Schwegmann v. Schwegmann
| Decision Date | 09 November 1983 |
| Docket Number | No. 83-CA-305,83-CA-305 |
| Parties | Mary Ann SCHWEGMANN a/k/a Mary Ann Blackledge v. John G. SCHWEGMANN, Jr., John F. Schwegmann, Melba Margaret Schwegmann and Schwegmann Bros. Giant Supermarkets, Inc., Schwegmann Bros. Terminal, Inc., Schwegmann Bros., Inc., Schwegmann Bros., Westbank, Inc., Schwegmann Bros. Westside Corporation and Schwegmann Veterans Corporation. |
| Court | Court of Appeal of Louisiana — District of US |
Bettyanne Lambert-Bussoff, Lambert & Waldrup, New Orleans, for plaintiff-appellant.
David Stone, Jo Harriet Strickler, Stone, Pigman, Walther, Wittmann & Hutchinson, New Orleans, for defendants-appellees.
Before KLIEBERT, GAUDIN and DUFRESNE, JJ.
This is a devolutive appeal by Ms. Mary Ann Blackledge, plaintiff, from a judgment dismissing, on a motion for summary judgment, all of the causes of action alleged in her petition against Mr. John G. Schwegmann, Jr. (hereafter Mr. Schwegmann), et al, 1 defendants, except the cause to recover in quantum meruit for the value of uncompensated services performed separate and apart from the relationship of concubinage. 2
Ms. Blackledge asserts that the allegations of her petition raise six causes of action against the defendants: (1) Specific performance and/or damages based on breach of contract; (2) Recognition of constructive trust or damages based on implied contract; (3) Declaratory relief; (4) Quasi Contract and/or Quantum Meruit; (5) Interference with contract rights; and (6) Declaration of simulation and/or revocatory action. Additionally, though not an itemized cause, she asserts the existence of a partnership and prays for its dissolution and/or distribution of its assets.
Notwithstanding Rule 2-12-4 of the Uniform Rules for the Courts of Appeal, Ms. Blackledge's brief did not particularize errors in the trial court judgment or specify issues on appeal. Rather, she argues that there are issues of fact and as a matter of law, her petition contains valid causes of action; hence, the granting of the motion to summarily dismiss her claims was error. We disagree and affirm the judgment of the trial court.
The petition alleged a contract entered into by Ms. Blackledge and Mr. Schwegmann in May, 1966, whereby they agreed to live together and, while doing so, combine their skills, efforts, labor and earnings and to share equally any and all assets and property acquired and accumulated as a result of their joint skills, efforts, labor and earnings. The horns of the legal dilemma upon which the petition places her is apparent from her testimony given by deposition. As facts are elicited to show the confection of an agreement, the nature of the services or their value, the same facts establish that the alleged agreement, if in fact proven, is meretricious and, therefore, void.
Ms. Blackledge claims she and Mr. Schwegmann lived together, without marriage, for twelve years pursuant to an oral agreement. The agreement, according to her, was confected in 1966 when Mr. Schwegmann told her he wanted to "share everything" with her and she said "okay". At the time of this conversation, Mr. Schwegmann was a twice divorced, middle age male who owned a chain of supermarkets and other assets, and Ms. Blackledge was a 24 year old unmarried female who had no property or other financial assets. The claimed contractual agreement was never reduced to writing and there was no witness to the alleged conversation in which it was confected.
Following the confection of the alleged contractual agreement, Ms. Blackledge and Mr. Schwegmann lived together continuously from May 1966 to May 1978. In this time frame, Ms. Blackledge contends she rendered services as a companion, housekeeper and cook, as well as a mother to Mr. Schwegmann's children, and as a business advisor, political assistant and confidante to him and his controlled corporations.
Throughout the time they lived together, Ms. Blackledge and Mr. Schwegmann had sexual relations on a regular basis. Ms. Blackledge's living expenses, dental and medical bills, clothing costs, entertainment and traveling expenses were paid for by Mr. Schwegmann. He also provided her with a monthly allowance check during their cohabitation and continued the checks after they ceased living together until the time this suit was filed. The sexual relationship also continued during visits after the cohabitation had terminated.
In the absence of specific assignments of error or issues, we will discuss each of the asserted causes of action (itemized above as thru ) under the captions indicated below.
