Bennett v. Porter

Decision Date09 March 2011
Docket NumberNo. 10–1088.,10–1088.
Citation58 So.3d 663
PartiesCathy Lynn Porter BENNETTv.T. Barrett PORTER, et al.
CourtCourt of Appeal of Louisiana — District of US

58 So.3d 663

Cathy Lynn Porter BENNETT
v.
T. Barrett PORTER, et al.

No. 10–1088.

Court of Appeal of Louisiana, Third Circuit.

March 9, 2011.


[58 So.3d 666]

David R. Lestage, Hall, Lestage & Landreneau, DeRidder, LA, for Defendants/Appellees, T. Barrett Porter, Judith Elizabeth Porter Weisgerber, Melinda Mae Porter Todd, David Barrett Porter.Donald W. Martin, Kingswood, TX, for Defendants/Appellees, Leon H. Gabro, Juanita Alta Porter Gabro.Jack L. Simms, Jr., Leesville, LA, for Plaintiff/Appellant, Cathy Lynn Porter Bennett.Terry W. Lambright, Leesville, LA, for Defendants/Appellees, David Porter, Monya Porter.Court composed of MARC T. AMY, SHANNON J. GREMILLION, and PHYLLIS M. KEATY, Judges.AMY, Judge.

[3 Cir. 1] The plaintiff filed suit seeking partition of property she asserts she inherited from her mother. Defendants filed an exception of no right of action, alleging that the property was the separate property of one of the defendants and that the plaintiff therefore had no interest in it. After a hearing on the exception, the trial court entered judgment in favor of the defendant and awarded attorney fees. The plaintiff appeals. For the following reasons, we affirm.

Factual and Procedural Background

This suit arises out of an intra-family dispute over the ownership of immovable property in Leesville, Louisiana. The record indicates that the plaintiff, Cathy Lynn Porter Bennett, is the daughter of T. Barrett Porter, defendant, and Dorothy Wampler Porter, deceased, and is the sister of defendants Judy Elizabeth Weisgerber, David Barrett Porter and Melinda Mae Todd. Defendants and cross-plaintiffs, Juanita Porter Gabro and Leon H. Gabro, are the plaintiff's aunt and uncle.

The plaintiff filed suit against her father, siblings, and aunt and uncle seeking partition of property she allegedly co-owned as a result of the death and succession of her mother. One of the various parcels of land for which the plaintiff sought partition is immovable property located in Leesville, Louisiana (the “town property”). T. Barrett filed an exception of no right of action, alleging that the plaintiff could not have inherited an interest in the town property from her mother because it was separate property belonging to himself and his sister, Juanita. Thus, he argued, the plaintiff has no interest in the town property and she had no right of action to pursue its partition.

A hearing on the sole issue of the ownership of the town property was held and evidence adduced at which T. Barrett alleged that his parents, John Alton Porter and [3 Cir. 2] Elsie Iles Porter, had conveyed the property jointly to him and his sister, Juanita, via a document entitled “Sale of Immovable Property with Reservation of Vendor's Lien,” and dated February 9, 1980. T. Barrett also alleged that this conveyance was a relative simulation. He asserted that the conveyance was a donation, not a sale, and that his parents intended to donate the property to Juanita and him.

After the hearing, the trial court issued written reasons and granted the exception of no right of action. In its written reasons, the trial court found that the conveyance was a simulation and not a sale and that therefore the plaintiff had no interest in the property. The plaintiff filed a motion for new trial on the basis of newly discovered evidence. After a hearing, the trial court denied the motion for new trial. The plaintiff appeals, asserting the following assignments of error:

[58 So.3d 667]

1. The Trial Court erred in granting the Exception of No Right of Action, which in effect, allowed T. Barrett to attach the deed, to which he had been a party, and which was declared, by T. Barrett Porter, to be community property in the Succession of Dorothy Wampler Porter, No. 6712 on the docket of the 30th Judicial District court, and in that same proceeding, declared to be such by the Court, in the Judgment of Possession rendered therein.

