Heyl v. Heyl

• Decision Date: 16 January 1984
• Docket Number: No. 15914-CA,15914-CA
• Citation: 445 So.2d 88
• Parties: Pam Reeves HEYL, Plaintiff-Appellant, v. Cleveland George HEYL, Jr., as Administrator of the Succession of Cleveland George Heyl, III, a/k/a Cleve G. Heyl, III, Defendant-Appellee.
• Court: Court of Appeal of Louisiana — District of US

Page 88

445 So.2d 88

Pam Reeves HEYL, Plaintiff-Appellant, v. Cleveland George HEYL, Jr., as Administrator of the Succession of Cleveland George Heyl, III, a/k/a Cleve G. Heyl, III, Defendant-Appellee.

No. 15914-CA.

Court of Appeal of Louisiana Second Circuit.

Jan. 16, 1984.

Writ Denied March 16, 1984.

Evans, Feist, Auer & Keene by J. Ransdell Keene and Frances O. Allen, Shreveport, for plaintiff-appellant.

Bethard & Davis by James G. Bethard, Coushatta, for defendant-appellee.

Before JASPER E. JONES, FRED W. JONES, Jr. and SEXTON, JJ.

JASPER E. JONES, Judge.

Plaintiff brought this action against the administrator of her deceased husband's estate seeking to have a matrimonial agreement establishing a separation of property regime between herself and decedent declared null and void. After a trial on the merits, the trial court found that plaintiff failed to carry her burden of proving grounds for the nullity of the agreement and rejected her demand. Plaintiff appeals. We affirm.

The plaintiff and decedent were married on April 10, 1976 and lived under the community property regime provided by law for over 3 1/2 years. By a matrimonial agreement dated December 28, 1979 they changed to a separate property regime. The agreement was entered into without judicial approval. ¹ It was recorded in the conveyance records of Red River Parish January 28, 1980. Decedent died November 17, 1981. At the time of death plaintiff and decedent were physically separated. Plaintiff had instituted proceedings for a legal separation but a judgment of separation had not been granted.

The matrimonial agreement was signed by plaintiff, decedent, a notary and two witnesses. The facts surrounding the signing of the agreement are contested.

Plaintiff claims she was tricked into signing the agreement. She testified that she signed while she was employed at decedent's place of business, Cleve Heyl Chevrolet-Buick, in Coushatta. She stated that one day as she was working decedent brought to her desk a document which he claimed was a land deed and requested her signature. He said he was in a hurry because his attorney, who was in decedent's office, was waiting for the document. Plaintiff signed without looking at or reading the document. Plaintiff testified that later decedent told her he tricked her into signing a matrimonial agreement but he followed the advice of his attorney and tore it up. Plaintiff claims she believed him and thought no more of the matter until they separated. She specifically denies ever signing any document in the presence of the notary and witnesses whose signatures appear on the matrimonial agreement.

The notary on the matrimonial agreement is decedent's mother. She remembers both parties and both witnesses being before her at the time the agreement was signed and remembers each of them signing it at which time she signed as notary. She did not draft the document and she neither read it aloud to plaintiff nor explained its significance to her.

One witness, David Hanna, recalls signing the document. He does not remember who was present or the circumstances under which he signed. He does not deny that all other signatories were present when he signed or that he saw the parties sign the document.

The other witness, Antonio Quiros, recalls signing the agreement in the presence of plaintiff, decedent and David Hanna. He does not remember whether the notary was present but does not deny she could have been. Quiros remembers seeing plaintiff sign.

Plaintiff assigns as error the trial court's finding she did not carry her burden of proving grounds for the nullity of the agreement. She claims the testimony establishes 4 grounds for which the agreement should be declared null:

(1) Lack of consent;

(2) Improper form;

(3) Lesion; and

(4) Lack of consideration.

Lack of Consent

Consent legally given is a necessary element for a valid contract. La.C.C. 1779. Consent is not lawful when it is produced by error and fraud. La.C.C. 1819. Plaintiff contends her consent was unlawful because she was in error as to what she was signing and that error was induced by fraud on the part of decedent.

The two elements essential to establishing legal fraud are an intent to defraud or gain an unfair advantage and a resulting loss or damage. La.C.C. 1847; Walton v. Bufkin, 135 So.2d 309 (La.App.2d Cir.1961); In re Wingate, 184 So.2d 237 (La.App. 1st Cir.1966). A party alleging fraud has the burden of establishing it by more than a mere preponderance of the evidence. The conclusive proof required must be by clear and convincing legal evidence. La.C.C. 1848; Hall v. Arkansas-Louisiana Gas Co., 359 So.2d 255 (La.App.2d Cir.1978); Jackson v. Fontenot Building, Inc., 314 So.2d 516 (La.App. 1st Cir.1975); St. Mary v. St. Mary, 175 So.2d 893 (La.App.3d Cir.1965); Collier v. Administrator, Succession of Blevins, 136 So.2d 774 (La.App. 4th Cir.1962).

A party is presumed to know the contents of an instrument he signs. Mitchell v. Bertolla, 397 So.2d 56 (La.App.2d Cir.1981); Fontenot v. Coreil, 2 So.2d 97 (La.App. Orleans 1941). Signatures to contracts are not mere ornaments. If a party can read, it behooves him to examine an instrument before signing it. Snell v. Union Sawmill Co., 159 La. 604, 105 So. 728 (1925); State v. Harris, 138 So.2d 197 (La.App. 4th Cir.1962); St. Landry Loan Company v. Avie, 147 So.2d 725 (La.App.3d Cir.1962).

The evidence, as a whole, does not clearly and convincingly support plaintiff's allegation of fraud. The only evidence which supports the allegation is plaintiff's uncorroborated testimony that her deceased husband gave her the agreement to sign under the pretext it was a land deal. Plaintiff's story is controverted by the testimony of her own witness, Antonio Quiros. This witness is fully corroborated by the testimony of the notary. The testimony of Quiros and the notary contradicts plaintiff's story about the circumstances under which she signed the matrimonial agreement. The testimony of these witnesses is substantial evidence to support the trial judge's conclusion that plaintiff failed to establish that she was tricked into signing the agreement. The trial judge saw and heard the witnesses' testimony and was in the best position to determine credibility. He disbelieved the plaintiff's testimony that she didn't know that she was signing a matrimonial agreement. She is bound by what she signed.

Improper Form

Plaintiff contends the matrimonial agreement is invalid as to form because it was not made by authentic act or by an act under private signature duly acknowledged by the parties as required by La.C.C. 2331. ² She first argues that none of the signatories to the agreement could consistently affirm that they signed in the presence of each other.

The requirements for an authentic act are contained in La.C.C. 2234, which provides:

"The authentic act, as relates to contracts, is that which has been executed before a notary public or other officer authorized to execute such functions, in presence of two witnesses, aged at least fourteen years, or of three witnesses, if a party be blind. If a party does not know how to sign, the notary must cause him to affix his mark to the instrument."

All 2234 requires is that the notary and witnesses be present when each contracting party signs the act and that the notary and witnesses also sign the act. They need not necessarily sign at the same...