PEGGY T. GEREIGHTY
TAVIS C. DOMINGUE
APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH
OF JEFFERSON, STATE OF LOUISIANA NO. 742-892, DIVISION
"B" HONORABLE CORNELIUS E. REGAN, JUDGE PRESIDING
COUNSEL FOR PLAINTIFF/APPELLEE, PEGGY T. GEREIGHTY Lisa
COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUSIANA DEPARTMENT
OF CHILDREN AND FAMILY SERVICES Paul D. Connick, Jr. Amanda
L. Calogero Timothy P. O'Rourke
COUNSEL FOR DEFENDANT/APPELLANT, TAVIS DOMINGUE Lizette A.
Miller-Radovic John A. Venezia
composed of Judges Jude G. Gravois, Marc E. Johnson, and Hans
J. LILJEBERG JUDGE.
Jeff Bratton, in his capacity as the court-appointed
independent administrator for the estate of decedent, Tavis
Domingue, seeks review of the trial court's February 14,
2017 judgment, which granted an exception of no cause of
action filed by appellee, Peggy T. Gereighty, and dismissed
appellant's claims against her with prejudice. He also
seeks review of the trial court's denial of his exception
of res judicata and contends the trial court should not have
ruled on Ms. Gereighty's exception of res judicata
because she did not file an objection to the domestic
reasons set forth more fully below, we affirm the trial
court's judgment which denied appellant's exception
of res judicata. We further affirm the portion of the trial
court's judgment which granted the exception of no cause
of action and dismissed reimbursement claims for expenses Mr.
Domingue allegedly paid during the marriage. However, we
reverse the trial court's decision to grant Ms.
Gereighty's exception of no cause of action and dismiss
Mr. Domingue's claim to recover an estimated $40, 000 he
withdrew from his retirement plan and provided to Ms.
Gereighty prior to their marriage. We also vacate the trial
court's ruling with respect to Ms. Gereighty's
exception of res judicata and reinstate the domestic
commissioner's ruling on this exception.
we find Ms. Gereighty's exceptions of lack of procedural
capacity and no right of action first filed with this Court,
as well as her motion to dismiss the appeal, are moot due to
the substitution of the court-appointed independent
administrator in these appellate proceedings for decedent,
AND PROCEDURAL BACKGROUND
matter originated as a petition for divorce, custody and
child support filed by appellee, Peggy T. Gereighty, on
October 3, 2014. Ms. Gereighty alleged the parties married on
October 12, 2002, and have a daughter born on August 17,
2010. On April 16, 2015, Mr. Domingue filed an answer and
reconventional demand in response to the petition.
reconventional demand, Mr. Domingue sought reimbursement for
$40, 000 he allegedly provided to Ms. Gereighty for a down
payment to purchase an interest in her separate property
residence and other payments he allegedly made on her behalf
with respect to this separate property. He alleged that on
October 2, 2002, the parties entered into a Prenuptial
Marriage Contract for a Separate Property Regime
("Prenuptial Contract"). Prior to their marriage,
Ms. Gereighty owned a home located at 3301 Clifford Drive in
Metairie, Louisiana. ("Clifford Property") with her
brother. Mr. Domingue alleged that he provided $40,
000 out of his separate funds to Ms. Gereighty for a down
payment for her to buy her brother's half interest in the
Clifford Property. Mr. Domingue alleged that he provided Ms.
Gereighty the down payment because he believed they would
have a lasting marriage. He alleged he was entitled to a
reimbursement because he only resided in the home for four
and a half years during their marriage. He also sought
reimbursements for payments he made for the mortgage, taxes,
property insurance and repairs to the Clifford Property.
April 29, 2015, Ms. Gereighty filed several exceptions in
response to the reconventional demand, including an exception
of no cause of action alleging the Clifford Property was her
separate property purchased with her separate funds. She
further alleged that pursuant to the terms of the Prenuptial
Contract, the parties were not under a community property
regime and any funds Mr. Domingue provided to her or paid on
her behalf were gifts and not subject to reimbursement.
15, 2015, the domestic commissioner granted Ms.
Gereighty's exception of no cause of action and denied
Mr. Domingue's request to amend his reconventional demand
to reallege his reimbursement claims. Mr. Domingue filed a
timely objection, and following a pre-trial conference, the
trial court agreed to allow Mr. Domingue thirty days to amend
the allegations in his reconventional demand.