2. The Trial Court erred in allowing parol evidence to be introduced by Exceptors to vary the non-ambiguous terms and language of the Credit Sale Deed, where the subject property was conveyed to T. Barrett Porter, et al.

3. The Trial Court erred in allowing T. Barrett Porter, who was a party to the original Credit Sale Deed, and who was a beneficiary thereunder, to attach that same deed, almost 30 years after its execution.

4. The Trial Court erred in considering the “Co–Ownership Agreement” in arriving at its decisions that the Credit Sale was a disguised donation.

5. The Trial Court erred in refusing to grant a new trial, on motion of Cathy Porter Bennett, even when Mover provided documentary evidence of payments being received by the vendors in the subject credit sale deed.

[3 Cir. 3] 6. The Trial Court erred in ruling that the true intent of the vendors in the Credit Sale Deed was to donate the property to their children, T. Barrett Porter and Juanita Porter Gabro.

7. The Trial Court erred in sustaining, or granting, defendant's Exception of No Right of Action, in that the ruling was contrary to the law and evidence and was clearly wrong.

8. The Trial Court erred in finding that even though rent was paid to Vendors, the instrument was a disguised donation.

Discussion
Evidence

The plaintiff's first assignments of error address the evidence submitted in support of the exception. We discuss these preliminary matters before turning to consider the exception.

Parol Evidence

In her first assignment of error,1 the plaintiff asserts that the trial court erred in admitting parol evidence in order to prove that the 1980 conveyance document was a simulation. At the hearing, T. Barrett and Juanita testified about their impressions regarding the nature of the disputed conveyance. They also testified as to whether they regarded the conveyance as separate property or community property.

Louisiana Civil Code Article 1848 addresses the admissibility of parol evidence with regard to writings and states that:

Testimonial or other evidence may not be admitted to negate or vary the contents of an authentic act or an act under private signature. Nevertheless, in the interest of justice, that evidence may be

[58 So.3d 668]

admitted to prove such circumstances as a vice of consent, or a simulation, or to [3 Cir. 4] prove that the written act was modified by a subsequent and valid oral agreement.

(Emphasis added.) The clear language of the statute allows the admission of parol evidence, in the interest of justice, in order to prove a simulation. See also Revision Comment (c), which provides that testimonial or other evidence may be admitted to prove either an absolute or relative simulation. The plaintiff cites numerous cases in her brief which support the inadmissibility of parol evidence to prove a simulation. However, that jurisprudence precedes the enactment of Article 1848 in 1984.2 Since that time, Article 1848 has expressly provided for the admission of such evidence in this situation. See, e.g., Sonnier v. Conner, 43,911 (La.App. 2 Cir. 12/3/08), 998 So.2d 344, writ denied, 09–309 (La.4/3/09), 6 So.3d 773. Thus, the trial court did not abuse its discretion in admitting evidence on the issue of whether the disputed conveyance was a simulation.

This assignment of error is without merit.

Relevancy of Evidence

The plaintiff alleges that the trial court erroneously admitted an irrelevant document entitled “Co–Ownership Agreement” into evidence.

Louisiana Code of Evidence Article 402 provides that “[a]ll relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, the Constitution of Louisiana, this Code of Evidence, or other legislation. Evidence which is not relevant is not admissible.” Relevant evidence is evidence “having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” La.Code Evid. art. 401. Whether evidence is deemed relevant is within the discretion [3 Cir. 5] of the trial court, and a relevancy determination will not be disturbed on appeal absent a clear abuse of discretion. Mapp Constr., LLC v. Southgate Penthouses, LLC, 09–850 (La.App. 1 Cir. 10/23/09), 29 So.3d 548, writ denied, 09–2743 (La.2/26/10), 28 So.3d 275. “The party alleging prejudice by the evidentiary ruling of the trial court bears the burden of so proving.” Id. at 561.

