In re Succession Thrasher
| Decision Date | 28 February 2018 |
| Docket Number | CA 17-377 |
| Parties | SUCCESSION OF MARY LOU THRASHER |
| Court | Court of Appeal of Louisiana — District of US |
NOT DESIGNATED FOR PUBLICATION
APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 41,488
VAN H. KYZAR JUDGE
Court composed of Elizabeth A. Pickett, D. Kent Savoie, and Van H. Kyzar, Judges.
AFFIRMED.
Elizabeth J. Wilson
Attorney at Law
Jeffrey Thrasher
E. Grey Burnes Talley
Burnes, Burnes & Talley
P. O. Box 650
Julie Thrasher
This matter involves the validity of an Act of Cash Sale and an Act of Donation, purportedly signed by the decedent, Mary Lou Thrasher, transferring sole ownership of her home in Alexandria, Louisiana to her son, Jeffrey Thrasher. The trial court found that Ms. Thrasher had not sold or donated her home prior to her death. Accordingly, the trial court signed a judgment invalidating both documents, and Jeffrey Thrasher appealed. For the reasons set forth herein, we affirm the ruling of the trial court.
Facts and Procedural History
The parties to the current suit are the two adult children of Mary Lou Thrasher: Jeffrey Thrasher and Julie Thrasher. Mary Lou Thrasher resided in her home at 5229 Argonne Boulevard, Alexandria, Louisiana, beginning just after her divorce until she fell ill some time in 2009, after which she split her time between her residence in Alexandria and her daughter Julie's residence in New Orleans, to allow for Julie to assist her. On December 25, 2010, Mary Lou Thrasher suffered a stroke which limited her mobility and coordination and caused Julie to quit her job in order to move in with and take care of her mother in Alexandria. In the fall of 2011, Mary Lou fell and suffered a broken vertebra in her back due to disorientation caused by a kidney infection. Because of this, she was hospitalized in the East Jefferson General Hospital in Metairie in October of 2011, waiting for an infection to clear up before she could have surgery to address her back issues.
Appellant, Jeffrey Thrasher, alleges that on October 15, 2011, while Mary Lou was hospitalized, he traveled from Baton Rouge to East Jefferson General Hospital in Metairie, Louisiana, to visit his mother. Jeffrey did not contact or inform Julie before setting out, though Julie was known to be attending to Mary Lou during her hospital stay. The purpose of Jeffrey's supposed visit was to execute an Act of Cash Sale and a simultaneous Act of Donation, transferring the ownership of Mary Lou's immovable property at 5229 Argonne Boulevard solely to Jeffrey. To achieve this, Jeffrey broughtwith him his attorney to act as a notary, two witnesses, and the pre-prepared Acts to be signed. The Act of Cash Sale stated a price of $130,000.00 for the home, though no money exchanged hands. A simultaneous Act of Donation was also included. Jeffrey asserts that Mary Lou signed both documents transferring sole ownership of the property to him, an act recognized by the signatures of the notary and two witnesses.
Respondent, Julie Thrasher, asserts this visit could not have occurred as claimed, as she remained with Mary Lou in her hospital room for the entirety of October 15, 2011, leaving only briefly to get food in the cafeteria. Jeffrey stated that his attorney, Jeffry Sanford, filmed the transaction on his phone to document Mary Lou's intent concerning the transfer of ownership, but that the video was not saved and the phone was then lost. On October 21, 2011, six days after the alleged visit from Jeffrey, Mary Lou executed a Power of Attorney in Julie's favor.
On November 16, 2012, Mary Lou executed her notarial Last Will and Testament before her long-time attorney and friend, B. Gerald Weeks. Included in this testament is Mary Lou's immovable property at 5229 Argonne Boulevard, which was given to "[Mary Lou's] children with 60% to Julie Anne Thrasher and 40% to Jeffrey Paul Thrasher, since Julie Anne Thrasher has been caring for me after my stroke 12/25/2010, and she shall control house." No mention is made of the Act of Cash Sale or Act of Donation in favor of Jeffrey.
