GREGORY JACKSON NO. 23-CA-329
VERSUS FIFTH CIRCUIT
DARRYL A. SUMLIN COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-NINTH JUDICIAL DISTRICT COURT PARISH OF ST. CHARLES, STATE OF LOUISIANA NO. 68,421, DIVISION "D" HONORABLE M. LAUREN LEMMON, JUDGE PRESIDING
April 10, 2024
STEPHEN J. WINDHORST JUDGE
Panel composed of Judges Fredericka Homberg Wicker, Marc E. Johnson, and Stephen J. Windhorst
AFFIRMED SJW FHW MEJ COUNSEL FOR DEFENDANT/APPELLANT, DARRYL A. SUMLIN Ralphael Bickham
COUNSEL FOR PLAINTIFF/APPELLEE, GREGORY JACKSON George R. Ketry, Jr. WINDHORST, J.
Appellant/defendant, Darryl Sumlin, seeks review of (1) the trial court’s
November 9, 2015 partial judgment in favor of appellee/plaintiff, Gregory Jackson,
annulling and setting aside an Act of Donation of Property from Mr. Jackson to Mr.
Sumlin, dated April 5, 2004; (2) the trial court’s November 9, 2015 partial judgment
dismissing as moot Mr. Sumlin’s exception of prescription; and (3) the trial court’s
March 3, 2023 judgment denying Mr. Sumlin’s reconventional demand, finding the
value of the improvements to be zero.1 For the reasons stated herein, we affirm.
PROCEDURAL HISTORY
On October 27, 2008, Mr. Jackson filed suit seeking to annul and set aside an
Act of Donation of Property (“the donation”) from Mr. Jackson to Mr. Sumlin,
executed before Victor E. Bradley, Jr. on April 5, 2004, and recorded at COB 634,
folio 404 of the records of the Clerk of Court of Parish of St. Charles, Louisiana,
affecting immovable property described therein as Lots 51, 52, 53, and 54 of Square
2, St. Charles Terrace Annex Subdivision.2 Included within the donation as
“improvements” were: (a) a 1971 Coventry 12’ x 52’ mobile home; (b) a 10’ x 50’
mobile home; (c) a 12’ x 16’ storage shed; and (d) all furniture, air conditioners and
contents in the mobile homes. Mr. Jackson alleged two theories for annulling,
rescinding and setting aside the April 5, 2004 donation, specifically: (1) the donation
should be annulled due to the ingratitude of Mr. Sumlin (i.e., eviction of Mr. Jackson
in April of 2007); and/or (2) the donation is null and void and in violation of La.
C.C. art. 1498 because the donation divested Mr. Jackson of his entire patrimony
without reserving to himself enough for his subsistence.3
1 Pursuant to this court’s order, the trial court submitted an amended judgment, signed February 29, 2024, containing the appropriate decretal language. 2 Mr. Sumlin subsequently re-subdivided the property by combining the four lots. 3 Mr. Jackson filed an amended petition on July 22, 2010, which did not change the substance of his allegations.
23-CA-329 1 In response, Mr. Sumlin filed an answer and reconventional demand against
Mr. Jackson seeking to recover the value of improvements on the property, allegedly
in excess of $200,000.00, in the event the donation is annulled.
Mr. Sumlin also filed an exception of prescription alleging Mr. Jackson’s
claim of ingratitude under La. C.C. art. 1557 was prescribed because Mr. Jackson’s
lawsuit was filed more than a year after the alleged act of ingratitude (i.e., Jackson’s
eviction in April 2007). Mr. Jackson filed an opposition arguing the claim of
ingratitude was an alternative theory of the case in the event the donation was not an
absolute nullity under La. C.C. art. 1498.
On September 15, 2015, a bench trial was held on Mr. Jackson’s main demand
and Mr. Sumlin’s reconventional demand. On November 9, 2015, the trial court:
(1) rendered judgment in favor of Mr. Jackson, annulling and setting aside the
donation as a violation of La. C.C. art. 1498; (2) dismissed as moot Mr. Sumlin’s
exception of prescription; (3) severed Mr. Sumlin’s reconventional demand;
(4) ordered Mr. Jackson to file post-annulment claims, if he had any, and ordered
Mr. Sumlin to amend his reconventional demand, as may be appropriate; and (5) set
a status conference to determine a date for trial on the “parties’ respective claims
post-annulment.”
Mr. Sumlin suspensively appealed the November 9, 2015 judgment and this
court dismissed the appeal without prejudice. This court found the judgment was
not a final judgment because it did not dispose of Mr. Sumlin’s reconventional
demand nor was the partial judgment designated as a final and appealable judgment
under La. C.C.P. art. 1915 B by the trial court.
Mr. Sumlin subsequently amended his reconventional demand, alleging he
was in good faith possession of the property, and that he used his own funds totaling
23-CA-329 2 $28,777.384 to make improvements to the property prior to Mr. Jackson’s eviction
in April of 2007, and for the cleanup costs after the August 20, 2017 fire that
destroyed the property. He reiterated his prayer in the original reconventional
demand, and alternatively, he asserted that he is entitled to judgment in the amount
of $50,000 for the value of the improvements and his “sweat” equity. In response,
Mr. Jackson maintained that Mr. Sumlin was in bad faith possession of the property
and Mr. Sumlin had remained in possession of the property from 2015 to the fire in
2017, despite the trial court’s November 9, 2015 judgment annulling the donation.