22, 2015, Mr. Domingue filed his First Amended Reconventional
Demand, which completely replaced all allegations in the
original demand. He raised the same factual allegations
regarding the $40, 000 he provided to Ms. Gereighty for the
down payment on the Clifford Property. He further alleged
that the funds he provided to her were not a gift and alleged
he was entitled to reimbursement of the $40, 000 he paid to
her from his separate funds, as well as mortgage payments he
made to satisfy Ms. Gereighty's separate debt, pursuant
to the doctrine of unjust enrichment set forth in La. C.C.
art. 2298. Alternatively, he argued he was entitled to relief
pursuant to the community property partition provisions set
forth in La. R.S. 9:2801. He additionally sought
reimbursement for half of the increased value of the Clifford
Property during their marriage pursuant to La. C.C. art.
2368, and alleged an alternative claim based on Ms.
Gereighty's alleged bad faith and fraud "regarding
the $40, 000 separate property funds, the purchase of her
brother's portion of [the Clifford Property], and the
mismanagement of the community property portion of [the
Clifford Property]" pursuant to La. C.C. art. 2354.
Gereighty did not file an answer or exceptions in response to
the First Amended Reconventional Demand. Mr. Domingue then
engaged in discovery by issuing subpoenas duces
tecum to Ms. Gereighty's bank and mortgage company.
Following this discovery, Mr. Domingue filed a Second Amended
Reconventional Demand, which again completely replaced all
allegations set forth in the First Amended Reconventional
Demand. In his Second Amended Reconventional Demand, Mr.
Domingue alleged the same causes of action outlined above.
However, he provided different and more detailed facts
regarding the "estimated $40, 000" he provided to
Ms. Gereighty. He alleged for the first time that he provided
the funds for the down payment "with the understanding
that he would own a portion of the house and that the purpose
of the down payment was to reduce their monthly mortgage
note." He again reiterated that the funds were not a
gift to Ms. Gereighty.
explained for the first time that he provided the funds for
the down payment prior to signing the Prenuptial Contract on
October 2, 2002 and prior to their October 12, 2002 marriage.
Mr. Domingue alleged that he requested the funds for the down
payment for the Clifford Property on July 10, 2002. On July
31, 2002, $39, 451.46 was withdrawn from his retirement
account and he received a check in the amount of $31, 561.17,
after deducting federal taxes. On August 14, 2002, he
deposited these funds in a joint bank account with Ms.
Gereighty. On August 26, 2002, $29, 500.00 was withdrawn and
deposited into Ms. Gereighty's separate bank account. Mr.
Domingue alleged that Ms. Gereighty did not use these funds
for the down payment to purchase the Clifford Property, but
rather immediately withdrew the funds to pay her separate
Domingue alleged that on November 15, 2002, after the parties
married, Ms. Gereighty purchased her brother's interest
in the Clifford Property for $133, 500 in her name only. She
also entered into a mortgage on that same day borrowing $160,
000.00 against the Clifford Property. Mr. Domingue alleged
Ms. Gereighty told him his name could not be on the act of
sale "due to his credit." Mr. Domingue claimed he
relied on these representations, but contended they were
Domingue again alleged he was entitled to reimbursement of
the funds he provided for the down payment, as well as
payments he made towards the mortgage and health insurance
premiums, under the theory of unjust enrichment as set forth
in La. C.C. art. 2298, as well as La. C.C. art. 2373, which
governs the sharing of expenses in a community property
regime. Mr. Domingue also alleged community property claims
in the alternative, pursuant to La. R.S. 9:2801, and
realleged a claim for half of the increased value of the
Clifford Property during their marriage pursuant to La. C.C.
art. 2368. He also restated his previous claim for fraud and
bad faith management of community property pursuant to La.
C.C. art. 2354.
response, on August 31, 2016, Ms. Gereighty filed, inter
alia, an exception of no cause of action seeking
dismissal of the First and Second Amended Reconventional
Demands. She again argued the parties were not under a
community property regime and that pursuant to the terms of
the Prenuptial Contract, acknowledged by Mr. Domingue, any
funds Mr. Domingue gave to her were not subject to
reimbursement. She further alleged that Mr. Domingue did not
have a cause of action for unjust enrichment because all
funds provided to Ms. Gereighty were gifts or donations
justified by the existence of their marriage. She further
argued that another remedy at law was available-that is to
seek revocation of the donations.
Gereighty and Mr. Domingue also both filed exceptions of res
judicata. Ms. Gereighty argued the trial court's prior
rulings prohibited Mr. Domingue from continuing his efforts
to pursue a reimbursement claim. Mr. Domingue argued, on the
other hand, that the parties' prior agreement and the
trial court rulings estopped Ms. Gereighty from filing an
exception of no cause of action seeking dismissal of his
January 19, 2017, the domestic commissioner signed a
judgment, which granted Ms. Gereighty's exception of no
cause of action and denied her exception of res judicata as
moot. The judgment also denied Mr. Domingue's exception
of res judicata. Mr. Domingue filed a timely objection for
review by the trial court. On February 14, 2017, the trial
court overruled Mr. Domingue's objection and entered a
judgment granting Ms. Gereighty's exception of no cause
of action and dismissing the claims set forth in Mr.
