Moore v. Burns

867 So. 2d 142, 3 La.App. 3 Cir. 1199, 2004 La. App. LEXIS 466, 2004 WL 384904
CourtLouisiana Court of Appeal
DecidedMarch 3, 2004
DocketNo. 2003-1199
StatusPublished

This text of 867 So. 2d 142 (Moore v. Burns) 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
Moore v. Burns, 867 So. 2d 142, 3 La.App. 3 Cir. 1199, 2004 La. App. LEXIS 466, 2004 WL 384904 (La. Ct. App. 2004).

Opinion

hPLANCHARD, Judge.1

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 28, 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 ^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 [144]*144the 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 LLaCour and Faye Burns being there, but that she did not remember the notary or Dina 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 Plaintiffs “Petition to Annul Donation.” The Plaintiff, Moore, appeals. INTENT

IsThe 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 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 [145]*145donation 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, Ma-gee testified that short absences from the |fioffice 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 clock and that her employer allowed her to leave if she needed to, Plaintiffs counsel agreed that he, too, was aware that Dina Burns’ employer did not have a strict policy in this regard.

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867 So. 2d 142, 3 La.App. 3 Cir. 1199, 2004 La. App. LEXIS 466, 2004 WL 384904, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moore-v-burns-lactapp-2004.