After several continuances, Mr. Sumlin’s reconventional demand was reset
for a bench trial on September 13, 2022. On the day of the trial, the trial court heard
Mr. Jackson’s motion in limine to exclude Mr. Sumlin’s expert’s reports regarding
valuation of the property. Mr. Jackson’s counsel argued the reports were only
generic estimates of what it would cost to build a house at the time the reports were
generated; they were not specific to the alleged improvements made by Mr. Sumlin
on the property. Mr. Jackson’s counsel asserted that Mr. Sumlin’s expert was not
an appraiser, he did not inspect the property, and he did not indicate what materials
Mr. Sumlin actually used for the improvements. Mr. Jackson’s counsel stated the
expert did not perform any of the work on the property and could not testify as to
what work was performed. Therefore, counsel for Mr. Jackson argued the expert’s
reports should not be admitted into evidence. Mr. Sumlin’s counsel argued his
expert was an expert in construction and would testify as to the value of the
improvements prior to and after Mr. Jackson’s eviction. The trial court granted the
motion and excluded Mr. Sumlin’s expert’s reports.
Thereafter, trial commenced on Mr. Sumlin’s reconventional demand. After
testifying about Mr. Jackson’s 2004 donation of the property to him, Mr. Sumlin
4 The amended petition referred to “Exhibit A,” which referenced exhibits identified in the 2015 trial and the corresponding amounts allegedly owed to Mr. Sumlin from Mr. Jackson for improvements on the property.
23-CA-329 3 began to testify as to the improvements he had made to the property. Mr. Sumlin’s
counsel showed Mr. Sumlin a “package of materials” and asked him to verify if the
entire package represented Mr. Sumlin’s out-of-pocket expenses for improvements
made to the property. Mr. Jackson’s counsel objected. The trial court instructed Mr.
Sumlin’s counsel to separate the pre-eviction receipts from the post-eviction
receipts. As a result, the trial court briefly recessed the trial for the parties to confer
and to comply with its instructions.
After conferring, the parties jointly informed the trial court that additional
time was needed and a continuance of the trial was necessary. On the record, the
parties agreed (1) to reset the trial to another date to allow Mr. Sumlin’s counsel time
to gather his pre-eviction expenditure evidence; and (2) Mr. Sumlin’s counsel could
proffer his expert’s reports “at the next hearing date.” The trial court thereafter
continued the trial, resetting it for November 16, 2022. The trial court also ordered
the parties to provide an itemized list of all documents they intended to introduce ten
days in advance of trial. Mr. Sumlin’s counsel also informed the trial court that Mr.
Sumlin would testify and produce all relevant receipts at the next trial date.
On November 16, 2022, a bench conference was held prior to the start of the
trial, after which Mr. Sumlin’s counsel sated on the record the parties’ “agreement.”
Mr. Sumlin’s counsel stated the parties agreed to brief “the issues” as to La. C.C.
art. 496 “possessor in good faith,” the values of the property improvements, and the
dates that apply to those values because the “structures” built by Mr. Sumlin were
destroyed in a 2017 fire, and thus, no longer existed. As to the value of the
improvements on the property, Mr. Sumlin’s counsel asserted that the “question is
whether or not Mr. Sumlin is entitled to the value as of the time of the judgment or
. . . whether he can only get current value.” The trial court responded, “[i]f it’s
current value, it’s zero,” to which neither counsel objected. No further testimony or
evidence was provided and/or admitted and Mr. Sumlin’s counsel did not proffer his
23-CA-329 4 expert’s reports on this or any other date in this proceeding. The trial was again
continued and reset for March 3, 2023.5
At the March 3, 2023 bench trial, again, no witnesses testified and no exhibits
were admitted into evidence. The trial court heard only arguments of counsel
addressing the various issues previously raised relative to the reconventional
demand.
Mr. Jackson’s counsel argued that under La. C.C. art. 496, Mr. Jackson as the
owner of the property, at his option, is entitled to select which valuation to use to
compensate Mr. Sumlin, should the trial court find Mr. Sumlin was in good faith at
any time, which Mr. Jackson denied. Mr. Jackson’s counsel asserted that under any
of the alternative La. C.C. art. 496 valuations (i.e., costs and materials; current value;
or enhanced value), the value is zero because the property was destroyed by fire
while in Mr. Sumlin’s possession. He argued that La. C.C. art. 496 applies to a good
faith “possessor,” not ownership, and Mr. Sumlin was not in good faith after the
November 2015 judgment, and was in bad faith at earliest in 2007, when he evicted
Mr. Jackson. Mr. Jackson’s counsel contended that the purpose of La. C.C. art. 496
was “to prevent someone from getting a windfall . . . ,” and Mr. Jackson did not
receive a windfall because the property was destroyed by a fire while still in Mr.
Sumlin’s possession. Mr. Jackson’s counsel further asserted that at the time of the
2017 fire, which was 10 years after Mr. Jackson’s eviction in 2007, the alleged
improvements were not fully constructed and/or completed.
