27,241 La.App. 2 Cir. 8/23/95, Kilpatrick v. Kilpatrick

• Decision Date: 23 August 1995
• Citation: 660 So.2d 182
• Parties: 27,241 La.App. 2 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 182

660 So.2d 182

27,241 La.App. 2 Cir. 8/23/95

Dr. Arnold KILPATRICK, Plaintiff-Appellee, v. Travis H. KILPATRICK, Defendant-Appellant.

No. 27,241-CA.

Court of Appeal of Louisiana,

Second Circuit.

Aug. 23, 1995.

Rehearing Denied Sept. 21, 1995.

Writs Denied Dec. 15, 1995.

Kneipp & Hastings by Donald L. Kneipp, Monroe, for appellant.

Bobby L. Culpepper, Jonesboro, for appellee.

Before SEXTON, NORRIS and WILLIAMS, JJ.

[27268 La.App. 2 Cir. 1] NORRIS, Judge.

Travis Kilpatrick appeals a trial court judgment awarding $47,667 under an oral contract to his brother, Dr. Arnold Kilpatrick. For the following reasons, we reverse and render.

Facts

The oral contract at issue stemmed from litigation expenses Arnold incurred as co-executor of their brother Willard's estate after Willard's death in February 1977. Although Arnold alleged that litigation over Willard's succession was complex and expensive, the details are treated only tangentially in the instant record. ¹ For purposes of this opinion, it is sufficient to say that after an adverse judgment in May 1980, which effectively denied Arnold, Travis and their niece, Lois Dennis, any share of Willard's estate, Arnold contends he phoned Travis to propose a plan to pursue the litigation. Arnold claims he told Travis, "I will finance it. If we lose I will finance our portion of it, but if we win I expect to be paid," and Travis agreed. According to Arnold, he also proposed this separately to Lois Dennis, the only other heir, and she agreed.

Arnold testified that in 1980 he borrowed a total of $170,000 from numerous banks to cover the costs of litigating the will contest. Arnold used the money to hire several attorneys for the Kilpatrick side; apparently Mrs. Willard Kilpatrick's brother, Harper Terrill, the other co-executor, hired separate counsel to protect the Terrill family's interests. Arnold testified that he formed K & K Executive Corporation solely to fund the expenses of litigation. He [27268 La.App. 2 Cir. 2] testified that most of the loans were made in the name of K & K Executive Corporation; however, Arnold stated he paid the principal and interest (record also shows personal checks to attorneys) from his personal checking account, and could not recall whether K & K even had a checking account.

Kilpatrick and Terrill eventually obtained a final judgment recognizing both family's inheritance rights. In August 1984, the first succession disbursement was made, and each heir, including Arnold, received $139,000. In addition, Arnold received from the estate an executor's fee of $49,000, reimbursement for expert fees of $5,000 and $3,989.70, and the principal amount of his loans, $170,000. Arnold used this money to pay off the principal and accumulated interest on the loans. Soon thereafter, Sam Donald, who had been Willard's certified public accountant and now handled matters for his estate, prepared an expense sheet for Arnold showing the total amount he borrowed and paid in connection with the litigation (including reimbursements), and the share of interest allegedly owed by each Kilpatrick heir. ² A few months later, Arnold, accompanied by his son, presented the expense sheet to Travis and his wife at their home. Mrs. Travis Kilpatrick testified this occurred on December 4, 1984. At this time, Travis denied owing Arnold any money.

Arnold listed the claim against Travis when he was forced to file for bankruptcy in 1986. According to Arnold, by this time his niece, Lois Dennis, had already paid him her pro rata share of the interest on the loans. Another disbursement of estate funds was made in December 1989. Arnold testified that after the proposed sale of certain succession property, Travis would have received about $320,000 total. Travis admitted he had not paid Arnold for any expenses connected with the will contest.

[27268 La.App. 2 Cir. 3] Arnold testified that he kept Travis informed of the case status at all times. Travis conceded that he was aware of the legal proceedings involving his brother's estate (he made at least one court appearance and gave one deposition), but flatly denied ever agreeing to let Arnold advance the litigation expenses and to reimburse him one-third if they ultimately won. His wife claimed at trial that she listened to every one of Travis's phone conversations because of his trouble hearing, and never heard such an agreement. Travis also testified that had Arnold consulted him, he might have agreed to pay a reasonable amount; he did not, however, consider $47,667 reasonable.

In January 1992, Arnold made formal written demand through an attorney upon Travis. Finally, in May 1993 he filed this suit to collect from Travis one-third of the interest Arnold paid on the loans. Travis denied all allegations that an oral contract existed and filed an exception of prescription with his answer.

