Michael Cousin Versus Amanda Cousin ( 2021 )


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  • MICHAEL COUSIN                                       NO. 21-CA-151
    VERSUS                                               FIFTH CIRCUIT
    AMANDA COUSIN                                        COURT OF APPEAL
    STATE OF LOUISIANA
    ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
    PARISH OF JEFFERSON, STATE OF LOUISIANA
    NO. 761-838 C/W 797-938, DIVISION "J"
    HONORABLE STEPHEN C. GREFER, JUDGE PRESIDING
    December 23, 2021
    STEPHEN J. WINDHORST
    JUDGE
    Panel composed of Judges Susan M. Chehardy,
    Jude G. Gravois, and Stephen J. Windhorst
    AFFIRMED
    SJW
    SMC
    JGG
    COUNSEL FOR PLAINTIFF/APPELLANT,
    MICHAEL COUSIN
    Don C. Gardner
    COUNSEL FOR DEFENDANT/APPELLEE,
    AMANDA COUSIN
    W. J. LeBlanc, Jr.
    WINDHORST, J.
    Appellant, Michael Cousin (“Michael”), seeks review of the trial court’s
    August 27, 2020 judgment granting appellee, Amanda Cousin’s (“Amanda”) oral
    motion for involuntary dismissal pursuant to La. C.C.P. art. 1672 and dismissing his
    petition to annul and/or revoke act of donation inter vivos. For the reasons stated
    herein, we affirm.
    PROCEDURAL HISTORY AND FACTS
    The parties were divorced on May 11, 2018. On August 2, 2019, Michael
    filed a petition to annul and/or revoke an act of donation inter vivos. In his petition,
    he contended that the act of donation inter vivos of his undivided one-half interest in
    the community family home located at 5333 Canary Ansas Drive in Kenner to his
    wife Amanda should be annulled and/or revoked based on five separate grounds:
    (1) lack of donative capacity as a result of intoxication; (2) donation of his only real
    asset left him without sufficient income from his property to allow for his
    subsistence; (3) lack of consideration; (4) ingratitude; and (5) fraud, duress, or undue
    influence.
    A bench trial was held on July 9, 10, and 14, 2020. After the presentation of
    Michael’s case-in-chief, counsel for Amanda orally moved for a motion for
    involuntary dismissal pursuant to La. C.C.P. art. 1672. The trial court granted the
    motion for involuntary dismissal and dismissed Michael’s petition to annul and/or
    revoke act of donation inter vivos. This appeal followed.1
    LAW and ANALYSIS
    On appeal, Michael contends that the trial court erred in denying his petition
    to annul and/or revoke act of donation inter vivos of his undivided one-half interest
    in the community family home to Amanda. Michael contends that the trial court
    1 On August 27, 2020, the trial court also granted Amanda’s oral motion for involuntary dismissal pursuant
    to La. C.C.P. art. 1672 of Michael’s petition for nullity of judgment of divorce, a consolidated matter, and
    dismissed Michael’s petition. In a consolidated appeal, 21-CA-150, Michael appealed this ruling.
    21-CA-151 C/W 21-CA-150                              1
    disregarded the evidence in finding no merit to any of the five grounds argued for
    revoking and/or annulling the donation, and that the rulings are manifestly
    erroneous. We disagree with appellant’s contentions.
    A trial court’s reasonable evaluations of credibility and reasonable inferences
    of fact should not be disturbed on review unless they are manifestly erroneous or
    clearly wrong. Wooley v. Lucksinger, 09-571 (La. 04/01/11), 
    61 So.3d 507
    ; Rosell
    v. ESCO, 
    549 So.2d 840
     (La. 1989). When findings are based on determinations
    regarding the credibility of witnesses, the manifest error standard demands great
    deference to the trial court’s findings; for only the fact finder can be aware of the
    variations in demeanor and tone of voice that bear so heavily on the listener’s
    understanding and belief in what is said. Robinson v. Board of Supervisors for
    University of Louisiana System, 16-2145 (La. 06/29/17), 
    225 So.3d 424
    , 430, citing
    Rosell, 549 So.2d at 844-845.
    Under the manifest error standard, the trial court's factual findings can be
    reversed only if the appellate court finds, based on the entire record, no reasonable
    factual basis for the factual finding and the fact finder is clearly wrong. Baker v.
    PHC-Minden, L.P., 14-2243 (La. 05/05/15), 
    167 So.3d 528
    , 538. Where documents
    or objective evidence so contradict the witness's story, or the story itself is so
    internally inconsistent or implausible on its face, that a reasonable fact finder would
    not credit the witness's story, then the court of appeal may find manifest error even
    in a finding based on credibility. Robinson, 225 So.3d at 430. But where no such
    factors are present, and the fact finder's finding is based on its decision to credit the
    testimony of one of two or more witnesses, that finding can virtually never be
    manifestly erroneous or clearly wrong. Id.; Bellard v. American Central Insurance
    Co., 07-1335 (La. 04/18/08), 
    980 So.2d 654
    , 672.
    21-CA-151 C/W 21-CA-150                     2
    In a nonjury case, the defendant may move for an involuntary dismissal of the
    action against him after the close of the plaintiff’s case. La. C.C.P. art. 1672 B.2
    The appropriate standard in determining whether an involuntary dismissal should be
    granted is whether the plaintiff has presented sufficient evidence in his case to
    establish his claim by a preponderance of the evidence. Treen Const. Co., Inc. v.
    Schott, 03-1232 (La. App. 5 Cir. 01/27/04), 
    866 So.2d 950
    , 954. The trial court has
    much discretion in determining whether to grant a motion for involuntary dismissal.
    Matherne v. Jefferson Parish Hosp. Dist. No. 1, 14-403 (La. App. 5 Cir. 12/16/14),
    
