Waterbury v. Waterbury

496 So. 2d 1374
CourtLouisiana Court of Appeal
DecidedNovember 5, 1986
Docket85-1187
StatusPublished
Cited by5 cases

This text of 496 So. 2d 1374 (Waterbury v. Waterbury) 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
Waterbury v. Waterbury, 496 So. 2d 1374 (La. Ct. App. 1986).

Opinion

496 So.2d 1374 (1986)

Gertrude F. WATERBURY, et al., Plaintiffs-Appellees-Appellants,
v.
Robert L. WATERBURY, Defendant-Appellant-Appellee.

No. 85-1187.

Court of Appeal of Louisiana, Third Circuit.

November 5, 1986.
Writ Denied January 9, 1987.

*1375 Carl W. Cleveland, New Orleans, for defendant-appellant-appellee.

Bruce Gaudin, Opelousas, for plaintiffs-appellees-appellants.

Before GUIDRY, DOUCET and KING, JJ.

GUIDRY, Judge.

This appeal stems from a suit by the widow and children of William R. Waterbury seeking to set aside the transfer by William of 101.32 acres of land (the Blue Springs property) in St. Landry Parish to Robert Waterbury, his brother. The transfer is dated December 30, 1974, but was not recorded until November 14, 1975, the day William Waterbury died. The act was in the form of a cash sale with the recited consideration being $20,264.00 ($200.00 per acre). William had acquired the property from Robert in 1967 for $15,198.00. Robert had originally acquired the land in 1961 for $20,000.00.

In their petition, plaintiffs alleged that the 1974 sale should be annulled, set aside and rescinded as a simulation, a disguised donation, or for lesion beyond moiety. The learned trial judge found that the sale was neither a simulation nor a disguised donation. He did, however, find that the sale was lesionary, as the recited consideration of $20,264.00 was less than one-half of the value of the land at the time of the sale, which he found to be $87,500.00.

Defendant appealed alleging that the trial court erred in finding the transfer of the Blue Springs property to be lesionary. Plaintiffs answered the appeal maintaining that the trial judge erred in not finding the sale a simulation and, in the alternative, not accepting the plaintiffs' experts' appraised value of the land as $101,500.00.

The issues to be decided on appeal are threefold:

1. Was the transfer of the Blue Springs property a simulation?
2. Was the transfer of the Blue Springs property lesionary?
3. Was the trial court in error in valuing the land at $87,500.00?

WAS THE SALE A SIMULATION?

At the outset, we observe that plaintiffs do not contend that the transaction in question was a donation in disguise. Rather, plaintiffs assert that the transaction is a "pure simulation", the parties having pretended to transfer the property, but in fact both transferor and transferee intended that the transferor retain ownership of the property. See Owen v. Owen, 336 So.2d 782 (La.1976).

A panel of this court in Boagni v. Waterbury, 403 So.2d 856 (La.App. 3rd Cir.1981), *1376 was called upon to decide if the very sale, at issue in this case, from William Waterbury to Robert Waterbury was a simulation. In addressing that issue, Judge Doucet, as organ of the court, stated:

"The general rule is that the party alleging a simulation has the burden of establishing it with a reasonable certainty. D'Angelo v. Nicolosi, 183 La. 1039, 165 So. 193 (1936). In some cases, however, the plaintiff is aided by the existence of a legal presumption of simulation, which has the effect of shifting the burden to the defendants to establish the validity of the transactions under attack.
This presumption of simulation arises in two manners. The first occurs when a seller remains in possession of the thing he sells, either under a precarious title, or by reserving the usufruct of the thing. LSA-C.C. Art. 2480; Ingram v. Freeman, 326 So.2d 565 (La.App. 3rd Cir. 1976), and the cases cited therein. The second occurs when the party alleging the simulation produces evidence of circumstances which create a highly reasonable doubt or suspicion about the honesty or validity of the transaction. Smith v. Smith, 239 La. 688, 119 So.2d 827 (1960); Ingram v. Freeman, supra, and the cases cited therein."

Boagni, supra, at 858, 859.

In Boagni, supra, this court affirmed the trial court's conclusion that the presumption favoring the plaintiffs applied but reached the conclusion, as did the trial court, that the defendant succeeded in establishing the validity of the transaction. In so concluding this court stated:

"The final circumstance asserted by plaintiff, the retrocession of the 101.32 acre tract sold to William B. Waterbury, plaintiff considers to be the most suspicious. The trial judge disagreed with that conclusion, finding that in effecting the transfer there was a settlement of accounts between the brothers, which indirectly confirmed the earlier sale. The finding is supported by the fact that part of the consideration for the sale back to Robert Waterbury was the retirement of a demand note that William Waterbury had executed in his brother's favor at an earlier time.
Although the trial judge didn't articulate his evaluations of credibility, we believe that his acceptance of the defendants' testimony is implicit in his written reasons for judgment. After carefully scrutinizing that testimony and the accompanying documentary evidence, we cannot say that he was clearly wrong in doing so. The defendants' explanations of the unusual circumstances surrounding the transactions were not so implausible or unlikely as to be beyond reasonable belief. Since their testimony together with the other evidence in the record furnishes a reasonable factual basis for the trial judge's finding that the transactions were real and not simulations, we are not free to disturb that finding under the standard of appellate review set out by our Supreme Court in Canter v. Koehring Co., 283 So.2d 716 (La.1973) and further explained in Arceneaux v. Domingue, 365 So.2d 1330 (La. 1978)...."

Boagni, supra, at 861.

Although our decision in Boagni, supra, is not res judicata, because the demand for simulation in that suit involved parties different from those present in the instant action (La.R.S. 13:4231[1]), the ultimate determination of the trial and appellate courts in that case, on the basis of the same evidence, is persuasive.

In the instant case, a different trial judge of the 27th Judicial District Court again considered a demand of simulation levelled against the sale of December 30, 1974 from William Waterbury to Robert Waterbury. In written reasons for judgment denying plaintiffs' demand for rescission of the *1377 sale, the learned trial judge in this case stated:

"I uphold the sale of December 30, 1974, as genuine.
There are multiple considerations. None is alone determinative.
It is true the Waterbury brothers were very close. However, there was no evidence of any estrangement between the deceased Waterbury and his wife and children. The evidence indicates a loving family relationship. At the time, Robert Waterbury was very well fixed financially. He had no dependents. The deceased Waterbury was comfortable enough but not nearly as affluent as his brother. Additionally, he had dependents.
It is inconceivable that the deceased Waterbury would have proceeded to favor a wealthier brother, albeit a very close one, to the prejudice of his wife and children who at the time were destined to become fatherless. I doubt that there is in the whole of Louisiana's reported jurisprudence a simulation such as is contended for in this case. The attempt to deceive a creditor is one thing.

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