Larry Sylvester Cola, Jr. v. Tonya Leatherman Cola

STATE OF LOUISIANA

COURT OF APPEAL

L
V
FIRST CIRCUIT

NO. 2019 CA 0530

LARRY SYLVESTER COLA, JR.

VERSUS

TONYA LEATHERMAN COLA

Judgment Rendered:
DEC 2 7 2019

On Appeal from
The Family Court
In and for the Parish of East Baton Rouge
State of Louisiana
Trial Court No. 212, 604

Honorable Pamela J. Baker, Judge Presiding

Vincent A. Saffiotti Attorney for Plaintiff A
- ppellee,
Baton Rouge, LA Larry Sylvester Cola, Jr.

Heidi M. Vessell Attorneys for Defendant -Appellant,
Katherine Wheeler Tonya Leatherman Cola

Zachary, LA

ReAzalia Allen
Baker, LA

BEFORE: HIGGINBOTHAM, PENZATO AND LANIER, JJ.

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HIGGINBOTHAM, J.

In this community property dispute, Tonya Cola appeals the judgment of the

trial court finding that the former matrimonial domicile is the separate property of

Larry Cola, Jr.

FACTS AND PROCEDURAL HISTORY

On December 28, 1996, Larry Cola, Jr. and Tonya Cola were married. About

five years later, on February 5, 2002, Larry purchased through a cash sale a home

and the surrounding five acres located at 21839 Ligon Rd. in Zachary, Louisiana,

that would become their matrimonial domicile. ( the Ligon Rd. property) The cash

sale provided that the property was being purchased as Larry' s separate property

under his own separate administration and control. Tonya intervened in and signed

the cash sale " for the sole purpose of acknowledging that the property being

purchased ...
is [ Larry' s] separate property." On that same day, Larry entered into a

collateral mortgage and collateral pledge for a loan in amount of $ 182, 282. 00

granting to American General Financial Services a security interest in the form of a

mortgage on the Ligon Rd. property. Tonya also intervened in and signed the

collateral mortgage for limited purpose of concurring with the granting of the

mortgage on the " separately owned property."

On March 2, 2018, Larry filed a " Petition for Divorce and for Partition of

Community Property." In his petition, he requested, among other relief, that he be

awarded exclusive use of the former matrimonial domicile, and he alleged that the

Ligon Rd. property was his separate property. Tonya filed an answer and

reconventional demand and also requested exclusive use of the former matrimonial

domicile. In her answer, Tonya asserted a general denial to Larry' s statement in his

petition that the Ligon Rd. property was his separate property. In her reconventional

demand, Tonya stated that the parties never had a separate property regime, the

Ligon Rd. property was purchased after the marriage, and community funds were

used to pay the mortgage. Further, she contended that the defendant fraudulently

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induced her to sign the act of sale by which the parties acquired the Ligon Rd.

property.

Thereafter, Larry filed his Sworn Detailed Descriptive List, again identifying

the Ligon Rd. property as his separate property. Tonya filed her Sworn Detailed

Descriptive List, which did not list the Ligon Rd. property as a community asset, but

listed a " claim for reimbursement of 1/ 2 of $10, 000 loan by community used as down

payment for purchase of separate property at 21839 Ligon Road, Zachary, LA."

The matter came before the trial court for partition of community property on

September 5, 2018. During the hearing, Tonya' s attorney attempted to question

Larry about his classification of the Ligon Rd. property as separate. In response,

Larry' s attorney objected to that line of questioning, arguing that it was beyond the

scope of the pleadings. The trial court sustained the objection by Larry' s attorney

and stated that this ruling meant that the separateness of the Ligon Rd. property

would not be attacked. At the end of the hearing, Tonya' s attorney proffered

evidence regarding the classification of the Ligon Rd. property for the record.

After the completion of the trial, on September 18, 2018, the trial court signed

a judgment partitioning the community property and ordering, " that the property
located at 21839 Ligon Rd., Zachary, Louisiana is hereby adjudged and declared to

be the separate property of [Larry]." Additionally, the judgment ordered Tonya to

vacate the former matrimonial domicile by September 15, 2018. Prior to the signing

of the judgment, Tonya filed a motion for new trial and to enjoin Tonya' s eviction

from the matrimonial domicile. After a hearing, the trial court denied Tonya' s

motion by a judgment signed on October 9, 2018. It is from the September 18, 2018

judgment as well as the October 9, 2018 denial of her motion' that Tonya appeals

asserting the following assignments of error:

Although the denial of a motion for new trial is generally a non -appealable interlocutory
judgment, the court may consider interlocutory judgments as part of an unrestricted appeal from
a final judgment. Henry v. Sullivan, 2016- 0564 ( La. App. 1st Cir. 7/ 12/ 17), 223 So. 3d 1263,
1272.
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1. The trial court erred in designating the Ligon Rd. property as Larry' s

separate property solely on the basis of a defective recital of separate

property in the act of sale purchasing the property under La. Civ. Code art.

2342 because it did not say that the property was acquired with separate

funds.