Thus, Mr. Jackson’s counsel argued Mr. Sumlin’s possession of the property
terminated, at the earliest, on the date of the fire, because Mr. Sumlin was still in
possession of the property at the time of the fire in 2017, despite the trial court’s
November 9, 2015 judgment annulling the donation. Assuming good faith
5 Prior to the March 3, 2023 bench trial, the parties filed briefs pursuant to the agreement set forth on November 16, 2022.
23-CA-329 5 possession, Mr. Jackson’s counsel argued the valuation date for the value of the
improvements on the property should be the date of the trial (i.e., 2023) or the date
of the fire in 2017, when Mr. Sumlin’s possession terminated. Mr. Jackson’s counsel
further averred that Mr. Sumlin was not in good faith in 2015, and was in bad faith
at least in 2007 when he evicted Mr. Jackson, arguing Mr. Sumlin could only be in
good faith prior to Mr. Jackson’s eviction. Mr. Jackson’s counsel argued that after
the fire, “there was zero value, zero enhanced value, and just no current value.”
Counsel for Mr. Jackson “submit[ted] . . .on the briefs as to the value.”
Mr. Sumlin’s counsel conceded that Mr. Sumlin had control of the property
at the time of the fire, but argued that Mr. Sumlin did not own the property or have
an insurable interest at the time of the fire because of the trial court’s prior judgment
annulling the donation. Mr. Sumlin’s counsel argued that Mr. Jackson could have
and should have started eviction proceedings against Mr. Sumlin, and Mr. Jackson
should have insured the property, but he chose not to do so. Mr. Sumlin’s counsel
agreed the determination of the value of the improvements on the property should
be at the time of trial, but argued that the parties already had the trial in 2015, when
the donation was annulled. Therefore, he asserted that the value of the improvements
should be determined as of 2015, when title to the property was transferred back to
Mr. Jackson. Mr. Sumlin’s counsel argued that under La. C.C. art. 496, which the
trial court had previously ruled applied because Mr. Sumlin was a good faith
possessor, Mr. Jackson as the owner was bound to pay him either the cost of the
materials and of the workmanship, the current value, or the enhanced value. Mr.
Sumlin’s counsel asserted that it was “manifestly unfair to put a 2023 value on
property that was taken from Mr. Sumlin, . . . who was in good faith in 2015[.]”
Thereafter, at the conclusion of counsels’ arguments, the trial court denied
Mr. Sumlin’s reconventional demand, finding that “pursuant to the clear language
of Article 496, . . . whether the value was in 2017 or today, the value was zero[.]”
23-CA-329 6 FACTS and EVIDENCE
Mr. Jackson testified he bought the property located at 181 Clement Street, in
New Sarpy, in 1989 and from 1989-2004, he owned and lived on the property
continuously. During that period, his residence had utilities (i.e., electricity, water,
and gas). Mr. Jackson testified he had “two trailers and a house in the middle” 6 on
the property. He acknowledged that at one point during his ownership of the
property, he “had an old car” and “some wood” in his yard, the parish gave him a
notice, and the parish ultimately “cleaned the property” because “time ran out.”
Mr. Jackson testified his brother, Walter,7 informed him that his son, Mr.
Sumlin, needed a place to stay. At that time, Mr. Sumlin was in his 20s and was
recently released from jail. Mr. Jackson stated it was not uncommon for him to
allow people to live in his trailers at no charge. Mr. Jackson asserted Mr. Sumlin
was trying to get back on his feet, and he gave Mr. Sumlin “a helping hand” by
allowing him to stay in one of his trailers on the property. Mr. Jackson avers his
relationship with Mr. Sumlin was as “nephew and uncle,” and Mr. Sumlin agreed to
“work around the place,” and fix his trailer (i.e., install a new roof and add a room
to his trailer) in exchange for staying on his property.
Mr. Jackson testified the trailer Mr. Sumlin moved into did not have
electricity, but it had water and gas because the water and gas were on a “combined
line” that also went to his trailer. Mr. Jackson testified his trailer had utilities at the
time Mr. Sumlin moved into the other trailer. Mr. Jackson testified he was able to
pay his utilities by “working on cars.” He testified he paid his bills from money
received “working on cars,” which was his only occupation, and he worked on the
cars in the front of the property.
6 Based on evidence, the “house in the middle” appears to refer to the “shed” included in the donation to Mr. Sumlin. 7 Mr. Jackson testified that his brother is deceased.
23-CA-329 7 Mr. Jackson acknowledged he signed the donation in 2004, donating all of his
property to Mr. Sumlin. Mr. Jackson stated he remembered going to a lawyer’s
office, but did not know which lawyer’s office. Mr. Jackson claimed that the day of
trial was the first-time he ever saw Victor Bradley,8 the attorney who notarized the
donation. He stated Mr. Sumlin took him to the lawyer’s office. When he walked
in, the secretary placed a piece of paper in front of him, and he “just . . . signed it.”
Mr. Jackson asserted Mr. Sumlin told him that “the papers” were for Mr. Sumlin to
have power of attorney over him. Mr. Jackson testified he was getting money from
“the community” (i.e., the Valero funds), but he was on “drugs and intoxicated,
that’s why I gave [Mr. Sumlin] power of attorney to use money to remodel my
trailer.” Mr. Jackson also testified he did not have an agreement with Mr. Sumlin
that would allow him to live on the property until his death after the donation.
Mr. Jackson testified after the donation, he opened a joint account, containing
$13,503.93, at Hibernia National Bank with Mr. Sumlin on October 17, 2005. Mr.
