Sarah Ackerman Gilberti v. Eric P. Gilberti

• Court: Louisiana Court of Appeal
• Decided: November 25, 2024
• Docket: 2024-CA-0308
• Status: Published

Opinion

SARAH ACKERMAN * NO. 2024-CA-0308 GILBERTI * VERSUS COURT OF APPEAL * ERIC P. GILBERTI FOURTH CIRCUIT * STATE OF LOUISIANA *******

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2019-08207, DIVISION “G” Honorable Veronica E. Henry ****** Judge Tiffany Gautier Chase ****** (Court composed of Judge Paula A. Brown, Judge Tiffany Gautier Chase, Judge Nakisha Ervin-Knott)

Christy M. Howley M. Elizabeth Bowman Jordan T. Giles BOWMAN & HOWLEY 629 Lafayette Street Gretna, Louisiana 70053

COUNSEL FOR PLAINTIFF/APPELLANT

Stephanie A. Fratello-Adams ATTORNEY AT LAW 3017 21st Street Suite 211 Metairie, Louisiana 70002

COUNSEL FOR DEFENDANT/APPELLEE AFFIRMED NOVEMBER 25, 2024 TGC PAB NEK Plaintiff/Appellant, Sarah Ackerman Gilberti (hereinafter “Ms. Ackerman”)

seeks review of the trial court’s January 4, 2024 judgment denying her petition for

revocation of a donation. After consideration of the record before this Court and

applicable law, we affirm the trial court’s judgment.

Relevant Facts and Procedural History

Ms. Ackerman and Defendant/Appellee, Eric Gilberti (hereinafter “Mr.

Gilberti”), were married on May 27, 2007. During the marriage, Ms. Ackerman

donated to Mr. Gilberti, by act of donation, an undivided one-half interest in her

separate property that was later used as the couple’s matrimonial domicile

(hereinafter “the 2008 donation”).

Ms. Ackerman filed a petition for divorce, pursuant to La. C.C. art. 103(2),

on August 7, 2019.1 The petition for divorce alleges that Ms. Ackerman and Mr.

Gilberti began living separate and apart on May 10, 2019 due to Mr. Gilberti’s

1 La. C.C. art. 103(2) provides,

Except in the case of a covenant marriage, a divorce shall be granted on the petition of a spouse upon proof that:

(2) The other spouse has committed adultery.

1 “suspected drug use” and “adulterous relationship” during the marriage. According

to the petition, Mr. Gilberti began exhibiting signs of drug use when he threatened

her, hacked into her e-mail account and changed the locks on the matrimonial

domicile.2 The parties were granted a judgment of divorce on August 20, 2020.3

On August 19, 2020, Ms. Ackerman filed a “Petition for Revocation of

Donation.” The petition for revocation alleged that Mr. Gilberti committed acts of

ingratitude sufficient to revoke the 2008 donation pursuant to La. C.C arts. 1556

and 1557.4 Specifically, Ms. Ackerman maintained that Mr. Gilberti committed

grievous injury by committing adultery during the marriage, habitually using

drugs, verbally abusing her through texts and in person, threatening bodily harm,

misusing community funds, stealing her separate property and using her separate

property without consent. She further alleged that Mr. Gilberti wrongly entered the

matrimonial domicile and stole her Rolex watch, designer bags and paintings. In

response, Mr. Gilberti filed exceptions of prescription, no cause of action and no

right of action. Mr. Gilberti’s exception of prescription specifically pled that Ms.

Ackerman’s claims of ingratitude based on adultery, habitual drug use, verbal

abuse and threats of bodily harm were prescribed.5

2 On August 23, 2019, Ms. Ackerman filed a protective order, which reiterated the allegations

pled in the petition for divorce. Ms. Ackerman alleged that Mr. Gilberti began to display erratic behavior after their separation in May 2019 by threatening bodily harm, stalking her, destroying home security cameras and taking her mail. The protective order was dissolved after the parties entered into a mutual civil injunction. 3 The parties were granted a judgment of divorce after living separate and apart for one year

pursuant to La. C.C. art. 103(1). 4 La. C.C. arts. 1556 and 1557 provide that a donation may be revoked on account of acts of

ingratitude such as cruel treatment, crimes or grievous injuries. 5 After initially denying all of Mr. Gilberti’s exceptions, the trial court permitted Mr. Gilberti to

re-urge his exception of prescription at the trial on the petition for revocation.

