Michael Cousin Versus Amanda Cousin

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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NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
DECEMBER 23, 2021 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

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)

MAILED
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ATTORNEY AT LAW
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