Whitten v. Moorman

973 So. 2d 159, 2007 WL 4246036
CourtLouisiana Court of Appeal
DecidedDecember 5, 2007
Docket42,704-CA
StatusPublished
Cited by1 cases

This text of 973 So. 2d 159 (Whitten v. Moorman) 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
Whitten v. Moorman, 973 So. 2d 159, 2007 WL 4246036 (La. Ct. App. 2007).

Opinion

973 So.2d 159 (2007)

Ricky Lee WHITTEN, et al., Plaintiff-Appellants
v.
Elizabeth Cook MOORMAN, et al., Defendant-Appellees.

No. 42,704-CA.

Court of Appeal of Louisiana, Second Circuit.

December 5, 2007.

*160 The Young Firm, by Timothy J. Young, New Orleans, for Appellants.

D. Scott Brown, Mansfield, for Appellees.

Before WILLIAMS, MOORE and LOLLEY, JJ.

MOORE, J.

The plaintiffs, Ricky Lee Whitten, Richard Whitten Jr. and Kenneth Whitten ("the Whitten children"), appeal a judgment that sustained an exception of prescription and dismissed their claims against the defendants, Elizabeth Cook Moorman, Patsy Ruth Branch, Linda Whitten Edmondson and James Donald Whitten ("the Whitten siblings"). For the reasons expressed, we affirm.

Procedural Background

The case involves the ownership of two tracts of land. T.W. Whitten owned a 24acre tract, and his wife Esther Whitten separately owned a 118-acre tract, in De-Soto Parish. They had five children: the Whitten siblings and Richard Whitten Sr.

According to the petition, T.W. Whitten died in 1972, but there is no evidence that his estate was ever probated. Instead, Richard Sr. executed a cash deed in favor of his mother, Esther Whitten, conveying to her all his interest in his father's property (actually, a short-form description of his DeSoto tract), for $10 "cash in hand paid, receipt of which is hereby acknowledged." By separate act, the Whitten siblings executed an identical cash sale deed in favor of their mother, conveying to her all their interest in their father's property on the same cash terms.

Esther Whitten died in 1985; her will distributed her property to her five children "share and share alike, or their descendants per stirpes." In October 1985, Richard Sr. executed a quitclaim deed in favor of the Whitten siblings conveying all his interest in his mother's estate for a consideration of $10 "and other good and valuable considerations to me in hand paid." This deed described the 118-acre tract. A subsequent judgment of possession conveyed an undivided 1/5 interest to Richard Sr. and each of the Whitten siblings, subject to the quitclaim deed.

Richard Sr. died intestate in 1986, survived by the Whitten children, the plaintiffs herein. According to their petition, they had no inkling that Richard Sr. had any estate to leave them. However, that changed in 2004.

*161 According to a memorandum filed in the district court, in September 2004, Ricky (one of the Whitten children) received a letter from his aunt, Elizabeth (one of the Whitten siblings), together with "a set of pleadings which appear to be the defendants' attempts at probating Richard Sr.'s Louisiana estate." In the Whitten children's view, this "was the first time any of the plaintiffs learned that their father held any interest in any real property in Louisiana." Only then did they discover that between 1988 and 2004, the Whitten siblings had granted oil, gas and mineral leases, as well as timber contracts totaling $45,650, on their two tracts in DeSoto Parish.

The Whitten children filed the instant suit in January 2006, alleging that the Whitten siblings committed fraud and misrepresentations regarding their ownership rights and thereby denied the Whitten children their 1/5 interest in their grandparents' estate. They prayed to be placed in possession of their share of the property and for damages representing their share of the revenues it had generated.

The Whitten siblings responded with the peremptory exception of prescription. They contended that the Whitten children were trying, in essence, to nullify the 1972 cash deed and the 1985 quitclaim, but the action in nullity was subject to prescription of 10 years (under former La. C.C. art. 2221, effective until January 1, 1985) or 5 years (under current La. C.C. art. 2032, effective since then). They also urged the case was virtually identical to Moore v. Shell Oil Co., 228 So.2d 205 (La.App. 3 Cir.1969), writ ref'd, 255 La. 278, 230 So.2d 587 (1970), which interpreted a similar claim as a suit to nullify quitclaim deeds and barred by prescription.

By reply memorandum, the Whitten children conceded they were trying to annul the 1972 cash deed and 1985 quitclaim, but contended these instruments were relative nullities for two reasons. First, they were the result of coercion, as Richard Sr. was incarcerated in Texas when he signed both instruments, "consistently unemployed throughout his life and had no other assets." Second, the fact that the Whitten siblings asked one of the Whitten children to sign off on succession papers indicated that Richard Sr. must have retained some property rights. From these circumstances, the Whitten children argued they were Killed into a course of inaction, thus suspending prescription under the theory of contra non valentem until 2004. By supplemental memorandum, they urged that the 1985 quitclaim was a relative nullity because it was neither an authentic act nor an act under private signature, La. C.C. arts. 1833 and 1837, and that the 1972 cash deed was "irrelevant" to the proceedings.

At a hearing in December 2006, the Whitten siblings offered into evidence certified copies of the 1972 cash deed and the 1985 quitclaim. They conceded that both were relative nullities, but argued that any action to nullify them was prescribed under Art.2032 and its predecessor Art. 2221. The Whitten children argued that prescription was suspended until they got the letter asking them to sign an act of possession in 2004. They also argued that Richard Sr. received no consideration for either of the conveyances. However, they called no witnesses and offered no documentary evidence of their own.

The district court sustained the exception "for the reasons stated in brief." This appeal by the Whitten children followed.

The Parties' Contentions

By one assignment of error, the Whitten children urge the district court erred in finding their claims had prescribed, even though C.C. arts.2032 and 2221 state that *162 prescription does not run in the presence of fraud. They contend they are entitled to de novo review owing to legal error that interdicted the fact-finding process; also, prescriptive statutes must be strictly construed. On the merits, they contend the quitclaim was not in proper form, both instruments were executed under circumstances that strongly suggested coercion, and there was no evidence that Richard Sr. ever received consideration for selling his inheritance rights. They did, not discover these facts, which disclosed fraud, until 2004. Thus they were "lulled into a course of inaction * * * by reason of some concealment or fraudulent conduct on the part of the defendant or because of his failure to perform some legal duty whereby plaintiff has been kept in ignorance of his rights." Carter v. Haygood, XXXX-XXXX (La.1/19/05), 892 So.2d 1261. Finally, they urge the district court should have considered the allegations of fraud on the face of the petition; the Whitten siblings failed to introduce any evidence to counter these. In support, they cite only La. C.C.P. art. 931, "evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition." They submit that grounds of fraud plainly appear in the petition.

The Whitten siblings respond that because the action to nullify was prescribed on its face, the burden of proof was on the plaintiffs to show that it had not prescribed. Carter v. Haygood, supra.

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973 So. 2d 159, 2007 WL 4246036, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whitten-v-moorman-lactapp-2007.