Domingue's First and Second Reconventional Demands, with
prejudice. The trial court further ruled that the
exceptions of res judicata filed by both parties were denied.
February 20, 2017, Mr. Domingue filed a motion and order for
appeal, and request to designate the record. The trial court
granted the order of appeal on February 24, 2017.
April 12, 2017, the trial court issued written reasons for
its judgment granting Ms. Gereighty's exception of no
cause of action. The trial court reasoned Mr. Domingue failed
to allege a cause of action pursuant to La. R.S. 9:2801, and
La. C.C. arts. 2354 and 2368, because these provisions
provide remedies to parties subject to a community property
regime and Mr. Domingue did not dispute that the parties
agreed to remain separate in property by entering into the
Prenuptial Contract. The trial court further opined that the
Prenuptial Contract eliminated any claims they had against
each other's separate property:
The First and Second Amended Reconventional Demands of Tavis
Domingue assert various claims pursuant to Louisiana Revised
Statute 9:2801, Louisiana Civil Code Article 2368, and
Louisiana Civil Code Article 2354. Each of these remedies
arise out of a community property regime, yet the parties
herein entered into a Prenuptial Marriage Contract whereby
they contracted to remain separate in property. Contracts
have the effect of law between the parties, and must be
performed in good faith. Thus, the Prenuptial Marriage
Contract governs this litigation.
As agreed to contractually, there is no community property
owned by the parties herein. Therefore, the First and Second
Amended Reconventional Demand fails to state a cause of
action for claims arising under Louisiana Revised Statute
9:2801, Louisiana Civil Code Article 2368, and Louisiana
Civil Code Article 2354. Further, the Prenuptial Marriage
Contract unequivocally states that neither party shall have a
claim of any type to the property owned by the other party.
As such, these claims are dismissed.
trial court further reasoned that Mr. Domingue could not
state a claim for unjust enrichment for the $40, 000 he
provided to Ms. Gereighty because he had another remedy at
law for revocation of donation:
Tavis C. Domingue further asserts a claim for unjust
enrichment for $40, 000.00 provided to Peggy Gereighty
'in contemplation of the marriage' and 'out of
the belief they would have a lasting marriage.' A claim
for unjust enrichment arises when one is enriched without
cause at the expense of another. Nonetheless, an unjust
enrichment claim is subsidiary and is not available if the
law provides another remedy. Taking the allegations of the
First and Second Amended Reconventional Demand as true, the
Court finds that the $40, 000.00 at issue was a donation by
Tavis Domingue to Peggy Gereighty. Thus, Tavis Domingue has
another remedy at law for revocation of said donation, and
his First and Second Amended Reconventional Demands fail to
state a cause of action for unjust enrichment.
13, 2017, Ms. Gereighty filed exceptions of lack of
procedural capacity and no right of action with this Court,
arguing the appeal should be dismissed because Mr. Domingue
died sometime after April 18, 2017, and a succession
representative had not been appointed to represent his
interests with respect to this appeal. On August 24, 2017,
Stacy and Ryland Domingue filed an appellant brief as the
"administrators" for the succession of Mr.
Domingue. On October 13, 2017, Ms. Gereighty filed her
appellate brief and raised issues regarding the
administrators' authority to represent decedent. The
parties later agreed these individuals did not have the
proper authority to represent Mr. Domingue's estate.
October 31, 2017, this Court issued an order informing the
parties that it could not proceed with any of the issues
relating to the appeal until a motion to appoint a proper
legal successor for Mr. Domingue was filed with this Court,
as required by La. C.C.P. arts. 801, 821 and Uniform
Rule-Courts of Appeal, Rule 2-9. On February 15, 2018, Ms.
Gereighty again moved to dismiss the appeal due to the
failure to file a motion to substitute a party to represent
March 14, 2018, the succession court appointed Jeff Bratton
("appellant") as an independent administrator to
represent Mr. Domingue's succession. On April 2, 2018,
Mr. Bratton filed a motion with this Court to be substituted
as the legal successor for Mr. Domingue and this Court
permitted Mr. Bratton to adopt the appellant brief and other
pleadings previously filed on behalf of decedent.
