Kelley v. Kelley

• Decision Date: 04 October 2021
• Docket Number: NO. 2021 CA 0178,2021 CA 0178
• Citation: Kelley v. Kelley, 330 So.3d 667 (La. App. 2021)
• Parties: Robert Edward KELLEY v. The ESTATE OF Ann Taliancich KELLEY
• Court: Court of Appeal of Louisiana

330 So.3d 667

Robert Edward KELLEY

v.The ESTATE OF Ann Taliancich KELLEY

NO. 2021 CA 0178

Court of Appeal of Louisiana, First Circuit.

Judgment Rendered: OCTOBER 04, 2021

Robert T. Garrity, Jr., Harahan, Louisiana, Attorney for Plaintiff/Appellant, Robert Edward Kelley

Patrick K. Reso, John D. Miranda, Hammond, Louisiana, Attorneys for Defendant/Appellee, Jennifer A. Madona, Independent Executrix for the Estate of Ann Taliancich Kelley

BEFORE: McDONALD, LANIER, AND WOLFE, JJ.

WOLFE, J.

The plaintiff, Robert Edward Kelley, appeals the trial court's judgment that granted summary judgment in favor of the defendant and declared a donation to be valid and certain immovable property to be the plaintiff's deceased wife's separate property.We reverse.

FACTS

Mr. Kelley instituted this suit on September 11, 2017, against the estate of his deceased wife, Ann Taliancich Kelley, seeking to annul a September 27, 2016Act of Donation by which he purportedly donated his one-half undivided interest in the family home located at 270 South Orchard Lane, Covington, Louisiana, to his wife.He alleged that he underwent surgery for a brain condition in January 2016, and thereafter his wife "maintained him on a regiment [sic ] of mind-altering and mind-numbing drugs."He further alleged that his wife convinced him to move from Jefferson Parish to St. Tammany Parish so she could be closer to her daughter.As a result, they sold their home in Metairie and purchased a new home located at 33 Tupelo Trace in Mandeville, Louisiana.¹He claimed that after his wife's death in August of 2017, his son searched the public records of St. Tammany Parish and found an Act of Donation purportedly signed by Mr. Kelley on September 27, 2016.Mr. Kelley claimed he had no knowledge or recollection of signing the Act and that he did not know A. William Mysing, Jr., the notary public before whom the Act was executed, or the two witnesses to the Act.Mr. Kelley prayed for judgment declaring the Act of Donation null and void, averring that he was heavily medicated by his wife at the time of the donation and lacked the mental capacity to engage in a notarial act.

The estate, appearing through its executrix, Jennifer Madona, who is Mrs. Kelley's daughter and Mr. Kelley's stepdaughter, answered the petition and generally denied its allegations.The estate then filed a motion for summary judgment as to the claims against it, which it supported with the affidavits of Ms. Madona and Mr. Mysing.Mr. Kelley opposed the motion for summary judgment, supporting his opposition with his own affidavit and attached medical notes.After a hearing, the trial court took the matter under advisement.The trial court signed a judgment on March 11, 2019, which granted the motion for summary judgment, declared that the Act of Donation was valid, and further declared that the property located at 270 South Orchard Lane, in Covington, Louisiana, was the separate property of Mrs. Kelley.

Mr. Kelley appealed; however, this court dismissed the appeal for lack of jurisdiction because the March 11, 2019 judgment lacked appropriate decretal language.SeeKelley v. Estate of Kelley, 2019-1044(La. App. 1st Cir.2/21/20), 299 So.3d 720, 723.Thereafter, pursuant to the stipulation of the parties, the trial court signed an "Uncontested Amended Judgment" on November 24, 2020, which purported to amend the March 11, 2019 judgment to add "that this is a final judgment on the merits."Mr. Kelley again appealed.This court issued a rule to show cause, noting that the November 24, 2020 judgment appeared to be defective because it required reference to a prior document, namely the March 11, 2019 judgment.Mr. Kelley has since supplemented the appellate record with a second amended judgment, which remedied the defect noted in this court's rule to show cause.SeeLa. Code Civ. P. arts. 1951 and 2088A(12).Satisfied that this court's appellate jurisdiction has been properly invoked by a valid final judgment, we consider the merits of Mr. Kelley's appeal.SeeLa. Code Civ. P. arts. 1841 and 2083A.

DISCUSSION

On appeal, Mr. Kelley contends the trial court erred in granting summary judgment to the estate, because there are genuine issues of material fact regarding his mental capacity at the time he executed the Act of Donation.

