McNeill v. Lofton

• Decision Date: 22 September 2021
• Docket Number: 066-CA,54
• Parties: ROBERT J. MCNEILL Plaintiff-Appellant v. LAURA MAE LOFTON, AS INDEPENDENT EXECUTRIX OF THE SUCCESSION OF NETTIE EVELYN MIDKIFF MCNEILL Defendants-Appellees
• Court: Court of Appeal of Louisiana — District of US

ROBERT J. MCNEILL Plaintiff-Appellant v. LAURA MAE LOFTON, AS INDEPENDENT EXECUTRIX OF THE SUCCESSION OF NETTIE EVELYN MIDKIFF MCNEILL Defendants-Appellees

No. 54, 066-CA

Court of Appeals of Louisiana, Second Circuit

September 22, 2021

Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 600510 Honorable Ramon Lafitte, Judge

WAYNE E. WEBB Counsel for Appellant, Robert J. McNeill

CHARLES NEUPERT & ASSOCIATES, LLC By: Charles Joseph Neupert, Jr. Counsel for Appellees, Laura Mae Lofton, as Independent Executrix of the Succession of Nettie Evelyn Midkiff McNeill, and Kevin McNeill

Before GARRETT, STONE, and ROBINSON, JJ.

ROBINSON, J., concurs for the reasons assigned by J. GARRETT.

STONE, J.1

This is a dispute regarding the ownership of certain immovable property located in Caddo Parish, Louisiana. Robert McNeil ("Robert"), the plaintiff, filed suit requesting a judgment declaring him to be the sole owner of the property by virtue of a testamentary bequest from Ulmer McNeil ("Ulmer"), who died in 2013. Ulmer was survived by his wife, Evelyn McNeil ("Evelyn"), who died in 2016. The defendant, Kevin McNeil ("Kevin"), is the succession representative for the estate of Evelyn McNeil, and claims that Evelyn's estate owns a 50% undivided interest in the property.

Robert claims to be the sole owner of the property by virtue of the following series of alleged transactions: (1) Ulmer created the Ulmer McNeil Revocable Living Trust, and appointed himself trustee thereof; (2) Ulmer donated his interest in the property to the trust in April of 1998; (3) Evelyn donated her interest in the property to the trust approximately 16 days later; (4) using his powers as trustee, Ulmer "donated" the property to himself; and (5) in his will, Ulmer bequeathed the property to Robert.

The matter was tried on the merits in a bench trial. During the first day of trial, the defendant-appellee's counsel withdrew for medical reasons, and the trial was recessed to allow the defendant-appellee to obtain new counsel. After the bench trial, the court issued a judgment declaring that Ulmer and Evelyn acquired the property as husband and wife, and that the donations of their respective interests in the property to the trust are absolute nullities. The trial court judgment further declared that Evelyn never transferred her interest in the property during her lifetime. In its oral reasons for judgment, the trial court stated that the donations were absolutely null because the alleged trust never existed: there was no evidence that a valid trust instrument had been executed, and the trust extract, which the plaintiff relied upon as a substitute for a trust instrument, failed to validly create or establish the trust.

The plaintiff filed this appeal urging the following assignments of error: (1) the trial court erred in holding that the trust extract did not validly create or establish the trust; and (2) the trial court erred in holding that La. R.S. 9:5646, which establishes a five-year prescriptive period on the rescission of an unauthorized transfer of trust property by a trustee, is inapplicable. For the reasons stated herein, we affirm the trial court judgment.

At the onset, this court must address an issue regarding the record on appeal. On the first day the bench trial, prior to the swearing of the first witness, the attorneys for the respective parties discussed with the trial judge the numerous exhibits that the plaintiff sought to introduce. The defendant-appellee's attorney indicated which exhibits he would allow to be introduced unopposed, and which he would meet with an objection. The trial judge was provided with a courtesy copy of the exhibit book (i.e., a "bench book"). Immediately after the discussion regarding the exhibits, the trial court briefly recessed the proceedings to address another case. The trial resumed later that same day, but was recessed again because defendant-appellee's counsel withdrew for medical reasons. The trial resumed on a later date once the defendant-appellee obtained a new attorney. The defendant-appellee's new attorney inquired on the record whether the exhibit book had been introduced. Both the trial judge and the plaintiff-appellant's attorney indicated their belief that it already had been introduced.

