Christoph Patrick Bajewski Versus Christina Botros Bajewski

• Court: Louisiana Court of Appeal
• Decided: October 9, 2024
• Docket: 23-CA-552
• Status: Unknown

Opinion

CHRISTOPH PATRICK BAJEWSKI NO. 23-CA-552

VERSUS FIFTH CIRCUIT

CHRISTINA BOTROS BAJEWSKI COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 735-995, DIVISION "I" HONORABLE NANCY A. MILLER, JUDGE PRESIDING

October 09, 2024

TIMOTHY S. MARCEL JUDGE

Panel composed of Judges Fredericka Homberg Wicker, Scott U. Schlegel, and Timothy S. Marcel

AFFIRMED TSM FHW SUS COUNSEL FOR PLAINTIFF/APPELLANT, CHRISTOPH PATRICK BAJEWSKI Jennifer C. Carter Dixon C. Brown

COUNSEL FOR DEFENDANT/APPELLEE, CHRISTINA B. BRIGNAC James E. Moorman, III MARCEL, J.

In this case concerning the revocation of inter vivos donation of immovable

property, plaintiff Christoph Bajewski, former spouse of defendant Christina

Botros Brignac (formerly Bajewksi), appeals a judgment of the trial court denying

and dismissing his petition with prejudice. For the following reasons, we affirm

the judgment of the trial court.

BACKGROUND

In 2007, during the course of their marriage, the Bajewskis sought to obtain

a home renovation loan. The parties executed a document titled “quitclaim deed”,

concurrent with a loan mortgage with Capital One Home Loans, LLC, in order to

gain the benefit of Ms. Brignac’s credit rating. In the quitclaim deed, Mr.

Bajewski conveyed his undivided interest in a separate property home at 1046

Hawkins Street, Gretna, Louisiana to himself and his wife jointly. The quitclaim

deed states that it was signed on April 19, 2007 by the Bajewskis, two witnesses

(Wayne and Lara Scholle), and the notary, Victoria Sumrall.

The Bajewskis divorced on March 1, 2013. Less than a year later, on

February 28, 2014, Mr. Bajewski filed a Petition for Revocation of Inter Vivos

Donations wherein he sought the return of inter vivos donations made during the

course of the marriage, in particular a diamond engagement ring, a large Thomas

Kinkade painting, and the interest in the property at 1046 Hawkins Street. The

initial petition sought revocation on the basis of ingratitude, La. C.C. arts. 1556-7,

but was subsequently amended in 2016 with additional claims by Mr. Bajewski

that the transfer of the Hawkins Street property was null because the quitclaim

deed was not a valid authentic act. Litigation proceeded for many years.

While this action was pending, Mr. Bajewski also filed a Petition to Annul

Transfer of Property in his divorce/child custody proceedings raising the same

claims. This case and those proceedings were consolidated for a time, but then

23-CA-552 1 deconsolidated for the purposes of trial on these claims. By the time the matter

came to trial on May 1, 2023, the only outstanding issue to be resolved was Mr.

Bajewski’s contention that the quitclaim deed was invalid because the form

requirements of an authentic act had not been met. In particular, Mr. Bajewski

claimed that the quitclaim deed was invalid because it was executed and witnessed

outside the presence of the notary. All of the signatories of the quitclaim deed

were called to testify at trial: Mr. Bajewski, Ms. Brignac, the Scholles, and the

notary.

Following trial, the court issued a judgment in favor of the defendant, Ms.

Brignac, and dismissing Mr. Bajewski’s claims with prejudice. In her written

reasons for judgment, the trial court specifically found the testimony of Mr.

Bajewski and his friends, Wayne and Lara Scholles, to be self-serving and

inconsistent, while the testimony of Ms. Brignac and Ms. Sumrall was consistent

and credible. The court determined that Mr. Bajewski had failed to present

convincing proof sufficient to overcome the presumption that the quitclaim deed

was properly executed and notarized.

