Fisk v. Mathews

• Decision Date: 19 April 1988
• Docket Number: No. 87,87
• Citation: 525 So.2d 223
• Parties: John FISK, et al. v. Benjamin B. MATHEWS, Jr., et al. CA 0133.
• Court: Court of Appeal of Louisiana — District of US

Page 223

525 So.2d 223

John FISK, et al. v. Benjamin B. MATHEWS, Jr., et al.

No. 87 CA 0133.

Court of Appeal of Louisiana First Circuit.

April 19, 1988.

John A. Hollister, New Orleans, for plaintiff-appellee Vicki Fisk.

Thomas Derveloy, Covington, for plaintiffs-appellees John Fisk, Ronald Fisk and Elizabeth Fisk.

Robert C. Lowe, Terrence L. Hauver, New Orleans, for defendant-appellant Benjamin B. Mathews, Jr.

Before COVINGTON, SAVOIE and LeBLANC, JJ.

LeBLANC, Judge.

This is a suit for declaratory judgment to determine whether the interest of Vicki Fisk, one of the plaintiffs in this suit, in certain immovable property is community or separate and paraphernal in nature. The primary issue on appeal is whether there are any material facts in dispute regarding the source of the funds used in the acquisition of the property so as to bar summary judgment. Finding none, we affirm the judgment of the trial court granting plaintiffs' motion for summary judgment declaring that Vicki Fisk's interest in the property in dispute was separate in nature; that plaintiffs were the sole owners of this property; and, that defendant was to pay all costs.

FACTS

An undivided one-half interest in the property at issue was purchased by John W. Fisk and Elizabeth M. Fisk, the parents of John T., Ronald and Vicki Fisk, in 1951. The other one-half interest in this property was purchased at the same time by Philip R. Wheeler. Vicki Fisk, together with her brothers, John and Ronald, acquired Mr. Wheeler's one-half interest in this property by virtue of a document captioned as an act of "credit sale" from Mr. Wheeler on March 18, 1974. This acquisition took place during the existence of the community of acquets and gains between Vicki Fisk and defendant, Ben B. Mathews, Jr., who were subsequently divorced on February 2, 1983.

On April 22, 1986, Vicki Fisk and her brothers, John and Ronald, and her mother, Elizabeth Monaghan Fisk filed this suit for declaratory judgment against Vicki's former husband. After answer by defendant they filed a motion for summary judgment with affidavits and attachments on July 18, 1986. A hearing on this motion was scheduled for August 28. On August 27, defendant filed a motion to continue the hearing on plaintiffs' motion for summary judgment on the basis that plaintiffs had refused to comply with his discovery requests, which may have lead to information sufficient to defeat plaintiffs' motion. The trial court granted defendant's request for a continuation and the hearing on plaintiffs' motion was rescheduled for September 22. Plaintiffs subsequently filed several supplemental affidavits and exhibits which apparently complied, at least partially, with defendant's prior request for production of documents. In any event, the record does not reflect that defendant made any efforts to reschedule the depositions of Vicki and Elizabeth Fisk, which had originally been set for a time when plaintiffs' counsel was unable to attend, or to seek any other discovery. Nor did defendant file any affidavits in opposition to the granting of a summary judgment. On September 22, the trial court granted plaintiffs' motion for summary judgment. This judgment was signed on October 2, 1986. Defendant has now appealed, alleging there are material facts in dispute, and that the granting of summary judgment was precluded by La.Code Civ.P. art. 969. Plaintiffs filed an answer alleging defendant's appeal was frivolous and seeking an award of attorney's fees.

ISSUES

1. Are there any material facts in dispute so as to preclude the granting of a summary judgment?

2. Does La.Code Civ.P. art. 969 preclude a summary judgment in a suit between a former husband and wife which involves a determination of the community or paraphernal nature of certain immovable property?

3. Is defendant's appeal frivolous so as to justify an award of attorney fees as damages?

ISSUE ONE

The law applicable to summary judgments was set out by this court in Nathans v. Vuci, 443 So.2d 690, 696 (La.App. 1st Cir.1983), as follows:

It is well settled that a summary judgment should be granted only if there is no genuine issue of material fact and mover is entitled to judgment as a matter of law. Chaisson v. Domingue, 372 So.2d 1225 (La.1979); LSA-C.C.P. art. 966. Under LSA-C.C.P. art. 967, an adverse party may not rest upon the mere allegations or denials in his pleadings when a motion for summary judgment is made and supported by sufficient evidence.

