Randy Deshay Graham v. Sonja Turnage Graham John Randall Graham

Judgment rendered October 2, 2024.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 55,914-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

RANDY DESHAY GRAHAM Plaintiff-Appellee

versus

SONJA TURNAGE GRAHAM Defendant-Appellant
JOHN RANDALL GRAHAM

*****

Appealed from the
Fifth Judicial District Court for the
Parish of Franklin, Louisiana
Trial Court No. 48173B

Honorable Will Barham, Judge

*****

LAW OFFICES OF DAWN H. MIMS Counsel for Appellant,
By: Dawn Hendrix Mims Sonja Turnage Graham

CUMMINS AND FITTS, LLC Counsel for Appellee,
By: Jessica Leigh Fitts Randy DeShay Graham

HOGGATT LAW, LLC
By: Eric Micah Hoggatt

*****

Before STONE, THOMPSON, and MARCOTTE, JJ.

STONE, J.

This appeal arises from the Fifth Judicial District Court, the

Honorable Will Barham presiding. Randy G. Graham (“Randy”) is the

plaintiff; he initiated the proceedings with a petition for partition, breach of

contract, specific performance, and damages against the defendants, Sonja T.

Graham (“Sonja”) and John R. Graham (“John”). Randy is John’s father.

Sonja and John are former husband and wife who were amid post-divorce

litigation as of the time of rendition of the judgment herein appealed.

FACTS AND PROCEDURAL HISTORY

The subject of the dispute is a horse allegedly co-owned by all three

parties. Sonja and John purchased the horse as a colt in 2015 for $1,500 in

the hope that he would be profitable as a barrel racing horse and as a stud

(breeding horse). However, far more was expended for the horse’s training

and maintenance than they collected in winnings, and the horse was

diagnosed with bleeding lung disease and has a clubfoot.

Randy’s basis for his claims is an alleged oral contract that was

partially memorialized in a document referred to as the “September 12,

2019, Cash Deed.” Therein, Randy and Sonja “declared that they are joint

owners of a horse named Parkerscanman…in proportion of 51% to Sonja

Graham and 49% to Randy Graham,” and further declared that “they shall

split all monies earned by the horse in proportion of 51% to Sonja Graham

and 49% to Randy Graham.” This document, Randy claims, is proof of his

49% ownership interest via the antecedent oral agreement whereby Randy

would cause his business, Graham’s Auto Body (“GAB”), to pay roughly

$10,000 to have the horse trained in exchange for the transfer of a 49%

ownership interest in the horse.

In her answer and reconventional demand, Sonja claimed that she is

the sole owner of the horse,1 and that she signed the Cash Deed under

duress. Alternatively, she asserted her entitlement to reimbursement for her

expenditures for maintaining and training the horse (i.e., if the court

recognized John and/or Randy as co-owner of the horse). Sonja named both

Randy and John as defendants-in-reconvention.2 John has not filed any

pleadings.

The trial (a bench trial) took place on October 18, 2023. The court

received evidence including multiple exhibits and live testimony from the

three parties. After trial on October 18, 2023, the court ruled from the bench.

In a judgment signed on October 20, 2023, the district court granted Randy a

“right of first refusal” to purchase a 100 % interest in the horse for $1,500,

and alternatively, ordered that the horse be sold via sheriff’s auction (i.e., if

Randy did not purchase it via his aforementioned right). The judgment

further ordered that if the horse were to be sold by public auction, the

proceeds would be distributed 49% to Randy, 25.5% to Sonja, and 25.5% to

John.3 Finally, the judgment dismissed all claims for reimbursement by all

parties.

Sonja filed this appeal urging that the trial court erred in: (1) finding

that there is a valid contract or other means of transferring an undivided

1
Discussion reflected in the trial transcript indicates that the trial court initially
set aside the issue of whether the horse is former community property or was Sonja’s
separate property since the purchase was in 2015. Sonja testified that the funds used to
pay for the purchase of the horse came from a line of credit on real estate that she
inherited from her mother. John testified that the money used to purchase the horse came
from his joint account with Sonja, but he did not remember the source of the money in
that account at the time of the horse purchase.

