Gloria Moore v. Donald S. Burns

• Court: Louisiana Court of Appeal
• Decided: March 3, 2004
• Docket: CA-0003-1199
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

03-1199

GLORIA MOORE

VERSUS

DONALD STEVE BURNS AND THE SUCCESSION OF FAYE Z. BURNS

********** APPEAL FROM THE THIRTIETH JUDICIAL DISTRICT COURT PARISH OF VERNON, NO. 69,164 HONORABLE JOHN C. FORD, DISTRICT JUDGE

********** ARTHUR J. PLANCHARD JUDGE PRO TEMPORE

**********

Court composed of Ulysses Gene Thibodeaux, Chief Judge, and John D. Saunders, Judges and Arthur J. Planchard*, Judges.

AFFIRMED.

Elvin Clemence Fontenot Jr. 110 East Texas Street Leesville, LA 71446 Counsel for Defendant-Appellee Succession of Faye Z. Burns

Tony Clell Tillman P. O. Drawer 648 Leesville, LA 71496-0648 Counsel for Defendant-Appellee Donald S. Burns

William Alan Pesnell P. O. Box 330 Alexandria, LA 71309-0330 Counsel for Plaintiff-Appellant Gloria Moore

*Judge Arthur J. Planchard, Retired, participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore. PLANCHARD, Judge1.

The Plaintiff, Gloria Moore, appeals the judgment of the trial court dismissing

her petition to annul a donation of certain property from her mother to her brother,

Donald Burns.

On November 24, 1997, Faye Burns executed a donation giving certain

property located in Vernon Parish to her son, Donald Burns. On July 2, 2002, Gloria

Moore, the daughter of Faye Burns and the sister of Donald Burns filed a “Petition to

Annul Donation and for an Accounting.” Named as Defendants were Donald Burns

and the Succession of Faye Z. Burns. The petition alleges that the notary who signed

the Act of Donation was not present when it was executed by the Donor and signed

by the witnesses, and that, as a result, the donation should be annulled as not

conforming to the requirements of authentic form. The trial of this matter was held

on May 23, 2003.

The testimony at trial centered around the question of who was present at the

execution of the donation. Donald Burns testified that those present at the signing of

the donation were those whose signatures appear on the document: Jeanette LaCour

and Pearlie Lewis, both employees of the home health care provider employed by

Faye Burns; Faye Burns, the donor; himself, the donee; and Suzanne Magee, the

notary. He testified that his daughter Dina Burns was also present. He stated that the

document had been drawn up by a local attorney, Ed Cabra and that he picked it up

at Cabra’s office and brought it to his mother’s house for signing. He stated that he

could not remember the time of day the document was executed but opined that it was

1 Judge Arthur J. Planchard, Retired, participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

2 probably mid-morning. He stated that Suzanne Magee arrived at Faye Burns’ house

after him.

Suzanne Magee, the notary who signed the donation, also testified at trial. She

informed the court that at the time the donation was signed she was employed by the

District Attorney’s office in Leesville. She testified that she had obtained her notary’s

commission before becoming employed by that office. Magee stated that she was

related to Don Burns and his wife, Jeri, by marriage and had met Faye Burns while

Don and Jeri lived with her. She testified that she did not know Jeanette LaCour or

Pearlie Lewis personally but was acquainted with them. Magee stated that Jeri Burns

called her and asked her to go Faye Burns’ house to sign a donation of real estate from

Faye to Don. She could not remember what time of day it was. Magee testified that

she explained the donation to Faye Burns but that she already knew what it was about.

It was Magee’s testimony that she knew the donation had to be signed by all the

parties at the same time and that is why she went to Faye Burns’ house. She stated

that she saw Faye Burns, Donald Burns and each of the witnesses sign the act of

donation. She affirmed that, at the time she left Faye Burns’ house, all four signatures

were on the donation. Magee admitted to no doubt that all the parties whose

signatures appear on the donation were present and that she saw each of them sign.

Dina Burns, Donald Burns’ daughter, also testified. She stated that she too saw the

donation signed by all the people whose signatures appear thereon.

Pearlie Lewis testified that on November 24, 1997, she worked for Thompson

Home Health and that, in that capacity, she took care of Faye Burns twice a day. She

stated that she remembers signing the donation and that she remembers Jeanette

LaCour and Faye Burns being there, but that she did not remember the notary or Dina

3 Burns being there. She stated that Donald Burns was not there at the time the

donation was signed. She did not know who brought the document to Faye Burns

house.

The testimony of Jeanette LaCour was also introduced at trial. She too stated

that on November 24, 1997, she was employed by Thompson Home Health and, in

that capacity, went to the home of Faye Burns twice a day, five days a week. She

stated that she was present when the donation was executed as were Lewis, Donald

Burns, Faye Burns and another woman she could not identify. LaCour admitted to a

change in testimony since signing an affidavit to the effect that not all the persons

whose names appeared on the donation were present at the signing. However, she

explained that she was presented with the affidavit at time of great stress, due to her

husband’s hospitalization and uncertain health. As a result, she indicated that she was

not fully cognizant of what she was signing and was mistaken in what she stated

therein.

Gloria Moore testified that before she died in October 2001, her mother, Faye

Burns, told her that Magee was not present when the donation was signed. She further

testified that her mother had changed her mind about giving the property to Donald.

However, she admitted that she did not know whether her mother signed any

document to that effect.

After hearing the testimony and receiving the documentary evidence, the court

gave oral reasons for judgment and dismissed the Plaintiff’s “Petition to Annul

Donation.” The Plaintiff, Moore, appeals.

