Radcliffe 10, L.L.C. v. Lynda O. Burger and Lauren E. Warren

STATE OF LOUISIANA

COURT OF APPEAL

q6v FIRST CIRCUIT

W-- NUMBER 2019 CA 1094

M.
RADCLIFFE 10, L.L.C.

VERSUS

LYNDA O. BURGER AND LAUREN E. WARREN

Judgment Rendered: JUL' 21 2020

On appeal from the
Nineteenth Judicial District Court
In and for the Parish of East Baton Rouge
State of Louisiana
Docket Number C590185

Honorable William A. Morvant, Judge Presiding

Joseph L. McReynolds Counsel for Defendant/ Appellant
Raymond C. Lewis Lynda O. Burger
New Orleans, LA

Ross Dooley
Baton Rouge, LA

Craig J. Robichaux Counsel for Plaintiff/Appellee
Mandeville, LA Radcliffe 10, L.L.C.

Alicia M. Bendana
Mark S. Goldstein
New Orleans, LA

BEFORE: WHIPPLE, C. J., GUIDRY, AND HIGGINBOTHAM, JJ.

GUIDRY, J.

Appellant, Lynda O. Burger, seeks a reversal of a partial summary judgment

that rendered her personally liable in the amount of $ 150, 000. 00 to Appellee,

Radcliffe 10, L.L.C. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

This litigation has its roots in the sale of the assets of Zip Tube Systems of

Louisiana, Inc., a corporation in which Mr. Ronald G. Burger and his wife, Ms.

Burger, the appellant herein, owned equal shares of stock. This court has issued

prior opinions in the litigation.' Essentially, Zip Tube Systems sold its assets to

Radcliffe 10, a limited liability company that James Radcliffe formed in 2002

specifically to purchase Zip Tube' s assets and business operations. Based on a

final judgment signed on March 29, 2007, for an amount in excess of three million

dollars, Radcliffe 10 is a judgment creditor of Zip Tube, Burger Engineering,

L.L.C., Ronald Burger, and Bryan Burger. 2

On June 5, 2009, Radcliffe 10 filed a " Petition for Money Judgment Based

on Disposal of Community Property, for Revocatory Action, and to Seize

Community Property to Satisfy Community Debt." Named as defendants in its

petition were Ms. Burger and her daughter, Lauren E. Warren. Radcliffe 10

alleged that Ms. Burger donated former community property—$ 150, 000. 00 from a

certificate of deposit and $ 55, 765. 08 from other funds— to Lauren. Radcliffe 10

1 See Radcliffe 10, L.L.C. v. Zip Tube Systems of Louisiana Inc., 07- 1801 ( La. App. 1st Cir.
8/ 29/ 08),
998 So. 2d 107, amended on rehearing, 07- 1801 ( La. App. 1 st Cir. I2/ 3/ 08), 22 So. 3d
178, writs denied, 09- 0011, 09- 0024 ( La. 3/ 13/ 09), 5 So. 3d 119, 120; Radcliffe 10, L.L.C. v. Zip
Tube Systems of Louisiana, Inc., 09- 0417 ( La. App. 1st Cir. 12/ 29/ 09), 30 So. 3d 825, writ
denied, 10- 0244 ( La. 4/ 9/ 10),
31 So. 3d 394; Radcliffe 10, L.L.C. v. Burger, 17- 0967 ( La. App.
1 st Cir. 5/ 9/ 18), 251 So. 3d 435.

2 The lawsuit was filed in 2003; Ms. Burger was not a party to the lawsuit.
7

sought a money judgment against Ms. Burger and Lauren in the amount of

205, 765. 08, plus legal interest and costs. 3

In response to Radcliffe 10' s petition, Ms. Burger filed an answer, generally

denying the allegations in the petition, but admitting that subsequent to Hurricane

Katrina, she purchased a CD in the amount of $150, 000. 00 with funds obtained

pursuant to a flood damage claim on a home in New Orleans.' Ms. Burger denied

having made any donations to her daughter. She further asserted that any

judgment rendered against her husband, Mr. Burger, was not a community

obligation.'

