Caillouet v. Zwei Bruderland, LLC

746 So. 2d 752, 1999 WL 994140
CourtLouisiana Court of Appeal
DecidedNovember 3, 1999
Docket99-590
StatusPublished
Cited by3 cases

This text of 746 So. 2d 752 (Caillouet v. Zwei Bruderland, LLC) 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
Caillouet v. Zwei Bruderland, LLC, 746 So. 2d 752, 1999 WL 994140 (La. Ct. App. 1999).

Opinion

746 So.2d 752 (1999)

Clara Gossen CAILLOUET, Plaintiff-Appellee,
v.
ZWEI BRUDERLAND, L.L.C., Defendant-Appellant.

No. 99-590.

Court of Appeal of Louisiana, Third Circuit.

November 3, 1999.

*754 Jack Derrick Miller, Crowley, for Clara Gossen Caillouet.

Jason Wayne Robideaux, Lafayette, for Zwei Bruderland L.L.C. et al.

BEFORE THIBODEAUX, COOKS, and WOODARD, Judges.

WOODARD, Judge.

Ms. Clara Gossen Caillouet sought to rescind the sale of some property to her nephews, Mr. Christopher Charles Arcement and Robert Joseph Arcement, and their Limited Liability Company, Zwei Bruderland (Zwei) on the ground that it was a lesion beyond moiety. The purchase price was $125,000.00. Finding that the property's fair market value was $260,000.00 and that value for the payment of the property was $118,128.87, the trial court ordered that the sale be rescinded, giving Zwei the option to either return the property and all of its fruits from December 6, 1996 or to keep it and pay Ms. Caillouet $141,871.13, in addition to the price recited in the act of sale. Zwei suspensively appeals. We affirm.

FACTS

On March 6, 1996, Ms. Clara Gossen Caillouet, transferred, by a credit sale to Zwei, property described as follows:

That certain parcel of land, containing 204.74 acres, together with any improvements thereon and all rights-of-way, servitudes and easements appertaining thereto, located in Section 37, Township 9 South, Range 2 East, of Acadia Parish, Louisiana, having an irregular northerly side of 2,652.27 feet, by a depth on its easterly side of 5,478.08 feet, which parcel of land is designated as "204.74 ACRES" on the plat of survey prepared by Michael P. Mayeux, Registered Professional Land Surveyor, dated May 27, 1993, which is recorded under entry number 620530 of the conveyance records of the Clerk of Court's office in and for the Parish of Acadia, and having such further boundaries, measurements and dimensions as shown thereon. The said property is bounded, now or formerly as follows: Northerly by a public highway (La.Hwy.98) and properties owned by Raymond N. Gossen, Leo P. Didier and Henrietta G. Didier, easterly by the properties owned by Dorothy N. Thevis, Rita N. Menard, William A Neu, and westerly by Section 17, Township 9 South, Range 2 East.
LESS & EXCEPT that certain tract of land containing 2 acres, more or less, described as commencing at the Southwesterly corner of the tract described as Raymond Gossen, et al and from said point thence South 18 degrees 50 minutes 59 seconds East, 120 feet, more or less, to the center line of the canal, a distance of 650 feet, more or less to the center line of LA Highway 98, a distance of 370 feet, more or less.
Being a portion of the property acquired by vendor in the Act of Partition dated April 6, 1956, and recorded under entry number 280155 of the conveyance records of the Clerk of Court's Office in and for the Parish of Acadia, Louisiana.

*755 The act of sale also provides that Ms. Caillouet retained one-half of the oil, gas, and other mineral rights, as well as the usufruct of the house located on the property. It also specified a sale price of $125,000.00 to be paid in ten annual installments of $18,003.75 with the first payment to be made on March 6, 1997. Apparently, Ms. Caillouet also agreed to pay for the cost of closing.

In a letter, dated December 6, 1996, claiming that the transaction was inequitable, Ms. Caillouet demanded that her nephews return the property by December 17, 1996. On February 25, 1997, Ms. Caillouet filed suit, claiming that the sale should be rescinded for lesion beyond moiety and annulled for lack of capacity and fraud.

In a hearing held April 7-8, 1998, both Ms. Caillouet and Zwei presented expert testimony on the value of the property. Upon conclusion of the parties' case, the trial court decided to appoint a court appraiser from a list to be submitted by the parties, excluding Mr. Fred Gossen, a local appraiser with family ties to the parties. Eventually, the trial court appointed Mr. Len Godshall as a court appraiser.

In a hearing held on October 28, 1998, Mr. Godshall presented a summary report, wherein he appraised the value of the property to be $260,000.00. Following Mr. Godshall's testimony, Zwei attempted to use additional experts as "rebuttal witnesses." Notwithstanding, the trial court limited the use of rebuttal experts, and counsel for Zwei proffered some evidence into the record.

On December 15, 1998, finding that the property had a fair market value of $260,000.00 and that the actual value of the consideration for the property should be $118,128.87, the trial court decided to rescind the sale for lesion beyond moiety. It ordered that Zwei be granted thirty days to exercise the option either to return the property and all of its fruits from December 6, 1996 or to keep the property and pay Ms. Caillouet $141,871.13, in addition to the price recited in the act of sale. Zwei opted to return the property, but suspensively appeals.

ASSIGNMENTS OF ERROR

Zwei alleges that the trial court erred in:

1. Ordering that the property be appraised as three separate tracts according to the highest and best use analysis instead of a single farm tract with a rural home site.
2. Relying on Mr. Godshall's opinion once he admitted having used data provided by Mr. Fred Gossen.
3. Relying on Mr. Godshall's report when his evaluation of the property was erroneous.
4. Restricting Zwei's examination of Mr. Godshall's on the issue of the property's original sale price and then used the calculations suggested by Mr. Godshall to determine whether the sale should be rescinded.
5. Relying on Mr. Lawayne Sieferman's calculation of the cash sale value of the original sale price after it found his general appraisal of the property to be excessive.
6. Rejecting Zwei's use of Mr. Stewart Stover's expert testimony to rebut Mr. Godshall's summary report's assumption that there was no environmental contamination on the property.
7. Rejecting Zwei's use of Jack Stelly's expert testimony to rebut Mr. Godshall's summary report on acreage of the property.
8. Restricting Zwei's use of Mr. George Parker's expert testimony, to rebut Mr. Godshall's appraisal.

LAW

MR. GODSHALL'S RELIANCE ON MR. FRED GOSSEN'S DATA

In its assignment of error number two, Zwei alleges that the trial court erred *756 by not striking Mr. Godshall's testimony and summary report because it violated the parties' and court's prior stipulation that Mr. Fred Gossen would not be appointed as an expert in the litigation because of his family ties with the parties. Specifically, Zwei insists that the trial court's failure to inform Mr. Godshall that Mr. Fred Gossen should not be used as an expert in this litigation violated La.Code Evid. art. 706. It contends that the summary report should have been excluded by the trial court because its probative value was substantially outweighed by the danger of unfair prejudice, pursuant to La. Code Evid. art. 403. We disagree with Zwei's specification of error.

When it expressed its hesitation to retain Mr. Fred Gossen as an expert in the litigation, the trial court stated:

I know that Mr. Gossen is related to parties in this case, and while he is knowledgable [sic], unless requested by all parties, I'm not going to ask him.

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Bluebook (online)
746 So. 2d 752, 1999 WL 994140, Counsel Stack Legal Research, https://law.counselstack.com/opinion/caillouet-v-zwei-bruderland-llc-lactapp-1999.