2
As to John, this technically should be referred to as a cross claim.

This implicitly reflects a finding that the horse is part of John and Sonja’s former
3

community patrimony.
2

interest in the horse to Randy; (2) denying Sonja’s claims for

reimbursement; (3) ordering private sale when no party had prayed for such;

(4) granting Randy the sole right to purchase the horse in the private sale; (5)

setting the value/price of the horse at $1,500 without any testimony

regarding its value; (6) commenting on testimony, asking leading questions

of the witnesses, “overtly favoring Randy and John,” and considering

evidence not in the record; (7) failing to set a suspensive appeal bond

without a hearing; (8) ordering the immediate transfer of the horse to

Randy’s custody despite Sonja’s suspensive appeal; and (9) signing the

judgment in less than 48 hours in violation of Uniform District Court Rule

9.5.

EVIDENCE INTRODUCED AT TRIAL

Below, the evidence is outlined topically in the following order: (1)

evidence regarding the existence and validity of the alleged contract

transferring an undivided interest in the horse to Randy; (2) evidence of

contractually agreed particulars, if any, concerning the purpose,

management, revenues, and expenses of the horse; and (3) evidence

regarding Sonja’s reimbursement claim, and Randy’s defenses thereto.

(Evidence regarding the other assignments of error appears in context under

these three headings).

Contractual transfer of undivided interest to Randy. John testified

that he, Sonja, and Randy orally agreed that Randy would “pay for so much

[of the horse’s] training and he would own 49% of the horse.” Thereafter,

beginning in March of 2018, the horse went to stay with three successive

trainers: Joey Coleman, then Bo Stewart, then Lily Jeffers. Through checks

3

drawn on an account of GAB,4 Randy paid these various trainers monthly

amounts ranging from $800 to $950 for 18 months. Randy asserted that the

total payments amounted to $9,850, and Sonja admitted that this was true.

On September 12, 2019, Randy and Sonja executed the Cash Deed, and

Randy made no such payments afterwards. Sonja argues that she signed the

Cash Deed under duress because John threatened that, unless she signed it,

he would not grant her an uncontested divorce.

Agreed purpose and management of the horse. Sonja testified that

she was going to be the main rider of the horse, and that she was the only

one besides the trainers who rode the horse. Randy (and John) admitted that,

at the time of the oral agreement, the common intent of the parties was that

the horse would be under the management, care, and custody of the trainers,

and would serve as an investment, not a pet.5 Sonja testified that the

agreement was that the horse would go to Future Fortune Fortuity runs, and

that he did complete those.

Despite being listed as an exhibit, there is no exhibit D-12 in the

record, but it was discussed in Sonja’s testimony and then withdrawn as

Sonja explained that she loves barrel racing and it is a hobby of hers.

On its own motion, the court called Randy back to the witness stand,

and he stated that he loves quarter horses and has owned at least one for the

4
Randy testified that he and his wife were the only owners of this business. These
checks were not introduced into evidence.
5
In the divorce proceedings, the trial court issued an injunction prohibiting
alienation of community assets, and Sonja indicated that she was thereby bound to keep
the horse. In October of 2021, the horse was diagnosed with bleeding lung disease, but
Sonja kept running him in competitions, albeit on a more limited basis. Randy explained
that this causes the horse to bleed inside his lungs when he exerts himself, which impairs
his breathing. Randy further stated that this “don’t amount to a hill of beans” because it
can be treated successfully with medication (called “Lasix”) and is a common ailment for
horses. Sonja also stated that the horse has a clubfoot. On February 27, 2023, the district
court issued an order prohibiting the horse’s “engagement in any hazardous behavior or
contests” and ordered a veterinary examination by Dr. Chris Sullivan.
4

last 40 years and has 26 acres of pasture and was currently in custody of

another horse there.

Agreement regarding revenues and expenses. Randy also testified

that the agreement was that he would receive his payment out of the gross

winnings (i.e., before the payment of any expenses out of those proceeds),

and that he would have no further responsibility for the expenses of the

horse. Randy testified that the oral agreement was that Sonja was to bear the

full cost of expenses associated with each competition — such as travel,

boarding, and entry fees. Randy admitted that Sonja paid all the horse’s

expenses after the signing of the Cash Deed. John stated that, prior to the

divorce, expenses for the horse (besides training) were paid from his joint

account with Sonja. Sonja insisted that John and Randy were fully aware of

how much she was spending on the horse after the signing of the Cash Deed

in connection with her divorce from John.