The trial court noted in its reasons for judgment 3 that the co-ownership agreement was executed on the same date as the conveyance and that it was filed, concurrently with the sale document, with the Clerk of Court. Given the close relationship between the two documents, we find that the trial court did not abuse its discretion in considering the co-ownership agreement when determining the intent of the parties with regard to the disputed transaction.

This assignment of error is without merit.

[58 So.3d 669]

Judicial Confession

The plaintiff argues that the trial court erred in refusing to consider the listing of the town property in the Succession of Dorothy Wampler Porter as a judicial confession.4 The plaintiff submitted the entire file of the succession into evidence. [3 Cir. 6] The judgment of possession therein lists the town property as community property belonging to Mrs. Porter. At trial, T. Barrett testified that he included the town property in the succession so that there would not be “any trouble” within the family. T. Barrett reiterated that he considered the town property to be the separate property of himself and Juanita.

Louisiana Civil Code Article 1853 addresses judicial confessions, stating:

A judicial confession is a declaration made by a party in a judicial proceeding. That confession constitutes full proof against the party who made it.

A judicial confession is indivisible and it may be revoked only on the ground of error of fact.

A judicial confession is binding on the court and must be applied in the case in which it is made. Picard v....

To continue reading

Request your trial
39 cases
  • Goodman v. (In re Gulf Fleet Holdings, Inc.), Bankruptcy No. 10–50713.
    • United States
    • United States Bankruptcy Courts. Fifth Circuit. U.S. Bankruptcy Court — Western District of Louisiana
    • April 2, 2013
    ...where the intended effects of the contract differ from the terms expressed in the contract. La. Civ.Code art.2027; Bennett v. Porter, 58 So.3d 663, 671 (La.App. 3d Cir.2011). A relative simulation thus requires proof of the parties' mutual intent as well as proof that “all the requirements ......
  • Holloway Drilling Equip., Inc. v. Bodin
    • United States
    • Court of Appeal of Louisiana (US)
    • December 19, 2012
    ...could not have been discovered with due diligence before the trial was completed. Bennett v. Porter, 10–1088 (La.App. 3 Cir. 3/9/11), 58 So.3d 663. In reviewing a trial court's ruling on a motion for new trial, the applicable standard of review is whether the trial court [107 So.3d 710]abus......
  • Holloway Drilling Equip., Inc. v. Bodin
    • United States
    • Court of Appeal of Louisiana (US)
    • November 7, 2012
    ...and (4) that the new evidence could not have been discovered with due diligence before the trial was completed. Bennett v. Porter, 10-1088 (La.App. 3 Cir. 3/9/11), 58 So.3d 663. In reviewing a trial court's ruling on a motion for new trial, the applicable standard of review is whether the t......
  • Jones v. Dynamic Indus.
    • United States
    • Court of Appeal of Louisiana (US)
    • May 26, 2021
    ...Castille v. La. Med. Mut. Ins. Co., 14-519 (La.App. 3 Cir. 11/5/14), 150 So.3d 614; Bennett v. Porter, 10-1088 (La.App. 3 Cir. 3/9/11), 58 So.3d 663.DISCUSSION Mrs. Jones argues each of the trial court's peremptory exception rulings individually. Accordingly, we will discuss them in the sam......
  • Request a trial to view additional results
1 provisions
  • Act 277, HB 764 – CIVIL/OBLIGATIONS: Provides relative to counterletters
    • United States
    • Louisiana Session Laws
    • January 1, 2012
    ...simulation. See, e.g., Love v. Dedon, 118 So.2d 122 (La. 1960); McWilliams v. McWilliams, 39 La. Ann. 924 (La. 1887); Bennett v. Porter, 58 So.3d 663 (La. App. 3d Cir. 2011); LeBlanc v. Romero, 783 So.2d 419, 421 (La. App. 3d Cir. 2001); Mathews v. Mathews, 1 So. 3d 738 (La.App. 2d Cir. 200......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT