Richard Bert Howes VS Lisa Bertone Howes
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NOT DESIGNATED FOR PUBLICATIOI I STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2012 CA 1951 RICHARD BERT HOWES VERSUS LISA BERTONE HOWES Judgment Rendered June 7 2013 x Appealed from the 2lst Judicial DistrictCourt In and for the Parish of Tangipahoa State of Louisiana Case No 2011 0003428 The Honorable Ernest G Drake Jr Judge Presiding x Brett K Duncan Counsel for Plaintiff Appellant Hammond Louisiana Richard Bert Howes Duncan S Kemp III Hammond Louisiana Counsel for Defendant Appellee Lisa Bertone Howes BEFORE GUIDRY CRAIN AND THERIOT JJ f d f w THERIOT J Richard Bert Howes appeals the Twenty Judicial District Court first s granting of an exception of no cause of action filed by Lisa Bertone Howes and dismissing his petition for unjust enrichment For the following reasons we affirm FACTS AND PROCEDURAL HISTORY Richard and Lisa Howes were married on December 9 2006 and established their matrimonial domicile in Tangipahoa Parish Prior to the marriage Richard and Lisa executed a marriage contract in which they agreed to renounce a communiry property regime for individual separate property regimes The marriage contract was filed in the conveyance records of Tangipahoa Parish On or about January 10 2006 priar to the marriage Richard gave Lisa 17 to settle a community property dispute with her former 000 husband Once they were married Richard gave Lisa several sums of money at different times for various reasons as follows 1 February 20 2008 2 to pay legal fees she owed to an 000 attorney who represented her in the divorce from her former husband 2 February 28 2008 25 to pay legal fees she owed 000 another attorney in conjunction with the same divorce 3 April 20 2008 3 to finish payment on her 769 automobile 4 April 28 2008 3 far payment of her child private 133 s school tuition 5 April 2 2009 3 for payment of her child private 331 s school tuition 6 May 12 2010 3 for payment of her child private 510 s s school tuition The transfers that Richard alleges he made to Lisa total 57 743 In the petition for return of unjustly enriched funds the date of this transfer is given as April 20 2009 however this appears to be a typographical error as the petition lists all the transfers in chronological order Z According to the petition for divorce Richard and Lisa Howes had no cluldren together 2 Richard filed for divorce pursuant to La C art 102 on October 13 2011 and filed a petition far return of unjustly enriching funds on March 13 2012 Judgment ofdivorce was signed on May 29 2012 In his petition for return of unjustly enriching funds Richard claims his first transfer to Lisa occurred before they were married and was made i anticipation of n Marriage and Defendant scontinued love and affection In all the transfers made during the marriage Richard claims they were justified by s Defendant commitment to a lifetime of Marriage love fidelity and affection Because they had separated and sought a divorce Richard alleges that Lisa has been unjustly enriched by the money transfers from his separate property that he had made to her Lisa filed an exception of no cause of action on April 13 2012 claiming that the transfers made by Richard to her were gifts for which justification existed at the time for him to make the gifts to her The trial court granted the exception and the judgment was signed on July 10 2012 In the written reasons for judgment the court characterized the transfers as donations made by Richard to Lisa that have specific mechanisms for their revocation provided by law Since other legal remedies exist for the revocation of the transfers the court found unjust enrichment was not a valid cause of action as La C art 2298 states that unjust enrichment is a subsidiary remedy that shall not be available if other legal remedies exist Following the trial court judgment Richard filed a motion for the instant s appeal on September 19 2012 ASSIGNMENTS OF ERROR Richard Howes alleges the following assignments of error 1 The trial court erred by granting the peremptory exception of no cause of action as the petition states a well claim for unjust pleaded enrichment or some other valid cause of action 3 2 The trial court erred in finding that Richard Howes was not afforded a legal remedy under unjust enrichment STANDARD OF REVIEW A cause of action when used in the context of the peremptory exception is defined as the operative facts that give rise to the plaintiffls right to judicially assert the action against the defendant The function of the peremptory exception of no cause of action is to test the legal sufficiency of the petition which is done by determining whether the law affords a remedy on the facts alleged in the pleading No evidence may be introduced to support or controvert an exception of no cause of action Consequently the court reviews the petition and accepts well allegations of fact as true The issue at the pleaded trial of the exception is whether on the face of the petition the plaintiff is legally entitled to the relief sought Ramey v DeCaire 03 p 7 3 869 So 114 118 1299 La 19 04 2d citations omitted This standard of review entitles the appellant to a de novo review of the record Aycock v Chicola 09 p 4 App 3 Cir 563 La 09 16 12 27 So3d 1005 1007 If the allegations of the petition state a cause of action as to any part of the demand the exception must be overruled Pitre v Opelousas General Hosp 530 So 1151 1162 La 2d 1988 DISCUSSION Richard alleges the trial court made an erroneous assumption that some of the allegations in his petition weren ttrue when all his allegations must be considered true in evaluating whether the petition states a valid I cause of action Regardless we will accept all the s allegations of Richard petition as true and correct See Kuebler v Martin 578 So 113 114 La 2d 1991 The petition alleges a tota of seven transfers of varying sums of money from Richard to Lisa all of which Lisa accepted Richard was at no time under any legal obligation to make any of the transfers The Louisiana Supreme Court recognizes five requirements for proving unjust enrichment 4 1 there must be an enrichment 2 there must be an impoverishment 3 there must be a connection between the enrichment and the resulting impoverishment 4 there must be an absence of justification or cause for the enrichment and impoverishment and 5 there must be no other remedy at law available to the plaintiff Industrial Companies Inc v Durbin 02 0665 pp 7 La 1 837 So 1207 1213 Clearly Lisa was 8 03 28 2d 14 enriched and clearly Richard