2 A bench trial on the petition for revocation was held over a two-day period.

After taking the matter under advisement, the trial court issued a judgment granting

Mr. Gilberti’s exception of prescription in part and dismissed Ms. Ackerman’s

petition for revocation with prejudice. This appeal followed.

Standard of Review

“This Court’s standard of review of a trial court’s ruling on an exception of

prescription is contingent upon whether evidence is introduced at the hearing on

the exception.” Hosp. Mgmt. Servs., LLC v. Axis Surplus Ins. Co., 2024-0137, p. 3

(La.App. 4 Cir. 9/16/24), __So.3d__, 2024 WL 4198161 *2 (citation omitted). If

evidence is introduced at trial – as in the case here – a trial court’s finding of fact

on the issue of prescription is reviewed under the manifest error/clearly wrong

standard. See id., 2024-0137, p. 4. __So.3d__, 2024 WL 4198161 *2 (citations

omitted). Likewise, “[a] trial court’s determination as to whether a donee has

committed a ‘grievous injury’ upon a donor is a factual determination which

depends heavily on the facts and circumstances specific to the case.” Petrie v.

Michetti, 2010-122, p. 17 (La.App. 5 Cir. 1/11/11), 59 So.3d 430, 440 (citation

omitted). “A court of appeal may not set aside a trial court’s finding of fact in the

absence of manifest error or unless it is clearly wrong.” Sewell v. Sewerage &

Water Bd. of New Orleans, 2019-0268, p. 4 (La.App. 4 Cir. 1/20/21), 313 So.3d

333, 339 (citation omitted).

Discussion

Ms. Ackerman asserts various assignments of error on appeal collectively

challenging the trial court’s judgment denying her petition for revocation. She

contends the trial court erred in granting Mr. Gilberti’s exception of prescription

3 and that Mr. Gilberti’s actions were sufficient to revoke the 2008 donation under

La. C.C. arts. 1556 and 1557.

A party asserting an exception of prescription generally bears the burden of

proof. Hosp. Mgmt. Servs., LLC, 2024-0137, p. 4, __So.3d__, 2024 WL 4198161

*2 (citation omitted). “However, when the plaintiff’s claim is prescribed on its

face…the burden shifts to the plaintiff to establish that his or her claim has not

prescribed.” Id. (internal quotation omitted) (citation omitted). “An action of

revocation for ingratitude shall be brought within one year from the day the donor

knew or should have known of the act of ingratitude.” La. C.C. art. 1558.

The same codal articles that govern a donation inter vivos govern donations

made by spouses. See Larocca v. Larrocca, 597 So.2d 1000, 1004, n.11 (La.

1992). A donation inter vivos is defined as a contract by which a person

gratuitously divests himself, at present and irrevocably, of a thing given in favor of

another who accepts it. La. C.C. art. 1468. “A donation inter vivos may be revoked

because of the ingratitude of the donee.” La. C.C. art. 1556. Revocation on account

of ingratitude takes place when (1) the donee has attempted to take the life of the

donor or (2) has been found guilty of cruel treatment, crimes, or grievous injury

towards the donor. La. C.C. art. 1557. Grievous injuries may include acts that are

naturally offensive to the donor and may include adultery of one of the spouses.

See Perry v. Perry, 507 So.2d 881, 883 (La.App. 4th Cir. 1987) (citations omitted).

“The act may consist of slanderous charges [or] of a seizure levied by the donee

against the donor of whom he is creditor... .” Id. (citation omitted).

Exception of Prescription

As a threshold matter, we first address the portion of the trial court’s

judgment granting Mr. Gilberti’s exception of prescription. The exception alleges

4 that Ms. Ackerman’s claims of ingratitude based on adultery, drug use, verbal

abuse and threats of bodily harm, have prescribed. He contends that Ms. Ackerman

knew of the alleged acts more than one year prior to filing her petition for

revocation.

