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Cole v. Thomas

Court of Appeals of Louisiana, First Circuit

March 22, 2018

ELLEN M. COLE
v.
LAUREN MICHELLE THOMAS

          On 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 Presiding

          C. 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

          Frank J. DiVittorio Attorney for Defendant/Appellee Hammond, LA Whitney Bank

          BEFORE: HIGGINBOTHAM, HOLDRIDGE, PENZATO, JJ.

          HOLDRIDGE, J.

         Defendant, Lauren Michelle Thomas Lawrence[1], 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.

         FACTUAL AND PROCEDURAL BACKGROUND

         On 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 13, 2005.

         In the 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 witness.

         Nearly 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.[2]

         Mrs. 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)

         In a 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 property.

         A bench 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, ...


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