Since the issue arises on a motion for summary judgment, we did not need to and made no determination as to whether the so-called contract alleged in the petition and testified to by Ms. Blackledge was in fact proven. Rather, for the purpose of this motion, we consider the facts alleged in the petition, as expanded on and amplified in the depositions as true.
Counsel for Ms. Blackledge prays for specific performance of the alleged oral contract or alternatively damages for breach of the contract. The defendants contend no valid contract could be confected because (1) the alleged "contractual agreement " is a universal partnership and consequently invalid because it is not in writing; (2) the object of the alleged contract was not certain, hence, it violates the requirements of La.C.C. Articles 1779(3) and 1886; consequently no contract was confected; (3) the alleged contract is not supported by adequate consideration; and (4) the alleged contract is void because it is meretricious. The trial judge ruled on only the first and last of defendants' contentions, thus negating the necessity of his considering the others.
A universal partnership is defined by La.C.C. Article 2829 3 as follows:
"Universal partnership is a contract by which the parties agree to make a common stock of all the property they respectively possess; they may extend it to all property real or personal, or restrict it to personal only; they may, as in other partnerships, agree that the property itself shall be common stock or that the fruits only shall be such; but property which may accrue to one of the parties, after entering into the partnership, by donation, succession or legacy, does not become common stock, and any stipulation to that effect, previous to the obtaining the property aforesaid, is void."
and expanded on in the two subsequent articles as follows:
Art. 2830. A universal partnership of profits include all the gains that may be made from whatever source, whether from property or industry, with the restriction contained in the last article, and subject to all legal stipulations to be made by the parties.
Art. 2831. If nothing more is agreed between the parties, than that there shall be a universal partnership, it shall extend only to the profits of the property each shall possess, and of their credit and industry.
As found by the trial judge, the contractual agreement alleged in the petition "fits exactly the codal definition of universal partnership". Ms. Blackledge testified she and Mr. Schwegmann were going to pool all of their assets and share the fruits of their labor, thus clearly asserting an intention to confect a partnership. Indeed, among others, the plaintiff's petition asks the court to consider the conduct and agreement of the parties as a partnership and prays for its dissolution and the distribution of its assets to the partners.
Under the provisions of La.C.C. Article 2834, a universal partnership cannot be created "... without a writing signed by the parties ..." Hence, Louisiana does not recognize as a valid universal partnership an oral agreement between a man and a woman who live together and agree to split certain properties standing in the name of one of them. Heatwole v. Stansbury, 212 La. 685, 33 So.2d 196 (1947); Foshee v. Simkin, 174 So.2d 915 (1st Cir.1965); Chambers v. Crawford, 150 So.2d 61 (2nd Cir.1963); Gadlin v. Deggs, 23 So.2d 704 (4th Cir.1945).
Ms. Blackledge testified her alleged understanding or agreement was not reduced to writing. Therefore, under the jurisprudence above cited, the trial court held the oral contract alleged by the plaintiff, even if proven, would be a universal partnership and, as such, invalid because not made in writing.
In her brief on appeal, counsel for Ms. Blackledge states "historically concubinage cases have couched the agreement as a universal partnership "; but then argues "there is no statutory reason why the courts began to apply partnership law to any oral contract". Consequently, "there is no explanation [why] within the body of concubinage law except that the goals of the parties were joint and the state is a community property state". We suggest the explanation is found in the fact that the community of acquets and gains created by the marriage is legally considered a partnership between the partners in the marriage.
In most concubinage cases, as is the case here, the goal of the plaintiff is to obtain for the concubine the civil benefits which would flow to the wife as a marital partner. In the absence of the marriage, some relationship, other than a sexual one, must exist between the parties for the civil benefits to flow to the person acting as the pseudo wife. Consequently, it is logical for the concubine's counsel to urge a partnership akin to the community of acquets and gains which applies to marital partners and for the court to apply partnership law in denying it.
As argued by counsel for Ms. Blackledge, it was theoretically and legally possible for the parties to establish a commercial or some partnership other than a universal partnership. However, the facts are that under the allegations of the petition and the testimony of Ms. Blackledge the relationship created was that of a universal partnership, not some other type. Additionally, this court cannot lose track of reality. Although it...
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