STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
24-697
LARRY S. TURNER
VERSUS
TIMOTHY SHANE TURNER
********** APPEAL FROM THE THIRTY-FIFTH JUDICIAL DISTRICT COURT PARISH OF GRANT, DOCKET NO. C-28504 HONORABLE WARREN D. WILLETT, DISTRICT JUDGE
**********
JONATHAN W. PERRY JUDGE
Court composed of Van H. Kyzar, Jonathan W. Perry, and Charles G. Fitzgerald, Judges.
AFFIRMED. Donald R. Wilson Wilson and Wilson P. O. Box 1346 Jena, Louisiana 71342 (318) 992-2104 COUNSEL FOR PLAINTIFF/APPELLANT: Larry S. Turner
Kenneth A. Doggett, Jr. Attorney at Law 1100 Martin Luther King Drive P. O. Drawer 13498 Alexandria, Louisiana 71315-3498 (318) 487-4251 COUNSEL FOR DEFENDANT/APPELLEE: Timothy Shane Turner PERRY, Judge.
This case involves an action to revoke a donation inter vivos of immovable
property for the alleged ingratitude of the donee. After the close of the petitioner’s
case, the trial court granted the donee’s motion for involuntary dismissal, finding no
evidence to support the revocation action. For the following reasons, we affirm the
trial court’s judgment.
FACTS AND PROCEDURAL HISTORY
Timothy Turner (“Timothy”) is one of three sons born to Larry S. Turner
(“Larry”) and his first wife, Nancy Jo (“Nancy”). Larry and Nancy were divorced
on June 13, 2003. Larry then married Judy Marie Rogers (“Judy”). On May 14,
2018, while married to Judy, Larry donated approximately eighteen acres of his
separate property in Grant Parish to Timothy but reserved a lifetime usufruct of the
property. In June 2020, the marriage of Larry and Judy ended in divorce.
Approximately one month later, Larry married Linda Turner (“Linda”).
Several years later, on July 13, 2023, Larry sent a letter to Timothy attaching
a new written agreement which reaffirmed Larry’s lifetime usufruct on the donated
property and further provided a lifetime usufruct to Linda. Timothy refused to sign
the new agreement.
Shortly thereafter, on November 8, 2023, Larry filed a petition to revoke his
inter vivos donation to Timothy. Larry based this petition on La.Civ.Code art. 1556,
alleging Timothy’s ingratitude in the following particulars: (a) Timothy has had no
contact with Larry since the donation was made; (b) Timothy has refused to permit
Larry to see and visit with his two grandchildren and has not visited Larry at his
home; (c) Timothy unreasonably refused to extend the existing usufruct in Larry’s
favor to Linda; and (d) Timothy’s refusal to extend the lifetime usufruct to Linda has sorely aggrieved Larry and constitutes cruel treatment as provided in
La.Civ.Code arts. 1556 and 1557.
After Timothy answered Larry’s petition denying the various allegations, this
matter proceeded to a judge trial where several witnesses testified. At the conclusion
of Larry’s case in chief, the trial court granted Timothy’s motion for involuntary
dismissal for failure to prove the grounds necessary to revoke the donation. Larry
then perfected this appeal.
ASSIGNMENT OF ERROR Larry contends that the trial court erred as a matter of law in including and
adding the element of illegality to proof of “cruel treatment” sufficient to support
the revocation of a donation for ingratitude pursuant to the provisions of
La.Civ.Code art. 1557.
APPELLANT’S ARGUMENT
Larry contends that the judgment of the trial court in involuntarily dismissing
his suit is erroneous and requires this court to conduct a de novo review because the
trial court included “illegality” as an element of proof to revoke the donation. He
further argues that upon a correct application of La.Civ.Code art. 1557, the evidence
created a prima facie case entitling him to revoke the 2018 donation to Timothy. In
support of his argument that his son cruelly treated and grievously injured him, Larry
relies on the fact that Timothy’s refusal to modify the usufruct to include Linda hurt
him badly.
APPELLEE’S POSITION
From the outset, Timothy argues that de novo review is not appropriate
because the trial court did not impose “illegality” as an element of proof to revoke a
donation inter vivos. Instead, he asserts that the trial court simply ruled that
2 Timothy’s refusal to extend the usufruct to Linda, a woman Larry married two years
after the donation to Timothy, does not equate to ingratitude sufficient to revoke a
donation.
