Johnson v. Laney

964 So. 2d 418, 2007 La. App. LEXIS 1486, 2007 WL 2177322
CourtLouisiana Court of Appeal
DecidedJuly 25, 2007
DocketNo. 2007-CA-0237
StatusPublished
Cited by1 cases

This text of 964 So. 2d 418 (Johnson v. Laney) 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
Johnson v. Laney, 964 So. 2d 418, 2007 La. App. LEXIS 1486, 2007 WL 2177322 (La. Ct. App. 2007).

Opinion

PATRICIA RIVET MURRAY, Judge.

| -i Defendants appeal the trial court’s granting of summary judgment in favor of the plaintiff, Charmaine Johnson, declaring that Ms. Johnson’s testamentary usu-fruct of her residence attached to insurance proceeds that were paid as a result of its damage by Hurricane Katrina, which rendered the house uninhabitable. For the reasons that follow, we affirm.

FACTS AND PROCEEDINGS BELOW

Defendants John A. Laney, IV, and Troy C. Laney are the plaintiffs grandchildren, the minor children of her son, John Laney, III, who died in 1986. Defendant Deborah Gambino is the mother of John A. Laney, IV, and defendant Julie Bonnano is the mother of Troy C. Laney. In his will, John Laney, III, bequeathed to his mother, Charmaine Johnson, the usufruct of the land and improvements located at 751 Fil-more Avenue, where he was living with his mother at the time of his death. The naked ownership of the property was bequeathed to a trust for the benefit of Mr. Laney’s two minor sons, naming their respective mothers as trustees. Ms. Johnson was living in the home until Hurricane Katrina ^struck on August 29, 2005. Because of the severe damage done to the home by the hurricane, Ms. Johnson now lives in Houston.

State Farm provided insurance coverage (both homeowner’s and flood) for 751 Fil-more Avenue. On January 23, 2006, Ms. Johnson filed a petition for declaratory judgment seeking to have the court de-dare that the insurance proceeds paid by State Farm to compensate for the loss of and/or damage to the home and its contents were subject to her usufruct. State Farm had issued four checks, one covering the building and one covering its contents under each of two policies — -the flood policy and the homeowner’s policy. All four checks were made payable to Ms. Johnson as usufructuary, Ms. Gambino as trustee for John A. Laney, IV, and Ms. Bonnano as trustee for Troy C. Laney. On May 1, 2006, the trial court ordered that these checks be endorsed by all payees and deposited into the registry of the court pending the resolution of the lawsuit.1

Having filed an answer to the plaintiffs petition in April, the defendants on May 8, 2006, filed a “Reconventional and Third Party Demand.” In the reconventional demand, defendants asserted that plaintiff is liable to them for violating the 1990 court-approved agreement that settled the succession of John Laney, III. In essence, defendants claimed Ms. Johnson had mismanaged funds in a certain “controlled” bank account of which she is usufructuary and they are the naked owners, and demanded that the trial court order that she render an accounting of her usufruct. Defendants also alleged that Ms. Johnson had abused Rher usufruct over movables, specifically firearms, located at 751 Filmore Avenue, by failing to file an insurance claim regarding their loss. Defendants further alleged that plaintiffs abuse of her usufruct is cause for the court to order that the usufruct be terminated or, alternatively, to order the usufructuary to post security to ensure she will take appropriate corrective measures within a period of time fixed by the court.2 Finally, in their [420]*420third party demand, defendants alleged that Chase Investment Services Corporation (where the bank account is maintained), is liable to them for recommending investments to the plaintiff and for permitting her to make unauthorized withdrawals from the account in violation of the settlement agreement.3

On June 9, 2006, Ms. Johnson filed a motion for summary judgment arguing that there was no genuine issue of fact regarding the claims raised in her original petition, that her usufruct attached to the insurance proceeds as a matter of law, and that therefore she was entitled to the State Farm checks deposited into the court’s registry. On July 18, 2006, the trial court, after hearing the matter, rendered summary judgment in favor of the plaintiff, citing La. C.C. art. 617 as the basis for its holding that the plaintiffs usufruct attached to the insurance proceeds. The trial court then ordered that the funds be disbursed to Ms. Johnson, “who shall hold |4them in usufruct subject to the rights of the naked owners.... ” Defendants appeal this judgment.4

APPLICABLE LAW

The appellate court reviews summary judgments de novo under the same criteria governing the trial court’s consideration of whether summary judgment is appropriate. Shambra v. Roth, 04-0467 (La.App. 4 Cir. 9/29/04), 885 So.2d 1257. Accordingly, a motion for summary judgment should be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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. C.C.P. art. 966(B).

DISCUSSION

In the instant case, there are no facts in dispute. In their answer to the plaintiffs petition for declaratory judgment, the defendants admitted every allegation of fact asserted by the plaintiff. The only allegations defendants denied are those in Paragraphs 16 and 19, which stated conclusions of law. In those two paragraphs, respectively, the plaintiff asserted that she, as usufructuary, was entitled to the insurance proceeds and asked that the court render judgment declaring her right to them. Similarly, the plaintiffs motion for summary judgment included a statement of undisputed facts supported by documentary evidence, deposition testimony, and an affidavit. In opposition to the motion, | .^defendants presented only a memorandum asserting legal arguments and a copy of the aforementioned agreement settling the succession of John Laney, III, which agreement actually supports the plaintiffs factual assertions.

[421]*421Thus, the sole issue before this court is whether, as a matter of law, the plaintiffs usufruct of 751 Filmore Avenue attaches to the proceeds of the homeowner’s and flood policies covering the property. We hold that it does.

La. C.C. art. 617, entitled “Proceeds of Insurance” states:

When proceeds of insurance are due on account of loss, extinction, or destruction of property subject to usufruct, the usufruct attaches to the proceeds. If the usufructuary or the naked owner has separately insured his interest only, the proceeds belong to the insured party.

On appeal, the defendants argue that this article does not apply to the instant situation for two reasons: (1) the plaintiff failed to prove that the property subject to the usufruct was totally destroyed; and (2) the undisputed facts indicate that they separately insured their interest within the terms of Article 617. We address each argument in turn.

First, defendants argue that Ms. Johnson failed to introduce any evidence to prove that the insured movable and immovable property was lost, extinct or destroyed as required by Article 617. Citing La. C.C. art. 613 as authority, they further assert that “loss, extinction or destruction” as used in the Civil Code means “total loss, extinction or destruction.” La.C.C. art. 613 states:

The usufruct of nonconsumables terminates by the permanent and total loss, extinction or destruction through accident or decay of the property subject to the usufruct.

Contrary to defendants’ argument, Article 613 does not purport to define the terms or phrase “loss, extinction or destruction” as used in the entire Civil Code.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Qasem v. Acadian Apartments, Inc.
252 So. 3d 1 (Louisiana Court of Appeal, 2018)

Cite This Page — Counsel Stack

Bluebook (online)
964 So. 2d 418, 2007 La. App. LEXIS 1486, 2007 WL 2177322, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-laney-lactapp-2007.