Pidgeon v. Pidgeon

• Decision Date: 21 June 2006
• Docket Number: No. 2005 CA 1223.,2005 CA 1223.
• Citation: 939 So.2d 376
• Parties: Hattie M. PIDGEON v. Mark Allen PIDGEON.
• Court: Court of Appeal of Louisiana — District of US

939 So.2d 376

Hattie M. PIDGEON v. Mark Allen PIDGEON.

No. 2005 CA 1223.

Court of Appeal of Louisiana, First Circuit.

June 21, 2006.

Alfreda Tillman Bester, Baton Rouge, Counsel for Plaintiff/Appellant Hattie M. Pidgeon.

Richard D. Bankston, Baton Rouge, Counsel for Third Party Intervenor/Appellee Tower Credit, Inc.

Before: WHIPPLE, McCLENDON, and WELCH, JJ.

McCLENDON, J.

Hattie M. Pidgeon appealed a summary judgment in favor of Tower Credit, Inc. (Tower) that (1) annulled a prior judgment in favor of Mrs. Pidgeon and (2) dismissed Mrs. Pidgeon's reconventional demand. We affirm.

FACTS AND PROCEDURAL BACKGROUND

In 1990, Mrs. Pidgeon granted her son, Mark Allen Pidgeon, a usufruct over seven lots, "with all buildings and improvements thereon," owned by Mrs. Pidgeon in East Baton Parish. In 1999, after Mark failed to pay a promissory note held by Tower, Tower obtained a judgment against Mark, and recorded that judgment in the public record of East Baton Rouge Parish. In 2000, after discovering that Mark owned a usufruct over the lots, Tower filed a request for a writ of fieri facias and asked that both Mark, the usufructuary, and Mrs. Pidgeon, the naked owner, be served with notice of the seizure. Mark's property interest was seized and set for judicial sale. Before the sale could be held, Mrs. Pidgeon executed a termination of the usufruct by authentic act and obtained a temporary restraining order barring the sale.

Subsequently, Tower filed a suit against Mrs. Pidgeon asking that the act of termination she executed be annulled. The trial court dismissed Tower's suit for failure to state a cause of action. Tower appealed.

On appeal, this court reversed and remanded. We found that a naked owner could not unilaterally terminate a donation of a usufruct for abuse of enjoyment. Rather, the naked owner must seek a judicial termination by filing suit to terminate. Tower Credit, Inc. v. Pidgeon, 2002-0183, p. 9 (La.App. 1 Cir. 12/31/02), 837 So.2d 766 (unpublished); see LSA-C.C. arts. 623-24 & 1566. Thus, Tower had stated a cause of action to seek an annulment of Mrs. Pidgeon's act of termination. Tower Credit, Inc., 2002-0183 at p. 10. We also noted that a creditor of the usufructuary may intervene in the judicial action to prevent termination of the usufruct, or delivery of the property to the naked owner, by offering to repair the damages caused by the usufructuary and by giving security for the future. See Tower Credit, Inc., 2002-0183 at p. 10; LSA-C.C. art. 625.

On January 14, 2003, shortly after the appeal was handed down, Mrs. Pidgeon filed a suit entitled "Hattie M. Pidgeon versus Mark Pidgeon." The suit named Mark as the only defendant, and sought a judicial termination of the usufruct. Even though Mrs. Pidgeon obviously knew that Tower held a recorded judgment against Mark, and had seized Mark's usufruct, Tower was neither named in, nor notified of, the suit. After Mark did not respond to the suit, the usufruct was terminated by a default judgment dated May 14, 2003.

On July 15, 2003, in the same Pidgeon v. Pidgeon suit record, Tower filed a petition to annul the May 14, 2003 judgment terminating the usufruct. In response, Mrs. Pidgeon filed an answer, affirmative defenses, and a reconventional demand. Generally, her defenses and reconventional allegations (1) attacked the final and definitive 1999 judgment on the promissory note obtained by Tower against Mark, (2) challenged the seizure of property without a showing that additional amounts were owed, (3) claimed that Mrs. Pidgeon and her property interests were threatened, and (4) asserted that a bankruptcy stay had been issued prohibiting any actions against the debtor in bankruptcy, Mark.

On July 20, 2004, Tower filed a motion for summary judgment and a notice that the bankruptcy stay had been lifted to allow Tower to pursue its claim to, and judicial sale of, the usufruct. After a hearing, the trial court found that Tower, despite its right to be notified of an action against the recorded property interest, was not notified of the suit to terminate filed by Mrs. Pidgeon. By judgment dated January 31, 2005, the trial court annulled the May, 2003 judgment terminating the usufruct, and dismissed Mrs. Pidgeon's reconventional demand, with prejudice.

Mrs. Pidgeon appealed and assigned the following errors to the trial court's actions:

1. The trial court committed manifest error...