    166 So.3d 297
    , 302, writ denied, 15-117 (La. 04/10/15), 
    176 So.3d 1032
    . An
    appellate court may not reverse a ruling on a motion for involuntary dismissal unless
    it is manifestly erroneous or clearly wrong. 
    Id.
     On appeal, the issue to be resolved
    is not whether the finder of fact was right or wrong, but whether the fact finder’s
    conclusion was a reasonable one. 
    Id.
    Because an involuntary dismissal of an action pursuant to La. C.C.P. art. 1672 B
    is based on the “facts and law,” a review of the substantive law applicable to
    Michael’s case is necessary. See In re Fogg, 19-719 (La. App. 1 Cir. 02/21/20), 
    298 So.3d 291
    , 294; Lakeshore Chrysler Dodge Jeep, Inc. v. Windstream
    Communications, Inc., 17-841 (La. App. 1 Cir. 12/21/17), 
    240 So.3d 939
    , 943.
    Lack of donative capacity
    All persons have capacity to make and receive donations inter vivos, except
    as provided by law. La. C.C. art. 1470. There is a presumption that all persons are
    capable of donating their property by donation inter vivos. 
    Id.
     Capacity to donate
    inter vivos must exist at the time the donor makes the donation. La. C.C. art. 1471.
    2 La. C.C.P. art. 1672 B provides:
    B. In an action tried by the court without a jury, after the plaintiff has completed the presentation
    of his evidence, any party, without waiving his right to offer evidence in the event the motion is
    not granted, may move for a dismissal of the action as to him on the ground that upon the facts
    and law, the plaintiff has shown no right to relief. The court may then determine the facts and
    render judgment against the plaintiff and in favor of the moving party or may decline to render any
    judgment until the close of all the evidence.
    21-CA-151 C/W 21-CA-150                              3
    To have capacity to make a donation inter vivos, a person must be able to
    comprehend generally the nature and consequences of the disposition that he is
    making. La. C.C. art. 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. C.C. art. 1482 A. To prove a matter
    by clear and convincing evidence means to demonstrate that the existence of a
    disputed fact is highly probable, that is, much more probable than its nonexistence.
    In re Succession Barattini, 11-752 (La. App. 5 Cir. 03/27/12), 
    91 So.3d 1091
    . 1095;
    In re Succession of Dodson, 33,188 (La. App. 2 Cir. 03/03/04), 
    867 So.2d 921
    , 924.
    The issue of capacity is a question of fact. In re Succession of Burguieres, 00-147
    (La. App. 5 Cir. 10/18/00), 
    802 So.2d 660
    , 667. The trial court’s findings as to the
    issue of capacity will not be disturbed on appeal unless clearly wrong or manifestly
    erroneous. Allen v. Edmond, 18-1151 (La. App. 1 Cir. 05/14/19), 
    277 So.3d 359
    ,
    361. Thus, to annul Michael’s inter vivos donation to Amanda, which is presumed
    to be valid, Michael had the burden of proving that it was highly probable that he
    did not generally comprehend the nature and consequences of the inter vivos
    donation of his undivided one-half of the community home to Amanda at the time
    of the inter vivos donation.
    The trial court found that the testimony was consistent, with the exception of
    Michael’s self-serving testimony, that on the morning of the donation, Michael did
    not appear to be intoxicated, he did not smell of alcohol, he did not have any
    difficulty in speaking, and he did not appear to be suffering any ill effects of any
    intoxication from alcohol or narcotics. The trial court further found that based on
    the testimony and case law interpreting the interaction between the witnesses,
    notary, and the parties (donor and donee), Michael was not “suffering from any
    intoxication, either from alcohol or narcotics, at the time he executed the donation.”
    Finding no indication that Michael was intoxicated or lacked the requisite donative
    21-CA-151 C/W 21-CA-150                   4
    capacity at the time the donation was made, and reasoning that Michael had not met
    his burden of proof, the trial court granted the motion for involuntary dismissal
    pursuant to La. C.C.P. art. 1672 B as to this theory of the case.
    After a thorough review of the record, we agree. We can find no evidence
    offered by Michael to establish that he lacked the capacity to donate due to
    intoxication at the time of the donation. While there was evidence of his prior
    struggles with his addictions concerning alcohol, narcotics and gambling, the
