Iris Hopkins Tate VS Pauline A. Tate
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2009 CA 2034 IRIS HOPKINS TATE VERSUS e 4 PAULINE A TATE Judgment Rendered June 11 2010 Appealed from the 21st Judicial District Court In and for the Parish of Livingston State of Louisiana Case No 104568 The Honorable Elizabeth Wolfe Judge Presiding Patricia H Oster Hammond Louisiana Counsel for Plaintiff Appellant Iris Hopkins Tate Erik L Burns Counsel for DefendantAppellee Thomas N Thompson Pauline A Tate Denham Springs Louisiana ORE DOWNING GAIDRY AND McCLEgDON JJ q cu aroA hJ sy loq j ky 13 GAIDRY J In this case the plaintiff appeals a trial court judgment dismissing her petition to rescind the sale of immovable property to defendant for failure to pay We affirm FACTS AND PROCEDURAL HISTORY On February 15 2001 Iris Hopkins Tate executed an act of cash sale whereby she sold a tract of land containing her house and an apartment to her daughter Pauline Tate for 70 On the same date and before the 00 000 same notary and witnesses Iris and Pauline executed a counterletter declaring that although the parties had executed an act of cash sale in fact no sum was paid to Iris and further it was and is agreed between Pauline and Iris that Iris may reside on the subject property as long as she so desires Although the act of sale was recorded in the conveyance records the counterletter was not On June 24 2004 Pauline donated the property to her daughters Lisa Juban Duvall and Susan Michelle J Lozier This donation was recorded in the conveyance records on July 2 2004 and makes no mention of Iris right of habitation s On July 6 2004 Iris filed a petition to rescind the February 15 2001 sale to Pauline alleging that Pauline never paid anything for the land The petition also alleged that Lisa had threatened to use her mandate to act for Pauline to transfer the property to other unnamed individuals Consequently Iris sought a restraining order to prevent the sale or transfer of the property or her removal from the property Finally Iris sought lost rental income from Pauline for the time period that Pauline lived in the apartment on the property rentfree The trial court issued a temporary restraining The Act of Donation was executed on behalf of Pauline by her daughter Lisa Juban Duvall pursuant to a purported mandate 2 order on July 28 2004 prohibiting Pauline her heirs assigns or attorneys or anyone acting on their behalf from removing Iris from the property or from selling transferring or otherwise alienating the property On August 5 2004 Susan donated all of her interest in the property to Lisa and on August 6 2004 Lisa transferred her ownership interest in the property into a limited liability company called Justification L Lisa C was the sole member of Justification L C Justification L subsequently intervened in the suit filed by Iris C The intervention alleged that the act of cash sale executed by Iris and Pauline was actually a disguised donation as evidenced by the counterletter and no money was owed Justification L sought a declaratory C judgment recognizing it as the rightful owner of the property at issue and also filed a cross claim against Iris for damages resulting from her permitting her grandson to live in the apartment on the property The trial court rendered judgment on April 7 2008 decreeing that pending resolution of the other matters Lisa had the discretion to use the apartment as she chose and anyone occupying the apartment was ordered to vacate by April 15 2008 The matter proceeded to bench trial and at the close of Iris case the s court granted Pauline motion for directed verdict finding that Iris had not s carried her burden of proof to rescind the sale and dismissed Iris claims s against Pauline This appeal followed DISCUSSION Initially we note that although Pauline moved for a directed verdict and the court stated that it was granting a directed verdict pursuant to La P C art 1810 a directed verdict is only appropriate in a jury trial Louisiana Code of Civil Procedure article 1672 provides the basis for an B 3 involuntary dismissal at the close of a plaintiffs case in an action tried by the court without a jury Nevertheless that error is one of form rather than substance as the ultimate object of both motions is the same Gillmer v Parish Sterling Stuckey 090901 p La 1 Cir 12 30 So 3 App 09 23 3d 782 785 In determining whether involuntary dismissal should be granted the appropriate standard is whether the plaintiff has presented sufficient evidence on his caseinchief to establish his claim by a preponderance of the evidence Robinson v Dunn 960341 p 4 La 1 Cir 11 683 App 96 8 2d So 894 896 writ denied 96 2965 La 1 687 So 410 Proof 97 31 2d by a preponderance simply means that taking the evidence as a whole the evidence shows the existence of the fact or cause sought to be proved is more probable than not McCurdy v Ault 94 1449 pp 56 La 1 Cir App 95 7 4 654 So 716 720 writ denied 95 1712 La 10 661 So 2d 95 13 2d An involuntary dismissal should not be reversed by an appellate court in the absence of manifest error Robinson 960341 at p 4 683 So at 2d 896 Accordingly in order to reverse the trial court grant of involuntary s dismissal we must find after reviewing the record that there is no factual basis for its finding or that the finding is clearly wrong or manifestly erroneous See Stobart v State through Dept of Transp and Dev 617 2d So 880 882 La 1993 The issue is not whether the trial court was right or wrong but whether its conclusion was reasonable Id A contract is a simulation when by mutual agreement it does not express the true intent of the parties La C art 2025 When the parties enter into a contract but intend for that contract