The trial court awarded Arnold $47,667, finding sufficient proof of an oral agreement. The court believed Arnold's testimony over Travis's as to the existence of the contract. It also considered, as evidence to support Arnold's claim, a copy of the expense sheet prepared by Sam Donald itemizing Arnold's payments to various attorneys and banks, and copies of some cancelled checks to banks purportedly for repayment of principal and interest on loans. The court concluded, "The defendant has benefitted financially from the litigation far in excess of its cost and now refuses to pay his share of the costs. This Court will not allow the defendant to escape a true and just indebtedness to the plaintiff." R.pp. 39-40. The court did not mention Travis's exception of prescription, thus implicitly rejecting it.

On appeal, Travis contends the trial court erred in finding a valid oral contract existed and sufficient proof of the amount owed, in denying his [27268 La.App. 2 Cir. 4] exception of prescription, in admitting Arnold's expense sheet into evidence without a proper foundation, and in allowing evidence of money borrowed by and allegedly due K & K Executive Corporation, a non-party.

Discussion

The party asserting an obligation must prove it by a preponderance of the evidence. La.C.C. art. 1831. An oral contract over $500 must be proved by at least one credible witness and other corroborating circumstances. La.C.C. art. 1846. The plaintiff may be the one credible witness. Samuels v. Firestone Tire & Rubber Co., 342 So.2d 661 (La.1977); Richard v. Comeaux, 626 So.2d 507 (La.App. 3d Cir.1993), writ denied, 93-2989 (1/28/94), 630 So.2d 800. "Other corroborating circumstances" need only be general in nature; independent proof of every detail of the agreement is not required. Samuels v. Firestone Tire & Rubber Co., supra; Miller v. Harvey, 408 So.2d 946 (La.App. 2d Cir.1981). This proof may not, however, result from the plaintiff's own actions. Woodard v. Felts, 573 So.2d 1312 (La.App. 2d Cir.1991) (forester's markings on trees not corroborating evidence of an oral agreement with the landowner to market timber); Wisinger v. Casten, 550 So.2d 685 (La.App. 2d Cir.1989) (electrician's new, higher bid proposal and its approval by insurance adjuster did not modify original bid proposal agreed to by restaurant owner); Hilliard v. Yarbrough, 488 So.2d 1038 (La.App. 2d Cir.1986) (sending a copy of the wedding reception bills to defendant not a corroborating circumstance). A trial court's factual findings, including its determination as to corroboration, are entitled to great weight and will not be reversed absent manifest or clear error. Samuels v. Firestone Tire & Rubber Co., supra; Rosell v. ESCO, 549 So.2d 840 (La.1989); Lee Eyster & Asso. Inc. v. Favor, 504 So.2d 580 (La.App. 4th Cir.), writ denied, 507 So.2d 232 (1987).

[27268 La.App. 2 Cir. 5] Arnold's testimony sufficed as the one credible witness. The sole issue is therefore whether he supplied the requisite "corroborating circumstances" required by C.C. art. 1846.

The trial court found that Sam Donald's accounting compilation and the copies of cancelled checks to various banks showing repayment of principal and interest corroborated Arnold's claim that a contract existed. Because Arnold produced no witness to the agreement, the only evidence that can possibly serve to corroborate his testimony is exhibit P-1, the expense sheet, and in globo exhibit P-2, the documents which partially supported the expense sheet. For the following reasons, however, we find the evidence insufficient to corroborate the alleged oral contract.

First, the compilation resulted solely from Arnold's own actions; he not only directed Sam Arnold to prepare the accounting summary, but he admitted that he provided much of its content from memory alone. Thus, the compilation does not suffice as corroborating circumstances. Woodard v. Felts, supra. Second, although the documentation submitted is evidence that Arnold incurred a rather large personal debt to finance the will contest, it in no way corroborates that Travis agreed to reimburse Arnold for a portion of this debt. The mere fact that Arnold had an expense sheet prepared and presented it to Travis for payment does not prove an oral agreement for partial reimbursement. Hilliard v. Yarbrough, supra. On this record we are constrained to find that Arnold has produced nothing besides his own self-serving testimony to prove the oral agreement occurred.

As noted in Hilliard, proof of an oral agreement over $500 must meet the higher standard of including corroborating circumstances in addition to the plaintiff's testimony. Thus regardless of Arnold's credibility, he has failed to [27268 La.App. 2 Cir. 6] show corroboration of even a general nature in the instant case. Therefore we must find that the trial court was clearly wrong to conclude that Arnold met his burden of proving the existence of an oral contract under C.C. art. 1846. Hilliard v. Yarbrough, supra.

Nevertheless, we shall examine whether Arnold may be entitled to some type of quasi contractual remedy....