No communication occurred between the two siblings or between Julie and Mary Lou regarding this purported sale of Mary Lou's immovable property. The Act of Cash Sale was recorded in the conveyance records of Rapides Parish. In December of 2012, Julie and Mary Lou discovered that Jeffrey had paid the property taxes on Mary Lou's home. Thereafter, they located the recorded Act of Cash Sale which had been filed in the conveyance records of Rapides Parish under Mary Lou's maiden name. When questioned about the document by Julie, Mary Lou responded, "I don't know what that is."
Mary Lou Thrasher died in her home in Alexandria on November 17, 2013. At the time of her death, she resided there with her daughter Julie. Less than a month later, on December 15, 2013, Jeffrey posted an eviction notice on the door to the Alexandria home, notifying Julie to vacate the premises. Pursuant to this, Jeffrey filed a Rule to Evict Tenant on January 23, 2014 in Alexandria City Court. As Julie had filed a Petition for Filing, Execution of Will, and for Possession in response to Jeffrey's eviction notice on December 30, 2013 in district court, she filed an Exception of Lis Pendens in the city court eviction matter. Julie's exception was once continued and finally granted by the city court on April 14, 2014.
In response to Julie's petition and motion to set hearing, Jeffrey filed Declinatory Exceptions of Insufficiency of Process and Insufficiency of Service of Process, Dilatory Exception of Improper Cumulation of Actions, Peremptory Exceptions of No Cause and No Right of Action, Motion to Continue and for Sanctions. The matter was heard on April 14, 2014, with the district court denying all exceptions other than the exception of no cause of action. In granting that exception, the trial court further ruled to permit Julie to file a petition to nullify the Act of Cash Sale, and the parties stipulated that a hearing would be held to determine the validity of that act. At no time up to this point did Jeffrey assert or plead the existence of the corresponding Act of Donation, which was never filed in the conveyance records for Rapides Parish and of which Julie was unaware.
Julie filed her "Petition re: Act of Cash Sale" in district court on April 22, 2014. Said petition requests to have the court "declare the Act of Cash Sale a nullity as a simulation; as invalid due to non-payment of the recited sales price; as subject to error, fraud, duress, or lesion; or for any other lawful reason." In response, Jeffrey again filed Peremptory Exceptions of No Cause and No Right of Action. During discovery depositions in July of 2015, Jeffrey revealed, for the first time, the existence of an Act of Donation purportedly signed by his mother simultaneously with the Act of Cash Sale.
After a multitude of motions by both parties, a trial on the merits was held on December 1, 2015. At the trial, witnesses for both sides testified regarding the validity of the Act of Cash Sale and the Act of Donation. In its reasons for ruling, the trial court notes the conflicting testimony of both sides, and ultimately finds the testimony of the plaintiff's witnesses, including testimony from an expert in handwriting analysis, to be credible. Therefore, the trial court found that the signatures on the acts could not be relied upon and accordingly invalidated both acts.
On September 9, 2016, Jeffrey filed a timely Motion for New Trial asserting that the ruling was clearly contrary to the law and evidence, and claiming newly discovered evidence in that his attorney, Mr. Sanford, was able to recover the previously lost video evidence of the execution of the acts of cash sale and donation by hiring a forensic computer examiner. The motion was heard on November 16, 2016, by a different judge for the district than the trial judge, necessitated by normal rotation procedures of the district court. At the hearing, Mr. Sanford testified that he had not asked any computer or phone specialist if it was possible to recover the video recording until after the December 1, 2015 judgment. In denying the Motion for New Trial, the trial court ruled that the evidence had already been weighed by the court and that the record was clear that discussions regarding the video recording and what it purportedly captured had occurred many times and could have been thoroughly investigated and produced prior to the December 1, 2015 judgment.
Jeffrey appeals both the December 1, 2015 judgment invalidating the Act of Cash Sale and Act of Donation and the September 9, 2016 judgment denying his Motion for New Trial. On appeal, Jeffrey urges six assignments of error:
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