In August of 2011, Ms. Burger filed a motion for partial summary judgment,

which was denied.6 Later, on September 19, 2016, Radcliffe 10 filed a motion for

partial summary judgment. Radcliffe 10, in its motion, alleged that Ms. Burger

disposed of $150, 000.00 in community property in violation of La. C. C. art. 2357,

and in doing so, Ms. Burger had become personally liable to Radcliffe 10.

Ms. Burger opposed Radcliffe 10' s motion, asserting that Radcliffe 10 could

only seize former community property upon a showing that the judgment rendered

against Mr. Burger and the other defendants was entered during the community
and that the $ 150, 000. 00 was a community debt. Ms. Burger asserted that she had

not disposed of the subject funds, whether community or separate, but applied

3 On May 20, 2015, Radcliffe 10 amended its petition seeking the money judgment solely against
Ms. Burger.

a Lauren also filed an answer denying the allegations in Radcliffe 10' s petition.
5
During the litigation proceedings, the Burgers sought a matrimonial agreement terminating
their legal matrimonial regime of community property and establishing a separate property
regime, which was upheld by the Louisiana Supreme Court. ( R. 1/ 11) See Radcliffe 10, L.L.C.
v. Burger, 16- 0768 ( La. 1/ 25/ 17), 219 So. 3d 296. ( R. 1/ 11)
The matrimonial agreement and the
judgment approving the matrimonial agreement were entered into and signed on May 8, 2006,
after Radcliffe 10' s judgment in an amount in excess of three million was rendered against Mr.
Burger and the other defendants ( the trial court issued its reasons for judgment on June 24,
2005), but before the judgment was signed by the trial court on March 29, 2007.

6 Ms. Burger asserted that she had not disposed of community funds and was therefore entitled to
summary judgment.
3

them to the purchase price of a home jointly titled in her and her daughter Lauren' s

name, which was subsequently sold in 2013. Ms. Burger contended that there was

no disposal of the former community funds within the meaning of La. C. C. art.

2357, since the equity interest in the home was within Radcliffe 10' s reach before

it was sold.

Following argument and review of the evidence submitted in favor of and in

opposition to Radcliffe 10' s motion for partial summary judgment, the trial court

signed a judgment on April 6, 2017, granting the motion and rendering judgment in

favor of Radcliffe 10. 7 Ms. Burger then sought an appeal of the April 6, 2017

judgment, and also filed an exception of no right of action in this court. That

appeal was dismissed for want of jurisdiction; the exception was also dismissed.

See Radcliffe 10, L.L.0 v. Burger, 17- 0967 ( La. App. 1st Cir. 5/ 29/ 18), 251 So. 3d

435.

On June 25, 2018, Ms. Burger filed in the trial court an exception of no right

of action and motion to vacate the April 6, 2017 judgment, which was denied on

November 26, 2018. Thereafter, by a judgment signed on May 17, 2019, the

remaining claims brought by Radcliffe 10 against Ms. Burger and her daughter

Lauren were dismissed, thereby concluding and disposing of all claims and issues

between the parties. Ms. Burger then brought the instant appeal challenging the

April 6, 2017 judgment and assigning the following as error.
1. The district court erred in granting the April 6, 2017 partial
summary judgment because Radcliffe 10 had been dissolved by
affidavit, effective June 21, 2016, pursuant to LA. REV. STAT.
12: 1335. 1, and thus had no right to a judgment in its favor or in its
name.

Prior to the signing of the April 6, 2017 judgment, Ms. Burger objected to the circulated
judgment, asserting 1) that the judgment was not final because it had not been established
whether the judgment was a community debt, and 2) that Radcliffe 10 had no right of action to
move for partial summary judgment because the company had been dissolved by affidavit on
June 21, 2016.

C!

2. The district court erred in refusing to grant either [ Ms.] Burger' s
peremptory exception of no right of action or her motion to vacate the
judgment, due to the dissolution of Radcliffe 10' s corporate existence.

