Scoggins v. Frederick
| Citation | 744 So.2d 676 |
| Decision Date | 24 September 1999 |
| Docket Number | No. 98 CA 1814 to 98 CA 1816. |
| Parties | Harold Glen SCOGGINS and Marie B. Scoggins v. John Lloyd FREDERICK and Aswell J. Robertson. Harold Glen Scoggins and Marie B. Scoggins v. Aswell J. Robertson. Joseph A. Gladney, Individually, and Joseph A. Gladney and Associates, et al. v. John Lloyd Frederick and Mildred Blount Robertson and Marie B. Scoggins, and Heirs of Harold G. Scoggins, et al. |
| Court | Court of Appeal of Louisiana (US) |
Richard C. Macaluso, Hammond, Counsel for Appellant John Lloyd Fredrick.
John O. Charrier, Jr., Baton Rouge, Counsel for Appellee Billie B. Albritton.
Before: GONZALES, FITZSIMMONS, and WEIMER, JJ.
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.2 The late Mrs. Robertson was the half sister of Mr. Fredrick.
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.3
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 S. Bankston, Mrs. Scoggins' nephew, as their attorney. The Gladney law firm intervened in the suit to assert an attorney's lien and privilege on the proceeds of the sale of the property. Mrs. Robertson, as administratrix of her then-deceased husband's estate, procured a preliminary injunction, which was reduced to judgment filed on May 31, 1983, preventing a sheriff's sale, and which was still pending at the time of the trial.
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,4 the reasons were substantively consistent with each other and with the judgment. The trial court's findings were: 1) the 1975 sale was a simulation; 2) because the Robertsons retained a life usufruct in the act of sale and continued to reside on the property, Mr. Fredrick had the burden of proving the sale was not a simulation; 3) Mr. Fredrick did not carry his burden of proof; 4) the court credited the opinion of the plaintiffs' handwriting expert that the signatures on a counterletter were authentic; 5) the court credited documents produced by two bank officers as proof that the cash withdrawn by the Robertsons prior to the 1975 sale was used by Mr. Fredrick as a simulated "payment" for the property; and 6) the court noted the testimony about the money was unrefuted, as Mr. Fredrick refused to testify how he procured the cash.
On appeal, Mr. Fredrick raises several threshold issues5 which we will address prior to discussion of the simulated sale, the sole issue on the merits decided by the trial court. The first issue is abandonment, and the second is prescription, including the failure of the Scogginses to have the judgment against the Robertsons reinscribed.6
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.7 LSA-C.C. arts. 2030 and 2032. Thus, the cause of action for simulation was not prescribed.8
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.9 We limit our holding regarding the cross claim acting as a separate action to the particular facts of this case.10
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. art. 1853)11 inapplicable. Such allegations constituted evidence, but not conclusive presumptions or estoppels. Other cases have further indicated that a party litigant is not even bound by factual allegations made in the same suit unless his adversary was mislead or deceived by those allegations to his detriment. J.H. Jenkins Contractors, Inc. v. Farriel, 261 La. 374, 395, 259 So.2d 882, 890 (1972); DeMaupassant v. Clayton, 214 La. 812, 820, 38 So.2d 791, 793 (1949); Mouledous v. Poirier, 221 So.2d 291, 295 (La.App. 4 Cir.1969). Further, judicial admissions in the same suit have been held not to bar curative amendments. Guidry v. Barras, 368 So.2d 1129, 1132 (La.App. 3 Cir.1979). In the instant case, the cross claim of Mrs. Robertson is tantamount to a separate suit and has an effect similar to a curative amendment.
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.12 The only pleading filed by Mrs. Robertson in suit number 73,319 contained exceptions of no right and no cause of action; the pleading contains no admissions. The only pleading filed by Mrs. Robertson in suit number 60,259 was a petition for injunction; the pleading contains no admissions. In suit number 57,436, an answer was filed on behalf of Mr. Robertson, prior to his death; it is in the form of a general denial and contains no admissions of fact. After Mr. Robertson's death, Mrs. Robertson filed a motion to have herself substituted as party defendant; this pleading contains no admissions. The next pleading filed by Mrs. Robertson was the cross claim against Mr. Frederick in suit number 57,436, in which she claims the cash sale in which she participated was a simulation. Thus, there is no pleading in the records of the three suits that could be interpreted as a judicial admission which is contrary to the position assumed in her cross claim. Cf. Hyde v. Hibernia National Bank in Jefferson Parish, 584 So.2d 1181, 1183-1184 (La.App. 5 Cir. 1991),
wherein the court held that an admission of fact in a party's answer, as contrasted with a denial of fact, constituted a judicial confession.13
Further, under the jurisprudence, Mrs. Robertson's deposition testimony that the sale was not a simulation cannot be considered a judicial...
To continue reading
Request your trial
-
Scoggins v. Frederick, 98 CA 1814.
... 744 So.2d 676 Cir. Harold Glen SCOGGINS and Marie B. Scoggins v. John Lloyd FREDERICK1 and Aswell J. Robertson. Page 677 Harold Glen Scoggins and Marie B. Scoggins v. Aswell J. Robertson. Joseph A. Gladney, Individually, and Joseph A. Gladney and Associates, et al. v. John Lloyd Frederick ......