Stated another way, on a motion for summary judgment, it must first be determined that the supporting documents presented by the moving party are sufficient to resolve all material issues of fact. If they are not sufficient, the motion for summary judgment should be denied. Only if they are sufficient does the burden shift to the opposing party to present evidence showing that a material fact is still at issue; only at this point may he no longer rest on the allegations contained in his pleadings. Sanders v. Hercules Sheet Metal, Inc., 385 So.2d 772 (La.1980).

* * *

... [I]f the moving party has established both that there is no genuine issue as to material fact and that he is entitled to judgment as a matter of law, it is incumbent upon the adverse party to come forward with specific facts showing that there is a genuine issue for trial. LSA-C.C.P. art. 967.

In determining whether material issues have in fact been disposed of, any doubt is to be resolved against granting the summary judgment and in favor of trial on the merits. Chaisson, supra; Hercules, supra.

In this case, plaintiffs filed the affidavits of Alwyn Justrabo (the attorney who prepared the "credit sale"), Elizabeth Ruth Monaghnan (Mrs. Fisk), John T. Fisk, Nellie Sue Meeks (wife of John T. Fisk), Ronald W. Fisk and Vicki E. Fisk. In addition, supplemental affidavits were filed by Elizabeth Ruth Monaghnan, John T. Fisk and Vicki Fisk. These affidavits and attachments establish that the act of "credit sale" through which John T., Ronald and Vicki Fisk acquired the property in question was actually a donation in disguise from their parents, the late John W. Fisk and Elizabeth Monaghnan Fisk. In addition, the affidavits also established the following facts: the elder Fisks paid the entire purchase price for the property purchased from Mr. Wheeler; John T., Ronald and Vicki Fisk paid no part of the purchase price; it was at the suggestion of the elder Fisks' attorney, Alwyn Justrabo, that the donation was made in the form of a sale, so as to avoid any possible cloud on the title to the property. The affidavits further establish that the elder Fisks intended to donate this property only to their children, and not to their children's respective spouses.

The only issue of material fact which defendant specifically alleges is unresolved is whether the funds used by the elder Fisks to pay for the property were part of the community between them or were separate in nature. However, we find that it is immaterial whether these funds were community or separate property of John W. and/or Elizabeth Fisk, because plaintiffs' affidavits clearly establish that both of the elder Fisks intended to donate the property as a gift to their children.

Defendant also makes the broad allegation that plaintiffs' failure to comply with his discovery requests denied him the opportunity to discover relevant facts to defend against the motion for summary judgment. The mere contention by an opponent to a motion for summary judgment that he does not have the information necessary to defend against the motion because of the movant's failure to comply with discovery is insufficient to defeat the motion. Waddell v. Bickham, 431 So.2d 59 (La.App. 1st Cir.1983). In the present case, defendant neither specified the nature of the facts he hoped to discover nor showed that he made any serious effort to compel discovery by plaintiffs. Accordingly, this argument is totally meritless.

For the above reasons, we find that plaintiffs' affidavits were sufficient to resolve all material issues of fact and establish that plaintiffs were entitled to judgment as a matter of law. It was then incumbent upon defendant to come forward with specific facts to establish the existence of a genuine issue for trial. Defendant failed to do so, having neither filed any opposing affidavits nor alleging any specific facts raising an unresolved issue of material fact. We therefore affirm the judgment of the trial court granting plaintiffs' motion for summary judgment.

ISSUE TWO

Defendant also alleges that summary judgment was precluded in this case by La.Code Civ.P. art. 969, which provides in pertinent part as follows:

... [S]ummary judgments shall not be granted in ... any case where the community, paraphernal, or dotal rights may be involved in an action between husband and wife. emphasis added.

This prohibition is not applicable to the present case, because by its terms this provision is applicable only to actions between husbands and wives. Since Vicki Fisk was no longer married to defendant when this suit was instituted, art. 969 does not preclude the granting of summary judgment in plaintiffs' favor. See Loeb v. Loeb, 252 So.2d 516, 519-520 (La.App. 4th Cir.1971); Thomas v. Otwell, 234 So.2d 475, 477 (La.App. 3d Cir.), writ refused, 256 La. 821, 239 So.2d 346 (1970); Patrick v. Patrick, 230 So.2d 759, 763 (La.App. 2d Cir.1970).

In support of his position, defendant relies upon Juneau v. Hilton, 384 So.2d 571 (La.App. 4th Cir.1980), in which the Fourth Circuit found the art. 969 prohibition applicable even though the parties were divorced before suit was filed. In reaching this result, the Fourth Circuit cited comment (a) to art. 969, which states that the purpose of the prohibition was to prevent collusive judgments involving the rights of married women, which was what the defendant's former wife feared would happen in that case. The Juneau court offered no further explanation for...