2. The trial court erred in denying Tonya' s right to present testimony and

evidence at trial rebutting Larry' s claim that the Ligon Rd. property is his

separate property.

3. The trial court erred in ordering Tonya to vacate the family home prior to

the signing of the partition judgment and prior to the delays for a new trial

and suspensive appeal of the judgment.

LAW AND ANALYSIS

I. Assignments of Error No. 1 and 2

In Tonya' s first two assignments of error, she contends that the trial court

erred in not allowing her to present evidence regarding the classification ofthe Ligon

Rd. property. The standard of review for evidentiary rulings of a trial court is abuse

of discretion; the trial court' s ruling will not be disturbed unless it is clearly

erroneous. See Gorman v. Miller, 2012- 0412 ( La. App. 1st Cir. 11/ 13/ 13), 136

So. 3d 834, 840 ( en banc), writ denied, 2013- 2909 ( La. 3/ 21/ 14), 135 So. 3d 620.

In a community property partition, things in the possession of a spouse during

the existence of a regime of community of acquets and gains are presumed to be

community, but either spouse may prove that they are separate property. La. Civ.

Code art. 2340. The community presumption contained in article 2340 is rebuttable

by either spouse upon a showing by a preponderance of the evidence the separate

nature of property brought into the community. Talbot v. Talbot, 2003- 0814 ( La.

12/ 12/ 03), 864 So. 2d 590, 600. Louisiana Civil Code article 2342( A) provides in

pertinent part that "[ a] declaration in an act of acquisition that things are acquired

with separate funds as the separate property of a spouse may be controverted by the
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other spouse unless he concurred in the act." Article 2342 was enacted to codify the

jurisprudential doctrine of estoppel by deed, which is that a declaration in an act of

acquisition that things are acquired with separate funds as separate property of a

spouse may not be controverted by the other spouse where she concurred in the act.

Curtis v. Curtis, 403 So. 2d 56, 59 ( La. 1981); see also Monk v. Monk, 243 La.

429, 144 So.2d 384 ( 1962). However, even where the spouse concurred in the act,

the cases have recognized that she is not estopped from claiming the property is

community property where she concurred due to fraud, error or duress. Levatino v.

Levatino, 506 So.2d 858, 859 ( La. App. 1st Cir. 1987).

During trial, on direct examination, Larry introduced the cash sale wherein

Tonya acknowledged that the Ligon Rd. property was his separate property.

Additionally, Larry answered yes when he was asked if it was his contention that the

Ligon Rd. property was his separate property. The cash sale signed by both Larry

and Tonya stated as follows:

Larry Cola ... married to and living with Tonya Leatherman Cola,
but dealing herein with his own separate property, under his own
separate administration and control ... the said Tonya Leatherman Cola

appearing and intervening herein for the sole purpose of acknowledging
that the property being purchased herein by Larry Cola is his separate
property, under his own separate administration and control.

Larry also introduced the collateral mortgage executed contemporaneously with the

cash sale in which Larry " dealing herein with his separate property" entered into a

loan in the amount of $182, 282. 00. Tonya intervened in and signed the collateral

mortgage stating that she was " appearing herein for the limited purpose of

concurring with the granting of this mortgage on separately -owned property

described herein ... without creating any liability with respect to my spouses separate

property." The Ligon Rd. property was the mortgaged property and the legal

description of the property was attached to the mortgage as exhibit " A".

On cross- examination, as previously pointed out, when Tonya' s attorney

attempted to question Larry about the classification of the Ligon Rd. property,

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Larry' s attorney objected, arguing that trying to prove that the property was

community was beyond the scope ofthe pleading. Specifically, he argued that under

Article 2342, Tonya who concurred in the cash sale stating that the property was the

separate property of Larry, could not now contest the separate nature of the property

unless she contended in a pleading that she concurred due to fraud, error, or duress.

In ruling on the objection, the trial court stated:

Code of Civil Procedure article 856 says " in pleading fraud or mistake,
the circumstances constituting fraud or mistake shall be alleged with
particularity." Code of Procedure article 1005 says, " the answer shall
set forth affirmatively" ... " duress, error, mistake, fraud, failure of
consideration." So, the objection is sustained.

Additionally in ruling on the objection, the trial court noted that on more than one

occasion the trial court requested that if Tonya' s attorney was going to attack the

declaration of separateness of the Ligon Rd. property to do so before trial, and

informed her that she would require memos from both parties. The trial court stated,

that did not happen."

As pointed out by Tonya in her first assignment of error, the declarations in

the cash sale and collateral mortgage provide that the Ligon Rd. property is the

separate property of Larry, but do not state that the property was acquired with

separate funds. Although there are limited cases discussing the application of Article

2342, we agree with Tonya' s argument that to be prevented from controverting the

act of acquisition, the plain language of Article 2342 requires the declaration to state

that the thing was " acquired with separate funds" of the spouse. However, although

we agree with Tonya that she was not prevented from controverting the cash sale

under Article 2342, for the following reasons, we find no abuse of discretion in the

trial court' s ruling sustaining Larry' s objection to testimony about the classification

of the Ligon Rd. property.