3. The district court erred in granting James Radcliffe leave to
substitute as the proper legal successor, to the extent the order give[ s]
retroactive effect to Mr. Radcliffe' s substitution as the party to whom
the April 6, 2017 judgment applied.

4. The district court erred in holding [ Ms.] Burger personally liable
for $ 150, 000 in the absence of any evidence presented in support of
Radcliffe 10' s motion that the $ 3. 4 million judgment debt that Ronald
Burger owed Radcliffe 10 was a community obligation under Civil
Code Article 2360. Radcliffe 10 was not entitled to the presumption of
community under Civil Code Article 2361 because the $ 3. 4 million
judgment debt was based on an intentional wrong. It was therefore
Radcliffe 10' s burden to present evidence with its motion that the
judgment was a community obligation, in accordance with Civil Code
Article 2363, and it presented none.

5. The district court erred in holding that [ Ms.] Burger had " disposed"
of former community property, when she used the proceeds of flood
insurance to purchase an undivided equity interest in a new home in
Baton Rouge, equal in value to insurance funds.

STANDARD OF REVIEW

A motion for summary judgment is a procedural device used to avoid a full

scale trial when there is no genuine issue of material fact. M/V Resources LLC v.

Louisiana Hardwood Products LLC, 16- 0758, p. 8 ( La. App. 1st Cir. 7/ 26/ 17), 225

So. 3d 1104, 1109, writ denied, 17- 1748 ( La. 12/ 5/ 17), 231 So. 3d 624. A motion

for summary judgment is properly granted if, after an opportunity for adequate

discovery, the motion, memorandum, and supporting documents show that there is

no genuine issue as to material fact and that the mover is entitled to judgment as a

matter of law. La. C. C. P. art. 966( A)( 3); M/V Resources LLC, 16- 0758 at p. 8,

225 So. 3d at 1109. In determining whether summary judgment is appropriate,

appellate courts review evidence de novo under the same criteria that govern the

trial court' s determination of whether summary judgment is appropriate. M/V

Resources LLC, 16- 0758 at p. 9, 225 So. 3d at 1109.

5

DISCUSSION

We begin our discussion with Ms. Burger' s fourth and fifth assignments of

error and address them together. In these assignments of error, Ms. Burger

essentially contends that the trial court erred in holding her personally liable to

Radcliffe 10 in the amount of $150, 000. 00 because Radcliffe 10 was not entitled to

the presumption of community when the judgment debt was based on an

intentional wrong. Ms. Burger contends that Radcliffe 10 failed to present

evidence that the debt was a community obligation, and that the $ 150, 000. 00 was

not " disposed of within the meaning of La. C. C. art. 2357. Radcliffe 10, in its

motion for partial summary judgment, argued that the debt was a community

obligation, and that it was entitled to pursue assets of the former community.

An obligation incurred by a spouse during the existence of a community

property regime for the common interest of the spouses or for the interest of the

other spouse is a community obligation. La. C. C. art. 2360. Except for separate

obligations delineated in La. C. C. art. 2363, all obligations incurred by a spouse

during the existence of the community property regime are presumed to be

community obligations. La. C. C. art. 2361. Louisiana Civil Code Article 2363

provides in pertinent part that an obligation resulting from an intentional wrong not

perpetrated for the benefit of the community, or an obligation incurred for the

separate property of a spouse to the extent that it does not benefit the community,
the family, or the other spouse, is a separate obligation. s Once it is shown that an

obligation arose during the existence of the community, the presumption set forth

in Article 2361 may be rebutted only by facts proving the obligation to be separate
as defined in Article 2363. Manno v. Manno, 01- 2138, p. 4 ( La. App. 1st Cir.
10/ 2/ 02), 835 So. 2d 649, 651. Additionally, the presumption is rebuttable upon

s We conduct our analysis herein under the version of La. C. C. art. 2363 that was in existence at
the time Zip Tube System of Louisiana, Inc.' s assets were sold to Radcliffe 10.
6

proof by clear and convincing evidence that the debt was not incurred for the

benefit of the community. In re Succession of Moss, 00- 62, p. 5 ( La. App. 3rd Cir.

