Garrison v. State Farm Fire & Casualty Co.

217 So. 3d 586, 2017 La. App. LEXIS 548
CourtLouisiana Court of Appeal
DecidedApril 5, 2017
DocketNo. 51,245-CA
StatusPublished
Cited by6 cases

This text of 217 So. 3d 586 (Garrison v. State Farm Fire & Casualty Co.) 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
Garrison v. State Farm Fire & Casualty Co., 217 So. 3d 586, 2017 La. App. LEXIS 548 (La. Ct. App. 2017).

Opinion

WILLIAMS, J.

liThe plaintiffs, Rochundra Garrison and Sam Winston, Jr., appeal a summary judgment in favor of defendants, State Farm Fire and Casualty Company and Duane Lucky, Jr. The district court also granted State Farm’s exception of.no right of action against Garrison and denied the insurer’s motion to strike an affidavit. For the following reasons, we reverse in part and remand.

FACTS

Sam Winston, Jr. (“Winston”), was the owner of a 2004 Buick LeSabre. Winston lived with his adult daughter, Rochundra Garrison, and her children at a residence in Bastrop. Winston allowed Garrison to drive the vehicle, but he remained the title owner. The title documents were kept in the vehicle. The car developed a hole in the radiator and overheated when operated. Garrison contacted her friend, Clarence Hollins, a mechanic at Ray’s Auto World (“Ray’s Auto”), a used car lot in Bastrop, and he agreed to repair the car. Ray Waller was the owner of Ray’s Auto. The vehicle was then towed to the Ray’s Auto lot, where it remained for several weeks. When Garrison returned to ask about the repairs, Hollins told her that the car had been sold by Waller.

The chain of title shows a sale of the 2004 Buick on October 15, 2013, from Winston to Waller, with Winston’s signature witnessed by Duane T. Lucky, Jr. (“Lucky”), as notary. Then, on November 23, 2013, Waller sold the car to Mary Palmer, with Lucky again witnessing the signatures as notary. Winston denied signing the bill of sale or title. The plaintiffs, Winston and Garrison, filed a lawsuit against Waller for conversion and obtained a judgment against him. The plaintiffs then filed a petition against |2Lucky and State Farm Fire and Casualty Company (“State Farm”), which had issued a notary bond for Lucky, alleging that he had facilitated the conversion by notarizing the sale documents without confirming the identity of the person purporting to sign as Winston. The plaintiffs obtained an affidavit from Waller, who stated that he had taken the sale documents for the 2004 Buick to Lucky’s office so that he “would notarize” the documents with his signature. Waller testified that he did not sign Lucky’s name as notary.

In his deposition, Lucky denied signing the documents as notary and asserted that his name was also forged. Lucky testified that after receiving a letter from plaintiffs’ attorney regarding the forged signatures, [588]*588he confronted Waller, who admitted that he had forged Lucky’s name to the title and bill of sale. Lucky stated that he had done prior notary work for Waller and other used car dealers. Lucky acknowledged that he routinely notarized the signature of the dealer, as the vehicle seller, without requiring the seller to appear and sign before him.

State Farm and Lucky filed a motion for summary judgment based on Lucky’s testimony that he had not signed the documents as notary. In opposition, plaintiffs submitted the above affidavit from Waller. Lucky’s attorney then obtained a second affidavit from Waller, in which he contradicts his initial affidavit. In the second affidavit, Waller stated that he had signed the name of Lucky on the bill of sale and title transferring the ownership of Winston’s vehicle. State Farm filed a motion to strike Waller’s initial affidavit and an exception of no cause of action as to Garrison.

After a hearing, without giving reasons, the district court rendered judgment granting the exception of no cause of action and granting summary | ¿judgment in favor of State Farm and Lucky, dismissing plaintiffs claims. The court also denied State Farm’s motion to strike. Plaintiffs appeal the judgment. State Farm answered the appeal alleging that the court erred in denying the motion to strike.

DISCUSSION

The plaintiffs contend the district court erred in granting summary judgment in favor of the defendants. Plaintiffs argue that summary judgment is not appropriate because an issue of material fact exists as to whether Lucky signed the sale documents and was negligent in performing his notary duties.

Appellate courts review summary judgments de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Argonaut Great Central Ins. Co. v. Hammett, 44,308 (La.App. 2 Cir. 6/3/09), 13 So.3d 1209, writ denied, 2009-1491 (La. 10/2/09), 18 So.3d 122; Whitaker v. City of Bossier City, 35,972 (La.App. 2 Cir. 4/5/02), 813 So.2d 1269. Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, show there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. R.S. C.C.P. art. 966(B).

Summary judgment is seldom appropriate for determinations based on subjective facts of motive, intent, good faith, knowledge or malice. Jones v. Estate of Santiago, 2003-1424 (La. 4/14/04), 870 So.2d 1002; Benson v. State, 48,300 (La.App. 2 Cir. 10/9/13), 124 So.3d 544. One reason is that such factual determinations call for credibility evaluations and the weighing of testimony. Benson, supra.

14A seller of a vehicle shall deliver to the purchaser thereof a certificate of title and the assignment of title must be executed by the seller in the presence of a notary or two witnesses. If executed in the presence of two witnesses, the acknowledgment of witness must be signed by one witness in the presence of a notary. La. R.S. 32:705. An authentic act is full proof of the agreement contained therein and the validity of the instrument is presumed in the absence of convincing proof to the contrary. La. C.C. art. 1835. Eymard v. Terrebonne, 560 So.2d 887 (La. App. 1 Cir. 1990). A person denying the authenticity of a signature on a notarized instrument has the burden of proving that the signature is a forgery. Eymard, supra; Thompson v. Woods, 525 So.2d 174 (La. App. 3 Cir. 1988). A notary is liable both for deliberate [589]*589misfeasance and for negligence in performing his official duties. Collins v. Collins, 629 So.2d 1274 (La. App. 5 Cir. 1993).

In the present case, State Farm and Lucky filed a motion for summary judgment alleging there was no evidence that Lucky had signed the vehicle title and bill of sale as notary. In support of the motion, defendants submitted Lucky’s deposition testimony acknowledging that the sale documents contained his name as notary public and his correct notary number, but denying that he had signed the signature appearing above his name on the documents. Lucky stated in his deposition that he had received copies of the sale documents with the letter from the plaintiffs’ attorney. However, Lucky testified that when speaking on the phone, he said he did not know what the attorney was talking about; he did not say that his signature had been forged. Lucky asserted that he did not look at the sale documents until after he had spoken with the attorney and then simply threw the documents in the trash. Lucky testified that when he later asked Waller 1 ¿about the notary signature on the sale documents, Waller then said he had signed Lucky’s name. State Farm also submitted the deposition testimony of Garrison and Winston stating that they did not have personal knowledge that Lucky had signed the sale documents.

The plaintiffs presented the title of the 2004 vehicle and the bill of sale bearing the name of Lucky as notary public, his notary number and his signature.

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Bluebook (online)
217 So. 3d 586, 2017 La. App. LEXIS 548, Counsel Stack Legal Research, https://law.counselstack.com/opinion/garrison-v-state-farm-fire-casualty-co-lactapp-2017.