After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law.La. Code Civ. P. art. 966A(3).The summary judgment procedure is favored and shall be construed to secure the just, speedy, and inexpensive determination of every action.La. Code Civ. P. art. 966A(2).The court may consider only those documents filed in support of or in opposition to the motion for summary judgment and shall consider any documents to which no objection is made.La. Code Civ. P. art. 966D(2).In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that governs the trial court's determination of whether summary judgment is appropriate.In re Succession of Beard, 2013-1717(La. App. 1st Cir.6/6/14), 147 So.3d 753, 759-60.

The initial burden of proof is on the party filing the motion for summary judgment.La. Code Civ. P. art. 966D(1).The mover may meet this burden by filing supporting documentary evidence consisting of pleadings, a memorandum, affidavits, depositions, answers to interrogatories, certified medical records, stipulations, and admissions with the motion for summary judgment.SeeLa. Code Civ. P. art. 966A(4).The mover's supporting documentary evidence must prove the essential facts necessary to carry his burden.Leisure Recreation & Entertainment, Inc. v. First Guaranty Bank, 2019-1698(La. App. 1st Cir.2/11/21), 317 So.3d 809, 817.Thus, in deciding a motion for summary judgment, it must first be determined whether the supporting documents presented by the mover are sufficient to resolve all material fact issues.Id. at 817-18;Crockerham v. Louisiana Medical Mutual Insurance Company, 2017-1590(La. App. 1st Cir.6/21/18), 255 So.3d 604, 608.

Once the motion for summary judgment has been properly supported by the moving party(i.e., the mover has established the material facts through its supporting documentary evidence), and the mover has made a prima facie showing that the motion for summary judgment should be granted, the burden shifts to the non-moving party to produce factual support, through the use of proper documentary evidence attached to his opposition, sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial - the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law.SeeBabin v. Winn-Dixie Louisiana, Inc., 2000-0078(La.6/30/00), 764 So.2d 37, 39.If the non-moving party fails to produce factual support in his opposition sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, La. Code Civ. P. art. 966(D)(1) mandates the granting of the motion for summary judgment.SeeBabin,764 So.2d at 40.

In ruling on a motion for summary judgment, the trial court's role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact.Janney v. Pearce, 2009-2103(La. App. 1st Cir.5/7/10), 40 So.3d 285, 289, writ denied, 2010-1356 (La.9/24/10), 45 So.3d 1078.Further, simply showing the presence of disputed facts is insufficient if there is no legal issue presented by those contested facts.SeeFranklin Credit Management Corp. v. Gray, 2007-1433(La. App. 4th Cir.1/14/09), 2 So.3d 598, 603, writ denied,2009-0476 (La.4/17/09), 6 So.3d 795.A "genuine" issue is a triable issue, which means that an issue is genuine if reasonable persons could disagree.If on the state of the evidence, reasonable persons could reach only one conclusion, there is no need for a trial on that issue.Kasem v. State Farm Fire & Casualty Company, 2016-0217(La. App. 1st Cir.2/10/17), 212 So.3d 6, 13.A fact is "material" when its existence or nonexistence may be essential to a plaintiff s cause of action under the applicable theory of recovery.Id.Because the applicable substantive law determines materiality, whether a particular fact in dispute is material must be viewed in light of the substantive law applicable to the case.Bryant v. Premium Food Concepts, Inc., 2016-0770(La. App. 1st Cir.4/26/17), 220 So.3d 79, 82, writ denied, 2017-0873 (La.9/29/17), 227 So.3d 288.

Mr. Kelley's petition challenges the validity of an act of donation.An inter vivos donation is a contract by which the donor gratuitously divests himself, at present and irrevocably, of the thing given in favor of the donee.La. Civ. Code art. 1468.At the time a donor makes a donation inter vivos, the donor must have capacity, meaning that he must be able to generally comprehend the nature and consequences of the disposition being made.SeeLa. Civ. Code arts. 1471 and 1477.A person who challenges the capacity of a donor must prove by clear and convincing evidence that the donor lacked capacity at the time the donor made the donation inter vivos.La. Civ. Code art. 1482A.

Cases involving challenges to capacity are fact-intensive.There is no litmus test applicable to evaluate mental capacity; rather, courts will look both to objective and subjective indicia presented in the particular case.Illness, old age, delusions, sedation, etc. may not establish lack of capacity but may be important evidentiary factors.If illness has impaired the donor's mind and rendered him unable to understand, then that evidentiary fact will establish that he does not have donative capacity.The courts will look to the medical evidence that is available, such as the medical records...