Petrie v. Michetti

59 So. 3d 430, 10 La.App. 5 Cir. 122, 2011 La. App. LEXIS 22, 2011 WL 102594
CourtLouisiana Court of Appeal
DecidedJanuary 11, 2011
DocketNo. 10-CA-122
StatusPublished
Cited by7 cases

This text of 59 So. 3d 430 (Petrie v. Michetti) 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
Petrie v. Michetti, 59 So. 3d 430, 10 La.App. 5 Cir. 122, 2011 La. App. LEXIS 22, 2011 WL 102594 (La. Ct. App. 2011).

Opinion

FREDERICKA HOMBERG WICKER, Judge.

[ 2This is a civil matter. Plaintiff/appellant Maxine Rearick1 appeals a judgment of the trial court finding that an act of donation of immovable property Ms. Rear-ick executed in favor of her daughter Dixie Michetti was valid. Ms. Rearick contends that the act of donation was made under duress. Alternatively, ■ Ms. Rearick contends that the act of donation should be nullified because Ms. Michetti was guilty of cruel treatment towards her. For the reasons that follow, we affirm the judgment of the trial court.

PROCEDURAL HISTORY

Ms. Rearick filed a Petition for Recognition as Owner of Immovable Property, for Injunction, and for Revocation of Donation for Ingratitude on March 9, 2009 alleging the following: (1) in December 2007, she was the sole owner of immovable property bearing municipal address 729 Cedar Avenue, Metairie, LA, (2) on December 19, 2007, Ms. Rearick’s daughter Ms. Michetti coerced her to | ¡¡donate the Cedar Avenue property, (3) Ms. Rearick agreed to donate the property to Ms. Michetti because Ms. Michetti threatened to place her in a nursing home, (4) the donation was made under duress and is therefore absolutely null, (5) alternatively, Ms. Rearick is entitled to revoke the donation pursuant to La. C.C. art. 1556 because Ms. Michetti was guilty of cruel treatment towards her.

That same day, the trial court issued a preliminary injunction restraining Ms. Mi-chetti from “verbally and physically abusing, harassing, injuring plaintiff, secreting [sic] plaintiffs medication, and interfering with plaintiffs freedom of movement.”

Trial in this matter was held on March 18, 2009. By judgment dated October 23, 2009, the trial court dismissed Ms. Rear-ick’s petition with prejudice. The trial court also ruled that the December 19, 2007 act of donation transferring ownership of the Cedar Avenue property to Ms. Michetti was valid. This appeal followed.

FACTS

The following facts were elicited from testimony at trial:

Ms. Michetti testified that she moved into the Cedar Avenue property with Ms. Rearick in August 2000. Before that time, she had been living with one of her daughters in a condominium. Ms. Michetti was her mother’s primary caregiver until 2005.

Ms. Michetti recalled an incident in 2005 when she got into a disagreement with her sister Patricia Petrie over their mother’s care. Ms. Michetti testified that Ms. Pe-trie invited a sick, elderly relative of Ms. Rearick’s to stay in the Cedar Avenue property. After the invitation, Ms. Mi-chetti told Patricia to not invite people to stay at the Cedar Avenue property. Ms. Petrie and Ms. Rearick became upset. Ms. Michetti also became upset and left the Cedar Avenue home. Ms. RMichetti testified that when she returned home one or two days later, she got into a physical altercation with Ms. Petrie and her other two sisters. Ms. Michetti further testified that one of her sisters was trying to hit her. Ms. Michetti called the police. When the police arrived, officers ordered Ms. Michetti to leave the Cedar Avenue property.

[433]*433Ms. Michetti eventually returned to the Cedar Avenue home, over the protestations of her sisters. Ms. Michetti testified that she agreed to resume her duties as her mother’s caregiver approximately one month after the altercation with her sisters. According to Ms. Michetti, she told her mother that she would move out of the Cedar Avenue property if her mother did not donate the property to her because she could not afford to be a caregiver without assurances that she would not be forced to leave. Ms. Michetti denied telling her mother that she would place her in a nursing home if her mother did not donate the property to her.

According to Ms. Michetti, her mother has problems eating, swallowing, drinking, and taking medication. Ms. Michetti indicated that she never controlled her mother’s medication, nor did she ever keep her sisters from visiting her mother. She did admit that she locked up her mother’s medication on the advice of her mother’s home health nurse because she was worried that her mother would take elevated doses of her medication. Ms. Michetti testified that her mother eventually asked her to leave the Cedar Avenue property after this suit was filed. Ms. Michetti testified that she never sought any consideration or money for the caregiver services she provided, that she never restricted her mother’s movements, and that she always properly administered her mother’s medicine. She further testified that she never prevented her mother from using her walker, that she never kicked a footstool out from underneath her mother’s legs, and that she never berated, abused, or yelled at her mother. Ms. Michetti admitted that she frequently |fi“spoke loudly” to Ms. Rearick but insisted that was necessary because Ms. Rearick is hard of hearing.

Ms. Rearick testified that Ms. Michetti moved in with her when Ms. Michetti came back from Oregon, even though she had initially denied her daughter’s request to move in. Ms. Rearick additionally testified that at the time Ms. Michetti moved into the Cedar Avenue property, she did not need caregiver assistance. According to Ms. Rearick, she donated the Cedar Avenue property to Ms. Michetti because she “felt sorry for her.” Ms. Rearick testified that her daughter was guilty of “cruel treatment” towards her. Ms. Rearick recalled that her daughter would kick a stool out from underneath her feet when her feet were propped up on the stool. Ms. Rearick additionally indicated that her daughter would place a blood pressure monitor on her stomach against her wishes. Ms. Rearick also recalled that Ms. Michetti yelled at her frequently and restricted her visitors, including her other daughters. Ms. Rearick testified that she was forced to move in with one of her daughters for a short period of time. Ms. Rearick indicated that Ms. Michetti told her that she would put her in a nursing home if she did not donate the Cedar Avenue property. Ms. Rearick testified that her daughter’s actions were offensive to her.

Ms. Rearick testified that she recalled being in an attorney’s office and that she recalled signing the act of donation in the attorney’s and Ms. Michetti’s presence. She also recalled that the attorney and Ms. Michetti signed the document. Ms. Mi-chetti testified that the two witnesses whose signatures also appear on the act of donation were not present when she signed the act of donation. Ms'. Rearick did not tell her other daughters that she had donated the property to Ms. Michetti until she was admitted to the hospital for high blood pressure. Ms. |sRearick recalled meeting with an elder protective services case worker on March 2, 2009. She did not know who called elder protective services.

[434]*434On cross-examination, Ms. Rearick admitted that from 2000 to 2005, her daughter applied for and picked up all her medicines, was a constant companion, sometimes cooked meals, bought groceries, helped her getting dressed, performed various household tasks, and took her to all of her hospital and doctor appointments.

Joanne Belflower, another of Ms. Rear-ick’s daughters, testified about an incident when Ms. Rearick asked her to spend a day at the Cedar Avenue house. Ms. Bel-flower agreed, but when she learned that Ms. Michetti would be present as well, she refused to spend any time with her mother and left. That evening, Ms. Rearick was admitted to the emergency room. Whilst in the hospital, Ms. Rearick told Ms. Bel-flower that she had donated the Cedar Avenue property to Ms. Michetti.

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Cite This Page — Counsel Stack

Bluebook (online)
59 So. 3d 430, 10 La.App. 5 Cir. 122, 2011 La. App. LEXIS 22, 2011 WL 102594, Counsel Stack Legal Research, https://law.counselstack.com/opinion/petrie-v-michetti-lactapp-2011.