RADCLIFFE 10, L.L.C.
LYNDA O. BURGER AND LAUREN E. WARREN
Appeal from the Nineteenth Judicial District Court In and for
the Parish of East Baton Rouge State of Louisiana Docket
Number C590185, Sec. 23 Honorable William A. Morvant, Judge
L. McReynolds Raymond C. Lewis New Orleans, Louisiana And
Ross Dooley Baton Rouge, Louisiana Counsel for Defendants/
Appellants Lynda 0. Burger and Lauren E. Warren
J. Robichaux Mandeville, Louisiana And Alicia M. Bendana Mark
S. Goldstein New Orleans, Louisiana Counsel for
Plaintiff/Appellee Radcliffe 10, L. L.C.
BEFORE: McCLENDON, WELCH, AND THE RIOT, JJ.
Lynda 0. Burger and Lauren E. Warren, seek reversal of a
partial summary judgment that rendered Ms. Burger personally
liable to Radcliffe 10, L.L.C. for the full amount of $150,
000.00. This judgment was based on the determination that Ms.
Burger had "disposed" of $150, 000.00 in former
community property in violation of LSA-C.C. art. 2357. The
trial court certified the partial summary judgment as final
under LSA-C.C.P. art. 1915B. For the following reasons, we
conclude that the judgment was improvidently designated as
final and dismiss the appeal.
AND PROCEDURAL HISTORY
litigation has its roots in the sale of the assets of Zip
Tube Systems of Louisiana, Inc. - a corporation in which
Ronald G. Burger and Ms. Burger owned equal shares of stock -
to Radcliffe 10, a limited liability company that James
Radcliffe formed in 2002 specifically to purchase Zip
Tube's assets and business operations. This court has
issued prior opinions in that litigation. See Radcliffe
10, L.L.C. v. Zip Tube Systems of Louisiana, Inc.,
07-1801, 07-1802 (La.App. 1 Cir. 8/29/08), 998 So.2d 107,
amended on rehearing, 07-1801, 07-1802 (La.App. 1
Cir. 12/3/08), 22 So.3d 178, writs denied, 09-0011,
09-0024 (La. 3/13/09), 5 So.3d 119, 120; Radcliffe 10,
L.L.C. v. Zip Tube Systems of Louisiana, Inc., 09-0417,
09-0418 (La.App. 1 Cir. 12/29/09), 30 So.3d 825, writ
denied, 10-0244 (La. 4/9/10), 31 So.3d 394. Effectively,
Radcliffe 10 is a judgment creditor of Zip Tube, Burger
Engineering, L.L.C, Ronald Burger, and Bryan Burger based on
a final judgment for an amount in excess of $3, 428, 000.00.
5, 2009, Radcliffe 10 filed the underlying "Petition for
Money Judgment Based on Disposal of Community Property, For
Revocatory Action, and To Seize Community Property to Satisfy
Community Debt, " naming Ms. Burger and her daughter,
Lauren E. Warren, as defendants. Radcliffe 10 alleged that
Ms. Burger donated former community funds - $150, 000.00 from
a certificate of deposit and an additional $55, 765.08 in
other funds - to her daughter. Radcliffe 10 sought a money
judgment against Ms. Burger in the total amount of $205,
765.08, plus legal interest from the date of those
dispositions, in addition to costs and any and all applicable
Burger filed an answer, generally denying many of the
allegations in Radcliffe's petition. Ms. Burger also
denied having made any donations to her daughter. Further,
she asserted that any judgment rendered against Mr. Burger
was not a community obligation.
the underlying litigation, the Burgers sought a matrimonial
agreement terminating their legal property regime and
establishing a separate property regime. The matrimonial
agreement and the judgment approving the matrimonial
agreement were entered into and signed after Radcliffe
10's $3, 428, 000.00 judgment was rendered against Mr.
Burger and the other defendants, but before Radcliffe
10's judgment was signed by the trial court. Thereafter,
Radcliffe 10 filed suit to revoke the judgment approving the
Burgers' matrimonial agreement as an absolute nullity.
The trial court revoked the Burgers' judgment as void ab
initio for failure to follow the procedural requirements of
LSA-C.C. art. 2329. In a per cur/am opinion, this
court upheld the trial court's judgment. See
Radcliffe 10, L.L.C. v. Burger, 14-0347 (La.App. 1
Cir. 3/28/16), 191 So.3d 79 (per cur/am), writ
granted, 16-00768 (La. 9/6/16), 204 So.3d 998, and
rev'd, 16-0768 (La. 1/25/17), 219 So.3d 296.
the Louisiana Supreme Court granted the Burgers' writ
application to settle the question of nullity of a separation
of property agreement the Burgers had entered, but before the
supreme court ruled, Radcliffe 10 filed a motion for partial
summary judgment. In that motion, Radcliffe 10 alleged that
Ms. Burger took $150, 000.00 in community property and
disposed of it by acquiring an undivided interest in real
estate in East Baton Rouge Parish. In its statement of
uncontested facts, Radcliffe 10 asserted:
On August 8, 2008, [Ms.] Burger purchased an undivided
interest in a home located at municipal address 306 Pecan
Meadow Drive, Baton Rouge, LA;
[Ms.] Burger's interest was purchased for $205, 765.08.
Of that amount, [Ms.] Burger judicially confessed that $150,
000.00 was property of the former community between her and
Ronald Burger. The remainder, $55, 765.08, is presumed to be
community. La. C.C. ...