MARIE HOWERTON v. LINDA HOWERTON DAVID ST LOUIS (2025)

The trial court entered summary judgment in favor of Plaintiff Marie Howerton, ordering two of her adult children, Linda Howerton and David St. Louis, to return to her the proceeds of the sale of Plaintiff's home. Defendants appeal. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Plaintiff filed a Petition in August 2023, alleging that Defendants “used trickery and deceit to get [her] signature” on an Act of Donation with Reservation of Usufruct, thereby donating her home to them. Plaintiff claimed that, in May 2022, her daughter Linda “took her to an attorney's office to sign some documents” that she was told were necessary for her deceased husband's succession. Plaintiff denied knowing what she was signing but asserted that she later overhead Linda and David “say that her house was in their names.” Plaintiff alleged that upon her questioning of them, “they told her they had done it so that no one would have to pay for a succession after her death, but that the house was still hers.”

Plaintiff, who was 95 years old at the time she filed the petition, alleged that she moved from her home after a fall in December 2022. Plaintiff explained that tension arose between herself and Defendants regarding her care and housing needs and that the children lodged an unsuccessful attempt to have her interdicted. Plaintiff asserted that, in June 2023, Linda “used a power of attorney executed by [Plaintiff] back in 2017 to release the usufruct” granted in the donation. Plaintiff maintained that the release was signed without her knowledge or consent. She also alleged that she “has signed a revocation of the power of attorney previously granted in favor of Linda and has signed a new power of attorney” in favor of Angela Franks.

According to Plaintiff, Defendants sold Plaintiff's home in July 2023 over her objection. When she requested the proceeds of the sale, $136,500.00, she was told that “they were holding the money from the sale of the house for her care.” Plaintiff filed this suit upon their refusal to return the funds. She alleged that Defendants committed theft through “acts of fraud and used trickery and deceit to get [her] signature on a donation of her home[,]” and caused her harm due to breaches of fiduciary duties. While Plaintiff disputed that she voluntarily signed the donation of her home, she asked that, alternatively, the trial court determine the “the transfer was merely for technical convenience and there was no donative intent and Defendants are not entitled to keep the proceeds from the sale of the home as their own.” Plaintiff asked for a return of the funds received from the sale of the house.¹

On May 23, 2024, Plaintiff filed a Motion for Partial Summary Judgment in which she maintained that she was not aware she signed documents transferring her home to Defendants and that the power of attorney used by Linda to release Mrs. Howerton's lifetime usufruct over the home had been previously revoked. Plaintiff continued to alternatively argue that should the act of donation be deemed valid, the evidence showed the act of donation was merely a simulation to facilitate management of the property and Defendants never intended to use the money for her care. She asked the court to order Defendants to pay her $136,500.00 representing the sale price of her home.

Plaintiff supplemented her motion with, among other things, deposition excerpts in which she denied donating the home to her children, and copies of the documents surrounding the donation, the sale of the home, the revocation of the power of attorney, and the release of the usufruct and right of lifetime habitation.

Defendants filed an Answer in Opposition to Motion for Summary Judgment, largely denying Plaintiff's claims. Defendants filed no exhibits in support of their memorandum.

Thereafter, Skipper M. Drost, the attorney who prepared the Act of Donation with Reservation of Usufruct, filed an Intervention & Exception in Opposition to Motion for Partial Summary Judgment. He argued that the motion for partial summary judgment contemplates the return of funds due to the invalidity of the act of donation and, “[t]herefore, the motion for partial summary judgment can only be granted if and only if this honorable court determines that there is no genuine issue of material facts concerning the validity of the act of donation.” According to Mr. Drost, the act of donation is valid in form and substance and was properly executed by all parties. Mr. Drost further advanced an Exception of Non-Joinder of Indispensable Party, asserting that there could not be a complete and equitable adjudication unless he was joined in the action.