Reimbursement; use and enjoyment. In support of her

reimbursement claim (which totals approximately $55,000), Sonja testified

that she spent approximately $70,000 on the care and maintenance of the

horse, including veterinary bills, boarding fees, rodeo entry fees, and

training fees. Randy testified that he had no “use” of the horse and had not

seen the horse in 4½ years as of the time of trial. Additionally, Randy

admitted that the horse had been in Sonja’s pasture for the year preceding

the trial, that he had not asked her for permission to go and see it,6 and that

nobody otherwise prevented him from seeing or using the horse. (Likewise,

6
In connection with this line of questioning, the trial judge indicated that, based
on evidence from a separate suit (i.e., the John-Sonja divorce and custody litigation; the
divorce occurred in 2020), he was aware of Randy and John’s acrimonious relations with
Sonja.

5

John admitted there were no court orders preventing him from going to see

the horse). Randy also admitted that he cannot ride a horse.

Sonja further testified that she paid Lily Jeffers and Bo Stewart for the

horse’s training. Exhibit D-3 was introduced in globo over Randy’s

objection (that he had asked for it in discovery and not received it). The

exhibit reflects expenditures Sonja made toward the horse’s training after the

September 19, 2019, execution of the Cash Deed.7

Exhibits D-4 through D-11 were admitted over Randy’s objection on

the basis of hearsay and lack of authentication.8 Sonja, on direct

examination, stated that these records were not created for the purpose of

litigation, but were “just…[her] documents and what…[she] keeps up with

on a horse.” This prompted counsel to ask if they were “business records,”

which Sonja affirmed. However, on cross-examination, Sonja admitted that

she compiled these records for the purpose of the trial, and she had kept

track of these expenses for purposes of litigation.

7
These include: (1) monthly invoices from Bo Stewart to Sonja for August,
October, November, and December of 2019; (2) copies of checks drawn on Sonja’s
account; (3) a screenshot of a text message to “Lily” asking for PayPal info, a response:
“lilynorris1@gmal.com,” and a screenshot within the screenshot of a PayPal screen
saying $1,200 paid to Lily Jeffers; (4) a screenshot of a PayPal history reflecting
payments to “Lily Jeffers” (days and months are indicated but not years); (5) a checking
account activity log from October 28, 2019, to November 25, 2019. Three of these checks
are payable to Bo Stewart: (i) no. 4015 for $950 dated September 19, 2019; (ii) no. 4017
for $600 on September 20, 2019; (iii) no. 4028 on October 28, 2019, for $1210. Also, (iv)
no. 4031 on December 3, 2019, to “Old Ford Days Fortuity” for $225. (The checking
account activity log notes that check no. 4028 was paid on November 19, 2019).

8
In connection with exhibit D-6, Randy made his objection to Sonja’s exhibits
universal, so he would not “have to keep popping up.” The trial court accepted this and
noted Randy’s objection as to each subsequent exhibit.

6

LAW AND ANALYSIS

Contract

Sonja argues that Randy has no ownership interest in the horse

because: (1) within the four corners of the Cash Deed, there exists no valid

sale9 or donation inter vivos; and (2) she signed the Cash Deed under duress

because John said he would not otherwise grant her an uncontested divorce.

“A contract is an agreement by two or more parties whereby

obligations are created, modified, or extinguished.” La. C.C. art. 1906. “A

contract is onerous when each of the parties obtains an advantage in

exchange for his obligation.” La. C.C. art. 1909. “Nominate contracts are

those given a special designation such as sale, lease, loan, or insurance.

Innominate contracts are those with no special designation.” La. C.C. art.

1914.

“A contract is formed by the consent of the parties established through

offer and acceptance.” La. C.C. art. 1927. The irreducible minimum for an

enforceable contract consists of the following four elements: (1) at the time

of formation of the contract, the parties must possess the capacity to

contract; (2) the parties must freely give mutual consent to the contract,

which is established through offer and acceptance;10 (3) the contract must

9
She alternatively argues that even if the agreement constituted an otherwise
valid sale, it was invalid as a simulation pursuant to La. C.C. art. 2480 because
possession of the horse remained with her after the alleged sale. This article, however,
does not contemplate the sale of a mere undivided interest in an investment property.

