Bella v. Tassara

75 So. 3d 972, 2011 La.App. 4 Cir. 0092, 2011 La. App. LEXIS 1218, 2011 WL 4836003
CourtLouisiana Court of Appeal
DecidedOctober 12, 2011
DocketNos. 2011-CA-0092, 2011-CA-0093
StatusPublished

This text of 75 So. 3d 972 (Bella v. Tassara) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bella v. Tassara, 75 So. 3d 972, 2011 La.App. 4 Cir. 0092, 2011 La. App. LEXIS 1218, 2011 WL 4836003 (La. Ct. App. 2011).

Opinion

MICHAEL E. KIRBY, Judge.

| jThis appeal arises from the Succession of Letitia Nell Bella (“Ms. Bella”). Sam M. Bella, Jr. (“Sam Bella”), Ms. Bella’s brother, sole surviving heir and independent executor of her estate, filed a petition for damages and writ of sequestration on behalf of the estate against Kathleen Tas-sara (“Ms. Tassara”), Ms. Bella’s caregiver, seeking the return of funds1 that were on deposit in joint accounts in the names of Ms. Bella and Ms. Tassara at JP Morgan Chase Bank, N.A. (“Chase Bank”), at the time of Ms. Bella’s death. Ms. Tassara filed an answer and reconventional demand, alleging that the funds are hers based on an oral agreement the women made when they combined their separate funds to open the joint accounts in August 2006. Alternatively, Ms. Tassara alleges that, in the event the court determines she does not own the funds, the estate owes her $134,200.00 for 16,775 hours of uncompensated services rendered to Ms. Bella from the date of Hurricane Katrina to her death; approximately $10,000.00 for | ¿funeral and burial expenses; and damages and attorney fees for the wrongful issuance of the writ of sequestration.2

[974]*974Following a trial, the trial court rendered a judgment on August 12, 2010, ordering that $50,000.00 of the funds be returned to Ms. Bella’s estate for disbursement to Sam Bella, and that the stipulated sum of $30,000.00 (Ms. Tassara’s original contribution) and $20,000.00 as a remunerative donation be placed in the possession of Ms. Tassara. Ms. Tassara appeals. For the reasons that follow, we affirm.

Factual Background

Ms. Bella was born with cerebral palsy,, and required assisted-care twenty-four (24) hours a day, seven (7) days a week. Although physically incapacitated, she had no mental deficiency. Ms. Bella resided with her mother, Lorraine Bella, in their family home at 61 Thornton Drive in Chal-mette. After Lorraine Bella died in 2002, Sam Bella renounced his inherited interest in the Thornton Drive home in favor of his sister.

Following Lorraine Bella’s death, Ms. Tassara, a neighbor, became a fulltime caregiver to Ms. Bella and was compensated for her services. In August 2005, as Hurricane Katrina approached, Ms. Bella evacuated to Lafayette with Ms. Tassara. Shortly thereafter, they moved to LaPlace, Louisiana, where they lived with Ms. Tas-sara’s daughter and son-in-law for ten months.

|aIn June 2006, Ms. Bella and Ms. Tas-sara agreed to rent a house and live together in Reserve, Louisiana, near Ms. Tassara’s family. In August 2006, they agreed to open joint savings and checking accounts and a certificate of deposit in both their names at Chase Bank. Ms. Bella deposited $10,000.00 into the checking account, $30,000.00 into the savings account and $60,000.00 into the certificate of deposit while Ms. Tassara deposited $30,000.00 of her own funds into the certificate of deposit. The women agreed that they would pay their rent and other living expenses out of those joint accounts. They further agreed that Ms. Tassara would care for Ms. Bella without compensation to preserve the funds.3 Finally, they agreed that upon the death of either of them, the funds remaining in the joint accounts would go to the survivor.4

Ms. Bella died on December 8, 2007. Ms. Tassara made the final arrangements, paying for the funeral and burial, including the cost of a new crypt, with funds from the Chase Bank joint accounts. After the funeral, Ms. Tassara transferred the remaining funds at Chase Bank into a certificate of deposit in her daughters’ names at Iberia Bank.