Crucially, the transcript does not contain any contemporaneous indication of the exhibit book being tendered to the clerk of court and being deemed admitted by the trial judge. Consistent with the lack of contemporaneous indication of admission in the transcript, the record on appeal does not contain any exhibits. Furthermore, the appellant has not alleged that the exhibits were admitted at trial but somehow omitted from the record. Accordingly, this court must conclude that the exhibits were not introduced at trial.

DISCUSSION

"Evidence not properly and officially offered and introduced cannot be considered, even if it is physically placed in the record." Denoux v. Vessel Mgmt. Servs., Inc., 07-2143, p. 6 (La. 5/21/08), 983 So.2d 84, 88; Anowi v. Nguyen, 81 So.3d 905 (La.App. 5 Cir. 2011), writ denied, 85 So.3d 1247 (La. 2012); Wilson v. Beechgrove Redevelopment, L.L.C., 09-1080, p. 6 (La.App. 5 Cir. 4/27/10), 40 So.3d 242, 245. Documents attached to memoranda do not constitute evidence and cannot be considered as such on appeal.

Denoux, supra.

A party who fails to introduce his evidence at trial on the merits is not entitled to remand for the introduction of evidence. In re Investigation of Smith, 546 So.2d 561, 562 (La.App. 1 Cir. 1989), writ denied sub nom. In re Smith, 550 So.2d 636 (La. 1989); Gulf Coast Bank & Tr. Co. v. Eckert, 95-156 (La.App. 5 Cir. 5/30/95), 656 So.2d 1081, 1084, writ denied, 95-1632 (La. 10/6/95), 661 So.2d 474.^[1] We recently reaffirmed this long- standing principle in Dalton v. Graham, 53, 452 (La.App. 2 Cir. 4/22/20), 295 So.3d 437, 439, writ denied, 20-00740 (La. 10/6/20), 302 So.3d 535. Therein, the appellant failed to introduce any evidence regarding the amount of the damages that would be caused by the clearing of timber on the appellant's land, and the trial court accordingly denied the appellant's claim for damages. On appeal, the appellant requested this court to remand to give the appellant another opportunity to introduce that evidence. We refused to do so, stating:

The evidence at trial established that construction of the servitude along the southern boundary route will require clearing of timber on the defendants' property. However, the trial court denied the defendants' claim on the ground that they failed to introduce any evidence regarding the amount of money damages that would result from clearing the timber. [Emphasis in original]. Our review of the record confirms that the defendants did not introduce any such evidence. Thus, unfortunately, the trial court reached the only possible correct conclusion.

Id. at 443.

In this case, the plaintiff-appellant had the burden of proving both the occurrence and prima facie validity of the alleged transactions on which he relies to establish his claim of sole ownership. By failing to introduce any exhibits, the plaintiff-appellant clearly failed to carry that burden of proof. For this reason alone, the judgment of the trial court must be affirmed.^[2]

CONCLUSION

The judgment of the trial court is AFFIRMED. All costs of this appeal are taxed to the appellant.

GARRETT, J., concurring.

I respectfully concur in the result which affirms the judgment below recognizing the Succession of Nettie Evelyn Midkiff McNeill as the owner of an undivided one-half interest in and to the property at issue.

I am unable to conclude that the evidence was never admitted without at least providing the parties an opportunity to address and/or make a record on this issue on remand. Neither party has raised this as an issue on appeal, as it appears they both thought the exhibits had been admitted into evidence, and they have both filed briefs addressing the merits of the case. The majority fails to recognize that there are statutes authorizing remands under appropriate circumstances, such as where the record on appeal omits a material part of the trial court record, like evidence. See La. C.C.P. arts. 2088, 2132, and 2161. Numerous cases have ordered remands to correct records in such circumstances. See Jackson v. Wal Mart Properties, Inc., 443 So.2d 3 (La.App. 3 Cir. 1983); Succession of Landry, 2020-0398 (La.App. 4 Cir. 3/31/21), 315 So.3d 949; Thomas v. Thomas, 2016-0570 (La.App. 4 Cir. 3/15/17), 214 So.3d 97. See and compare Allain v. Martco P'ship, 2001-0614 (La.App. 1 Cir. 4/17/02), 828 So.2d 587, writ granted, 2002-1796 (La. 10/4/02), 826 So.2d 1132, and rev'd on other grounds, 2002-1796 (La. 5/23/03), 851 So.2d 974.

The present case is clearly distinguishable from the facts in Dalton v. Graham, supra, cited by the majority, in...