La. C.C. art. 1940 determines when an offer can only be accepted by complete
10

performance; it states:
When, according to usage or the nature of the contract, or its own
terms, an offer made to a particular offeree can be accepted only by
rendering a completed performance, the offeror cannot revoke the
offer, once the offeree has begun to perform, for the reasonable time
necessary to complete the performance. The offeree, however, is not
bound to complete the performance he has begun. The offeror’s duty

7

have an object that is lawful, possible, and determinable; and (4) the contract

must have a lawful cause.11 La. C.C. arts. 1918, 1927, 1966, 1971; Granger

v. Christus Health Cent. Louisiana, 12-1892 (La. 6/28/13), 144 So. 3d 736,

760–61. There is no contract unless both parties are bound. Keller v. Sisters

of Charity of Incarnate Word, 597 So. 2d 1113 (La. App. 2 Cir. 1992).

Additionally, for certain types of contracts, the law imposes form

requirements. “Unless the law prescribes a certain formality for the intended

contract, offer and acceptance may be made orally, in writing, or by action

or inaction that under the circumstances is clearly indicative of consent.”

La. C.C. art. 1927.

There is no legally required form for the transfer of an undivided

interest in a corporeal movable (such as a horse) by onerous contract.

“When a writing is not required by law, a contract not reduced to

writing…for price or value…in excess of five hundred dollars…must be

proved by at least one witness and other corroborating circumstances.” La.

C.C. art. 1846. Thus, the courts have recognized that, in the absence of a

form requirement imposed by law, an oral agreement may immediately

create an enforceable contract even though the parties intended that it would

later be memorialized in writing.12 Crowe v. Homesplus Manufactured

Hous., Inc., 38,382 (La. App. 2 Cir. 6/21/04), 877 So. 2d 156, 161–62.

of performance is conditional on completion or tender of the
requested performance.
11
“An obligation may be valid even though its cause is not expressed.” La. C.C.
art. 1969.
12
Generally, a donation inter vivos must be in the form of an “authentic act.” La.
C.C. art. 1541. La. C.C. art. 1833 defines authentic act as “a writing executed before a
notary public…in the presence of two witnesses, and signed by each party who executed
it, by each witness, and by each notary public before whom it was executed.”

8

Consent to a contract “is vitiated when it has been obtained by duress

of such a nature as to cause a reasonable fear of unjust and considerable

injury to a party’s person, property, or reputation.” La. C.C. art. 1959.

However, “[a] threat of doing a lawful act or a threat of exercising a right

does not constitute duress.” La. C.C. art. 1962.

La. C.C. art. 1831 allocates the burden of proof regarding

contracts in litigation as follows:

A party who demands performance of an obligation
must prove the existence of the obligation.
A party who asserts that an obligation is null, or that
it has been modified or extinguished, must prove the facts
or acts giving rise to the nullity, modification, or
extinction.

Louisiana’s parol evidence rule is codified in La. C.C. art. 1848:

Testimonial or other evidence may not be admitted to
negate or vary the contents of an authentic act or an act
under private signature. Nevertheless, in the interest of
justice, that evidence may be admitted to prove such
circumstances as a vice of consent or to prove that the
written act was modified by a subsequent and valid oral
agreement.

“The determination of the existence of a contract is a finding of fact,

not to be disturbed unless clearly wrong,” i.e., manifestly erroneous. Crowe,

supra. The Louisiana Supreme Court “has stated a two-part test for the

reversal of a factfinder’s determinations: 1) the appellate court must find

from the record that a reasonable factual basis does not exist for the finding

of the trial court, and 2) the appellate court must further determine that the

record establishes that the finding is clearly wrong or manifestly erroneous.”

Read v. Willwoods Cmty., 14-1475 (La. 3/17/15), 165 So. 3d 883, 888. It is

the appellate court’s role to review the judgment, not the reasons for the

judgment. Wooley v. Lucksinger, 09-0571 (La. 4/1/11), 61 So. 3d 507,

9

572.13 Therefore, provided evidence in the record supports the judgment, the

appellate court may affirm the judgment even though the trial court’s

reasoning was erroneous.

