Holliday v. Holliday

• Decision Date: 17 August 2001
• Docket Number: No. 2000 CA 0533.,2000 CA 0533.
• Citation: 795 So.2d 423
• Parties: Frances Broussard HOLLIDAY v. James S. HOLLIDAY, Jr.
• Court: Court of Appeal of Louisiana — District of US

Page 423

795 So.2d 423

Frances Broussard HOLLIDAY v. James S. HOLLIDAY, Jr.

No. 2000 CA 0533.

Court of Appeal of Louisiana, First Circuit.

August 17, 2001.

Rehearing Denied September 28, 2001.

COPYRIGHT MATERIAL OMITTED

Robert M. Hoyland, Amy E. Counce, Baton Rouge, for Plaintiff-Appellant Frances Broussard Holliday.

James Don Thomas, II, Baton Rouge, for Defendant-Appellee James S. Holliday, Jr.

Before: PARRO, FITZSIMMONS, GUIDRY, KLINE, and CLAIBORNE, JJ.¹

PARRO, J.

Frances Broussard Holliday appeals the judgment of the trial court denying her request to reform a contract between her and her former husband, James S. Holliday, Jr., which governed her receipt of lump-sum periodic alimony payments.² We reverse and render.

FACTUAL AND PROCEDURAL BACKGROUND

Frances Broussard Holliday and James S. Holliday, Jr. were married on June 19, 1965. On October 2, 1992, Mrs. Holliday filed a petition for divorce, in which she sought an award of alimony pendente lite and permanent alimony.³ Mr. Holliday answered and filed a reconventional demand. On November 23, 1992, while the divorce was pending, the trial court rendered a judgment pursuant to a stipulation between the parties, in which Mr. Holliday was ordered to pay Mrs. Holliday alimony pendente lite in the sum of $300 per week, payable on Friday of each week, retroactive to October 2, 1992. In the May 19, 1993 judgment of divorce, the trial court ordered Mr. Holliday to continue paying Mrs. Holliday alimony pendente lite⁴ until the first of the following events occurred: (1) a community property settlement was effected; (2) sixteen weeks passed commencing May 21, 1993; or (3) the fault issue was determined and permanent alimony payments commenced. The first of these to occur was the passage of sixteen weeks, and Mr. Holliday made the last $300 payment on September 10, 1993.

In December 1993, the parties entered into a contract entitled, "Alimony and Indemnity Agreement" (the agreement), in which Mr. Holliday agreed to pay Mrs. Holliday:

lump-sum periodic alimony in the amount of TWO HUNDRED FIFTY AND NO/100 ($250.00) DOLLARS per week for a period of Two Hundred Eight (208) weeks, payable on Friday of each week, commencing Friday, January 7, 1993.

The agreement, an authentic act, was prepared by counsel for Mr. Holliday, signed by Mr. Holliday on December 9, 1993, and signed by Mrs. Holliday on December 20, 1993. Mr. Holliday made his first $250 payment pursuant to the agreement on Friday, January 7, 1994, and made regular payments thereafter. On January 7, 1997, Mr. Holliday sent Mrs: Holliday a letter, informing her that he was enclosing the final alimony check of $250. With the letter, he also enclosed a copy of the agreement, upon which he had highlighted the stated commencement date for payments of January 7, 1993. He concluded in the letter that "[t]he final date would, of course, be January 7, 1997."

Mrs. Holliday disagreed and on February 24, 1999, filed a petition for past due alimony. She alleged Mr. Holliday had failed to pay the entire amount due to her and still owed her $13,000 for 52 weeks of the 208-week period called for in the agreement. She further alleged that the agreement contained a typographical error, in that the date on which the alimony payments were to commence was stated as Friday, January 7, 1993, when in fact, the correct date should have been typed as Friday, January 7, 1994. In an amending petition, Mrs. Holliday asked that the agreement be reformed to reflect the correct date of Friday, January 7, 1994, as the date on which the 208 weekly alimony payments were to begin. Mr. Holliday filed an answer generally denying the allegations of the petitions and asserting that the agreement was an authentic act, that its language was plain and unambiguous, and that it constituted the agreement of the parties. He also said he had paid Mrs. Holliday "the aggregate amount of money due under the contract."

At the trial, Mr. Holliday contended his intention had been to pay a total of $52,000, which he had paid. Regarding those payments, Mr. Holliday said he paid $300 per week from January 8, 1993, through September 10, 1993;⁵ he made no further payments in 1993, but after this lawsuit was filed, he learned through discovery that there was a "gap" of several months and made one payment to cover it;⁶ and he paid $250 per week from January 7, 1994, through January 7, 1997.⁷ He said the agreement's stated date of January 7, 1993, reflected his understanding as to when alimony payments were to begin.

