Dortch v. Rollins

113 So. 3d 443, 2013 WL 1442258, 2013 La. App. LEXIS 721
CourtLouisiana Court of Appeal
DecidedApril 10, 2013
DocketNo. 47,525-CW
StatusPublished
Cited by4 cases

This text of 113 So. 3d 443 (Dortch v. Rollins) 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
Dortch v. Rollins, 113 So. 3d 443, 2013 WL 1442258, 2013 La. App. LEXIS 721 (La. Ct. App. 2013).

Opinion

STEWART, J.

bThe plaintiff, James H. Dortch (“Dortch”), filed a writ seeking supervisory review of the trial court’s denial of a motion for summary judgment on his revoca-[445]*445tory action against the defendants, Louisiana Leasing, L.L.C., Rolling Hills Farms of West Monroe f/k/& B & J Siding Distributors, Inc. (“Rolling Hills Farm”), and Ben J. Rollins (“Rollins”), individually and as president of Rolling Hills Farm and a member of Louisiana Leasing. This court granted the unopposed writ application and ordered the matter briefed and docketed for review. We now find that there is a genuine issue of material fact as to whether Dortch’s revocatory action is prescribed. Accordingly, we find no error in the trial court’s judgment denying Dortch’s motion for summary judgment and remand for further proceedings.

FACTS

On March 11, 2010, Dortch won a judgment against Rolling Hills Farm in the amount of $31,131 in a suit filed in 2008 to obtain his share of the proceeds from the sale of a horse. This revocatory action, which was filed by Dortch on June 16, 2011, stems from his efforts to collect the judgment rendered against Rolling Hills Farm.

Dortch’s petition alleged that he discovered during a judgment debtor examination of Rolling Hills Farm and Rollins on June 24, 2010, that the assets of Rolling Hills Farm, namely two pieces of immovable property, had been sold via quitclaim deed to Louisiana Leasing on June 5, 2009. The quitclaim deed was recorded on June 10, 2009. Though the quitclaim deed showed that the property was sold for consideration totaling $1,013,850, |2Portch alleged that Rolling Hills Farm did not receive any of the stated consideration and that it did not have any other assets. The petition alleged that the transfer of the immovable property rendered Rolling Hills Farm insolvent and that the transfer occurred after Dortch’s rights against Rolling Hills Farm and Rollins arose. Therefore, Dortch prayed to have the quitclaim deed annulled.

On July 29, 2011, the defendants filed an answer to the petition together with the peremptory exceptions of prescription and no cause of action. The defendants asserted that, because the March 11, 2010, judgment was against Rolling Hills Farm, Dortch has no cause of action against Rollins individually. They also asserted that Dortch has no cause of action for revocation because the quitclaim deed was executed before he added Rolling Hills Farm as a defendant in the underlying suit on January 4, 2010. Finally, the defendants asserted that Dortch knew or should have known about the transfer of the immovable property before June 15, 2010, and thus his claim had prescribed.

On February 8, 2012, Dortch filed a motion for summary judgment on his revo-catory action. In the opposition to the motion for summary judgment, the defendants asserted, in part, that there remained a genuine issue of material fact as to whether Dortch’s claim had prescribed. They asserted that Dortch should have learned of Rolling Hills Farm’s insolvency more than one year before he filed the revocatory action.

The trial court heard Dortch’s motion for summary judgment on April 3, 2012. After arguments, the trial court denied the motion upon finding |sthat genuine issues of material fact remain in dispute. In its oral ruling, the trial court referred to issues concerning the anteriority of the debt and the insolvency of the debtor. A judgment denying Dortch’s motion was signed on April 9, 2012. Thereafter, Dortch filed a writ seeking review of the adverse interlocutory ruling.

On June 14, 2012, this court granted Dortch’s unopposed writ and ordered the matter briefed and docketed for a decision. [446]*446The motion for summary judgment is now before us for review.

DISCUSSION

Appellate courts conduct a de novo review of a grant or denial of a motion for summary judgment. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181 (La.2/29/00), 755 So.2d 226. A motion for summary judgment must be granted “if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B)(2); Hogg v. Chevron USA, Inc., 2009-2632 (La.7/6/10), 45 So.3d 991. A genuine issue is a “triable issue,” meaning one about which reasonable persons could disagree, and a material fact is one that is essential to the cause of action under the applicable theory of recovery. Hogg, supra.

Because Dortch will bear the burden of proof at trial on his revocatory action, the burden of proof on his motion for summary judgment remains with him as the movant. La. C.C.P. art. 966(C)(2). Therefore, the defendants’ burden is to “set forth specific facts showing that there is a |4genuine issue for trial” so as to avoid a summary judgment being rendered against them. La. C.C.P. art. 967(B).

A revocatory action is one where an obligee seeks to annul an act of an obligor, or the result of a failure to act, that is made or effected after the right of the obligee arose and that causes or increases the obligor’s insolvency. La. C.C. art. 2036. A revocatory action must be brought within the period set forth in La. C.C. art.2041:

The action of the obligee must be brought within one year from the time he learned or should have learned of the act, or the result of the failure to act, of the obligor that the obligee seeks to annul, but never after three years from the date of that act or result.

When an obligee seeks to annul an act of his obligor, the relevant date for the start of the prescriptive period is when the obligee learned or should have learned of the act. London Towne Condominium Homeowner’s Ass’n v. London Towne Co., 2006-401 (La.10/17/06), 939 So.2d 1227. Prescription does not run from the date the obligee knows the act caused or increased his obligor’s insolvency. Id.

Dortch is seeking to annul an act of his obligor, Rolling Hills Farm. The act is the execution of the quitclaim deed by which Rolling Hills Farm sold or transferred its assets to Louisiana Leasing, without receipt of the consideration stated in the deed. In response to Dortch’s petition, the defendants asserted the peremptory exception of prescription. They have also raised prescription as a defense to Dortch’s motion for summary |,judgment.1 [447]*447They argue that there is a genuine issue of material fact as to whether Dortch’s revo-catory action is prescribed.

In opposing Dortch’s motion, the defendants offered the affidavit of Robert S. Tew (“Tew”), the attorney who represented Rollins and Rolling Hills Farm in Dortch’s 2008 suit. Tew’s affidavit states Dortch did not add Rolling Hills as a defendant in the 2008 suit until two months before the March 11, 2010, trial. It further states that at a pretrial conference with the judge on the day of trial, Dortch’s attorney, Robert G. Foley (“Foley”), “expressed the concern that he may end up with a judgment against an ‘insolvent corporation.’ ” The defendants argue that Foley’s statement shows that he knew something about the insolvency of Rolling Hills Farm, the only corporation in the suit. They further argue that if Foley knew something, then surely his client Dortch, who is also Rollins’ son-in-law, should have known about Rolling Hills Farm’s insolvency.

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Cite This Page — Counsel Stack

Bluebook (online)
113 So. 3d 443, 2013 WL 1442258, 2013 La. App. LEXIS 721, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dortch-v-rollins-lactapp-2013.