The trial court’s allowance of testimonial evidence of the agreement

did not violate La. C.C. art. 1848 because the testimony did not “negate or

vary” the terms of the Cash Deed. Moreover, the combination of John’s

testimony, Randy’s testimony, and the Cash Deed (which Sonja admitted to

signing) was sufficient to prove that the parties agreed that Randy would

receive a 49% interest in the horse in exchange for causing GAB to pay for

approximately $10,000 in training expenses, and that Randy performed his

obligation under that agreement. The trial court did not commit manifest

error in finding that the parties made such an agreement. Nor did the trial

court commit legal error in finding that the agreement was an enforceable

onerous contract.

Sonja’s remaining arguments are also erroneous. First, a “sale” is not

the only type of contract by which an undivided interest can be transferred;

an innominate contract—such as we have here—may validly do so. This is

the bedrock principle of freedom of contract. Second, because the

agreement was an enforceable onerous contract, the failure to properly

execute the authentic act is without effect. Third, John’s “threat” that he

13
The Wooley court explained:
The district court’s oral or written reasons for judgment form
no part of the judgment, and…appellate courts review
judgments, not reasons for judgment. Appeals are taken from
the judgment, not the written reasons for judgment. Judgments
are often upheld on appeal for reasons different than those
assigned by the district judges. The written reasons for
judgment are merely an explication of the trial court’s
determinations. They do not alter, amend, or affect the final
judgment being appealed. (Internal citations and quotation
marks omitted).
Id.
10

would not grant Sonja an uncontested divorce if she refused to sign the Cash

Deed14 amounts to a threat to exercise his legal right, and therefore, did not

and could not cause duress sufficient to vitiate her consent to the agreement.

La. C.C. art. 1962. Furthermore, Sonja had already consented to and

accepted the benefits of the contract before this supposed duress existed:

thus, even if John’s “threat” could constitute duress (which it cannot), it still

could not retroactively invalidate Sonja’s consent given long beforehand.

Finally, Sonja argues that, because Randy only paid $9,850 (instead of

$10,000) there was no contract ever formed. This argument conflates

contract formation with performance of Randy’s contractual obligation.

There is nothing in the record that would require the trial court to find that

the parties agreed that the transfer to Randy would only occur upon his

payment of exactly $10,000.15

Because Randy is a co-owner of the horse, he has the right to pursue

partition in accordance with the law.

Partition

La. C.C. art. 807 establishes a co-owner’s right to partition, and the

exceptions thereto:

No one may be compelled to hold a thing in indivision
with another unless the contrary has been provided by law
or juridical act.
Any co-owner has a right to demand partition of a thing
held in indivision. Partition may be excluded by agreement
for up to fifteen years, or for such other period as provided
in R.S. 9:1702 or other specific law.

14
The Cash Deed was not executed until Randy completed performance of his
obligation, i.e., more than a year after they entered the agreement.
15
There is a lack of evidence that Sonja and John were the offerors and made the
offer subject to a stipulation that it that could only be accepted via Randy’s complete
performance. Nor is there evidence of the agreement making Randy’s complete
performance a suspensive condition of the transfer. La. C.C. art. 1940 is inapplicable.
11

La. C.C. art. 811 provides for public auction or private sale as means of

partitioning a thing, such as a live rodeo/stud horse, which cannot be

physically divided among the co-owners:

A. When the thing held in indivision is not susceptible to
partition in kind, the court shall decree a partition by
licitation or as provided in Paragraph B of this Article, by
private sale and the proceeds shall be distributed to the co-
owners in proportion to their shares.
B. In the event that one or more of the co-owners…have
not consented to a partition by private sale, the court shall
order a partition by private sale and shall give first
priority to the private sale between the existing co-owners,
over the sale by partition by licitation or private sale to
third parties. The court shall order the partition by private
sale between the existing co-owners…The petition for
partition by private sale…shall be executed under Title IX
of Book VII of the Code of Civil Procedure [i.e., articles
4601 et seq.] (Emphasis added).

As directed by La. C.C. art. 811(B), the sale process is governed by

the Code of Civil Procedure. La. C.C.P. art. 4605, in relevant part, states:

“[I]f the…plaintiff is entitled to a partition of the property, the court shall

appoint a notary to make the partition in accordance with law.”

Furthermore, “the court has discretion to direct the manner and conditions of

effecting the partition, so that it will be most advantageous and convenient to

the parties.” Id.

