Nettle v. Succession of Nettle

212 So. 3d 1180
CourtLouisiana Court of Appeal
DecidedSeptember 16, 2016
DocketNO. 2015 CA 1875; NO. 2015 CA 1876
StatusPublished
Cited by9 cases

This text of 212 So. 3d 1180 (Nettle v. Succession of Nettle) 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
Nettle v. Succession of Nettle, 212 So. 3d 1180 (La. Ct. App. 2016).

Opinion

HIGGINBOTHAM, J.

| gThis is a suit for declaratory judgment filed by husband and wife, Shirley Sharp Nettle and Richard W. Nettle (the Nettles), wherein they seek to be declared the owners of certain immovable property located in St. Tammany Parish.

FACTS AND PROCEDURAL HISTORY

On June 24, 1976, Ms. Joyce Wise Nettle, Richards’s mother, purchased two tracts of land located on Lawes Drive in St. Tammany Parish (the Lawes Drive Property). The “Vendor’s Privilege and First Mortgage” documents were filed in the conveyance records for the Parish of St. Tammany. Joyce lived on the Lawes Drive Property until she moved into a nursing home in 2006.

On May 20, 2011, Joyce died. Her succession was opened and her grandchildren, Kenneth J. Germain and Lisa A. Favre Connelly, were named as co-executors of her estate. In her will, Joyce left all of the property she possessed to Kenneth and Lisa. The Nettles, through a rule to annul the probated testament, challenged Joyce’s will based on her capacity at the time of signing. The trial court denied the Nettles’ rule on April 24, 2012.

On July 20, 2011, the Nettles filed a Suit for Declaratory Judgment against the Succession of Joyce Nettle (the Succession), seeking a judgment declaring them to be the sole owners of the Lawes Drive Property.1 In their petition, the Nettles assert that on March 20, 1979, Joyce executed a counter letter in authentic form, which acknowledged the Nettles as the sole and true owners of the Lawes Drive Property. A copy of the alleged counter letter, stamped as a “TRUE COPY,” and the “Act of Deposit” filing the counter letter into the conveyance records of St. Tammany Parish, were attached to the Nettles’ petition.

laThe Succession answered the Nettles’ suit asserting that at the time of her death, Joyce was the sole owner of the Lawes Drive Property. The Succession’s answer stated that during her lifetime, Joyce possessed the Lawes Drive Property, maintained insurance for and paid all ad valo-rem taxes on the Lawes Drive Property, and on more than one occasion, mortgaged the Lawes Drive Property. The succession also questioned the validity and authenticity of the counter letter. Additionally, in its amended answer, the Succession pled thirty-year acquisitive prescription, and pointed out that the Nettles, in a bankruptcy proceeding, acknowledged under oath that they had no ownership interest in the Lawes Drive Property.

On September 2, 2014, the Nettles filed a motion for summary judgment asserting that according to the clear language of the counter letter, Joyce conveyed the Lawes Drive Property to the Nettles. Thus, they maintained that no genuine issue of material fact remained, and they were entitled to judgment as a matter of law declaring their sole ownership in the Lawes Drive Property. The Succession opposed the Nettles’ motion for summary judgment, and filed a cross-motion for summary judgment asserting that the counter letter was inadmissible. The Succession sought dismissal of the Nettles’ claims or, in the alternative, a ruling on its motion in limine prohibiting the presentation of the “alleged duplicate of the counter letter dated March 20,1979.” The competing motions for summary judgment and the Succession’s motion in limine were heard by the trial court. The trial court concluded that the [1183]*1183original counter letter was necessary to prove its contents. On March 13, 2015, the trial court signed a judgment denying the Nettles’ motion for summary judgment, granting the Succession’s motion for summary judgment, dismissing the Nettles’ claims with prejudice, and finding the motion in limine to be moot. It is from this judgment that the Nettles appeal.

LAW AND ANALYSIS

When reviewing summary judgments, appellate courts conduct a de novo review, using the same criteria that govern the trial court’s determination of whether |4summary judgment is appropriate. Boudreaux v. Vankerkhove, 2007-2555 (La. App. 1 Cir. 8/11/08), 993 So.2d 725, 729-30. The motion for summary judgment should be granted if the pleadings, depositions, answers to interrogatories, and admissions, together with affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law. La. Code Civ. P. art. 966(B)(2).2 A fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La. 7/5/94), 639 So.2d 730, 751.

On a motion for summary judgment, the initial burden of proof is on the moving party. However, on issues for which the moving party will not bear the burden of proof at trial, the moving party must only point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Then the non-moving party must produce factual support sufficient to satisfy its evidentiary burden of proof at trial. If the nonmoving party fails to do so, there is no genuine issue of material fact, and the mover is entitled to summary judgment as a matter of law. La. Code Civ. P. art. 966(C)(2).

Louisiana Code of Civil Procedure articles 966 and 967 do not permit a party to utilize unsworn and unverified documents as summary judgment evidence. Thus, a document that is not an affidavit or sworn to in any way, or is not certified or attached to an affidavit, has no evidentiary value on a motion for summary judgment. See 5Boland v. West Feliciana Parish Police Jury, 2003-1297 (La.App. 1 Cir. 6/25/04), 878 So.2d 808, 813 writ denied, 2004-2286 (La. 11/24/04), 888 So.2d 231. Therefore, in meeting the burden of proof, unsworn or unverified documents, such as letters or reports, annexed to motions for summary judgment are not self-proving and will not be considered; attaching such documents to a motion for summary judgment does not transform such documents into competent summary judgment evidence. Williams v. Memorial Medical Center, 2003-1806 (La. App. 4th Cir. 3/17/04), 870 So.2d 1044, 1053, writ denied, 2004-0963 (La. 6/4/04), 876 So.2d 93. Unless the motion for summary judgment is supported by affidavits, together with sworn or certified copies of all papers or documents' referred to, La. Code Civ. P. art. 967 does not shift the burden to the [1184]*1184adverse party to set forth specific facts showing that there is a genuine issue for trial. See Sanders v. J. Ray McDermott, Inc., 2003-0064 (La.App. 1 Cir. 11/7/03), 867 So.2d 771, 775-76.

In their motion for summary judgment, the Nettles contend that the counter letter executed by Joyce on March 20, 1979, transferred ownership of the Lawes Drive Property to them. The copy of the counter letter that the Nettles attached to their petition and supplemental motion for summary judgment was stamped as a “true copy” by Mr. James Strain, who was the attorney that notarized the original counter letter. According to the affidavits of the Nettles, in 2011 they went to Mr. Strain’s office and presented him with a copy of the original counter letter, along with the invoice received from and check paid to Mr. Strain’s law firm, evidencing payment for preparing the counter letter. Because Mr.

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Bluebook (online)
212 So. 3d 1180, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nettle-v-succession-of-nettle-lactapp-2016.