As commemorated in the minutes of the appellate record, Judge Bobby Holmes denied the petition for intervention at a hearing on November 4, 2024. Judge Holmes thereafter recused himself upon discovery of “a conflict in this matter involving the Defendants from his previous involvement with the Calcasieu Parish District Attorney's Office.”

The matter was reassigned to Judge Clayton Davis, who conducted a hearing on the motion for partial summary judgment on December 20, 2024. The trial court found Defendants indebted to Plaintiff and cast them in judgment for the sale price of the home, $136,500.00, with judicial interest from the date of demand until paid.

Defendants appeal, assigning the following as error:

[1.] The trial court erred in granting a partial summary judgment in favor of Plaintiff/Appellee, MARIE HOWERTON, ordering the return of the sales proceeds received by LINDA HOWERTON FOX and DAVID ST. LOUIS from the act of sale of the property located at 509 Cody Street, Sulphur, Louisiana.

[2.] The trial court erred in granting a partial summary judgment in favor of Plaintiff/Appellee, Marie Howerton, without considering the Intervention of Skipper M. Drost, Attorney at Law.

DISCUSSION

Motion for Summary Judgement

“The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by Article 969. The procedure is favored and shall be construed to accomplish these ends.” La.Code Civ.P. art. 966(A)(2). Thus, the court must grant a motion for summary judgment “if the motion, memorandum, and supporting documents show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(A)(3).

“The burden of proof rests with the mover.” La.Code Civ.P. art. 966(D)(1). If, however, the mover will not bear the burden of proof at trial on the matter at issue, the mover is not required to “negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense.” Id. The adverse party is thereafter required to “produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law.” Id.

On review, an appellate court considers a trial court's ruling on a motion for summary judgment under the de novo standard, using the same criteria that governed the trial court's determination of whether summary judgment is appropriate. Lacour v. Sino, 21-953 (La. 3/15/22), 333 So.3d 1239. The panel thus considers whether “there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law.” Id. at 1241.

Return of Sale Proceeds

Defendants suggest in their brief that “the underlying theme of the motion for summary judgment contemplates the return of funds due to the invalidity of the act of donation” and, therefore, “the motion for summary judgment could only be granted, IF AND ONLY IF, the court determined that there is no genuine issue of material facts concerning the validity of the act of donation.” A reading of the motion for partial summary judgment, however, does not support such a narrow reading.

While Plaintiff denied knowingly signing the donation, she alternatively maintained in the motion for partial summary judgment that, “even if Defendant[s’] version is accepted, the evidence shows that if it was done legally, it was merely a simulation to facilitate management of the property.” Plaintiff further pointed out that “[t]he purported donation document ․ contained a usufruct and lifetime right of habitation” in her favor. She alleged that “Defendant Linda used a power of attorney that had been previously revoked to revoke the usufruct and right of Habitation which the document purporting to transfer the house to the defendants had reserved in favor of Petitioner.” We find this latter point—questioning Linda's authority to release the usufruct and right of habitation—compelling and determinative.

Louisiana Civil Code Article 2986 provides that “[t]he authority of the representative may be conferred by law, by contract, such as mandate or partnership, or by the unilateral act of procuration.” We note that while the parties reference Linda's use of a power of attorney, the “civil code uses the term procuration to designate the same contractual relationship.” Noel v. Noel, 16-734, p. 3 (La.App. 3 Cir. 8/2/17), 225 So.3d 1114, 1117 (quoting Tatum v. Riley, 49,670, p. 6 (La.App. 2 Cir. 5/6/15), 166 So.3d 380, 384), writs denied, 17-1817, 17-1S30, 17-1839 (La. 1/9/18), 231 So.3d 651, 654.² Louisiana Civil Code Article 2987 provides that “[a] procuration is a unilateral juridical act by which a person, the principal, confers authority on another person, the representative, to represent the principal in legal relations.” “A procuration is subject to the rules governing mandate to the extent that the application of those rules is compatible with the nature of the procuration.” La.Civ.Code art. 2988. A mandate, in turn, “is a contract by which a person, the principal, confers authority on another person, the mandatary, to transact one or more affairs for the principal.” La.Civ.Code art. 2989.