Mrs. Holliday confirmed she had received the payments described by Mr. Holliday, but said she did not agree that the January 7, 1997 payment was the final alimony payment. She said when she signed the agreement, her understanding was that the alimony payments were to begin Friday, January 7, 1994, and that she would receive 208 payments after that date. Mrs. Holliday's former attorney, Mary Olive Pierson, also testified. Ms. Pierson said she represented Mrs. Holliday during 1993, when the agreement was negotiated and confected. She said she participated in its preparation, but the final document was prepared by Mr. Holliday's attorney and forwarded to her office after Mr. Holliday had signed it. During Ms. Pierson's testimony and throughout the trial, the trial court consistently ruled inadmissible the parol evidence that Mrs. Holliday sought to introduce concerning the error in the agreement and the true intent of the parties.⁸ Mrs. Holliday made a complete proffer of the evidence, which included several documents and the testimony, on direct and cross-examination, of herself, Ms. Pierson, and Mr. Holliday. Judgment was rendered in favor of Mr. Holliday, and this appeal followed.

Mrs. Holliday contends on appeal that the trial court erred: (1) in excluding parol evidence to show the true intent of the parties and explain the contradictory terms of the agreement; (2) in finding that Mr. Holliday did not owe past due alimony; and (3) in finding that Mr. Holliday's payments to Mrs. Holliday in satisfaction of his obligation to pay alimony pendente lite satisfied his separate and distinct obligation to pay her lump-sum periodic alimony under the later "Alimony and Indemnity Agreement."

MOTION TO STRIKE

Mr. Holliday filed a motion in this court, seeking to strike attachments to the reply brief submitted by Mrs. Holliday. Consideration of the motion was deferred to the merits. At this time, we deny the motion, finding that the diagrams attached to the brief were merely graphic representations of Mrs. Holliday's arguments in the trial court and on appeal.

PAROL EVIDENCE

The first assignment of error concerns the trial court's refusal to admit certain testimony and documentary evidence by which Mrs. Holliday sought to establish the error in the agreement and the correct date on which Mr. Holliday's alimony payments were intended to begin. Both parties acknowledged that January 7, 1993, fell on a Thursday, not on a Friday. However, Mr. Holliday argued that, being an authentic act, parol evidence could not be introduced to modify its stated terms. Apparently accepting this contention, the trial court refused to allow any testimony or documentary evidence concerning the intended or correct date.

We disagree with this decision on the basis of legal error. Although parol evidence is generally not admissible to vary or contradict the terms of an authentic act, in the interest of justice, it may be admitted to prove a vice of consent. See LSA-C.C. art. 1848; Sonnier v. Boudreaux, 95-2127 (La.App. 1st Cir.5/10/96), 673 So.2d 713, 718. Louisiana Civil Code article 1949 states that error vitiates consent only when it concerns a cause without which the obligation would not have been incurred and that cause was known or should have been known to the other party. Comment (d) to Article 1949 states that the granting of relief for error presents no problem when both parties are in error. When that is the case, the contract may be rescinded or the instrument that contains the contract may be reformed to reflect the true intent of the parties. LSA-C.C. art.1949, Comment (d). Between two parties to an instrument, parol evidence is admissible to show fraud, mistake, illegality, want or failure of consideration, or to explain an ambiguity when such explanation is not inconsistent with the written terms. Scafidi v. Johnson, 420 So.2d 1113, 1115 (La.1982).

The burden is on the party seeking reformation to establish the necessary elements by clear and convincing proof, parol evidence being admissible for this purpose. The most commonly used ground for reformation is mutual mistake of the parties. Agurs v. Holt, 232 La. 1026, 95 So.2d 644, 646 (1957). A mutual mistake is a mistake shared by both parties to the instrument at the time of reducing their agreement to writing. Succession of Jones v. Jones, 486 So.2d 1124, 1127 (La.App. 2nd Cir.), writ denied, 489 So.2d 249 (La.1986).

In First State Bank & Trust Co. v. Seven Gables, Inc., 501 So.2d 280, 285-86 (La.App. 1st Cir.1986), writ denied, 502 So.2d 103 (La.1987), this court allowed parol evidence in a dispute over a guaranty agreement—an authentic act. The court found that a discrepancy contained in the guaranty agreement, in referring to a note dated January 19, 1977, when the note itself was dated January 20, 1977, was clearly a mutual mistake. The court reformed the guaranty agreement to reflect the correct date. Similarly, in McCarroll v. McCarroll, 96-2700 (La.10/21/97), 701 So.2d 1280, 1286, parol evidence was allowed to clarify an ambiguity in an authentic act, namely, whether retirement benefits were contemplated by the parties when they used the term, "movable property" in that act.

In the case we are reviewing, the face of the document contains an obvious error. The stated combination of day and date in the agreement, upon which the lump-sum periodic alimony payments were to commence, "Friday, ...