14At her death, Ms. Bella left a valid statutory will that bequeathed all of her [975]*975property to Sam Bella.5

Discussion

Assignments of error 1,2, 3 and 5

Collectively, in the first, second, third and fifth assignments, Ms. Tassara contends the trial court erred in ordering that $50,000.00 of the funds from the joint accounts be returned to Ms. Bella’s estate for distribution to Sam Bella. She argues that, given the value of her services, the trial court erred in finding the agreement between the women was not an onerous donation that would have entitled her to the funds remaining in the joint accounts at the time of Ms. Bella’s death. Ms. Tassara claims that the value of her services from the time the women evacuated until Ms. Bella died far exceeded the total funds in the joint accounts on the date of her death. Thus, regardless of whether the agreement is a remunerative donation, as the trial court found, or an onerous one, Ms. Tassara argues she is entitled to either the remaining funds or additional compensation from the estate for her unpaid services.

“In Louisiana, funds deposited into a joint bank account remain the property of its original owner and his or her estate at death, absent an authenticate act of donation.” Succession of Elie, 2010-525, p. 3 (La.App. 3 Cir. 11/3/10), 50 So.3d 262, 265 (citation omitted). The right of withdrawal, or having one’s name listed on the account, is not tantamount to ownership. Id. at 4, 50 So.3d at 265; See also Cantrell v. Pat O’Brien’s Bar, Inc., 97-0545 (La.App. 4 Cir. 1/7/98), 705 So.2d 1205, 1207.

“A donation inter vivos is a contract by which a person, called the donor, gratuitously divests himself, at present and irrevocably, of the thing given in favor of another, called the donee, who accepts it.” La. C.C. art. 1468. “A donation inter vivos shall be made by authentic act under the penalty of absolute nullity, unless otherwise expressly permitted by law.” La. C.C. art. 1541. Regarding onerous donations, La. C.C. art. 1526 provides:

The rules peculiar to donations inter vivos do not apply to a donation that is burdened with an obligation imposed on the donee that results in a material advantage to the donor, unless at the time of the donation the cost of performing the obligation is less than two-thirds of the value of the thing donated.

Regarding remunerative donations, La. C.C. art. 1527 provides:

The rules peculiar to donations inter vivos do not apply to a donation that is made to recompense for services rendered that are susceptible of being measured in money unless at the time of the donation the value of the services is less than two-thirds of the value of the thing donated.

In this case, the trial court found that the depositing of the funds into the joint accounts did not qualify as an onerous donation because Ms. Bella could have accessed the funds at any time prior to her death; thus she failed to divest herself irrevocably of any right she had to the funds contained in the accounts. The court concluded, however, that the same analysis did not apply in the case of a remunerative donation. The court found that at the time the women opened the joint accounts in August 2006, Ms. Tassara had already provided substantial care | ^services for which she had not been compensated, and Ms. Bella intended to com[976]*976pensate Ms. Tassara by placing the funds in her name. In well-written reasons for judgment, the trial court stated its findings, in pertinent part, as follows:

The placing of the funds into [Ms. Tassara’s] name can qualify as a remunerative donation. The inquiry then becomes the determination of the value of the services which are claimed to have been performed.

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Related

Averette v. Jordan
457 So. 2d 691 (Louisiana Court of Appeal, 1984)
Matthews v. Consolidated Companies, Inc.
664 So. 2d 1191 (Supreme Court of Louisiana, 1995)
Rosell v. Esco
549 So. 2d 840 (Supreme Court of Louisiana, 1989)
Succession of Elie
50 So. 3d 262 (Louisiana Court of Appeal, 2010)
Succession of Cantrell v. Pat O'Brien's Bar, Inc.
705 So. 2d 1205 (Louisiana Court of Appeal, 1998)

Cite This Page — Counsel Stack

Bluebook (online)
75 So. 3d 972, 2011 La.App. 4 Cir. 0092, 2011 La. App. LEXIS 1218, 2011 WL 4836003, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bella-v-tassara-lactapp-2011.