John Lloyd Fredrick appeals a judgment that ordered a certain plot of immovable property located in Tangipahoa Parish be re-conveyed and re-titled in the names of Mildred Blount Robertson and her husband, Aswell J. Robertson, as a result of a finding of a simulated sale. Finding no error by the trial court, we affirm.
Three suits were filed and subsequently consolidated in the district court and have been consolidated on appeal. All three law suits involve an act of cash sale dated February 1, 1975, purporting to convey to Mr. Fredrick 82½ acres of land then owned by Aswell J. and Mildred B. Robertson (the "Robertsons"), who are now deceased.
Suit number 57,436 (98CA1814) was filed on September 26, 1979, by Harold G. and Marie B. Scoggins, (the "Scogginses"), through their attorney, Joseph A. Gladney, against Mr. Fredrick. The Scogginses urged they were the judgment creditors of Mr. Robertson and that the 1975 sale was a simulation designed to put the Robertsons' property beyond their reach as judgment creditors. They ask that the sale be set aside, thus clearing the way for execution of their judgments.
Suit number 60,259 (98CA1815) was filed on September 9, 1980, by the Scogginses, through their attorney, Joseph A. Gladney, against Mr. Robertson and was a petition to make two 1979 judgments in the personal injury suit executory in the Twenty-First Judicial District Court, for the purpose of executing on the Robertsons' property. On August 27, 1981, the Scogginses discharged Mr. Gladney and hired Larry
Suit number 73,319 (98CA1816) was a separate suit filed on October 31, 1984, by the Gladney law firm against multiple defendants, re-urging that the sale was a simulation and opposing an alleged settlement between the Scogginses and Mr. Fredrick to divide the property in kind.
On November 7, 1984, an order consolidating the three suits was signed. On May 10, 1994, Mrs. Robertson filed a cross claim against Mr. Fredrick, seeking to have the cash sale declared a simulation. After Mrs. Robertson's death, her niece, Billie B. Albritton, as administratrix of the estate of her aunt, filed a petition to be substituted as a party in the proceedings.
The matters were not brought to trial until August 28, 1997. By that time, the Scogginses and the Robertsons were all deceased, and a settlement had been reached between the Scoggins interests and the Robertson interests. Thus, the trial court was informed that the only issue presented for trial was whether the 1975 sale was a simulation; all other issues were moot. The trial court took the matter under advisement and rendered judgment on February 3, 1998, ordering reconveyance and re-titling of the property.
Without explanation, on two dates, October 29, 1997, and November 26, 1997, the trial court provided written reasons for judgment. With one minor exception,
On appeal, Mr. Fredrick raises several threshold issues
Mr. Fredrick maintains the three suits should have been declared abandoned for inactivity for five years prior to trial. This argument is without merit because, regardless of whether the three suits in which Mrs. Robertson was a defendant were abandoned or whether the original plaintiffs' causes of action were prescribed, Mrs. Robertson had a separate, independent cause of action sufficient to have the sale declared a simulation. Mrs. Robertson filed the cross claim against Mr. Fredrick to have the sale declared a simulation on May 19, 1994, a little over three years prior to the trial. Mrs. Robertson's action was timely, as the action to have a simulated sale declared a nullity never prescribes.
Because of the unique characteristic of an action for simulation never prescribing, we hold the cross claim acted as a separate action. Because Mrs. Robertson's cross claim was filed within five years prior to trial, there was no abandonment.
A related issue is expressed in Mr. Fredrick's specification of error number 8, which states: "As a matter of law the Court could not ignore and disregard the prior pleadings, admissions and statements made by Mildred B. Robertson personally and as representative of her deceased husband's estate in support of the validity of the sale from Aswell J. Robertson to John Lloyd Fredrick." Apparently, Mr. Fredrick refers to the pleadings filed on Mrs. Robertson's behalf in the consolidated suits and to the deposition she gave on September 24, 1980, in suit number 57,436 (98CA1814).
Initially, we note that a party is not inexorably bound by testimony given on the witness stand or by factual allegations contained in pleadings from a prior suit. Jackson v. Gulf Insurance Company, 250 La. 819, 832, 199 So.2d 886, 891 (1967). See also, Sanderson v. Frost, 198 La. 295, 309-310, 3 So.2d 626, 631 (1941), a contest over title to immovable property wherein the court held that allegations contained in tutorship proceedings, which were relied upon by the plaintiffs as constituting judicial confessions, were made in another proceeding and not in the case at bar, making LSA-C.C. art. 2291 (now LSA-C.C.
Regardless, our review of the pleadings reveals Mrs. Robertson made no judicial confession, as defined in LSA-C.C. art. 1853 and interpreted in the jurisprudence.
Nevertheless, Mr. Fredrick's arguments concerning these matters are irrelevant, including his motion in this court to strike the second deposition from the record, because the trial court apparently did not rely on either of Mrs. Robertson's depositions or on the testimony of her niece who was present at the second deposition.