Jackson stated he deposited all of the checks he received from FEMA for damage to
his trailer from Hurricane Katrina into the joint account.9 Mr. Jackson admitted he
also received $1,500, every six months, from Valero Refinery to rehabilitate his
property. Mr. Jackson testified he did not know when he initially started receiving
those funds nor when he received the last payment, but he stated he received the
funds for five years. He asserted the Valero funds were deposited in the joint
checking account with Mr. Sumlin. Mr. Jackson testified he did not have any other
bank accounts besides the joint account with Mr. Sumlin at Hibernia. He stated Mr.
8 Victor Bradley testified Mr. Jackson and Mr. Sumlin appeared before him on April 5, 2004, and executed the donation. Mr. Jackson said he wanted to donate his property to Mr. Sumlin. Mr. Bradley asserted he explained to Mr. Jackson that by executing the donation, he would no longer own the property and Mr. Jackson agreed. Mr. Bradley asserted that Mr. Jackson did not ask any further questions and did not state why he was donating the property. Mr. Bradley testified there was no mention of Mr. Jackson being able to stay on the property. 9 The FEMA checks he received were in the amounts of $2,000 (dated September 17, 2005), $13,003.93 (dated October 9, 2005), and $8,692.11 (dated February 1, 2006). Mr. Jackson verified the check for $13,003.93 was for personal property, rental assistance, and replacement housing, but admitted he did not use the money to buy another trailer. Mr. Jackson testified he made a claim with FEMA because he believed he owned the trailer.
23-CA-329 8 Sumlin had unrestricted access to all of his money (i.e., FEMA and Valero funds) in
the joint account. Mr. Jackson maintained that he only deposited money into the
joint account, and that when he wanted to withdrawal money, it was gone.
Mr. Jackson testified he did not realize he had given ownership of his property
to Mr. Sumlin until he was forcibly evicted by Mr. Sumlin from the property in April
of 2007.10 Mr. Jackson stated he called the police to prevent his eviction. The police
informed him there was nothing they could do to stop the eviction after Mr. Sumlin
showed them the donation. Mr. Jackson testified he gathered his belongings, went
down the road, and stayed in an abandoned house that did not have any utilities.
Shortly thereafter, his niece Felechi Jackson,11 picked him up and brought him to
live with her and her four children in a two-bedroom trailer.
Mr. Jackson testified he struggled with a substance abuse problem for 20 years
but was currently sober at that time. He stated his niece assisted him with his
substance abuse issues. Mr. Jackson testified his niece had power of attorney over
him, and she helped him obtain the government assistance he was currently
receiving, and she provided everything for him, including shelter, food and clothing.
Mr. Jackson testified Mr. Sumlin did not make any improvements on the
property prior to 2007. He stated Mr. Sumlin ultimately tore down both trailers and
built a two-story building on the property. Mr. Jackson asserted that “[t]he thing he
did built [sic] for me to live on the property, I already left. He already kicked me
off.” He stated Mr. Sumlin did not do any work on the property that benefitted him.
10 Mr. Jackson testified he was intoxicated and laying in his driveway. Mr. Sumlin kicked him, told him to get up, and that he had to leave the property. Mr. Jackson testified Mr. Sumlin shoved him when he got up to leave. Mr. Jackson asserted Mr. Sumlin ran behind him, hit him in the back, and punched him when he was walking/staggering away. 11 Ms. Jackson testified that Mr. Jackson is her uncle. When she learned of his eviction, she picked him up at an abandoned house in April of 2007, and brought him to live with her and her four children. She testified that it was her intention was to get her uncle some help and she provided him with whatever he needs. Mr. Jackson has lived with her continuously since 2007. She testified she has not had any interactions with Mr. Sumlin.
23-CA-329 9 Mr. Sumlin testified he moved onto Mr. Jackson’s property in 2002. 12 He
stated he had just been released from jail and was “going through some things,” and
Mr. Jackson, his uncle, had a “situation” involving his property and the parish when
he moved onto the property. Mr. Sumlin testified that he is not related to Mr. Jackson
“by blood,” and Mr. Jackson’s brother, “Clarence,”13 was his stepdad, not his
biological father. Mr. Sumlin said his stepdad told him that his brother needed help
and he could help Mr. Jackson because of “his skills.” Mr. Sumlin testified he told
Mr. Jackson, “In order for me to make a change with, with this property, you have
to change yourself, and I [have] to change my environment.” Mr. Sumlin also
asserted that Mr. Jackson was getting harassed by drug dealers, and he was tired of
them beating up his uncle and “leaving him on the tracks for dead.” Mr. Sumlin
stated he did not want others to take advantage of Mr. Jackson.
Mr. Sumlin testified that Mr. Jackson allowed him to live in one of his trailers
(i.e., the brown and white trailer) and he did not have to pay rent. Mr. Sumlin stated
he occupied and owned the brown and white trailer prior to the donation, even
though it was still in Mr. Jackson’s name. He “owned the trailer because [he] had
lights and gas and water on it.” He asserted Mr. Jackson did not have utilities on the
property in 2002; he had to “reroute all” the lines.