Among other things,16 La. C.C.P. art. 4607 requires that the price in a

private sale be at least equal to the appraised value:

When a partition is to be made by licitation, the sale shall
be conducted at public auction and after the
advertisements required for judicial sales under execution.
When a partition is to be made at private sale without the

16
The article further provides that “documents required pursuant to a court order
shall be executed on behalf of the…nonconsenting co-owner by a court-appointed
representative, who may be a co-owner, after the advertisements required for judicial
sales under execution are made. All counsel of record…shall be given notice of the sale
date.”

12

consent of all co-owners, the sale shall be for not less than
the appraised value of the property…(Emphasis added).

La. C.C.P. art. 4614 allows a co-owner to purchase the thing in the partition:

A. Any property or interest in the property sold to effect a
partition, whether by licitation or by private sale, may be
purchased by a co-owner.
B. If a property or interest in the property is purchased by
a co-owner, the co-owner shall be credited for his share of
the property or interest in the property. The co-owner shall
have his share deducted from the purchase price of the
property or interest in the property prior to payment.

Lastly, “a final judgment shall grant the relief to which the

party in whose favor it is rendered is entitled, even if the party has

not demanded such relief in his pleadings and the latter contain no

prayer for general and equitable relief.” La. C.C.P. art. 862.

(Emphasis added).

La. C.C. art. 811(B) mandates that the trial court partition the horse by

private sale among the co-owners if feasible. Sonja’s argument — i.e., that,

because Randy did not specifically pray for private sale, the court could not

order private sale — is meritless. La. C.C. art. 811(B); La. C.C.P. art. 862.

However, the trial court had no authority to set the price of the sale by

fiat. La. C.C.P. art. 4607 unambiguously requires that the horse be

appraised, and that the price equal or exceed the appraised value. Nor did

the trial court have any authority to grant Randy a right of first refusal in

regard to the sale. In these aspects of the judgment, the trial court erred.

Sonja’s claims for reimbursement

Sonja seeks recovery of Randy’s share of the expenses for the

necessary expenses of the horse that she incurred after the execution of the

Cash Deed in September of 2019. Randy counters Sonja’s reimbursement

claim by arguing: (1) that the oral agreement negates his liability for
13

reimbursement; (2) pursuant to the second paragraph of La. C.C. art. 806,

that Sonja had exclusive use and enjoyment of the horse during the entire

period of co-ownership between them, and therefore, she is barred from

obtaining reimbursement; and (3) that Sonja’s claims were supported only

by her own cost summaries, not receipts from third parties.

“Ownership of the same thing by two or more persons is ownership in

indivision,” i.e., co-ownership. La. C.C. art. 797. “A co-owner may without

the concurrence of any other co-owner take necessary steps for the

preservation of the thing that is held in indivision.” La. C.C. art. 800. “The

use and management of the thing held in indivision is determined by

agreement of all the co-owners.” La. C.C. art. 801. “Except as otherwise

provided in Article 801, a co-owner is entitled to use the thing held in

indivision according to its destination, but he cannot prevent another co-

owner from making such use of it.” La. C.C. art. 802. “When the mode of

use and management of the thing held in indivision is not determined by an

agreement of all the co-owners and partition is not available, a court, upon

petition by a co-owner, may determine the use and management.” La. C.C.

art. 803.

La. C.C. art. 806 establishes the respective co-owner’s rights and

obligations of reimbursement for expenses incurred in maintaining the co-

owned property:

A co-owner who on account of the thing held in
indivision has incurred necessary expenses, expenses for
ordinary maintenance and repairs, or necessary
management expenses paid to a third person, is entitled to
reimbursement from the other co-owners in proportion to
their shares.
If the co-owner who incurred the expenses had the
enjoyment of the thing held in indivision, his

14

reimbursement shall be reduced in proportion to the value
of the enjoyment.

It must be determined whether La. C.C. art. 806 is imperative or

suppletive. The Louisiana Supreme Court has previously explained:

Statutory rules may be either imperative or
suppletive. Rooted in public policy considerations, an
imperative rule is applied without regard to the intention
of the individuals concerned…A suppletive rule, on the
other hand, applies only if those affected by it have not [by
agreement] excluded its application...Thus, distinction
between imperative and suppletive rules determines
whether private individuals can set aside rules established
by the legislature and regulate their legal relations by
private agreement. If an agreement contravenes an
imperative rule, it is absolutely null; thus, it is not subject
to ratification and may be annulled in judicial proceedings
instituted by any interested party.