In support of her motion for partial summary judgment, Plaintiff introduced the pertinent Release of Usufruct & Right of Lifetime Habitation by which Linda signed on Plaintiff's behalf “by POA” to “release[ ] and forever terminate[ ] the Usufruct and Right of Lifetime Habititation” granted earlier. Linda executed the release on June 13, 2023, thereby enabling Defendants to sell the property for the sum of $136,500.00 less than one month later, on July 7, 2023.

Although Plaintiff questioned Linda's use of the power of attorney in releasing the usufruct and right of habitation, Defendants did not produce a “POA” demonstrating Linda's authority thereunder. The scope of authorization conveyed by that document is critical, however, as the underlying actions involved real rights to immovable property ³ and further inured to Linda's benefit.

Although La.Civ.Code art. 2994 allows a principal to “confer on the mandatary general authority to do whatever is appropriate under the circumstances[,]” certain “ ‘actions require express authorization.’ ” Noel, 225 So.3d at 1117 (quoting Tatum, 166 So.3d at 384). In particular, “[t]he authority to alienate, acquire, encumber, or lease a thing must be given expressly.” La.Civ.Code art. 2996. Additionally, “[a]uthority ․ must be given expressly to: (1) Make an inter vivos donation, either outright or to a new or existing trust or other custodial arrangement, and, when also expressly so provided, to impose such conditions on the donation, including, without limitation, the power to revoke, that are not contrary to the express terms of the mandate.” La.Civ.Code art. 2997.

Concepts surrounding self-dealing are also informative, as the release of usufruct and right of habitation allowed Linda and David to sell the house without encumbrance. The release of the usufruct and right of habitation thus benefitted Linda, the purported representative. On this point, La.Civ.Code art. 2998 provides that “[a] mandatary who represents the principal as the other contracting party may not contract with himself unless he is authorized by the principal, or, in making such contract, he is merely fulfilling a duty to the principal.” When the authority to self-deal “involves the sale of immovable property, that authority must be specific and in writing pursuant to La.Civ.Code arts. 2992 and 2996.” Noel, 225 So.3d at 1117 (footnote omitted). See also Matter of Succession of Frazier, 54,751 (La.App. 2 Cir. 9/21/22), 349 So.3d 634.

Thus, although Plaintiff questioned the release of the usufruct and right of habitation, Defendants did not, in turn, demonstrate that Plaintiff authorized Linda to relinquish those real rights, particularly as the act resulted in a benefit to Linda. Accordingly, we leave the trial court's granting of the motion for partial summary judgment undisturbed, maintaining the order that Defendants are cast in judgment for the sales price of the home. As usufructuary, Plaintiff's ownership of those funds is subject to the restrictions of La.Civ.Code art. 538.⁴

While the trial court's judgment must be maintained due to the evidentiary failing alone, we note that Plaintiff pointedly alleged that she revoked the power of attorney prior to the Release of Usufruct & Right of Lifetime Habitation in June 2023. Plaintiff produced an April 12, 2023 Revocation of Power of Attorney stating:

That by Durable Power of Attorney/Mandate dated September 14, 2016, she did name, constitute and appoint Linda Blanche Howerton as her Agent and Attorney in Fact. That she does pursuant to the provisions of said Durable Power of Attorney/Mandate which is recorded in Conveyance Book 4217, Page 423, et seq of the records of Calcasieu Parish, Louisiana, and that Acceptance of Power of Attorney dated March 2, 2023, which is recorded in Conveyance Book 4567, Page 127, et seq of the records of Calcasieu Parish, Louisiana, revoke and set aside the Durable Power of Attorney/Mandate and Acceptance of Power of Attorney EFFECTIVE IMMEDIATELY, and upon the recordation of this document, requests the Clerk of Court, Calcasieu Parish, Louisiana, to note in the margins thereof the filing of this Revocation.