Beyond that, Timothy points out that the trial court reviewed the allegations
of Larry’s petition and found no support that: (a) Timothy had no contact with Larry
since the donation; and (b) Larry’s two grandchildren, ages nineteen and twenty,
were not permitted to have contact with him. Timothy further argues that his refusal
to extend the usufruct to Linda was not personal to Larry and cannot be grounds for
cruel treatment. Additionally, even if this court were to find that Timothy’s refusal
to sign the extension of the usufruct was personal to Larry, it was not so serious to
constitute cruel treatment under the law and jurisprudence. Moreover, contrary to
Larry’s assertion that cruel treatment is a subjective determination, the jurisprudence
is void of any support for that contention. Timothy argues that accepting Larry’s
argument would broaden the limiting language of La.Civ.Code arts. 1556 and 1557
to include instances where the donor could seek revocation by simply telling the
donee that the donee’s actions hurt his feelings.
REVOCATION OF DONATION INTER VIVOS
A donation inter vivos is a contract by which the donor gratuitously divests
himself, at present and irrevocably, of the thing given in favor of the donee who
accepts it. La.Civ.Code art. 1468. “Louisiana Civil Code Article 1556 establishes
revocation as an exception to the general rule established in La.Civ.Code art.
1468[.]” Broussard v. Ave Maria Rosary & Cenacle, Inc., 21-508, p. 10 (La.App. 3
Cir. 6/1/22), 340 So.3d 1204, 1213. Specifically, in Faulk v. Richoux, 24-112, p. 7
(La.App. 3 Cir. 11/6/24), 397 So.3d 445, 451, this court stated:
3 [Louisiana Civil Code Article] 1556 provides exceptions to the irrevocability of inter vivos donations, one of which allows a donor to revoke a donation inter vivos if the donee exhibits ingratitude toward the donor. Revocation for ingratitude is limited to situations where the donee attempted to take the life of the donor or is guilty of “cruel treatment, crimes, or grievous injuries” toward the donor. La.Civ.Code art. 1557.
Generally, “‘grievous injuries’ sufficient to revoke a donation [inter vivos] has
been defined as any act ‘naturally offensive’ to the donor.” La.Civ.Code art. 1557,
Comment (b).; see also Faulk, 397 So.3d 445. Moreover, under La.Civ.Code art.
1557, an act of the donee that is offensive to the donor is not to be considered a
ground for revocation unless the offense is serious. Consider for example, Perry v.
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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
24-697
LARRY S. TURNER
VERSUS
TIMOTHY SHANE TURNER
********** APPEAL FROM THE THIRTY-FIFTH JUDICIAL DISTRICT COURT PARISH OF GRANT, DOCKET NO. C-28504 HONORABLE WARREN D. WILLETT, DISTRICT JUDGE
**********
JONATHAN W. PERRY JUDGE
Court composed of Van H. Kyzar, Jonathan W. Perry, and Charles G. Fitzgerald, Judges.
AFFIRMED. Donald R. Wilson Wilson and Wilson P. O. Box 1346 Jena, Louisiana 71342 (318) 992-2104 COUNSEL FOR PLAINTIFF/APPELLANT: Larry S. Turner
Kenneth A. Doggett, Jr. Attorney at Law 1100 Martin Luther King Drive P. O. Drawer 13498 Alexandria, Louisiana 71315-3498 (318) 487-4251 COUNSEL FOR DEFENDANT/APPELLEE: Timothy Shane Turner PERRY, Judge.
This case involves an action to revoke a donation inter vivos of immovable
property for the alleged ingratitude of the donee. After the close of the petitioner’s
case, the trial court granted the donee’s motion for involuntary dismissal, finding no
evidence to support the revocation action. For the following reasons, we affirm the
trial court’s judgment.
FACTS AND PROCEDURAL HISTORY
Timothy Turner (“Timothy”) is one of three sons born to Larry S. Turner
(“Larry”) and his first wife, Nancy Jo (“Nancy”). Larry and Nancy were divorced
on June 13, 2003. Larry then married Judy Marie Rogers (“Judy”). On May 14,
2018, while married to Judy, Larry donated approximately eighteen acres of his
separate property in Grant Parish to Timothy but reserved a lifetime usufruct of the
property. In June 2020, the marriage of Larry and Judy ended in divorce.