Assignment of Error - Failure to File Written Opposition
first assignment of error, appellant argues the trial court
erred by failing to find Mr. Domingue's objections to the
domestic commissioner's January 19, 2017 Judgment were
unopposed by Ms. Gereighty. Appellant reasons that, because
Ms. Gereighty did not file a written opposition to his
objection, the trial court should have considered it
unopposed and further denied Ms. Gereighty the opportunity to
present oral argument during the hearing.
argues the local rules applying to the Twenty-Fourth Judicial
District Court required Ms. Gereighty to file an opposition
eight days prior to the hearing. Appellant points to
Twenty-Fourth Judicial District Court Appendix Rule 24(C),
which provides that "[t]he delays for filing of
pleadings, briefs or memoranda and response thereto prior to
hearing shall, except where specifically addressed in these
rules, conform to the Uniform District Court Rules 9.8, 9.9,
9.10." He further cites to Uniform District Court Rule
9.9(c), which requires a party to file an opposition to an
exception or motion eight days prior to the
rules are inapplicable to the present matter because, as
emphasized above, they specifically govern "exceptions
and motions, " not an objection to a hearing officer
recommendation filed in family court proceedings. While
Twenty-Fourth Judicial District Court Appendix Rule 35.5(C)
requires the objecting party to file a supporting memorandum
within five days after filing the objection, no rule requires
the opposing party to file a memorandum in opposition to the
the rules required Ms. Gereighty to file an opposition,
Twenty-Fourth Judicial District Court Appendix Rule 24(E)
provides the district court with broad discretion as to
whether to impose sanctions when a party fails to conform
with pleading rules. For these reasons, we find the trial
court did not abuse its discretion by finding Ms. Gereighty
opposed Mr. Domingue's objection and permitting her to
engage in oral argument at the hearing on the objection.
Assignment of Error - Failure to Consider First and Second
Amended Reconventional Demands
second assignment of error, appellant contends the trial
court's reasons for judgment indicate it based its
decision on language that is not contained in the First and
Second Amended Reconventional Demands, but rather contained
in the original reconventional demand. Specifically,
appellant contends that in its reasons for judgment, the
trial court cited to Mr. Domingue's allegations that he
transferred $40, 000 to Ms. Gereighty "in contemplation
of the marriage" and "out of the belief they would
have a lasting marriage." Appellant appears to argue
these allegations only appeared in his original
reconventional demand, thereby indicating the trial court did
not consider his allegations in the subsequent amended
reconventional demands when determining whether he adequately
stated a cause of action.
in its reasons for judgment, the trial court states it
reviewed Mr. Domingue's claims alleged in the First and
Second Amended Reconventional Demands. Furthermore, the
phrase "in contemplation of marriage" does not
appear in the original reconventional demand and is contained
in paragraphs 7 and 10 of the Second Amended Reconventional
Demand. Finally, while the phrase "out of belief they
would have a lasting marriage" appears in the original
reconvention demand, it also appears in the First Amended
reasons discussed above and more fully below, we find the
allegations in the Second Amended Reconventional Demand
completely replaced the allegations in the original and First
Amended Reconventional Demands, and therefore, the trial
court's analysis should have been based solely on the
allegations contained in the second demand. However, we do
not agree with appellant's argument in this assignment of
error that the trial court based its ruling on the
allegations contained in the original reconventional demand.
Therefore, we find this assignment of error is without merit.
Assignment of Error - Reimbursement Claims
third assignment of error addresses the substance of
appellant's claims that he stated a cause of action to
recover reimbursements from Ms. Gereighty. He contends the
trial court failed to address these reimbursement claims in
its reasons for judgment. Appellant's arguments relating
to the merits of his reimbursement claims are scattered
throughout the appellate brief and difficult to follow.
However, it appears that appellant contends the trial court
erred by granting the exception of no cause of action because
the Prenuptial Contract does not preclude his reimbursement
claims for mortgage payments and health insurance premiums
Mr. Domingue paid-alleged separate debts and obligations owed
by Ms. Gereighty during the marriage. He argues in the alternative
that he is entitled to reimbursement for these payments
pursuant to the theory of unjust enrichment. He also argues
the trial court erred by finding he failed to state a cause
of action for unjust enrichment to recover the estimated $40,
000 he provided to Ms. Gereighty for the down payment on the
Clifford Property prior to the marriage.
function of an exception of no cause of action is to test the
legal sufficiency of a petition by determining whether the
law affords a remedy on the facts alleged in the pleadings.
City of New Orleans v. Board of Dirs. of La. State
Museum, 98-1170 (La. 3/2/99), 739 So.2d 748, 755. The
burden of showing the plaintiff cannot state a cause of
action is on the mover. Id.; Woods v. St.
Charles Parish Sch. Bd., 00-1350 (La.App. 5 Cir.
1/23/01), 783 So.2d 387, 391. Well-pleaded facts are taken as
true, and every reasonable interpretation must be accorded
the language of the petition in favor of maintaining its