E. L. Burns Co. v. Cashio, 302 So. 2d 297, 300 (La. 1974). We hold that La.

C.C. art. 806 is a suppletive rule. There is no public policy reason that co-

owners be denied the contractual freedom to allocate and apportion expenses

as they see fit.

All three parties agreed in their testimony that the purpose of the horse

was financial investment: he was not purchased to be a pet. Therefore, the

trial court erred in holding that Sonja’s custody of the horse constituted

“exclusive use and enjoyment” of him that would preclude her from

obtaining reimbursement pursuant to La. C.C. art. 806. Because the agreed

purpose of the horse was to seek financial returns, whatever personal

enjoyment or use Sonja may have derived from custody of the horse was

incidental and irrelevant. Furthermore, John and Randy admitted that

neither court order nor Sonja had prevented them from going to visit the

horse while he was in Sonja’s custody; rather, they failed to request such a

15

visit. Sonja’s custody of the horse was not “exclusive,” and does not

preclude her claim for reimbursement.

However, Randy unequivocally testified that the oral agreement was

that he would bear no liability for the expenses of the horse beyond the

payments to the trainers of approximately $10,000. Neither John nor Sonja

contradicted Randy on this point. (Sonja merely suggested that Randy and

John were aware of how much she was spending on the horse because they

had horses themselves, and they authorized the training with Lily Jeffers

after the execution of the Cash Deed). Accordingly, the trial court could

have validly denied Sonja’s reimbursement claim against Randy on this

ground. The judgment denying Sonja’s reimbursement claim against Randy

is supported by evidence — upon which a reasonable factfinder could

conclude the parties excluded reimbursement claims against Randy — and

therefore, is not manifestly erroneous.

However, because the trial court judgment correctly recognizes John

as a 25.5 percent owner, Sonja’s reimbursement claim against John remains

viable. Sonja testified that the funds used to purchase the horse were

proceeds of a line of credit secured by property she inherited from her

mother but admitted that the loan proceeds went into her and John’s joint

checking account. John agreed that the funds used to buy the horse came

from their joint account, but did not remember the source (or sources) of the

funds in the joint account at the time they bought the horse.

Any property in the possession of either spouse during the existence

of the community regime is presumed to be community property, but either

spouse may prove it is separate property. La. C.C. art. 2340. Likewise, La.

C.C. art. 2361 provides, “[e]xcept as provided in La. C.C. art. 2363, all
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obligations incurred by a spouse during the existence of a community

property regime are presumed to be community obligations.” In relevant

part, La. C.C. art. 2363 states:

A separate obligation of a spouse is one incurred by that
spouse prior to the establishment of a community property
regime, or one incurred during the existence of a
community property regime though not for the common
interest of the spouses or for the interest of the other
spouse.

“[P]roperty acquired by a spouse by inheritance” is that spouse’s separate

property. La. C.C. art. 2341. Property acquired with separate property is

separate property. Id. The trial court’s classification of property as separate

or community is subject to manifest error review. Glover v. Preece, 54,198

(La. App. 2 Cir. 3/9/22), 335 So. 3d 495.

The trial court did not err in holding that Sonja failed to rebut the

presumption that the horse was part of the community patrimony. Sonja did

not testify that the line of credit was a separate obligation. Even if it is

assumed that the debt was secured by Sonja’s separate property, that would

not make it manifest error for the trial court to find that Sonja failed to rebut

the presumption of community as to the horse and/or the debt. La. C.C. art.

2363. Assuming that John and Sonja are validly divorced, the horse is now

former community property.

In the interest of judicial economy, we decline to consider Sonja’s

reimbursement claim against John for expenses of the horse. This claim

should be resolved in the partition of the former community of acquets and

gains as part of their post-divorce proceedings.

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Custody of horse pending appeal

Sonja argues that the trial court erred in ordering that the horse be

immediately transferred to Randy’s custody pending the partition. “When

the mode of use and management of the thing held in indivision is not

determined by an agreement of all the co-owners and partition is not

available, a court, upon petition by a co-owner, may determine the use and

management.” La. C.C. art. 803.

This article a fortiori authorizes a court to “determine the use and

management” of the co-owned thing while judicial partition is pending

litigation. Sonja has not established that the trial court abused its discretion

in transferring physical custody to Randy pending the partition.