Approximately one month later, Larry married Linda Turner (“Linda”).
Several years later, on July 13, 2023, Larry sent a letter to Timothy attaching
a new written agreement which reaffirmed Larry’s lifetime usufruct on the donated
property and further provided a lifetime usufruct to Linda. Timothy refused to sign
the new agreement.
Shortly thereafter, on November 8, 2023, Larry filed a petition to revoke his
inter vivos donation to Timothy. Larry based this petition on La.Civ.Code art. 1556,
alleging Timothy’s ingratitude in the following particulars: (a) Timothy has had no
contact with Larry since the donation was made; (b) Timothy has refused to permit
Larry to see and visit with his two grandchildren and has not visited Larry at his
home; (c) Timothy unreasonably refused to extend the existing usufruct in Larry’s
favor to Linda; and (d) Timothy’s refusal to extend the lifetime usufruct to Linda has sorely aggrieved Larry and constitutes cruel treatment as provided in
La.Civ.Code arts. 1556 and 1557.
After Timothy answered Larry’s petition denying the various allegations, this
matter proceeded to a judge trial where several witnesses testified. At the conclusion
of Larry’s case in chief, the trial court granted Timothy’s motion for involuntary
dismissal for failure to prove the grounds necessary to revoke the donation. Larry
then perfected this appeal.
ASSIGNMENT OF ERROR Larry contends that the trial court erred as a matter of law in including and
adding the element of illegality to proof of “cruel treatment” sufficient to support
the revocation of a donation for ingratitude pursuant to the provisions of
La.Civ.Code art. 1557.
APPELLANT’S ARGUMENT
Larry contends that the judgment of the trial court in involuntarily dismissing
his suit is erroneous and requires this court to conduct a de novo review because the
trial court included “illegality” as an element of proof to revoke the donation. He
further argues that upon a correct application of La.Civ.Code art. 1557, the evidence
created a prima facie case entitling him to revoke the 2018 donation to Timothy. In
support of his argument that his son cruelly treated and grievously injured him, Larry
relies on the fact that Timothy’s refusal to modify the usufruct to include Linda hurt
him badly.
APPELLEE’S POSITION
From the outset, Timothy argues that de novo review is not appropriate
because the trial court did not impose “illegality” as an element of proof to revoke a
donation inter vivos. Instead, he asserts that the trial court simply ruled that
2 Timothy’s refusal to extend the usufruct to Linda, a woman Larry married two years
after the donation to Timothy, does not equate to ingratitude sufficient to revoke a
donation.
Beyond that, Timothy points out that the trial court reviewed the allegations
of Larry’s petition and found no support that: (a) Timothy had no contact with Larry
since the donation; and (b) Larry’s two grandchildren, ages nineteen and twenty,
were not permitted to have contact with him. Timothy further argues that his refusal
to extend the usufruct to Linda was not personal to Larry and cannot be grounds for
cruel treatment. Additionally, even if this court were to find that Timothy’s refusal
to sign the extension of the usufruct was personal to Larry, it was not so serious to
constitute cruel treatment under the law and jurisprudence. Moreover, contrary to
Larry’s assertion that cruel treatment is a subjective determination, the jurisprudence
is void of any support for that contention. Timothy argues that accepting Larry’s
argument would broaden the limiting language of La.Civ.Code arts. 1556 and 1557
to include instances where the donor could seek revocation by simply telling the
donee that the donee’s actions hurt his feelings.
REVOCATION OF DONATION INTER VIVOS
A donation inter vivos is a contract by which the donor gratuitously divests
himself, at present and irrevocably, of the thing given in favor of the donee who
accepts it. La.Civ.Code art. 1468. “Louisiana Civil Code Article 1556 establishes
revocation as an exception to the general rule established in La.Civ.Code art.