Mr. Sumlin testified that Mr. Jackson would be on the property begging for a
job. He stated that Mr. Jackson would stop people or flag them down so he could
perform work on their cars. He acknowledged that Mr. Jackson worked on cars on
the property. He testified Mr. Jackson received money from those jobs, although he
“wouldn’t call it income.” Mr. Sumlin averred that all he wanted to do with the
money was “get drugs or beer with it.” When asked how much money Mr. Jackson
received for working on cars, Mr. Sumlin replied, “$10, $20.” Additionally, when
12 Mr. Sumlin also testified at different times, he moved onto the property in 2003. 13 Mr. Jackson testified that his brother’s name was Walter, not Clarence. Mr. Sumlin testified his mother had a “relationship” with Mr. Jackson’s brother.
23-CA-329 10 asked if Mr. Jackson did get any jobs, Mr. Sumlin stated, “If that’s what you want
to call it, sir.” Mr. Sumlin asserted that Mr. Jackson did not do anything “but sit
down all day long and stop people in front of my driveway and beg for money and
beg for jobs,” while he worked. Mr. Sumlin further testified he had a job and paid
for everything.
Mr. Sumlin testified that in 2004, he went to Mr. Bradley’s office with Mr.
Jackson and a description of the property to prepare and execute the donation. Mr.
Sumlin said that the donation was signed the same day and he immediately started
to rehabilitate the property. However, at other times in his testimony, Mr. Sumlin
testified inconsistently that he started making improvements on the property prior to
the donation.
Mr. Sumlin admitted he shared a joint account with Mr. Jackson but asserted
he did not use any of Mr. Jackson’s money to make the improvements. Mr. Sumlin
testified that 100% of the FEMA money deposited in the joint account by Mr.
Jackson was spent on items for Mr. Jackson, despite the fact that Mr. Jackson had
received FEMA money for a trailer he no longer owned. Mr. Sumlin testified he
used the money to purchase “Wood. Toilets. Vanities. Clothes. Food. Paying [sic]
insurance”14 for Mr. Jackson. Mr. Sumlin stated he also received FEMA money and
placed it in the joint account with Mr. Jackson, which Mr. Jackson had access. Mr.
Sumlin then reiterated he spent the money in the joint account solely for items for
Mr. Jackson.
Mr. Sumlin also admitted that Mr. Jackson started giving him “some” of the
Valero funds he received, once he realized what Mr. Jackson “was doing with his
share of the money.” Mr. Sumlin averred he took “whatever” money Mr. Jackson
gave him. Mr. Sumlin asserted he was paying the bills, the utilities were in his name,
14 Mr. Sumlin testified that he bought Mr. Jackson a life insurance policy because he needed one and he “was afraid that someone would hurt [Mr. Jackson]” due to his “drug habit.”
23-CA-329 11 and the Valero “money was supposed to come to [him]” because it was his trailer at
the time Mr. Jackson received the Valero funds. Mr. Sumlin testified that Mr.
Jackson did not have utilities moved onto the property and he was not entitled to the
funds from Valero. Mr. Sumlin then testified that he used the Valero money he
received from Mr. Jackson only to purchase items for Mr. Jackson because he used
his own money and a $25,000 credit from Home Depot for the improvements.
Mr. Sumlin stated that the “real reason [Mr. Jackson] was evicted is because
he was getting his money from Valero, cash money, and he got a sexual predator in
my home.” Mr. Sumlin asserted that Mr. Jackson and the sexual predator were both
naked in the home, they had drugs and money, and he could not take it anymore.
Mr. Sumlin stated he covered his daughter’s eyes and told Mr. Jackson to leave.
Mr. Sumlin later contended “[a]s far as the eviction, all [Mr. Jackson] had to
do was come back the next week and say he’s sorry and stop doing what he was
doing. Why he want [sic] to take counseling and all of that that [sic] he say after I
evict him, when he could of just did [sic] it during the time that he was staying with
me. I don’t understand all of that.”
Mr. Sumlin testified he made improvements to the property from 2002 to
2015, prior to and after the donation in 2004 and after Mr. Jackson’s eviction in
2007. Mr. Sumlin admitted he did not have any evidence to show the condition of
the property prior to the donation, after the donation, or after Mr. Jackson’s eviction.
He acknowledged he only had photographs of the property taken a year before the
trial in 2015. Mr. Sumlin testified he attempted to fix his trailer and started to build
“around it,” but ultimately had to tear it down, and he built a two-story home and
shed on the property.
Mr. Sumlin asserted he spent $10,300.97 for the repair of the home and he
spent additional amounts of $4,383.26, $4,145.58, and $10,060 for construction
materials. He also testified that he spent money on obtaining permits from St.
23-CA-329 12 Charles Parish for (1) construction on the trailer; (2) construction on the two-story
house; and (3) construction on the shed. Mr. Sumlin admitted he salvaged some
material from his trailer for the improvements on the property. Mr. Sumlin stated
that as of the date of the 2015 trial, the trailers were torn down, but conceded the
two-story house and shed were still not finished. Mr. Sumlin asserted he was still
improving the property on the date of the 2015 trial and blamed this case for the
delayed progress.
Mr. Sumlin’s testimony was confusing, inconsistent and contradictory as to
what improvements were made, when the improvements were made, and the value
of the improvements.15 Mr. Sumlin identified and referred to numerous exhibits to
support his improvements, including receipts; however, the exhibits were ultimately
not offered and admitted into evidence.