INTENT

The Plaintiff first asserts that the trial court erred in considering the intent of the

donor in reaching its decision. However, after reading the trial court’s oral reasons

4 for judgment, it appears that the trial court raised the question of intent only to make

it clear that intent is not an issue in this case. The oral reasons for judgment, taken as

a whole, show that the case was decided on the question of whether the donation was

executed in a manner conforming to the procedural requirements of an authentic act.

Therefore, we find no error in this regard.

CREDIBILITY EVALUATIONS

The remaining assignments of error, although differently characterized by the

Plaintiff, all essentially turn on credibility evaluations made by the trial court. The

appellate court “will not reverse the fact-trier's credibility evaluations or findings of

fact, unless manifestly erroneous. Arceneaux v. Domingue, 365 So.2d 1330

(La.1978); Reeves v. Reeves, 607 So.2d 626 (La.App.2d Cir.1992), writ denied.”

Succession of Caraway, 25,879, p. 4 (La.App. 2 Cir. 6/22/94), 639 So.2d 415, 419.

The Plaintiff essentially argues that the trial court erred in relying on the

testimony of Suzanne Magee and should have instead relied on the testimony of

Pearlie Lewis.

Plaintiffs argue that the testimony of Magee and that of Dina Burns is

unreliable and inconsistent. She first notes that, while the time sheets of the District

Attorney’s office show that Magee was present at the office all day on November 24,

1997, Magee testified that she left work during the day to go to Faye Burns’ house for

the execution of the donation. At trial, the Plaintiff introduced into evidence time

sheets from the District Attorney’s office showing that Magee did not take any time

off on November 24, 1997. However, Magee testified that short absences from the

office were not always noted on the time sheet. The Plaintiff makes similar assertions

about Dina Burns, stating that her work time sheet shows she spent a full day at the

office. However, at trial not only did Dina Burns state that she was not on a time

5 clock and that her employer allowed her to leave if she needed to, Plaintiff’s counsel

agreed that he, too, was aware that Dina Burns’ employer did not have a strict policy

in this regard.

On appeal, the Plaintiff additionally asserts that the trial court erred in taking

improper judicial notice of “how employers and governmental bodies” in Vernon

Parish “handle employee personal time.” The trial court did, in fact, note in its oral

reasons for judgment that:

The Joint Stipulation was for time sheets from different sources where the parties present, or, alleged to be present had signed time sheets showing that they were - - or turned in time sheets their employers had them showing they were working at a time when most of the witnesses felt this occurred during the morning, that’s when the time sheets cover those periods of time. The whole day, but, for sure the time sheets don’t reflect that anybody was off from employment. I don’t know how much weight you can give to that sort of thing based on the testimony and just common knowledge, or the common - - what we know about our ordinary business affairs. Most employers, especially in Vernon Parish are liberal, no question about it, on personal time for personal things. I know that, certainly, is the case around the courthouse and government bodies.

However, we find that we need not reach the question of whether the trial court

took inappropriate judicial notice of local custom in this regard. The evidence

adduced at trial is sufficient to support the trial court’s finding that the time sheets do

not necessarily evidence the presence of Suzanne Magee and Dina Burns at their

places of employment at the time the donation was signed. The witnesses, when

confronted with the time sheets, explained that small absences from work during the

day were not routinely reported on the time sheets. No witness testified to controvert

this version of the time keeping practices of these employers. The trial court chose

to believe the version of events related by Magee and Dina Burns. Finding that the

testimony of record supplies a sufficient basis for this credibility evaluation, and

6 finding no manifest error, we will not overturn the trial court’s determination in this

regard.

The Plaintiff further asserts that Magee’s testimony is inconsistent because

while she asserts that Jeri Burns called her to go Faye Burns’ house, Jeri Burns was

not present when the document was signed. We find no inconsistency here. There

was no testimony by anyone that Jeri Burns was present. Nor need she have been at

Faye Burns house in order to make a telephone call asking Magee to go there. Jeri

Burns does not deny making the call. Rather she states that she is unable to remember

the events of that day, more than five years prior to her court testimony.

Finally, the Plaintiff asserts that the trial court should have believed the

testimony of Pearlie Lewis. However, we find that the record supports the credibility

evaluations made by the trial court. While there were minor inconsistencies between

the various testimonies of the parties, this may be explained by the passage of more

than five years. It was the testimony of all those present, except for Lewis, that the

donation was signed by both donor and donee in the presence of the notary and two

witnesses. The evidence of record, taken as a whole, supports the conclusion that the

trial judge made reasonable credibility evaluations.

We further note that:

An authentic act in Louisiana, as under the French Code, is presumed to be valid, and this presumption is established in the interest of public order, to maintain peace among men and to prevent contestations concerning the proof or evidence of their conventions. Succession of Tete, 7 La.Ann. 95, 96 (La.1852).

Where, as here, the memories of the signatories are blurred by the passage of time, one seeking to invalidate an apparently authentic act must present strong and convincing proof of such magnitude as to overcome the presumption of verity of notarial acts. DiVincenti v. McIntyre, 611 So.2d 140, 142 (La.App. 1st Cir.1992), writ denied 614 So.2d 1264 (La.1993).

7 Meltzer v. Meltzer, 95-551 (La.App. 4 Cir. 9/28/95), 662 So.2d 58, 62, writ denied 95-

2616 (La 1/5/96), 666 So.2d 293.

We cannot say that the Plaintiff herein has carried the heavy burden of proof

necessary to invalidate an authentic act. Accordingly, we will not overturn the trial

court’s opinion herein.

CONCLUSION

For these reasons, the judgment of the trial court is affirmed. Costs of this

appeal are assessed to the Plaintiff/Appellant, Gloria Moore.