1468[.]” Broussard v. Ave Maria Rosary & Cenacle, Inc., 21-508, p. 10 (La.App. 3
Cir. 6/1/22), 340 So.3d 1204, 1213. Specifically, in Faulk v. Richoux, 24-112, p. 7
(La.App. 3 Cir. 11/6/24), 397 So.3d 445, 451, this court stated:
3 [Louisiana Civil Code Article] 1556 provides exceptions to the irrevocability of inter vivos donations, one of which allows a donor to revoke a donation inter vivos if the donee exhibits ingratitude toward the donor. Revocation for ingratitude is limited to situations where the donee attempted to take the life of the donor or is guilty of “cruel treatment, crimes, or grievous injuries” toward the donor. La.Civ.Code art. 1557.
Generally, “‘grievous injuries’ sufficient to revoke a donation [inter vivos] has
been defined as any act ‘naturally offensive’ to the donor.” La.Civ.Code art. 1557,
Comment (b).; see also Faulk, 397 So.3d 445. Moreover, under La.Civ.Code art.
1557, an act of the donee that is offensive to the donor is not to be considered a
ground for revocation unless the offense is serious. Consider for example, Perry v.
Perry, 507 So.2d 881 (La.App. 4 Cir.), writ denied, 512 So.2d 465 (La.1987)
(directing the sheriff to seize personal property of the donor/parents); Spruiell v.
Ludwig, 568 So.2d 133 (La.App. 5 Cir. 1990), writ denied, 573 So.2d 1117 (La.1991)
(accusing the donor/parents as being involved in racketeering activities and that the
donor/mother was a crooked thief); and Sanders v. Sanders, 33,865 (La.App. 2 Cir.
9/27/00), 768 So.2d 739 (denying that the donor was his father and telling the donor
that he wished he would die). “[W]hether a donee has committed a ‘grievous injury’
upon a donor depends heavily upon the facts and circumstances specific to the case.”
Erikson v. Feller, 04-1033, p. 7 (La.App. 3 Cir. 12/8/04), 889 So.2d 430, 434.
Finally, because La.Civ.Code art. 1557 provides an exception to the general rule
stated in La.Civ.Code art. 1556, it must be strictly construed. Faulk, 397 So.3d 445.
INVOLUNTARY DISMISSAL
An involuntary dismissal may be granted by the trial court pursuant to
La.Code Civ.P. art. 1672(B), which provides:
In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not
4 granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.
Although the trial court is given much discretion in granting a motion for
involuntary dismissal, its decision to grant the motion is generally reviewed pursuant
to the manifest error standard of review. Touchet v. Hampton, 06-1120 (La.App. 3
Cir. 2/7/07), 950 So.2d 895. “When evaluating a motion for involuntary dismissal,
the trial court must consider all the evidence, without any special inferences in favor
of the opponent of the motion, and grant the dismissal if the plaintiff has not
established proof by a preponderance of the evidence.” Smith v. Schumpert, 48,126,
p. 3 (La.App. 2 Cir. 6/26/13), 117 So.3d 315, 318; see also Trahan v. Acadiana Mall
of Del., 14-232 (La.App. 3 Cir. 10/1/14), 149 So.3d 359. Likewise, a trial court has
authority to weigh evidence and assess credibility in a motion for involuntary
dismissal. Straughter v. Gov’t Emp. Ins. Co., 05-699 (La.App. 5 Cir. 3/14/96), 926
So.2d 617; see also Scarborough v. Ybanez, 09-1324 (La.App. 3 Cir. 4/7/10)
(unpublished opinion).
It is well-established that appellate courts review a trial court’s findings of fact
to determine whether those findings constitute “manifest error” or if they are “clearly
wrong.” Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). If the trial court’s findings
of fact are not manifestly erroneous or clearly wrong, we cannot reverse them. Id.
On review, if there is a “conflict in the testimony, reasonable evaluations of
credibility and reasonable inferences of fact should not be disturbed upon review,
even though the appellate court may feel that its own evaluations and inferences are
as reasonable.” Id. Trial court findings based on credibility determinations must be
given “great deference” because “only the factfinder can be aware of the variations
5 in demeanor and tone of voice that bear so heavily on the listener’s understanding
and belief in what is said.” Id.
ANALYSIS
Although Larry acknowledges that appellate courts generally review the
granting of a motion for involuntary dismissal using the manifest error standard, he
contends that this court should review this matter de novo because the trial court
erred as a matter of law in its application of La.Civ.Code art. 1557. In particular,
Larry argues that the trial court impermissibly included “illegality” as an element of
proof sufficient to support the revocation of a donation under La.Civ.Code art. 1557.
