Cerminaro v. Cerminaro

207 So. 3d 633, 16 La.App. 5 Cir. 274, 2016 La. App. LEXIS 2384
CourtLouisiana Court of Appeal
DecidedDecember 7, 2016
DocketNO. 16-CA-274
StatusPublished
Cited by1 cases

This text of 207 So. 3d 633 (Cerminaro v. Cerminaro) 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
Cerminaro v. Cerminaro, 207 So. 3d 633, 16 La.App. 5 Cir. 274, 2016 La. App. LEXIS 2384 (La. Ct. App. 2016).

Opinion

JOHNSON, J.

11 Defendant/Appellant, Philip Anthony Cerminaro, appeals the summary judgment in favor of Plaintiff/Appellee, Pamela Powe Cerminaro, concerning the revocation of donations from the 24th Judicial District Court, Division “O”. For the following reasons, we reverse the judgment and remand the matter for further proceedings.

FACTS AND PROCEDURAL HISTORY

Philip Cerminaro and Pamela Powe Cerminaro were married on March 19, 1996. During their marriage, Industrial Products Limited, L.L.C., CP2, L.L.C. and Cerminaro-Powe, Ltd. were formed. Mr. Cerminaro and Ms. Cerminaro created Cerminaro-Powe, Ltd. on June 4, 1996. Mr. Cerminaro and Ms. Cerminaro’s father, William A. Powe, created Industrial Products Limited, L.L.C. on July 31, 2000 and CP2, L.L.C. on October 27, 2011. Mr. Powe died intestate on March 5, 2012. On May 1, 2012, Mr. Cerminaro and Ms. Cer-minaro signed three documents, all titled “ASSIGNMENT OF LIMITED LIABILITY COMPANY INTEREST” (hereinafter collectively referred to as “Assignments”), wherein Ms. Cerminaro assigned 10% interest in Cerminaro-Powe, Ltd., [635]*63525% interest in CP2, L.L.C., and 25% interest in Industrial Products Limited, L.L.C. of her inherited interests in the companies from Mr. Powe to Mr. Cermi-naro.

On August 28, 2013, Mr. Cerminaro filed a “Petition for Divorce” pursuant to La. C.C. art. 102. Ms. Cerminaro motioned to dismiss the petition on the grounds that the parties had reconciled. Mr. Cermina-ro’s petition was later dismissed with prejudice. On July 22, 2014, Ms. Cerminaro filed her own “Petition for Divorce” pursuant to La. C.C. art. lOS(l).1

A few days after filing for divorce, Ms. Cerminaro filed a “Petition to Annul Donations” on August 8, 2014, seeking to revoke the interests in the limited pliability companies she assigned to Mr. Cerminaro. In her petition, Ms. Cerminaro alleged the Assignments were purely gratuitous donations to Mr. Cerminaro. She also alleged that she was entitled to revoke those donations on the grounds of ingratitude towards her due to the fact that Mr. Cerminaro had an ongoing adulterous relationship during their marriage. In his Answer to the petition to annul, Mr. Cerminaro raised estoppel as an affirmative defense. He argued that Ms. Cermina-ro had knowledge of his affair prior to their reconciliation, and that any legal fault he had for the adultery was terminated at the time they reconciled.

Ms. Cerminaro filed a “Motion for Summary Judgment” on February 27, 2015, asserting she was entitled to a summary judgment revoking the donations as a matter of law because of Mr. Cerminaro’s ingratitude. The matter was heard by the trial court and denied on June 15, 2015. Ms. Cerminaro subsequently filed a second “Motion for Summary Judgment” on September 28, 2015, asserting she was entitled to a summary judgment revoking the donations as a matter of law because Mr. Cerminaro admitted to his ingratitude by stipulating that he had an adulterous affair during their marriage.2,3

The matter was heard by the trial court on February 1, 2016. In a judgment rendered on February 4, 2016, the trial court granted Ms. Cerminaro’s motion and found that Mr. Cerminaro had committed acts constituting ingratitude, as defined in La. C.C. art. 1557(2). The trial court further found that it was unpersuaded that the ingratitude was forgiven by a failed reconciliation. The trial court held that the Assignments were acts of donations and revoked them on the basis of ingratitude. Mr. Cerminaro was prohibited from using any of the Assignments for the purpose of asserting ownership. Mr. Cerminaro filed the instant appeal of the February 4th judgment.

I ¡ASSIGNMENTS OF ERROR

On appeal, Mr. Cerminaro alleges the trial court legally erred in granting a summary judgment that revoked the acts of donations made by Ms. Cerminaro on the basis of ingratitude. Mr. Cerminaro argues it was an error for the trial court to grant the summary judgment because genuine issues of material fact remain as to whether: valid donations existed, the donations [636]*636were gratuitous, and Ms. Cerminaro owned the company interests purported to be donated.

LAW AND ANALYSIS

General Law

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. Rivas v. Wal-Mart Stores, 15-668 (La.App. 5 Cir. 3/16/16); 194 So.3d 639, 642, citing Pouncy v. Winn-Dixie La., Inc., 15-189 (La.App. 5 Cir. 10/28/15); 178 So.3d 603. The summary judgment procedure is favored and is designed to secure the just, speedy and inexpensive determination of every action. Id.

A motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. A material fact is one that potentially insures or prevents recovery, affects a litigant’s ultimate success, or determines the outcome of the lawsuit. An issue is genuine if it is such that reasonable persons could disagree. If only one conclusion could be reached by reasonable persons, summary judgment is appropriate as there is no need for trial on that issue. Id.

Appellate courts review a judgment granting or denying a motion for summary judgment de novo. Thus, appellate courts ask the same questions the trial court does in determining whether summary judgment is appropriate: whether |4there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Id.

Revocation of the Donations

Mr. Cerminaro alleges the trial court legally erred in granting Ms. Cermi-naro’s summary judgment because there are remaining issues of material fact. Mr. Cerminaro argues that Ms. Cerminaro failed to meet her burden of proving that valid and enforceable donations existed that could be revoked. He contends Ms. Cerminaro failed to sufficiently prove that the transfer of her alleged limited liability company interests to him were gifts because the language used in the Assignments is ambiguous. Mr. Cerminaro further argues the trial court legally erred in granting summary judgment without determining whether Ms. Cerminaro ever maintained any ownership interests in order to effectively donate the companies’ stock interests to him. He claims the interests that were purportedly donated to him legally belong to the succession of William Powe, which is in litigation in another court, and Ms. Cerminaro could not donate interests that were not owned by her. In the event this Court finds the existence of donations, Mr. Cerminaro alternatively argues that summary judgment was improper because the donations were onerous donations, not gratuitous, and could not be revoked. He contends that Ms. Cerminaro purportedly donated her interests in the respective companies to him in exchange for his operation of the companies for continued existence, which ultimately provided a benefit to her.

Ms. Cerminaro counters Mr. Cermina-ro’s arguments by maintaining the donations were properly revoked through summary judgment because she was entitled to the revocations as a matter of law. Ms. Cerminaro avers there were no remaining issues of material fact because Mr.

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207 So. 3d 633, 16 La.App. 5 Cir. 274, 2016 La. App. LEXIS 2384, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cerminaro-v-cerminaro-lactapp-2016.