LAW and ANALYSIS
On appeal, Mr. Sumlin asserts the trial court erred (1) in determining that the
donor, Mr. Jackson, was destitute at the time of the donation; (2) in failing to rule
that the allegations of ingratitude were insufficient and that the action was
prescribed; and (3) denying his reconventional demand and determining that the
value of the improvements now owned by Mr. Jackson is zero, instead of
determining the value of the improvements as of the trial court’s ruling on November
9, 2015.
A trial court’s reasonable evaluations of credibility and reasonable inferences
of fact should not be disturbed on review unless they are manifestly erroneous or
clearly wrong. Wooley v. Lucksinger, 09-571 (La. 04/01/11), 61 So.3d 507; Rosell
v. ESCO, 549 So.2d 840 (La. 1989). When findings are based on determinations
regarding the credibility of witnesses, the manifest error standard demands great
15 Numerous times throughout his testimony, the trial court interrupted Mr. Sumlin’s testimony to ask him questions about his inconsistent, contradictory, and confusing statements in an attempt to clarify or understand Mr. Sumlin’s testimony.
23-CA-329 13 deference to the trial court's findings; for only the fact finder 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. Robinson v. Board of Supervisors for
University of Louisiana System, 16-2145 (La. 06/29/17), 225 So.3d 424, 430, citing
Rosell, 549 So.2d at 844-845.
The trial court's factual findings under the manifest error standard can only be
reversed if the appellate court finds, based on the entire record, no reasonable factual
basis for the factual finding and the fact finder is clearly wrong. Baker v. PHC-
Minden, L.P., 14-2243 (La. 05/05/15), 167 So.3d 528, 538. 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 trier of fact would not credit
the witness's story, then the appellate court may find the trier of fact was manifestly
erroneous even when a finding of fact is purportedly based on a credibility
determination. Robinson, 225 So.3d at 430. But where no such factors are present,
and the fact finder'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.; Bellard v. American Central Insurance Co., 07-1335 (La.
04/18/08), 980 So.2d 654, 672.
Donation Inter Vivos of Entire Patrimony and Prescription
In his first and second assignments of error, Mr. Sumlin contends the trial
court was manifestly erroneous in finding Mr. Jackson proved he was destitute at the
time of the donation, and the trial court erred in finding Mr. Jackson’s claim of
ingratitude was timely.
Specifically, Mr. Sumlin’s counsel argues there was no testimony about Mr.
Jackson’s financial condition as of the date of the donation. Instead, the testimony
focused on Mr. Jackson’s financial condition after he was evicted from the property.
23-CA-329 14 Mr. Sumlin’s counsel also argues the trial court erred in finding Mr. Jackson’s
claim of ingratitude was timely. He contends the trial court incorrectly found the
claim was timely because the alleged act of ingratitude (i.e., the 2007 eviction)
continued beyond the eviction date.
A donation inter vivos shall in no case divest the donor of all his property; he
must reserve to himself enough for subsistence.16 La. C.C. art. 1498. A
determination as to whether the donor reserved enough property for his subsistence
must be made from the circumstances existing at the time the donation was made.
Madden v. Crawford, 52,466 (La. App. 2 Cir. 02/27/19), 265 So.3d 1170, 1175;
Manicha v. Mahoney, 10-87 (La. App. 4 Cir. 08/04/10), 45 So.3d 618, 622, writ
denied, 10-2259 (La. 11/24/10), 50 So.3d 829; LeBourgeois v. Yeutter, 88-661 (La.
App. 3 Cir. 10/04/89), 550 So.2d 314, 315-316, citing Succession of Quaglino, 95
So.2d 481, 487 (La. 1957). In order to successfully challenge such a donation,
generally the plaintiff must prove conclusively that the donation divested the donor
of all of his property. Manichia, 45 So.3d at 622; Owen v. Owen, 336 So.2d 782,
786 (La. 1976). The current or future financial and property status of a donor is not
at issue when determining whether a donor reserved enough property for his own
subsistence. Madden, 265 So.3d at 1175; Manichia, 45 So.3d at 622.
The party seeking to nullify a donation pursuant to La. C.C. art. 1498 has the
burden of proving that the donation divested the donor of all of his property and the
donor did not reserve enough for his subsistence. Madden, 265 So.3d at 1175; Tatum
v. Riley, 49,670 (La. App. 2 Cir. 05/06/15), 166 So.3d 380, 385.
In this case, Mr. Jackson testified he did not own any other property at the
time of the donation to Mr. Sumlin. This fact was not disputed by Mr. Sumlin. Mr.
Jackson’s “occupation” or “job” was “working on cars” at the time of the donation.
16 This is also referred to as a donation omnium bonorum (“of all goods”).
23-CA-329 15 Mr. Jackson testified that while he owned the property from 1989 to 2004, he worked
on cars in the front yard of his property, that “working on cars” was his only
occupation, and that he paid his bills with the money he received from working on
cars. Mr. Jackson further testified the only bank account he had was the joint account
he opened with Mr. Sumlin in October of 2005. Mr. Sumlin acknowledged that Mr.
Jackson worked on cars on the property and remarked that “working on cars” was
not a “job” and he “wouldn’t call it income.” Mr. Sumlin testified that Mr. Jackson
only received “$10, $20” for those “jobs,” and that he, Mr. Sumlin, was the only one
that had a job and paid for everything.
