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Gereighty v. Domingue

Court of Appeals of Louisiana, Fifth Circuit

May 30, 2018

PEGGY T. GEREIGHTY
v.
TAVIS C. DOMINGUE

          ON 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 Brener

          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

          Panel composed of Judges Jude G. Gravois, Marc E. Johnson, and Hans J. Liljeberg

          HANS J. LILJEBERG JUDGE.

         Appellant, 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 commissioner's ruling.

         For 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.

         Finally, 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, Tavis Domingue.

         FACTUAL AND PROCEDURAL BACKGROUND

         This 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.

         In the 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.[1] 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.[2] He also sought reimbursements for payments he made for the mortgage, taxes, property insurance and repairs to the Clifford Property.

         On 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.

         On June 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.

         On July 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.

         Ms. 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.

         He also 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 debts. [3]

         Mr. 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 false.

         Mr. 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.

         In 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.

         Ms. 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 amended claims.

         On 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.[4] The trial court further ruled that the exceptions of res judicata filed by both parties were denied.

         On 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.

         On 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:[5]

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.

         The 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.

         On July 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.

         On 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 Mr. Domingue.

         On 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.

         LAW AND DISCUSSION

         First Assignment of Error - Failure to File Written Opposition

         In the 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.

         Appellant 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 scheduled hearing.

         These 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 objection.

         Even if 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.

         Second Assignment of Error - Failure to Consider First and Second Amended Reconventional Demands

         In his 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.

         First, 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 Reconventional Demand.

         For 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.

         Third Assignment of Error - Reimbursement Claims

         The 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.[6] 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.

         The 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 ...


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