The document was signed in Plaintiff's name “By Angela J. Franks, Representative[.]”⁵ Although the allegation that Plaintiff, through her representative, revoked the pertinent power of attorney prior to the release of usufruct and right of habitation is thought provoking, we note that the revocation specifically identifies a Durable Power of Attorney/Mandate dated September 14, 2016. Again, however, the record does not include the power of attorney relied on by Linda and certain inconsistencies remain.⁶ Neither does the record offer details as to the subsequent power of attorney granted to Ms. Franks. We therefore do not resolve the motion for partial summary judgment on the basis of the revocation and instead resolve the matter on the foundational issued surrounding representation, self-dealing, and real rights.

This assignment lacks merit.

Intervention

As for the second assignment of error, Defendants assert summarily that “[t]he trial court erred in granting a partial summary judgment in favor of Plaintiff/Appellee, Marie Howerton, without considering the Intervention of Skipper M. Drost, Attorney.” Defendants, however, do not couple the allegation with meaningful argument and have thus abandoned the issue for review. See Uniform Rules—Courts of Appeal, Rule 2-12.4(B)(4) (“All assignments of error and issues for review shall be briefed. The court may deem as abandoned any assignment of error or issue for review which has not been briefed.”). Moreover, reference to the petition of intervention indicates that Mr. Drost advanced testimonial statements as to the preparation and execution of the donation as well as his opinion regarding Plaintiff's state of mind. Notwithstanding the conflicts of interest inherent in an intervention, Mr. Drost did not demonstrate how he may have “an interest” in the matter as required by La.Code Civ.P. art. 1091 nor did he establish that joinder is needed for a just adjudication as anticipated by La.Code Civ.P. art. 641.

This assignment lacks merit.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this proceeding are assigned to Defendants/Appellants Linda Howerton and David St. Louis.

AFFIRMED.

FOOTNOTES

1.   Plaintiff also requested that Linda be ordered to return other funds that Plaintiff alleged were unlawfully removed from her account. That aspect of the claim is beyond the scope of the underlying judgment.

2.   See also La.Civ.Code art. 2986, cmt. (a) (“In the Louisiana Civil Code of 1870, the words ‘power of attorney’, ‘letter of attorney’, mandate’, ‘procuration’, and ‘agency’ were used interchangeably.”).

3.   Louisiana Civil Code Article 535 provides, in part, that “[u]sufruct is a real right of limited duration on the property of another.” Further, “[u]sufruct is an incorporeal thing. It is movable or immovable according to the nature of the thing upon which the right exists.” La.Civ.Code art. 540. See also La.Civ.Code art. 540 cmt. (b) (“The usufruct of immovable property is an incorporeal immovable, and the usufruct of movable property an incorporeal movable.”). Correspondingly, “[h]abitation is the nontransferable real right of a natural person to dwell in the house of another.” La.Civ.Code art. 630. “The right of habitation is established and extinguished in the same manner as the right of usufruct.” La.Civ.Code art. 631.

4.   Louisiana Civil Code Article 538 provides:If the things subject to the usufruct are consumables, the usufructuary becomes owner of them. He may consume, alienate, or encumber them as he sees fit. At the termination of the usufruct he is bound either to pay to the naked owner the value that the things had at the commencement of the usufruct or to deliver to him things of the same quantity and quality.

5.   Ms. Franks’ signature in a representative capacity echoes Plaintiff's statement in the petition that Plaintiff “has signed a revocation of the power of attorney previously granted in favor of Linda and has signed a new power of attorney in favor of her step-granddaughter, Mrs. Angela Franks.”

6.   For instance, Plaintiff's petition references Linda's use of a 2017 power of attorney whereas the revocation identifies a 2016 power of attorney.

WILBUR L. STILES JUDGE