A declaration that expressly acknowledges an adverse fact and is made by a

party in a judicial proceeding is a judicial confession that constitutes full proof

against the party who made it. Goines v. Goines, 2008- 42 ( La. App. 5th Cir.
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6/ 19/ 08) 989 So.2d 794, 797. An admission in a pleading falls within the scope of

a judicial confession and is full proof against the party making it. A judicial

confession must be explicit and not merely implied. Id. Detailed descriptive lists

in a community property partition constitute pleadings and, therefore, any admission

or statement made in the documents falls within the scope of a judicial confession.

Id. A judicial confession is indivisible and may be revoked only on the ground of

error of fact. Id.

Tonya' s signed detailed descriptive list described the Ligon Rd. property as

the separate property of Larry, and did not list the home as a community asset.

Specifically, Tonya' s detailed descriptive list stated that Tonya, after being duly

sworn, declared the following detailed descriptive list contains all of the community

assets, liabilities, and reimbursements known to her, and she did not list the Ligon

Rd. property as a community asset. Additionally, in her reimbursement claims she

sought a claim for reimbursement of the mortgage payments made from community

funds, and " 1/ 2 of $ 10, 000 loan by community used as down payment for the

purchase of separate property at 21839 Ligon Road, Zachary, LA 70791." Tonya' s

declaration made in her detailed descriptive list that expressly acknowledged that

the Ligon Rd. property is separate property is a judicial confession that constitutes

full proof against Tonya2.

In addition, Tonya acknowledged by her signature in the cash sale and the

collateral mortgage, both authentic acts, that the Ligon Rd. property was the separate

property of Larry. In the absence of fraud, duress, or misconduct, Tonya, by signing

the written instrument, is presumed to know its contents and cannot avoid her

obligations by contending that she did not read it, that it was not explained to her, or

2 We acknowledge that in the parties' joint detailed descriptive list (joint DDL), Tonya disagreed
with the Ligon Rd. property' s classification as " Husband' s Separate Property." Rather, Tonya
stated that the property was community. However, the joint DDL was created after Tonya' s
detailed descriptive list acknowledging that the Ligon Rd. property was Larry' s separate property,
and the joint DDL was not sworn to and was singed only by the attorneys. Additionally, the joint
DDL appears to be a tool for the trial court to use during the hearing, rather than a pleading required
by La. R.S. 9: 2801.
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that she did not understand it. See Smith v. Leger, 439 So. 2d 1203, 1206 ( La. App.

1st Cir. 1983). We agree with the trial court that the issue of fraud was not properly

pled with particularity as required by La. Code Civ. P. art. 856. In pleading fraud or

mistake, the circumstances constituting fraud or mistake shall be alleged with

particularity. La. Code Civ. P art. 856. A mere allegation of fraud, unaccompanied

by factual allegations setting forth with particularity the circumstances that

constitute the same, is a mere conclusion of the pleader and does not set forth a cause

of action as to fraud. Ivy Rest. New Orleans, LLC v. Torre, 2016- 0777 ( La. App.

4th Cir. 2/ 1/ 17), 211 So. 3d 676, 680 In her reconventional demand, Tonya' s only

reference to fraud states Larry " fraudulently induced" Tonya to sign and execute the

act of sale as well as loans and other documents. To plead that a defendant defrauded

a plaintiff is insufficient to set forth a cause of action for fraud. See Ivy, 211 So. 3d

at 680 ( citing Private Connection Prop., Inc. v. Fox Cars, LLC, 2008- 1129 ( La.

App. 4th Cir. 2/ 10/ 09), 6 So. 3d 866, 872.

Finally, in ruling on the objection, the trial court pointed out that it discussed

with Tonya' s attorney that if she planned to contest the classification of the Ligon

Rd. property, she should file her pleadings before trial. No pleading contesting the

classification of the property was ever filed.

Based on the foregoing, specifically, Tonya' s acknowledgments in two

authentic acts that the Ligon Rd. property was Larry' s separate property, coupled

with her judicial confession on her detailed descriptive list that the Ligon Rd.

property was separate, we find no abuse of discretion in the trial court' s ruling

sustaining Larry' s objection to testimony about the classification of the Ligon Rd.

property. Therefore, we find no error in the trial court' s ruling finding that the Ligon

Rd. property is the separate property of Larry.

II. Assignment of Error No. 3

In her final assignment of error, Tonya contends that the trial court erred in

ordering her to vacate the family home prior to the signing of the partition judgment
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and prior to the delays for a new trial and suspensive appeal of the judgment. Courts

will not rule on questions of law that have become moot since their decree will serve

no useful purpose and afford no practical relief. Kaiser Aluminum Exploration

At this
Company v. Thompson, 512 So.2d 1197, 1200 ( La. App. 1st Cir. 1982).

point, that issue is moot as the final judgment has been signed, the motion for new

trial considered, and a devolutive appeal granted to Tonya from the September 18,

2018 and October 9, 2018 judgments.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court. All costs

of the appeal are assessed to defendant/appellant, Tonya Cola.

AFFIRMED.

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