon on April 27, 2007, with the knowledge of and
assistance of Mrs. Cole; (2) Mrs. Cole was aware of and
consented to the immobilization of the mobile home on Tract
D-3-A; (3) Whitney Bank did lend money for the purchase of
the mobile home, which is secured by the Multiple
Indebtedness Mortgage placed on Tract D-3-A; (4) Mrs. Cole
was aware of and consented to the placement of the Multiple
Indebtedness Mortgage in favor of Whitney Bank on Tract
D-3-A; and (5) the placement of the mobile home on Tract
D-3-A does not interfere with Mrs. Cole's use of the
trial was held, during which Mrs. Cole testified and
presented the testimony of her sons and a neighbor. Ms.
Thomas testified and offered the testimony of her husband.
Documentary evidence, including the Act of Donation, the
affidavit to immobilize the mobile home, and the Multiple
Indebtedness Mortgage, was also submitted at trial. Following
the conclusion of the evidence, the trial court denied Mrs.
Cole's request to invalidate the Act of Donation. The
court stressed that it was required to look at the four
corners of the document, found no basis in law to revoke the
donation, and ruled that Ms. Thomas maintained ownership of
the subject property. The court further ruled that the
mortgage on the property in favor of Whitney Bank was valid.
However, the court granted Mrs. Cole's request to evict
Ms. Thomas from the property, giving Ms. Thomas 30 days to
vacate the property. In ordering the eviction, ...