On appeal, Mr. Bajewski argues that the trial court committed manifest error

denying plaintiff’s petition despite a clear and convincing showing that the

quitclaim deed was not made by authentic act. We consider plaintiff’s arguments

in our discussion below.

DISCUSSION

A donation inter vivos shall be made by authentic act under the penalty of

absolute nullity. La. C.C. art. 1541. An authentic act is a writing executed before

a notary public or other officer authorized to perform that function, in the presence

of two witnesses, and signed by each party who executed it, by each witness, and

by each notary public before whom it was executed. La. C.C. art. 1833. To be an

authentic act, the writing need not be executed at one time or place, or before the

23-CA-552 2 same notary public or in the presence of the same witnesses. Id. However, each

party who executes the document must do so before a notary public or other officer

authorized to perform that function, and in the presence of two witnesses. Id. The

signature of each party, each witness, and each notary public is required. Id. A

transfer of immovable property must be made by authentic act or by act under

private signature. La. C.C. art. 1839. The transfer by a spouse to the other spouse

of immovable property forming part of his separate property, with the stipulation

that it shall be part of the community, transforms the immovable property into

community property. La. C.C. art. 2343.1.

The purpose of the authentic act requirements is to insure the validity of a

signature on a document and that the person whose name appears thereon is the

person who actually signed the document. Zamjahn v. Zamjahn, 02-871 (La. App.

5 Cir. 1/28/03), 839 So.2d 309, 315. An authentic act is presumed to be valid and

a party asserting otherwise must present strong and convincing proof of such a

magnitude as to overcome this presumption. Fogg v. Fogg, 13-712, (La. App. 5

Cir. 5/14/14), 142 So.3d 150, 152; Wiedemann v. Wiedemann, 09-41 (La. App. 5

Cir. 12/29/09), 30 So.3d 972, 974.

On its face, the deed appears to be a properly executed authentic act. It

transfers the property located at 1046 Hawkins Street, Gretna, Louisiana, owned by

Christoph Bajewski to Christoph and Christina Bajewski, husband and wife. It is

signed by both the Bajewskis and two witnesses, Wayne and Lara Scholle, as well

as a notary, Victoria Sumrall. Because the statutory requirements for an authentic

act have been met, the burden is on Mr. Bajewski to prove the deed was not

properly executed.

Mr. Bajewski claims that the quitclaim deed was not properly executed in

the presence of the notary, and therefore the act is invalid. Whether or not the

quitclaim deed was properly executed is a question of fact. In civil cases, the

23-CA-552 3 appropriate standard for appellate review of factual determinations is the manifest

error-clearly wrong standard, which precludes the setting aside of a district court’s

finding of fact unless that finding is clearly wrong in light of the record reviewed

in its entirety. Harvey Canal Ltd. P’ship v. Nat’l Response Restoration Corp., 23-

195 (La. App. 5 Cir. 1/31/24), 380 So.3d 683, 686. When findings are based on

determinations regarding the credibility of witnesses, the manifest error-clearly

wrong standard demands great deference to the trier of fact’s findings; for only the

factfinder can be aware of the variations in demeanor and tone of voice that bear so

heavily on the listener’s understanding and belief in what is said. Rosell v. ESCO,

549 So.2d 840, 844–45 (La.1989). Where documents or objective evidence so

contradict the witness’s story, or the story itself is so internally inconsistent or

implausible on its face that a reasonable fact finder would not credit the witness’s

story, the court of appeal may well find manifest error or clear wrongness even in a

finding purportedly based upon a credibility determination. Id. But where such

factors are not present, and a factfinder’s finding is based on its decision to credit

the testimony of one of two or more witnesses, that finding can virtually never be

manifestly erroneous or clearly wrong. Id.