Considering the evidence, the trial court made reasonable credibility
determinations and reasonable inferences of fact that Mr. Jackson donated all of
property to Mr. Sumlin without reserving enough for his own subsistence. We
conclude the trial court was neither manifestly erroneous nor clearly wrong in
finding the donation to be in violation of La. C.C. art. 1498, and thus, an absolute
nullity. Therefore, the trial court properly annulled and set aside the donation. We
find this assignment of error to be without merit.
An inter vivos donation that divests the donor of all his property without
reserving to himself enough for subsistence is an absolute nullity, and therefore, is
imprescriptible. Trahan v. Bertrand, 06-1271 (La. App. 3 Cir. 02/21/07), 952 So.2d
809, 812, writ denied, 07-631 (La. 05/04/07), 956 So.2d 612; Givens v. Givens, 273
So.2d 862, 865 (La. App. 2 Cir. 1973), writ refused, 275 So.2d 868 (1973); See also
La. C.C. art. 7.17 The public policy behind this statute is to prevent a donor from
divesting himself of all of his property such that he becomes a ward of the state.
Trahan, 952 So.2d at 812.
17 La. C.C. art. 7 states:
Persons may not by their juridical acts derogate from laws enacted for the protection of the public interest. Any act in derogation of such laws is an absolute nullity.
23-CA-329 16 In his petition, Mr. Jackson alleged two theories for annulling, rescinding and
setting aside the April 5, 2004 donation: (1) ingratitude; or (2) donation of his entire
patrimony without reserving enough for his subsistence in violation of La. C.C. art.
1498. Mr. Sumlin’s exception of prescription only addressed Mr. Jackson’s claim
of ingratitude, alleging it was prescribed because the suit was filed more than one
year (October 2008) after the alleged act of ingratitude (i.e., the eviction in April of
2007).
In its November 9, 2015 judgment, the trial court dismissed Mr. Sumlin’s
exception of prescription as moot. The trial court found there was “no need” to rule
on Mr. Sumlin’s exception of prescription as to Mr. Jackson’s claim of ingratitude
because the donation was annulled under the provisions of La. C.C. art. 1498.18 We
agree. As an absolute nullity, the donation was imprescriptible.
Accordingly, we find the trial court did not err in dismissing as moot Mr.
Sumlin’s exception of prescription as to Mr. Jackson’s alternative claim of
ingratitude. This argument is without merit.
Good Faith / Bad Faith Possessor and Value of Improvements
In his third assignment of error, Mr. Sumlin asserts the trial court erred in
denying his reconventional demand and determining the value of the improvements
to be zero. Mr. Sumlin contends that the value of the improvements should have
been determined as of the date of the 2015 trial. Mr. Sumlin avers Mr. Jackson
donated the property to him and it is undisputed that the property was not in great
condition or that he spent “thousands of dollars in improvements and expenses.”
Mr. Sumlin contends that the property should also have been valued as of the
time of the trial on the merits for annulling the donation in 2015. He claims the
March 3, 2023 hearing was not a trial because no witnesses were called and no new
18 We find the trial court’s stated reason why the claim of ingratitude was not prescribed is dicta.
23-CA-329 17 exhibits were introduced into the record. Mr. Sumlin asserts that at the March 3,
2023 hearing, arguments were presented to the trial court based on the submitted
briefs regarding evidence from the 2015 trial.
In the November 9, 2015 judgment, the trial court found: Any improvements which Sumlin made to the property prior to Jackson’s eviction obviously were made with Jackson’s consent, triggering the operation of the second paragraph of Art. 493. However, any constructions made by Sumlin after Jackson’s eviction from the property were made without Jackson’s consent, triggering the operation of Arts. 495, as may be applicable, and 497.
In reference to La. C.C. art. 497 and any improvements made after the
eviction, the trial court determined that Mr. Sumlin was in bad faith.
The provisions concerning constructions on immovables and whether a
possessor is in good or bad faith are governed by the following. La. C.C. art. 493,
in pertinent part, provides:
Buildings, other constructions permanently attached to the ground, and plantings made on the land of another with his consent belong to him who made them. They belong to the owner of the ground when they are made without his consent. When the owner of buildings, other constructions permanently attached to the ground, or plantings no longer has the right to keep them on the land of another, he may remove them subject to his obligation to restore the property to its former condition. If he does not remove them within ninety days after written demand, the owner of the land may, after the ninetieth day from the date of mailing the written demand, appropriate ownership of the improvements by providing an additional written notice by certified mail, and upon receipt of the certified mail by the owner of the improvements, the owner of the land obtains ownership of the improvements and owes nothing to the owner of the improvements. Until such time as the owner of the land appropriates the improvements, the improvements shall remain the property of he who made them and he shall be solely responsible for any harm caused by the improvements.
La. C.C. art. 496 governs constructions by good faith possessors and provides:
When constructions, plantings, or works are made by a possessor in good faith, the owner of the immovable may not demand their demolition and removal. He is bound to keep them and at his option to pay to the possessor either the cost of the materials and of the workmanship, or their current value, or the enhanced value of the immovable. [Emphasis added.]