Next, Mr. Fredrick raises the issue of failure to name an indispensable party, specifically, his wife, Mardell Davis Fredrick, who was not made a party to this litigation. Mr. Fredrick's argument that his wife should have been made a party to any adjudication of community property is based on the premise that the 1975 act of sale vested title in him as head and master of the community. The issue of community versus separate property is immaterial. Mr. Fredrick's assertion of lack of an indispensable party is without merit because title to property involved in an absolute simulation is not transferred from the purported vendor to the purported vendee, although the purported vendee becomes the record title holder. See LSA-C.C. art. 2026;
Mr. Fredrick also urges the Scoggins plaintiffs and the Gladney plaintiffs-intervenors
Finally, Mr. Fredrick complains about the settlement between the Scoggins interests and the Robertson interests, which he labels a "Mary Carter" agreement. He claims he was prejudiced by the settlement and should have been granted a continuance to investigate the settlement. The term "Mary Carter" agreement refers to a contract between a plaintiff and one co-defendant, typically with the following features: (1) secrecy; (2) the contracting defendant remains a party to the suit; (3) the contracting defendant's liability will be reduced proportionately by increasing the liability of its co-defendants; and (4) the contracting defendant guarantees the minimum recovery to the plaintiff. See Thibodeaux v. Ferrellgas, Inc., 97-1267 (La.App. 3 Cir. 9/9/98), 717 So.2d 668, 670. There is no evidence in the record to suggest the settlement in the instant case was a Mary Carter agreement. Furthermore, the settlement reached between the parties who were the original plaintiffs and defendants in the tort suit, along with their former attorneys, did not have any effect whatsoever on the determination by the court of the issue of a simulated sale. Mr. Fredrick's argument concerning the settlement is without merit.
Our review of the record convinces us the trial court committed neither an error of law, nor manifest error, in its factual findings.
In an action en declaration de simulation, the initial evidence to be considered is the act of sale which is being attacked. In the instant case, that document is a "Cash Sale" dated February 1, 1975, and signed by Aswell J. Robertson and John Lloyd Fredrick. The cash sale recites a price of $40,000.00 and contains a description of the property purportedly conveyed. The document also contains the following: "The usufruct of the above described property is hereby retained by Aswell J. Robertson and Mary Blount Robertson until their deaths." The reservation of usufruct was accompanied by corporeal possession when the Robertsons maintained their residence on the property until Mr. Robertson's death and Mrs. Robertson's stroke. After her stroke, she moved to a nursing home, and the house was occupied by family members other than Mr. Fredrick. These facts were established at trial by testimony of the Robertsons' nieces and nephew. There was no evidence that Mr. Fredrick ever occupied the premises, as he maintained his residence in another state.
The effect of the reservation of usufruct and corporeal possession of the property by the purported vendors was to shift the burden of proof at the trial of the action for declaration of simulation. Instead of the parties who urged simulation having to come forth with evidence to support the charge of simulation, the purported vendee had the burden of proof that the sale was not a simulation. Where the seller has reserved the usufruct and has continued to reside on the property, the case falls within the contemplation of
The second item of evidence to be considered by the trial court was a counterletter signed by Mr. Robertson and Mr. Fredrick. The importance of a counterletter in an action en declaration de simulation is well established. A simulation is defined in LSA-C.C. art. 2025 as a contract which "by mutual agreement... does not express the true intent of the parties." The same article defines a counterletter as follows: "If the true intent of the parties is expressed in a separate writing, that writing is a counterletter." An absolute simulation exists "when the parties intend that their contract shall produce no effects between them. That simulation, therefore, can have no effects between the parties." LSA-C.C. art. 2026. The true intent of the parties to an absolute simulation is given effect when, for example, an apparent transferee confirms by counterletter that the subject property still belongs to the transferor. LSA-C.C. art. 2026, Comments (b). The apparent transferor may not succeed in attacking an absolute simulation in the absence of a counterletter. Id.
The Louisiana jurisprudence distinguishes "sham transactions," which have no effect at all, from "disguised donations," which are intended by the parties to be valid, but are not represented as donations on their face. LSA-C.C. art. 2026, Comments (a) and cases cited therein. In an absolute simulation, the parties pretend to transfer property from one to the other, but they intend that the transferor retain ownership. In a relative simulation, a sale appears to be valid on its face, but is intended by the parties to be a gift rather than a sale.
The treatment of simulations in the Louisiana statutes and jurisprudence is the subject of Thomas B. Lemann's detailed analysis, Some Aspects of Simulation in France and Louisiana, 29 Tul.L.Rev. 22 (1954).