Under his reasoning, Larry suggests that the trial court stated that an act which is
legal cannot be “cruel” within the purview of the article. Thus, he concludes that
just because an act is legal does not mean it cannot also be cruel. For the following
reasons, we find no merit to Larry’s contention.
Larry’s argument is based on the following oral reasons for judgment spoken
by the trial court:
The other reason I encouraged [the parties to settle before the trial began] is because, even if you prove what you said you were going to prove, I didn’t think you could win. And I think you made a bad decision in 2018 to donate the property to your son.
....
[You and your] new wife, you’re both working together to improve your home, I understand all those changes. But that doesn’t mean that your son has to change the deal. Morally, should he have? That’s not for me to decide. Legally, he didn’t have to. Legally, he didn’t have to change the deal from 2018. And I don’t find that his refusal to change the deal constitutes cruel treatment to you[.]
After reviewing the trial court’s oral reasons and Larry’s argument, it is evident that
the trial court was not inserting a new element of proof. Rather, the trial court was
simply stating that Timothy’s refusal to sign the agreement Larry submitted to him
6 did not alone constitute “cruel treatment, crimes, or grievous injuries” toward the
donor. Therefore, we will review the trial court’s judgment for manifest error.
The record shows that the trial court heard conflicting testimony about
Timothy’s lack of contact with his father as well as about whether Timothy prevented
his children from contacting their grandfather. After hearing the evidence Larry
presented, including Timothy’s testimony, the trial court resolved these questions
against Larry and in favor of Timothy. These credibility determinations of the trial
court will not be disturbed on appeal because we find its evaluation of the testimony
reasonable and fully supported by the record.
We now turn to the trial court’s determination that Timothy’s actions in
refusing to extend the lifetime usufruct to Linda did not constitute cruel treatment or
grievous injury. After reviewing the evidence, we find that Timothy’s decision to
not extend the lifetime usufruct to Linda simply showed him exercising his legal
right as the donee. The exercise of a donee’s legal right does not demonstrate such
cruel treatment or grievous injury as to warrant the revocation of the donation made
to him. See Watts v. Watts, 17-369 (La.App. 1 Cir. 12/29/17), 241 So.3d 330, writ
denied, 18-185 (La. 3/23/18), 239 So.3d 294 (holding that the donee’s pursuit of a
divorce from his donor/wife on a no fault basis was a legal remedy available to him
and did not show grievous injury as a matter of law). We understand Larry’s
emotional reaction to Timothy’s decision and his moral disappointment in Timothy’s
actions. However, feelings of emotional distress or perceived moral wrongs alone
are insufficient to justify the revocation of a donation. See Didier v. Simmons, 19-
1100 (La.App. 1 Cir. 5/11/20), 312 So.3d 279, writ denied, 20-700 (La. 9/29/20),
301 So.3d 1162 (granting the defendant son-in-law’s exception of no cause of action
against the plaintiff in-laws who sought to revoke donations made to him; in so
7 ruling the court found that even though the son-in-law had an affair during his
marriage to their daughter, lied to them and their daughter about the affair,
humiliated and embarrassed them, and betrayed their trust, those actions alone did
not constitute cruel treatment); see also Succession of Plunkett, 213 So.2d 793
(La.App. 2 Cir. 1968) (holding that the husband’s cohabitation with another woman
during his marriage reflected upon his moral character and did not constitute
ingratitude to revoke a testamentary disposition1).
After carefully reviewing the evidence presented in Larry’s case in chief, we
find the trial court was not manifestly erroneous in its conclusion that the evidence
failed to show Timothy’s actions constituted cruel treatment or grievous injuries
sufficient to establish a prima facie case for revocation. Therefore, we find the trial
court correctly granted Timothy’s motion for involuntary dismissal of Larry’s
petition to revoke the inter vivos donation and properly dismissed Larry’s action for
revocation with prejudice.
DISPOSITION
For the foregoing reasons, we affirm the trial court judgment. Costs of the
appeal are assessed to Larry S. Turner.
AFFIRMED.
1 When Plunkett was tried and decided on appeal, former La.Civ.Code art. 1710 (1870) allowed revocation of a testamentary disposition for the same causes which were sufficient to revoke an inter vivos donation, namely grievous injury or ingratitude.