Adultery, Drug Use, Verbal Abuse and Threats of Bodily Harm

Ms. Ackerman’s petition for revocation maintains that Mr. Gilberti is guilty

of grievous injury and cruel treatment based on the following acts: committing

adultery, habitually using drugs, verbally abusing her and threatening bodily harm.

At trial, Ms. Ackerman stated that she filed for divorce because Mr. Gilberti

was involved in a relationship with another woman. Ms. Ackerman’s petition for

divorce alleges that Mr. Gilberti was in a relationship prior to moving out of the

matrimonial domicile on May 10, 2019. In support of her allegation, Ms.

Ackerman submitted text messages, dated August 5, 2019 and August 6, 2019, in

which she accuses Mr. Gilberti of being involved with another woman during the

marriage. Ms. Ackerman also acknowledged that many of her friends informed her

that Mr. Gilberti was having an affair prior to filing her petition for divorce, on

August 7, 2019, but she ignored their warnings.

Ms. Ackerman also maintains Mr. Gilberti caused her grievous injury

because he habitually used drugs. Ms. Ackerman asserted that Mr. Gilberti began

to act erratically and exhibited signs of drug use when he learned she was going to

file for divorce. Ms. Ackerman believed Mr. Gilberti was using drugs when he

hacked into her email account, changed the locks of the matrimonial domicile and

threatened to show up to the matrimonial domicile unannounced. The protective

order asserts that Mr. Gilberti “started using drugs again” in April 2019. Ms.

Ackerman submitted Mr. Gilberti’s positive drug test, dated September 19, 2019,

5 which she maintains confirmed her belief that Mr. Gilberti’s erratic behavior was a

result of his drug use. A friend of Ms. Ackerman testified at trial stating that she

informed Ms. Ackerman, prior to 2019, that Mr. Gilberti offered her cocaine and

the two often smoked marijuana together on the back porch of the matrimonial

domicile while Ms. Ackerman was upstairs sleeping. The friend further testified

that after she informed Ms. Ackerman of Mr. Gilberti’s drug use, Ms. Ackerman

ignored her warnings and did not speak to her for two years.

Regarding the allegations of verbal abuse and threats of bodily harm, Ms.

Ackerman testified that Mr. Gilberti texted her stating he wished she would “die

already.” Mr. Gilberti sent Ms. Ackerman texts calling her a horrible wife and

describing their marriage as a waste. She testified that one week before filing the

protective order, Mr. Gilberti threatened bodily harm against her stating that he

was going to “crack her skull.” In support of these allegations, Ms. Ackerman

again referenced the August 5, 2019 and August 6, 2019 text messages. Ms.

Ackerman’s protective order also indicates that Mr. Gilberti made threats of bodily

harm, harassed her, stalked her and threatened to break into the matrimonial

domicile shortly after the parties separated in May 2019.

Ms. Ackerman’s testimony acknowledges that she was aware of Mr.

Gilberti’s acts of adultery, drug use, verbal abuse and threats of bodily harm more

than one year before she filed the petition for revocation on August 19, 2020. The

alleged acts of ingratitude, which form the basis of her petition, all occurred before

August 19, 2019. See La. C.C. art. 1558. Specifically, the acts of ingratitude

occurred in April 2019, May 2019, and August 5, 2019. We therefore find the acts

of ingratitude regarding adultery, habitual drug use, verbal abuse and threats of

bodily harm occurred more than one year before Ms. Ackerman filed her petition

6 for revocation. Accordingly, the trial court did not err in granting Mr. Gilberti’s

exception of prescription.

Petition for Revocation

We now address Ms. Ackerman’s remaining claims alleging Mr. Gilberti

committed acts of ingratitude sufficient to revoke the 2008 donation. Specifically,

Ms. Ackerman maintains that Mr. Gilberti caused grievous injury when he

improperly used community funds, used her separate property and stole her

belongings.

Ms. Ackerman submitted various exhibits and elicited testimony at trial. She

testified that after she filed for divorce, but before a judgment of divorce was

granted, Mr. Gilberti attempted to steal rent from her separate property by texting

the tenants that she was in trouble with the Internal Revenue Service. The

collective testimony from trial indicates that Mr. Gilberti often collected rent from

Ms. Ackerman’s tenants, while they were married and that rent was deposited into

a joint bank account. There is no evidence to suggest that Mr. Gilberti was

successful in collecting rent from the tenants post separation; rather, Ms.