23-CA-329 18 La. C.C. art. 497, governs constructions by bad faith possessors, provides:
When constructions, plantings, or works are made by a bad faith possessor, the owner of the immovable may keep them or he may demand their demolition and removal at the expense of the possessor, and, in addition, damages for the injury that he may have sustained. If he does not demand demolition and removal, he is bound to pay at his option either the current value of the materials and of the workmanship of the separable improvements that he has kept or the enhanced value of the immovable. [Emphasis added.]
As to good faith possessors, La. C.C. art. 487 provides:
For purposes of accession, a possessor is in good faith when he possesses by virtue of an act translative of ownership and does not know of any defects in his ownership. He ceases to be in good faith when these defects are made known to him or an action is instituted against him by the owner for the recovery of the thing.
To be a good faith possessor under La. C.C. art. 496, Mr. Sumlin had to make
the improvements while possessing the property by virtue of an act translative of
ownership, believing himself to be the owner of the property. La. C.C. art. 487;
Southern Casing of Louisiana, Inc. v. Houma Avionics, Inc., 00-1930 (La. App. 1
Cir. 0928/01), 809 So.2d 1040. Mr. Sumlin would cease to be in good faith when
the defects in his ownership are made known to him or an action is instituted against
him by the owner for recovery of the property. La. C.C. art. 487.
In the instant case, Mr. Jackson executed the donation in favor of Mr. Sumlin
on April 5, 2004, and he lived with Mr. Sumlin on the property until April 2007,
when he was evicted. Therefore, we find the trial court was not manifestly erroneous
in finding that any improvements made on the property by Mr. Sumlin prior to Mr.
Jackson’s eviction were made with Mr. Jackson’s consent, and thus, Mr. Sumlin was
a good faith possessor under La. C.C. art. 496.
Mr. Sumlin subsequently became aware there was a possible defect in his
ownership when he evicted Mr. Jackson. When Mr. Sumlin attempted to evict him,
Mr. Jackson did not appear to realize that he had donated all of his property to Mr.
Sumlin. Mr. Jackson testified he called the police in an effort to prevent being
23-CA-329 19 evicted from the property. He testified that he only left the property after Mr. Sumlin
showed the police the donation and the police informed him that there was nothing
they could do.
Additionally, Mr. Sumlin became aware of a possible defect in his ownership
when Mr. Jackson instituted this lawsuit seeking to recover his property in October
2008. Thus, at the earliest, Mr. Sumlin became aware of a possible defect in his
ownership upon Mr. Jackson’s eviction in 2007, or at the latest, when Mr. Jackson
filed this lawsuit in 2008 to recover his property. Therefore, we further find the trial
court was not manifestly erroneous or clearly wrong in finding that any
improvements made by Mr. Sumlin after Mr. Jackson’s eviction were made without
Mr. Jackson’s consent, and from that point on, Mr. Sumlin was a bad faith possessor
under La. C.C. art. 967.
Consequently, under La. C.C. art. 496, for any improvements made prior to
Mr. Jackson’s eviction in April 2007, Mr. Jackson could not demand their
demolition and removal but was bound at his option to pay Mr. Sumlin either the
cost of the materials and of the workmanship, or their current value, or the enhanced
value of the immovable. For the improvements made after his eviction, Mr. Jackson
did not demand demolition or removal and was bound to pay Mr. Sumlin at his
option, either the current value of the materials and of the workmanship of the
separable improvements that he has kept or the enhanced value of the immovable.
It was undisputed by the parties that on August 20, 2017, the improvements
on the property were destroyed by a fire while the property was in Mr. Sumlin’s
possession.
Upon review of the evidence, we find Mr. Sumlin did not meet his burden of
proving he is entitled to the value of improvements on the property as alleged in his
reconventional demand. Mr. Sumlin’s testimony regarding alleged improvements
was woefully deficient, often inconsistent and contradictory, unsupported by
23-CA-329 20 evidence, and not credible. Careful review of the record shows that although certain
exhibits in support of Mr. Sumlin’s alleged improvements were identified on the
record in the 2015 trial, no exhibits regarding the alleged improvements were offered
or admitted into evidence at the 2015 trial. Moreover, no exhibits were offered or
admitted in evidence at the subsequent trial dates on Mr. Sumlin’s reconventional
demand in 2023.
We find Mr. Sumlin failed to provide evidence of (1) the condition of the
property prior to and at the time of the donation; (2) the condition of the property
prior to and after the eviction; (3) when the alleged improvements occurred (i.e.,
prior to or after the eviction); (4) what constructions were actually on the property
prior to and after the donation; (5) what constructions/improvements were done prior
to and after the eviction; and (6) the value of improvements made prior to and after
the eviction. Therefore, regardless of what date the trial court should have used to
determine the value of the improvements, Mr. Sumlin did not establish by credible
evidence that he made any improvements.
Accordingly, we find the trial court was not manifestly erroneous or clearly
wrong in denying Mr. Sumlin’s reconventional demand and finding the value of the
improvements to be zero. This assignment of error is without merit.
DECREE
For the reasons stated above, we affirm the trial court’s November 9, 2015
partial judgment annulling and setting aside the donation, and in dismissing Mr.
Sumlin’s exception of prescription as moot. We further affirm the trial court’s
March 3, 2023 judgment denying Mr. Sumlin’s reconventional demand.
AFFIRMED
23-CA-329 21 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
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