At the bench trial, the judge heard testimony from all of the signatories to

the quitclaim deed. Ms. Brignac testified that she signed the quitclaim deed in the

presence of Mr. Bajewski, the Scholles, and the notary Ms. Sumrall at the Hawkins

Street property which is where she and Mr. Bajewski were living at the time. She

did not recall who signed the document first or any other details surrounding the

signing of the documents, but did confirm that she saw Mr. Bajewski sign the deed

and the two witnesses in front of the notary at their dining room table. She recalled

walking the notary to the door after the signing, thanking her for coming to the

house to conduct the signing, and apologizing for some rude behavior of Mr.

Bajewski.

23-CA-552 4 The notary, Victoria Sumrall, testified that she has worked as a notary since

1995 and has acted upon hundreds if not thousands of documents. As part of her

practice, she did not have an office, but instead met people at their homes to

perform her notary duties. Ms. Sumrall did not have clear recollections of the

event, but did recall seeing the document signed in front of her. She testified that

the signature on the document was hers. She recalled being told to sit down and

shut up by the seller, but did not recognize Mr. Bajewski in court as that person.

Mr. Scholle testified that the signature on the document was his. He testified

that Mr. Bajewski had brought the deed to Mr. Scholle’s house to be signed. When

he signed it, there were no other signatures on the document, and Mr. Bajewski

was the only other party present. After he signed the document, he left the room to

take care of children while his wife Lara went to sign the document. He stated that

he was not sure if he understood at the time that he was being asked to sign as a

witness attesting to the fact that he saw Mr. Bajewski and Ms. Brignac sign the

document.

Mrs. Scholle testified that she recognized her signature on the document.

She recalled being at her home in the kitchen when Mr. Bajewski brought the

document to her to sign. She and Mr. Bajewski were the only ones present in the

kitchen at the time. She believes she was the last one to sign the document. She did

not recall seeing Mr. Bajewski, Ms. Brignac, or Ms. Sumrall sign the document.

Mr. Bajewski testified that he signed the document at his house after picking

it up from the bank, instructed Ms. Brignac to sign, and then brought the

documents over to the Scholle’s house for them to sign per instructions he received

from the bank. He stated that Ms. Sumrall never came to the home. He never

signed the documents in the presence of the Scholles or Ms. Sumrall. Once the

documents were signed, he dropped them off at the bank. He testified that when he

dropped off the paperwork at the bank, it had not been signed by the notary.

23-CA-552 5 Upon review of the entire record, we find no manifest error in the trial

court’s decision to credit the testimony of Ms. Brignac and Ms. Sumrall over that

of Mr. Bajewski and the Scholles. Where there is a conflict in the testimony of

witnesses, reasonable evaluations of credibility and reasonable inferences of fact

should not be disturbed upon review. Salgado v. Tri-Par. Roofing & Home

Improvements, 19-407 (La. App. 5 Cir. 5/27/20), 296 So.3d 1201, 1205-6 (citing

Glob. Constr. & Equip., L.L.C. v. Rathborne Properties, L.L.C., 18-169 (La. App.

5 Cir. 5/29/19), 274 So.3d 837, 841.) Mr. Bajewski has not provided any objective

evidence to support his claims or to contradict the testimony of the witnesses.

While the testimonies of Ms. Brignac and Ms. Sumrall conflict with those of Mr.

Bajewski and the Scholles regarding where, when, and in what order the document

was signed, we do not find their testimonies to be so internally inconsistent or

implausible that a reasonable fact finder would not credit their stories.

Finding no manifest error in the trial court’s determinations, we affirm the

judgment of the trial court.

AFFIRMED

23-CA-552 6 SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON STEPHEN J. WINDHORST LINDA M. WISEMAN JOHN J. MOLAISON, JR. FIRST DEPUTY CLERK SCOTT U. SCHLEGEL TIMOTHY S. MARCEL FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX www.fifthcircuit.org

NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY OCTOBER 9, 2024 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

23-CA-552 E-NOTIFIED 24TH JUDICIAL DISTRICT COURT (CLERK) HONORABLE NANCY A. MILLER (DISTRICT JUDGE) DIXON C. BROWN (APPELLANT) JENNIFER C. CARTER (APPELLANT) JAMES E. MOORMAN, III (APPELLEE)

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