Ackerman only testified that Mr. Gilberti texted the tenants attempting to collect

the rent. Ms. Ackerman failed to submit any evidence that Mr. Gilberti actually

received the money.

Ms. Ackerman also noted that Mr. Gilberti moved into her separate property,

without her permission, forcing her to evict him. She further testified that Mr.

Gilberti broke into the former matrimonial domicile to steal paintings, her Rolex

watch and designer bags. To support these assertions, Ms. Ackerman submitted

photos of home videos at trial. The photos show Mr. Gilberti on the front porch,

retrieving items, including a large painting, from the couple’s former matrimonial

7 domicile. While she admitted that she informed Mr. Gilberti to retrieve his

personal items from the front porch on more than one occasion the photos

submitted were not one of those occasions. Ms. Ackerman also testified that she

previously informed Mr. Gilberti to sell her Rolex watch and designer bags to

assist with mortgage payments.6 After carefully considering the testimony and

evidence, the trial court determined Ms. Ackerman failed to submit sufficient

evidence. We agree.

There is limited jurisprudence defining ingratitude, nonetheless; the terms

commonly referred to which describe ingratitude are “cruel treatment, crimes, or

grievous injury.” This Court has observed:

“[i]njuries” include any act naturally offensive to the donor. It may be the adultery of one of the spouses.... The act may consist of slanderous charges [or] of a seizure levied by the donee against the donor of whom he is creditor… .

Perry, 507 So.2d at 83 (citation omitted) (emphasis omitted); La C.C. art 1557

(comment b). Further, “an act of the donee that is offensive to the donor is not to

be considered a ground for revocation of a donation unless the offense is serious.”

La. C.C. art. 1557 (comment c). Although Ms. Ackerman maintains Mr. Gilberti

committed crimes and grievous injury, the record supports the trial court’s finding

that Ms. Ackerman failed to submit sufficient evidence to prove that Mr. Gilberti’s

actions rise to the level of cruel treatment, crimes or grievous injury sufficient to

revoke a donation. Mr. Gilberti’s actions may be disrespectful and crude, but we

cannot say the trial court’s decision was manifestly erroneous. 1026 Conti

Condominiums, LLC v. 1025 Bienville, LLC, 2019-0826, p. 5 (La.App. 4 Cir.

6 Ms. Ackerman submitted texts messages with photos of her Rolex watch on another woman’s

wrist to support her allegation that Mr. Gilberti stole her watch. During cross-examination, Ms. Ackerman was asked to identify the watch in the photos and waivered in her answer numerous times. She ultimately could not identify the watch in the photos as her own.

8 8/5/20), 364 So.3d 297, 301 (noting “[t]o reverse under the manifest error rule, an

appellate court must find from the record that there is no reasonable basis for the

trial court’s finding and that the record shows the finding to be manifestly

erroneous.”) (citations omitted). Accordingly, we find the trial court did not err in

denying Ms. Ackerman’s petition for revocation.

Conclusion

The record indicates that Ms. Ackerman was aware of Mr. Gilberti’s alleged

acts of adultery, drug use, verbal abuse and threats of bodily harm more than one

year before she filed her petition for revocation in August 2020. While cognizant

of the fact that the divorce proceedings have been extremely contentious, the

record before us supports the trial court’s conclusion that Ms. Ackerman failed to

submit sufficient evidence to meet her burden of proof to show Mr. Gilberti

committed acts of ingratitude sufficient to revoke the 2008 donation. This Court

“may not set aside a trial court’s findings of fact unless they are manifestly

erroneous or clearly wrong.” 1026 Conti Condominiums, 2019-0826, p. 5, 364

So.3d at 301 (citing Rosell v. ESCO, 549 So.2d 840 (La. 1989)). We therefore find

the trial court did not err in denying Ms. Ackerman’s petition for revocation.

Decree

Based on the foregoing, we affirm the trial court’s judgment granting Mr.

Gilberti’s exception of prescription and dismissing the petition for revocation.

AFFIRMED