Parish Nat. Bank v. Wilks
| Decision Date | 03 August 2005 |
| Docket Number | No. 2004 CA 1439.,2004 CA 1439. |
| Parties | PARISH NATIONAL BANK v. James A. WILKS, Jacquelyn Nata, Shelly Wilks and Malise Prieto. |
| Court | Court of Appeal of Louisiana — District of US |
Patrick K. Reso, Glen R. Galbraith, Hammond, for Plaintiff — Appellant Parish National Bank.
Ernest S. Anderson, Slidell, for Defendants — Appellees James A. Wilks, Jacquelyn Nata and Shelly Wilks.
Malise Prieto, Clerk of Court, Covington, In Proper Person Appellee.
Before: PARRO, KUHN, and WELCH, JJ.
This is an appeal by the plaintiff, Parish National Bank ("PNB"), from a summary judgment granted in favor of the defendants, James A. Wilks, Jacquelyn Nata, and Shelly Wilks, wherein the trial court found that PNB's revocatory action against the defendants had prescribed and therefore dismissed the action. Finding that the revocatory action was not prescribed but that genuine issues of material fact preclude summary judgment, we reverse in part and affirm in part, the judgment of the trial court.
On March 2, 2002, James A. Wilks and Jacquelyn Nata, who were married to one another but living separate and apart, donated two parcels of property ("act of donation") to their daughter, Shelly Wilks. These two parcels of property are located in St. Tammany Parish and are hereinafter referred to as the College Street residence and the Central Park Subdivision property.1 On March 4, 2002, the act of donation was recorded in the conveyance records of St. Tammany Parish.
On July 26, 2002, PNB obtained a judgment confirming a preliminary default against James Wilks in the amount of $7,662.75, plus interest and attorney's fees. This judgment was obtained by PNB in a suit on an open account against James Wilks for a credit card account James Wilks had with PNB. The charges on this credit card were incurred prior to the execution of the act of donation.
After James Wilks failed to make any payments in satisfaction of the judgment, PNB filed a motion for the examination of a judgment debtor. At the judgment debtor examination, James Wilks testified that he had no assets other than his wristwatch. The record is unclear as to the date of this judgment debtor examination, as the record contains references to a judgment debtor examination held on January 16, 2003, and on April 28, 2003.2
Thereafter, on June 26, 2003, PNB filed this revocatory action against James Wilks, Jacquelyn Nata, and Shelly Wilks,3 seeking to set aside the act of donation of the two parcels of property that James Wilks and Jacquelyn Nata made to their daughter, alleging that the act of donation was done with the intent of depriving PNB of its rights as a creditor to execute on the property of James Wilks. Additionally, it alleged that since James Wilks had no other assets, the act of donation to his daughter rendered him insolvent. Accordingly, PNB requested that the act of donation be revoked and declared a nullity and that it be canceled and erased from the public records.
The defendants answered the suit, essentially denying the allegations made by PNB and affirmatively asserting that the donation did not result in any injury to PNB, due to other ownership interests, encumbrances, and exemptions that were related to the two parcels of property.
PNB then filed a motion for summary judgment on the basis that there were no genuine issues of material fact as to any of the elements of its revocatory action, and therefore, it was entitled to judgment as a matter of law, revoking the donation of the two parcels of property and returning them to the patrimony of James Wilks. The defendants responded by filing a cross motion for summary judgment on the basis that there were no genuine issues of material fact in that (1) PNB had brought this revocatory action more than one year after the act of donation was filed in the conveyance records, and therefore, in accordance with La. C.C. art. 2041, it had prescribed; and (2) due to other ownership interests, encumbrances, and exemptions applicable to the two parcels of property, there is an absence of factual support showing that PNB was injured or prejudiced by the act of donation—an element essential to this revocatory action—and therefore, the defendants were entitled to judgment dismissing PNB's action.
On January 21, 2004, the trial court rendered judgment finding that PNB's revocatory action had prescribed, and thus, there were no genuine issues of material fact regarding the claim of PNB against the defendants and that the defendants were entitled to judgment as a matter of law dismissing, with prejudice, the claims of PNB. A written judgment to this effect was signed on February 3, 2004,4 and it is from this judgment that PNB has appealed.5
In its appeal, PNB makes the following assignments of error:
1. The trial court erred in finding that prescription under La. C.C. art. 2041 ran from the date an act was recorded in the public records rather than the date the creditor should have learned of the act.
2. The trial court erred in failing to grant the plaintiff's motion for summary judgment.6
A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. Craig v. Bantek West, Inc., 2004-0229 (La.App. 1st Cir.9/17/04), 885 So.2d 1241, 1244; Western Sizzlin Steakhouse v. McDuffie, 2002-0935 (La.App. 1st Cir.3/28/03), 844 So.2d 355, 357, writ denied, 2003-1147 (La.6/20/03), 847 So.2d 1236. The summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of every action. La. C.C.P. art. 966(A)(2). The motion should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).
On a motion for summary judgment, the burden of proof is on the mover. When the issue before the court on the motion for summary judgment is one on which the party bringing the motion will bear the burden of proof at trial, the burden of showing that there is no genuine issue of material fact is on the party bringing the motion. La. C.C.P. art. 966(C)(2); Buck's Run Enterprises, Inc. v. Mapp Const., Inc., 99-3054 (La.App. 1st Cir.2/16/01), 808 So.2d 428, 431. If, however, the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mover's burden on the motion does not require that all essential elements of the adverse party's claim, action, or defense be negated. Instead, the mover need only point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment. La. C.C.P. art. 966(C)(2); Robles v. ExxonMobile, 2002-0854 (La.App. 1st Cir.3/28/03), 844 So.2d 339, 341. When appropriate, the issue of prescription may be raised by a motion for summary judgment. Doe v. Jones, 2002-2581 (La.App. 1st Cir.9/26/03), 857 So.2d 555, 557.7
In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court's determination of whether summary judgment is appropriate. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257 (La.2/29/00), 755 So.2d 226, 230; Allen v. State ex rel. Ernest N. Morial New Orleans Exhibition Hall Authority, 2002-1072 (La.4/9/03), 842 So.2d 373, 377. An appellate court thus asks the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Ernest v. Petroleum Service Corp., 2002-2482 (La.App. 1st Cir.11/19/03), 868 So.2d 96, 97, writ denied, 2003-3439 (La.2/20/04), 866 So.2d 830. The review of a motion for summary judgment raising the issue of prescription is conducted in the same manner.8 Doe, 857 So.2d at 557-58.
Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Foreman v. Danos and Curole Marine Contractors, Inc., 97-2038 (La.App. 1st Cir.9/25/98), 722 So.2d 1, 4, writ denied, 98-2703 (La.12/18/98), 734 So.2d 637. Thus, we now discuss the law applicable to this case.
The revocatory action derives from La. C.C. art. 2036, which provides that an obligee has a right to annul an act of the obligor, made or effected after the right of the obligee arose, that causes or increases the obligor's insolvency. An obligor is insolvent when the total of his liabilities exceeds the total of his fairly appraised assets. La. C.C. art. 2037. The prescriptive period for the revocatory action is set forth in La. C.C. art. 2041, which provides: "The action of the obligee must be brought within one year from the time he learned or should have learned of the act . . . of the obligor that the obligee seeks to annul, but never after three years from the date of that act or result."
In this case, the act PNB seeks to annul is the March 2, 2002 act of donation. Thus, PNB had to bring its revocatory action within one year from the time that it learned or should have learned of that act of donation. The defendants argue that PNB did not do so, and hence, its action is prescribed, whereas PNB contends that it did bring this revocatory action within one year from the date that it learned of the...
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