    evidence falls well short of clear and convincing, or even a preponderance of the
    evidence. Accordingly, we find that the trial court’s finding that Michael was not
    intoxicated at the time of the donation was a reasonable conclusion based on the
    evidence. We further find that the trial court was not manifestly erroneous in
    granting the motion for involuntary dismissal as to this theory of the case.
    Undue influence
    A trial court’s findings as to the issue of undue influence is fact intensive and
    cannot be disturbed on appeal in the absence of manifest error. Allen, 
    277 So.3d 359
    ; Succession of Dean, 17-155 (La. App. 1 Cir. 03/29/18), 
    247 So.3d 746
    , 753 (en
    banc), writ denied, 18-679 (La. 09/14/18), 
    252 So.3d 479
    .
    La. C.C. art. 1478 provides that a donation inter vivos shall be declared null
    upon proof that it is the product of fraud or duress. Additionally, a donation inter
    vivos shall be declared null upon proof that it is the product of influence by the donee
    or another person that so impaired the volition of the donor as to substitute the
    volition of the donee or other person for the volition of the donor. La. C.C. art. 1479.
    A person who challenges a donation because of fraud, duress, or undue influence,
    must prove it by clear and convincing evidence. La. C.C. art. 1483. Thus, in order
    to annul the presumed valid inter vivos donation, Michael had the burden of proving
    that it was highly probable that the inter vivos donation was the product of influence
    21-CA-151 C/W 21-CA-150                    5
    by Amanda that so impaired his volition as to substitute the volition of Amanda for
    his volition.
    The trial court found that there was no testimony concerning fraud, duress, or
    undue influence with respect to Amanda and her relationship with Michael. Rather,
    the trial court found that evidence showed that Michael “regretted the decision to
    donate” his undivided one-half interest in the community property to Amanda and
    Michael “would certainly like to undo that decision.” The trial court found that the
    actions of Amanda that Michael mostly complained of were “post-donation.” The
    trial court further held that “[t]he testimony at the time the donation was executed
    and at the time the donation was prepared, is actually consistent in that it was being
    prepared as an agreement between [Michael] and [Amanda] to, again, place the
    property beyond seizure at some point should a Judgment be rendered against
    [Michael] for some debt or other Judgment.” The trial judge also stated:
    I also don’t believe [Michael’s] testimony when he states that he
    was not aware of the Act of Donation being prepared. The e-
    mail chain that has now been admitted into evidence . . .
    indicate[s] that the Act of Donation was part of an e-mail chain
    between [Michael] and [Amanda], and that the Act of Donation
    (indiscernible) [sic] an exhibit was attached to those emails. So,
    for those reasons I think [Michael] was fully aware of it. I find
    it hard to believe that [Michael] woke up on a Saturday morning,
    was presented with a document to give away half of his home
    and said, sure I’ll sign that, without having any prior knowledge
    of that document. So, I think this was an action that was
    contemplated by the parties in concert, and was not the product
    of fraud, duress or undue influence.
    Accordingly, for the reasons stated, the trial court granted Amanda’s motion to
    dismiss this theory advanced by Michael.
    Upon review of the testimony and evidence, we find that the trial court’s
    conclusions were reasonable and therefore, the trial court was not manifestly
    erroneous in granting the motion to dismiss as to this theory.
    21-CA-151 C/W 21-CA-150                      6
    Donation inter vivos of entire patrimony
    A donation inter vivos shall in no case divest the donor of all his property; he
    must reserve to himself enough for subsistence. La. C.C. art. 1498.
    The trial judge found that this theory was “for the most part” abandoned. He
    found that the evidence showed that Michael had other assets including an ownership
    interest in the family business, “Sunbelt.” Additionally, the trial judge noted
    Michael’s mother, Linda, testified that she was paying Michael’s bills with respect
    to the children and that she was a source of monetary assistance to Michael in
    addition to any funds he received from the family business. The trial court found
    that Michael did not meet the necessary standard for revoking or annulling the