6/ 21/ 00), 769 So. 2d 614, 618, writ denied, 00- 2834 ( La. 12/ 8/ 00), 776 So. 2d 462.

In this matter, the trial court was entitled to apply the presumption of

community under Article 2361, as the obligation resulting from Mr. Burger' s

dealings with Radcliffe 10 arose during the existence of the community property

regime. See Lafayette Ins. Co. v. Pennington, 42, 434, p. 4 ( La. App. 2d Cir.

9/ 19/ 07), 966 So. 2d 136, 138. Thereafter, it was incumbent upon Ms. Burger,

under La. C. C. art 2363, to show that Mr. Burger' s dealings with Radcliffe 10 were

an intentional wrong that did not benefit the community. See Sims v. Sims,

28, 470, p. 2 ( La. App. 2d Cir. 6/ 26/ 96), 677 So. 2d 663, 665. Ms. Burger,

however, in her presentation to the trial court, failed to rebut the presumption of

community, providing no evidence that Mr. Burger' s dealings with Radcliffe 10

were not for the common interests of the spouses and did not benefit the

community. The record is devoid of any such evidence. Accordingly, on this

Ms.
record,
Burger is unable to surmount the presumption of a community
obligation.

Having so found, we note that La. C. C. art. 2357 provides for the

satisfaction of an obligation after the termination of a regime. Article 2357

provides in part that an obligation incurred by a spouse before or during the
community property regime, may be satisfied after termination of the regime from

the property of the former community and from the separate property of the spouse
who incurred the obligation. Article 2357 additionally provides that if a spouse

disposes of property of the former community for a purpose other than the

satisfaction of community obligations, that spouse is liable for all obligations

incurred by the other spouse up to the value ofthat community property.

7

Here, while Ms. Burger argues that the trial court erred in finding that she

disposed of former community funds, Ms. Burger conversely admitted to the trial

court that she used the former community property to purchase a new home with

her daughter— that is, she used the subject $ 150, 000. 00 for a purpose other than

satisfying a community obligation.' It is therefore our opinion that Ms. Burger

disposed of the former community property, $ 150, 000. 00, within the meaning of

La. C. C. art. 2357. She is now personally liable in that amount. Accordingly, we

find no merit in these assignments of error.

Finally, we decline to consider Ms. Burger' s first, second, and third

assignments of error, as the issues presented for review are not properly before

us. 10 A review of the record herein reveals that the issue of Radcliffe 10' s

corporate dissolution was not presented to the trial court for consideration prior to

the determination of the April 6, 2017 partial summary judgment and is therefore

not subject to review by this court. See Uniform Rules -Courts of Appeal, Rule 1-

3. Furthermore, we note that Ms. Burger failed to appeal the November 26, 2018

judgment, wherein she raised the issue of corporate dissolution and wherein the

rulings on the exception of no right of action, motion to vacate the April 6, 2017

judgment, and motion for leave were issued. See La. C. C. P. arts. 2121 and 2088;

see also Uniform Rules -Courts of Appeal, Rule 2- 12. 4( B)( 1).

CONCLUSION

For the above and foregoing reasons, we affirm the April 6, 2017 partial

summary judgment against Lynda O. Burger and in favor of Radcliffe 10, L.L.C.

All costs of this appeal are assessed to the appellant, Lynda O. Burger.

AFFIRMED.

9 Ms. Burger made admissions regarding the subject $ 150, 000. 00 and purchase of a new home in
her briefs to the court.

10 Appellate courts have the duty to examine subject matter jurisdiction sua sponte, even when
the parties do not raise the issue. Novel v. City of St. Garbriel, 15- 1890, p. 5 ( La. App. 1st Cir.
9/ 1/ 16), 202 So. 3d 1139, 1142, writ denied, 16- 1745 ( La. 11/ 29/ 16), 213 So. 3d 392.
8