Dornier v. Live Oak Arabians, Inc.

602 So. 2d 743, 1992 WL 117282
CourtLouisiana Court of Appeal
DecidedMay 22, 1992
DocketCA 91 0530
StatusPublished
Cited by14 cases

This text of 602 So. 2d 743 (Dornier v. Live Oak Arabians, Inc.) 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
Dornier v. Live Oak Arabians, Inc., 602 So. 2d 743, 1992 WL 117282 (La. Ct. App. 1992).

Opinion

602 So.2d 743 (1992)

Joan Wegman DORNIER
v.
LIVE OAK ARABIANS, INC. and Phillips Connell Witter.

No. CA 91 0530.

Court of Appeal of Louisiana, First Circuit.

May 22, 1992.
Rehearing Denied August 12, 1992.

*745 Russell L. Dornier, Baton Rouge, for plaintiff-appellee Joan Wegman Dornier.

Kathryn S. Bloomfield, New Orleans, for defendants-appellants Live Oak Arabians, Inc. and Phillips Connell Witter.

Before WATKINS, CARTER and FOIL, JJ.

FOIL, Judge.

This appeal challenges the action of the trial court in granting summary judgment in favor of plaintiff in a suit on a promissory note, as well as the amount of attorney's fees awarded to plaintiff in enforcing the note. We affirm.

FACTS

Plaintiff, Joan Wegman Dornier, brought this action to enforce a promissory note against her former spouse, Phillips C. Witter, the maker of the note, and Live Oak Arabians, Inc., which executed a chattel mortgage to secure the note. The note, payable to Dornier in the amount of $150,000.00, was executed by Witter as part of a property settlement entered into by the parties after Dornier filed a community property partition suit against him. Although the present suit was originally brought by Dornier as an action to enforce the chattel mortgage by executory process, she later converted it to an ordinary proceeding. The defendants answered the suit, claiming that the note and chattel mortgage were unenforceable because of a lack of consideration, and the property agreement, pursuant to which they were executed, should be rescinded on the basis of lesion and duress.

Plaintiff filed a motion for summary judgment seeking recognition of the mortgage and judgment on the amount of the note, plus interest and attorney's fees. The evidence submitted by the parties both in support and in opposition to the motion for summary judgment is comprised of largely undisputed facts. Dornier and Witter were married on March 7, 1970; prior to the marriage, the parties executed a marriage contract providing for a separation of property regime during the marriage. On July 24, 1979, they entered into an agreement revoking the marriage contract. Dornier and Witter obtained a judgment decreeing their divorce on May 13, 1987. Thereafter, Dornier filed a "Petition to Partition Community Property" against Witter in the 19th Judicial District Court for the Parish of East Baton Rouge. She obtained a temporary restraining order prohibiting Witter from disposing of, alienating, or otherwise encumbering any of the assets of the community of acquets and gains existing between herself and Witter.

On November 3, 1989, Dornier and Witter entered into an "Agreement for Settlement of Property" (the "Agreement"), after which Dornier's partition suit was dismissed with prejudice. The agreement was attached to and made part of the consent judgment rendered in the partition suit, which was signed on November 14, 1988. The Agreement explicitly states that in consideration of the dismissal of the suit by Dornier, Witter agreed to pay her the sum of $250,000.00. The two agreed that Witter would pay $100,000.00 in cash on the day that the settlement was signed, and that Witter would execute a promissory note for the $150,000.00 balance.

*746 Witter executed a promissory note payable to Dornier in the amount of $150,000.00, with interest at a rate of 9%, payable in three annual installments of $50,000.00. The note set forth that Witter would pay reasonable attorney's fees in the event Dornier had to take legal action to enforce the note. The note was secured by a chattel mortgage executed by Live Oak Arabians, Inc., of which Witter is president, encumbering 4 horses. Witter defaulted on the note, and despite demand for payment, never paid anything toward the balance owed to Dornier.

In support of her motion for summary judgment, Dornier introduced the note, chattel mortgage, an affidavit by her setting forth many of the undisputed facts and describing the Agreement in detail, the Agreement, and the notice of default. In opposition to the motion, defendants filed a copy of the Agreement, a statement of undisputed material facts, a copy of the temporary restraining order obtained by Dornier, and Witter's affidavit.

In opposition to the motion for summary judgment, defendants asserted the defenses of lesion, duress and lack of consideration, claiming that there were material issues of fact crucial to the defenses, making summary judgment inappropriate. However, after considering the evidence, the trial judge granted summary judgment in favor of Dornier for the full amount of the note with interest, and awarded attorney's fees to her in the amount of $15,000.00. In oral reasons for judgment, the judge stated that the Agreement was a valid transaction and compromise, entered into to settle a substantial lawsuit. He also found that there was sufficient consideration for the note and that the facts set forth by defendant, even if true, did not constitute legal duress as a matter of law. Defendants appealed, challenging these findings, as well as the award of $15,000.00 in attorney's fees.

SUMMARY JUDGMENT

It is well settled that a motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966; Louisiana National Bank v. Slaughter, 563 So.2d 445, 447 (La.App. 1st Cir.1990). The burden is on the mover to show that no genuine issue of material fact exists, and it is only when reasonable minds must inevitably conclude that the mover is entitled to judgment as a matter of law that summary judgment is warranted. Id. at 447. In determining whether material issues have been disposed of, any doubt is to be resolved in favor of trial on the merits. If the moving party establishes both that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law, it is incumbent on the opponent to set forth specific facts showing that there is a genuine issue for trial. La. Code Civ.P. art. 967; Louisiana National Bank v. Slaughter, 563 So.2d at 448.

Defendants claim that the defenses of lesion, duress and lack of consideration involve an interpretation of the property settlement and the parties' intent in entering thereto, and are so "fact intensive" that they cannot be properly decided on a motion for summary judgment. We shall address the propriety of the granting of the summary judgment as to each defense separately.

Defendants first challenge the trial court's characterization of the Agreement as a "transaction or compromise", which thereby precluded them from asserting their claim that the Agreement is subject to rescission on the basis of lesion. Under the law, a transaction or compromise, having between the interested parties a force equal to res judicata, may not be attacked on the basis of lesion. La.Civ. Code art. 3078; delaVergne v. delaVergne, 514 So.2d 186, 190 (La.App. 4th Cir. 1987). However, a partition is susceptible to attack on the basis of lesion. La.Civ.Code art. 1398 (repealed by La.Acts 1991, No. 689, § 1); Oberfell v. Oberfell, 516 So.2d 424, 426 (La.App. 1st Cir.1987) (recognizing that a voluntary community property settlement *747

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Cite This Page — Counsel Stack

Bluebook (online)
602 So. 2d 743, 1992 WL 117282, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dornier-v-live-oak-arabians-inc-lactapp-1992.