    donation based on the evidence as to this theory, and therefore, granted the motion
    for involuntary dismissal.
    Considering the evidence submitted, the trial court’s finding that Michael had
    other assets, including an ownership interest in the family business was reasonable.
    Accordingly, we find the trial court was not manifestly erroneous in finding that
    Michael did not meet his burden of showing that he had divested himself of his entire
    patrimony such that he did not have enough for subsistence and granting the motion
    for dismissal.
    Lack of consideration
    Although the donation stated “in consideration of the natural love and
    affection which he has for his wife, Amanda Fransen Cousin,” the trial court found
    that “the real consideration behind the donation was the interest of both [Michael]
    and [Amanda] to put the property beyond seizure. That seems to be the actual
    motivation.” Based on the testimony, the trial court found that Michael did not meet
    his burden of proving lack of consideration and granted Amanda’s motion for
    dismissal.
    21-CA-151 C/W 21-CA-150                   7
    A donation inter vivos is governed by La. C.C. art. 1541, which provides, “A
    donation inter vivos shall be made by authentic act under the penalty of absolute
    nullity, unless otherwise expressly permitted by law.” See La. C.C. art. 1833.
    Michael does not challenge the form of the donation inter vivos. Upon review of the
    record, the trial court’s finding concerning the consideration for donating the
    community home was reasonable and was not manifestly erroneous. We find the
    trial court was not manifestly erroneous in granting Amanda’s motion to dismiss
    finding that Michael did not sustain his burden.
    Ingratitude
    A donation inter vivos may be revoked because of ingratitude. La. C.C. art.
    1556. Revocation of a donation for ingratitude may take place only (1) if the donee
    has attempted to take the life of the donor; or (2) if he has been guilty towards him
    of cruel treatment, crimes, or grievous injuries. La. C.C. art. 1557.
    The trial court found:
    The type of cruel treatments (indiscernible) and grievous injuries
    contemplated by [La. C.C. art. 1557] far outweigh anything that
    has been testified to in this particular case. I think [Michael] has
    expressed in some . . . text messages . . .that he believes
    [Amanda] was not appreciative of his donation, which he
    confirmed in some of those text messages that he made to her,
    but there has been no cruel treatment or allegations of cruel
    treatment (indiscernible) grievous injuries sufficient to rise to the
    level of revocation under Article 1557. It’s not anything close
    that the Court can find in the case law interpreting that Article.
    Our review of the record shows that the trial court’s conclusion that the
    evidence did not support a claim for revocation of the donation inter vivos based on
    ingratitude was reasonable and not manifestly erroneous. Accordingly, we do not
    find the trial court to have been manifestly erroneous or clearly wrong in granting
    Amanda’s motion to dismiss.
    21-CA-151 C/W 21-CA-150                    8
    DECREE
    For the reasons stated above, we affirm the trial court’s August 27, 2020
    judgment granting Amanda Cousin’s oral motion for involuntary dismissal pursuant
    to La. C.C.P. art. 1672 B, and dismissing Michael Cousin’s petition to annul and/or
    revoke act of donation inter vivos.
    AFFIRMED
    21-CA-151 C/W 21-CA-150                  9
    SUSAN M. CHEHARDY                                                               CURTIS B. PURSELL
    CHIEF JUDGE                                                                     CLERK OF COURT
    NANCY F. VEGA
    FREDERICKA H. WICKER
    CHIEF DEPUTY CLERK
    JUDE G. GRAVOIS
    MARC E. JOHNSON
    ROBERT A. CHAISSON                                                              SUSAN S. BUCHHOLZ
    STEPHEN J. WINDHORST
    FIRST DEPUTY CLERK
    HANS J. LILJEBERG
    JOHN J. MOLAISON, JR.                         FIFTH CIRCUIT
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    21-CA-151
    E-NOTIFIED
    24TH JUDICIAL DISTRICT COURT (CLERK)
    HONORABLE STEPHEN C. GREFER (DISTRICT JUDGE)
    DON C. GARDNER (APPELLANT)             LESLIE A. BONIN (APPELLEE)       W. J. LEBLANC, JR. (APPELLEE)
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Document Info

Docket Number: 21-CA-151

Judges: Stephen C. Grefer

Filed Date: 12/23/2021

Precedential Status: Precedential

Modified Date: 10/21/2024