Robertson v. Cubine

731 So. 2d 931, 1999 La. App. LEXIS 830, 1999 WL 174229
CourtLouisiana Court of Appeal
DecidedMarch 31, 1999
DocketNo. 31,743-CA
StatusPublished
Cited by3 cases

This text of 731 So. 2d 931 (Robertson v. Cubine) 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
Robertson v. Cubine, 731 So. 2d 931, 1999 La. App. LEXIS 830, 1999 WL 174229 (La. Ct. App. 1999).

Opinion

| t DREW, J.

Terri Robertson, euratrix and granddaughter of Fay Medley, filed suit to set aside a 1992 donation of immovable property made by Fay Medley to Bill Medley, her husband of nearly 30 years. Robertson alleged that Fay Medley, who was interdicted in 1996, lacked the capacity to donate the property because she was suffering from Alzheimer’s Disease at the time. The trial court disagreed, finding that Robertson failed to prove by clear and convincing evidence that Fay Medley lacked capacity when executing the donation. Robertson now appeals this adverse judgment.

We affirm.

FACTS

On April 8, 1992, Fay Medley (“Fay”) donated to Bill Medley (“Bill”) an undivided one-half interest in immovable property located in Union Parish that belonged to her separate property. Fay, born on March 17, 1919, was 73 years old at the time. The donation deed reflects that the interests of Fay and Bill in the immovable property would become community property and form part of the community of acquets and gains. Bill died in February 1996, having been married to Fay for nearly three decades.

Fay was interdicted on April 30, 1996. Terri Robertson, as euratrix, filed a petition to set aside the donation on September 27, 1996. Named as defendants were Bill’s two daughters, Judy Flinn and Linda Cubine. Robertson amended her petition on April 3, 1997 to add the Succession of Bill Medley as a defendant.

[932]*932Trial was held in this matter on November 13, 1997. The trial court provided detailed reasons for judgment styled as an “Opinion.” While the trial court recognized that Fay suffered from Alzheimer’s when she executed the donation at issue, the court ultimately concluded that Robertson failed to meet her burden of proving by clear and convincing evidence that Fay lacked the mental | ¡¡capacity to execute the donation. Robertson now complains that the trial court erred in reaching this finding.

DISCUSSION

The capacity to donate inter vivos must exist at the time the donor makes the donation. La. C.C. art. 1471. In order to have capacity to make an inter vivos donation, the donor must be able to comprehend generally the nature and consequences of the disposition that he is making. La. C.C. art. 1477. The burden of proving Fay’s lack of capacity is a heavy one for Robertson. La. C.C. art. 1482 provides that a person challenging the capacity of a donor must prove by clear and convincing evidence that the donor lacked capacity at the time the donor made the donation. Proving a matter by “clear and convincing evidence” requires establishing that the existence of a disputed fact is highly probable, that is, much more probable than its non-existence. Succession of Bilyeu, 28,701 (La. App.2d Cir.9/25/96), 681 So.2d 56, unit denied, 96-2868 (La.1/24/97), 686 So.2d 862.

The issue of capacity is a question of fact. The trial court’s factual findings will not be disturbed on appeal unless clearly wrong or manifestly erroneous. Succession of Dodson, 27,969 (La.App.2d Cir.2/28/96), 669 So.2d 642.

Terri Robertson, who brought the instant action, is Fay’s granddaughter. She described her grandmother as once being meticulous in appearance, interested in exercise and nutrition and concerned about others. Peggy Warner, Robertson’s mother and Fay’s daughter, died in 1987. Robertson testified that after her mother’s death, Fay stopped visiting her, causing Robertson to feel as if she no longer existed in Fay’s eyes. In order to communicate with her grandmother, Robertson now had to visit Fay, call or write her a letter. We note that Robertson lived in Abbeville while Fay lived in West Monroe. At the time of trial, Fay was bedridden and had been living in Robertson’s home for close to two years. Fay was moved there after Bill’s death in 1996.

| .-¡Robertson related that by 1990 or 1991, Fay did not recognize her, seemed disinterested in her and never called her by name. According to Robertson, she was unable to have a conversation with Fay because Fay would start to say something and it would not make any sense. All Robertson could do was sit with her grandmother and hold her hand.

Robertson saw Fay in February 1992 for the funeral of Cora Malone, Fay’s mother. She reported that Fay was unkempt in appearance, had trouble walking, was withdrawn, did not know who Robertson was and would smile and repeat herself. Robertson found it difficult to have a conversation with Fay at this time because she would stop speaking in the middle of a sentence. Robertson believed that Fay did not realize Cora Malone was dead because she continued to ask about Cora.

Robertson also testified that around 1989, Fay began calling her sister Toni “Puddin,” a pet name Fay used to call Robertson’s mother. However, this is not peculiar since Robertson’s husband and father both testified that Toni resembles her late mother. Robertson admitted that she did not see her grandmother very often prior to Bill’s death in 1996. The last time she saw Fay prior to this was in February 1992. She did not speak with Fay by telephone during this period.

Several friends, neighbors and relatives of Fay also testified. The trial court noted that these witnesses saw Fay infrequently during the years and months leading up to [933]*933the date of the donation. Emily Powell lived across the street from the Medleys. Powell testified that she was not around Fay too often because Fay was not the type of neighbor who liked to visit. Powell stated that shortly before Cora Malone’s death in February 1992, Fay did not know what she was talking about or who Powell was. Powell also thought that around this time Fay seemed to have trouble recognizing neighbors, and after asking who neighbors were, she would ask again minutes later.

|4We note that this witness sometimes appeared to confuse Fay Medley with Cora Malone while testifying, as evidenced by the following exchange:

Q: All right. Did — you did try to talk to her?
A: Well, I’d go over once in a while until she got where she didn’t know me and that was about three years before she died to me.
Q: Before Cora died?
A: Yes. I didn’t go over the last year at all. I didn’t never see her on the hospital bed or anything like that.
Q: Didn’t see Cora on the hospital bed?
A: No. I didn’t see Faye.
Q: Faye. All right. You didn’t see Faye for a —
A: After they put her on the hospital bed.
Q: After they put Cora in the hospital?
A: I hadn’t seen in a good while. She went to the nursing home.
Q: That’s right. She did. And she was living with Mr. and Ms. Medley when she went to the nursing home?
A: Yes.
(R. p. 73) Our emphasis.

Syble Hayden, Fay’s first cousin, told the trial court that she would see Fay once or twice a week. Hayden testified that shortly before Cora Malone’s death in February 1992, Fay confused her with another cousin and told Hayden that every once in a while she was unable to remember things like she used to.

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Related

Madden v. Crawford
265 So. 3d 1170 (Louisiana Court of Appeal, 2019)
In Re Succession of Dodson
867 So. 2d 921 (Louisiana Court of Appeal, 2004)

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Bluebook (online)
731 So. 2d 931, 1999 La. App. LEXIS 830, 1999 WL 174229, Counsel Stack Legal Research, https://law.counselstack.com/opinion/robertson-v-cubine-lactapp-1999.