was impoverished The connection between the two is Richard seven transfers of his separate funds to Lisa Therefore s requirements one two and three are satisfied Richard claims causes or justifications for the transfers prior to the divorce yet we cannot tell from the face of the petition if these causes or justifications are anything but subjective on Richard part The petition s does not aver to any kind of writing or agreement between the two spouses that would establish a of the minds as to what the cause ar meeting justification of the transfers would be Richard admits in his petition that due to the divorce the cause or justification of continued love fidelity and affection no longer existed for Lisa to be enriched By taking this statement as being true and correct the logical conclusion is at the time of the transfers justification for the enrichment and impoverishment did exist Therefore requirement four for a claim ofunjust enrichment is not satisfied Regardless of requirement four it is the fifth requirement that becomes crucial in the instant case namely whether there was another legal remedy available to Richard for recovery Paragraph 13 of the petition for return of unjustly enriching funds states the following With the parties only days from finalizing their Divorce and in the absence of s Defendant conYinued love fidelity and affection a or cause no longer justification exists for Defendant to be enriched by Petitioner fifty seven thousand seven hundred s andforty three dollars 57 00 743 5 A donation inter vivos is a contract by which a person the donor gratuitously divests himself at present and irrevocably of the thing given in favor of another the donee who accepts it La C art 1468 The transfer of money from Richard to Lisa was gratuitous and at the time the transfers were made Richard meant for the transfers to be irrevocable Nowhere in the petition is it alleged that Lisa was obligated to repay him at any time The money was given to Lisa and she accepted it The transfers fall within the basic definition of a donation inter vivos More specifically a person may make a donation inter vivos to his future or present spouse in contemplation of or in consideration of their marriage and such a donation shall be governed by the rules applicable to donations inter vivos in general La C art 1744 What the petition alleges easily fits into this definition of an interspousal donation inter vivos The interspousai donation shall be made by a single instrument in authentic form and shall expressly state the donative intent and shall be signed by the donor and donee La C art 1747 The trial court noted that no valid written form of a donation existed however the trial court ruled that a donation had been made An interspousal donation inter vivos that is not made in accordance with the rules governing interspousal donations shall be governed solely by the general rules of donations inter vivos La C art 1744 Nevertheless a manual gift of corporeal movables accompanied by real delivery is not subject to any formality LACC art 1543 If Richard effected a valid donation inter vivos the funds immediately and irrevocably became Lisa separate property See Fogg v s Fogg 571 So 838 841 La App 3 Cir 1990 writ denied 575 So 2d 2d 372 I 1991 a 6 This court has previously ruled in Fernandez v Hebert 06 La 1558 App 1 Cir 5 961 So 404 that a clear donarive intent of the donor 07 4 2d is the sole requirement for a donation that was not of immovable property In that case a donation of stock was purportedly invalid in form because the donor did not physically sign the donation and had her nephew sign the instrument in her place The nephew testimony was clear that he had been s given verbal authorization and direction by the donor to sign and execute the donation on her behalf Id at 412 Fernandez quotes Fogg in stating t he proof must be strong and convincing that the donor intended to give the property Id at 413 In the instant case Richard openly admits in the petition that he did give his separate property to Lisa and he states why His admissions are strong and convincing evidence of his donative intent A donation inter vivos can be revoked or dissolved for nonfulfillment of a suspensive condition the occurrence of a resolutory condition or the performance non of a condition La C art 1556 Richard claims certain conditions valid or not were not fulfilled by Lisa after he made the transfers Simply by the face of the petition Richard stated a cause for dissolution of a donation inter vivos There is enough evidence from the face of the petition that seven donations inter vivos occurred between Richard and Lisa with Richard being the donor and Lisa being the donee Donations have their own legal remedies for dissolution in the Louisiana Civil Code see La C arts 67 1562 therefore other legal remedies exist and Richard unjust s enrichment claim fails the fifth requirement Since he is not entitled to the legal remedy of unjust enrichment and since the petition does not claim any cause of action in the alternative the trial court was correct in granting s Lisa exception of no cause of action 7 CONCLUSION The trial court identified the transfers between Richard and Lisa Howes as donations inter vivos and correctly sustained the exception of no cause of action as other legal remedies for dissolution of donations inter vivos exist The remedy of unjust enrichment is subsidiary in nature and is not available if the law provides another remedy for the impoverishment La C art 2298 DECREE The trial court sjudgment granting the exception of no cause of action and dismissing the petition of unjust enrichment with prejudice in favor of the appellee Lisa Ber Howes and against the appellant Richard Bert one Howes is affirmed Costs of the appeal are assessed to the appellant AFFIRMED 8 FIRST CIRCUIT RICHARD BERT HOWES RT COL OF APPEAL VERSUS STATE OF LOUISIANA 2012 CA 1951 LISA BERTONE HOWES CRAIN J dissentin in P arQ i I agree that the trial court was correct in sustaining the peremptory exception raising the objection of no cause of action However Louisiana Code of Civil Procedure article 934 provides that w the grounds of the objection pleaded hen by the peremptory exception may be removed by amendment of the petition the judgment sustaining the exception shall order such amendment within the delay allowed by the court Thus I would reverse the trial court judgment insofar as it s dismisses Richard Howes suit and remand with instructions that the trial court allow him leave to amend his petition
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