It can be said unequivocally that a supposed transferor cannot establish an absolute simulation unless he produces a written counterletter. 29 Tul. L.Rev. at 31. See Sherman v. Nehlig, 154 La. 25, 30, 97 So. 270, 272 (1923). The issue of whether a sale was simulated is an issue of fact, but normally it cannot reach the court because all non-written evidence bearing on the issue is excluded by operation of law, and the written evidence is so unequivocal as to be conclusive of the facts. Thus, in contests between the purported vendor and the purported vendee, no questions of fact are presented, but only questions of law. Ridgedell v. Kuyrkendall, 740 So.2d at 177. Also in contests between the purported vendor and the purported vendee of immovable property, counterletters are admissible evidence; the testimony of witnesses is not. LSA-C.C. art. 2026, Comments (b); 5 SAUL LITVINOFF, LOUISIANA CIVIL LAW TREATISE, THE LAW OF OBLIGATIONS, § 12.97, at 399 (1992) ("If the simulation is absolute, that is, if the parties intended that their act should produce no effects between them, testimonial proof that the written act is actually a simulation may not be admitted when the apparent or simulated act contained in a writing purports to effect a transfer of immovable property.")
The counterletter in the instant case consists of the following:
The counterletter is signed by Aswell J. Robertson and John L. Fredrick. In addition to having the counterletter in evidence, the trial court heard the testimony of witnesses on behalf of the Robertson interests' witnesses concerning the counterletter.
Shirley Faye Blount Robertson testified that she was the blood niece of both Mildred B. and Aswell J. Robertson. Together with her ten siblings, she lived just down the road from her aunt and uncle when she was growing up. During 1994, she searched the old Robertson home and found the counterletter. She testified she
J. Robert Murray, Jr. was qualified as an expert on forensic handwriting examination. He testified that he examined "standards" to determine if the signatures on the counterletter were authentic. The standards provided to him were the two men's signatures on other documents. The witness went into detail about the methods he used to compare the admitted signatures with the questioned signatures.
On appeal, Mr. Fredrick attacks the testimony of the Robertsons' handwriting expert on several grounds, in the following assignments of error:
Assignments of error numbers 9 through 14, which Mr. Fredrick addresses in brief in globo, are clearly without merit for the following reasons. First, Mr. Fredrick's attack on the witness's testimony goes to the weight of the evidence, not the admissibility of the testimony. As the trier of fact, the court was free to accept or reject, in whole or in part, the testimony of any witness. Morrison v. Morrison, 97-0295, p. 5 (La.App. 1 Cir. 9/19/97), 699 So.2d 1124, 1127. Furthermore, where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, reasonable inferences of fact should not be disturbed on appeal. See Miley v. Louisiana Farm Bureau Casualty Insurance Company, 599 So.2d 791, 809 (La.App. 1 Cir.), (Lanier, J., concurring in
In this appeal, although the interpretation of the counterletter is a legal issue, the trial court's findings regarding its authenticity are factual findings, which require the manifest error or clearly wrong standard of appellate review. Because Mr. Murray was an expert witness, the following discussion in Lirette v. State Farm Insurance Company, 563 So.2d 850, 852-853 (La.1990) is applicable:
When making a manifest error (clearly wrong) fact review, an appellate court is not required to consider the three evidentiary elements of weight, credibility, and inferences in the light most favorable to the prevailing party; the court only must accept reasonable evaluations of credibility and reasonable inferences and may determine if the overall weight of the evidence is clearly wrong. Miley, 599 So.2d at 809.
In the instant case, if we review the entire record, and the testimony of Mr. Murray in particular, pursuant to the rules set forth in Lirette, 563 So.2d at 852-853, we cannot say that the reasons given by Mr. Murray for his conclusion that the signatures were genuine are patently unsound.
Furthermore, we have reviewed the entire record in light of the errors in pretrial and trial procedure alleged in assignments of error numbers 9 through 14. The trial court found that the plaintiffs had responded sufficiently to discovery devices, and Mr. Fredricks has failed to show how these errors, if any existed, prejudiced his defense and amounted to more than harmless error.
Having found no error of law or manifest error in the trial court's determination that the purported sale was an absolute simulation, we affirm. We cast Mr. Fredrick with all costs of this appeal.
In his application for rehearing, defendant John Lloyd Fredrick clarifies an argument he made in his original brief concerning court costs. Mr. Fredrick points out that, despite the fact that three separate suits had been filed, the Scoggins interests and the Robertson interests had reached a settlement prior to the trial on the merits of the issue raised in the cross claim filed by Mrs. Robertson on May 10, 1994.
The judgment which declared the act of sale a simulation cast Mr. Fredrick with all costs. However, our review of the record
Accordingly, we grant a rehearing for the limited purpose of amending the judgment of the trial court concerning costs. We cast the defendant, Mr. Fredrick, and the succession representative, Billie B. Albritton, with his and her own costs incurred in the litigation of the cross claim for simulation filed on May 10, 1994.
In all other respects, the application for rehearing is denied.