to produce no effects between them the contract is an absolute simulation and has no effects El between them La C art 2026 Where the parties intend that their contract shall produce effects although different from those effects recited in their contract the contract is a relative simulation A relative simulation will produce the effects intended by the parties if all requirements for those effects have been satisfied La C art 2027 It is clear from the counterletter executed by the parties that they did not intend for the transaction between them to be a sale but rather a donation Thus the contract was a relative simulation and as such will only constitute a valid donation if all the requirements for a donation have been satisfied At the time the act of cash sale and counterletter were executed in this matter the Civil Code contained the following form requirements for inter vivos donations Inter vivos donations of immovable property must be made by authentic act must contain a detailed description of the property given and must be accepted by the donee in precise terms The precise terms requirement of article 1540 obligates a donee to use express formal and unconditional language in his acceptance in other words an explicit acceptance is required In re Succession ofJones 43 365 p 2 La 2 Cir 6 986 So 809 810 writ denied 08 2023 La App 08 4 2d 08 12 996 So 1117 2d Although there are no ritual words required there must be some explicit language to signify acceptance A signature alone cannot be construed as an acceptance and acceptance cannot be inferred from the circumstances Id 43 at p 3 986 So at 811 365 2d Neither of the two documents executed by Iris and Pauline contains language which would suffice as an acceptance of a donation and Pauline s 2 La C art 1536 3 La C art 1538 4 La C art 1540 R signature alone on the two documents is insufficient to constitute acceptance As such there was no valid donation of the property from Iris to Pauline Nevertheless unrecorded counterletters can have no effect against third parties La R S A 2721 9 Even a third party with actual knowledge of a counterletter is not deprived of the protections of the public records doctrine when the counterletter is unrecorded La C art 2028 Revision Comments 1984 d Accordingly Justification L the C record owner of the property is protected in its ownership by the failure of the parties to record the counterletter Iris argues on appeal that the donation of the property from Pauline to Lisa and Susan was invalid because Lisa action as mandatary in donating s the principal sproperty to herself and her sister was prohibited by La C art 2998 which provides A mandatary who represents the principal as the other contracting party may not contract with himself unless he is authorized by the principal or in making such contract he is merely fulfilling a duty to the principal Iris asserts that Lisa mandate contained no authority to donate her mother s s property to herself However this issue was not raised by Iris at trial and there is no evidence in the record regarding the authority conferred upon Lisa by the mandate Thus we cannot consider this argument on appeal s Iris final argument on appeal is that the court erred in holding that she still had a valid usufruct on the property since the document granting the 5 La R 9 S 2721 Aprovided at the time ofexecution of the counterletter herein counter letter relating to or affecting immovable property shall be binding on or affect third persons or third parties unless and until filed for registry in the office of the parish recorder of the parish where the land or immovable is situated Neither secret claims or equities nor other matters outside the public records shall be binding on or affect such third No parties La R 9 was repealed by Acts 2005 No 169 S 2721 A m 8 effective July 1 2006 right was not recorded In ruling on the matter at the close of Iris case the s trial judge stated The plaintiff wished to retain usufruct of the property And it s undisputed that she has She still resides on the property However the judgment rendered by the court said nothing about Iris s usufruct It simply stated he T Motion for Directed Verdict in favor of defendant Pauline A Tate made pursuant to La CCP Art 1810 is hereby granted the court finding that the plaintiff has not carried her burden of proof to rescind the sale and therefore the plaintiff s demands are dismissed at her sole cost A trial court reasons for judgment are not part of the s judgment It is the judgment itself that is controlling not the reasons for judgment Rupert v Swinford 95 0395 La 1 Cir 10 App 95 6 671 So 502 2d Thus this argument is moot since the court did not address the issue in its judgment CONCLUSION For the reasons set forth hereinabove we affirm the trial court judgment granting an involuntary dismissal of plaintiff claims s Costs of this appeal are assessed to plaintiff Iris Hopkins Tate AFFIRMED 6 Although immaterial to our disposition ofthis matter we note that the counterletter reserved a right of habitation to Iris not a usufruct See La C art 630638 7 STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2009 CA 2034 IRIS HOPKINS TATE VERSUS PAULINE A TATE DOWNING J concurs and assigns reasons While the result reached by the majority seems to be legally correct I observe that neither the trial court nor we ruled on any claims for breach of contract between the parties STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2009 CA 2034 IRIS HOPKINS TATE VERSUS PAULINE A TATE LENDON J concurs and assigns reasons While the result in this matter seems harsh I believe that the opinion is legally correct
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