Suspensive appeal bond

Sonja alleges that the trial court intentionally delayed this appeal in

not setting the suspensive appeal bond without first having a hearing on the

matter. She points out that the horse was already placed in Randy’s custody

pursuant to court order from the signing of judgment onward. This is a moot

issue. There simply is no remedy this court could grant. We cannot reverse

the judgment due to a delay in setting the suspensive appeal bond.

Conduct in the trial

Sonja argues that the trial court abused its discretion “with his

interruptions of questioning the witnesses, trying to explain witnesses’

testimony and lead witness testimony, overtly favoring of Randy and John

Graham, and considering facts not in evidence in this case.” Sonja did not,

however, move for mistrial or recusal of the trial judge. She points out five

particular instances as the basis for this assignment of error:

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1. The trial judge stated that it was he who suggested Randy had agreed
specifically to the $10,000 amount toward training the horse, when in
fact Randy himself said it was $10,000 and admitted he only paid
$9,850.
2. The trial judge asked Randy if he “felt” he owed Sonja restitution,
while Randy’s feelings on the matter are legally irrelevant.
3. The trial judge apologized to Randy “for having to go through this,”
when Randy was the plaintiff who initiated the litigation.
4. Randy claimed that he would be arrested if he went to Sonja’s pasture
to see the horse. Sonja’s counsel impeached this claim by asking if he
had ever called Sonja to ask about seeing the horse; Randy admitted
he had not. The trial judge resuscitated Randy’s testimony with
leading questions after Randy admitted he had no basis for this claim,
suggesting that what Randy was really trying to say was that because
of Sonja’s hostility, it was more trouble than it was worth. The trial
court further indicated that he believed Sonja was hostile because of a
conversation he had with Sonja and John’s minor son during the child
custody case.
5. When Sonja’s counsel was cross examining Randy regarding why he
asserted that Sonja was in breach of contract, the trial court
interrupted and instructed Randy that he did not have to couch his
answers in legal terminology. (Context indicates Randy did not
understand when counsel cross examined him using legal
terminology).
“The court has the power to…control the proceedings at trial, so that

justice is done.” La. C.C.P. art. 1631. “The court may question witnesses.”

La. C.E. art. 614(B). Furthermore, the jurisprudence recognizes greater

latitude in bench trials:

[I]n a bench trial, as in this one, the dangers inherent in
questions from the bench are greatly mitigated because
there is no jury to confuse or mislead. The trial judge was
merely enabling himself to better understand the crucial
testimony of the claimant.

Martinez v. Martinez, 17-74 (La. App. 3 Cir. 10/4/17), 228 So. 3d 764, 769.

“The extent to which a trial judge may appropriately and reasonably

interrogate witnesses is largely in the sound and unabused discretion of the

trial judge.” Martin v. Cotton’s Pest Aid Control of Baton Rouge, Inc., 424

So. 2d 1216, 1218 (La. App. 1 Cir. 1982).

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Additionally, a trial judge’s improper commentary on evidence at trial

may serve as grounds for reversal if the comments themselves had such

prejudicial effect as to deprive the party of a fair trial. Franks v. State Nat’l

Ins. Co., 22-169 (La. App. 3 Cir. 1/25/23), 355 So. 3d 1174, 1185, writ

denied, 23-00259 (La. 4/18/23), 359 So. 3d 512. Franks addressed judicial

comments in in a jury trial.

In the context of a bench trial, the main potential prejudice, if any,

would presumably be the alteration of the testimony presented by suggesting

to the witness what to say. In Aycock v. City of Shreveport, 535 So. 2d 1006,

1012 (La. App. 2 Cir. 1988), writ denied, 536 So. 2d 1223 (La. 1989), this

court held that a trial court’s “unnecessary” comments on evidence, and

reference to testimony from a different case, was not prejudicial and

therefore did not rise to the level of reversible error. Notably, Aycock

involved a bench trial, not a jury trial.

As previously explained, regardless of whether the trial judge is

biased, a judge’s comments and interrogation of witnesses may deprive a

party of a fair trial and thus warrant reversal. However, the judge’s bias

itself is a distinct ground for relief, which must be asserted through a timely,

written motion to recuse. La. C.C.P. art. 151(A)(4) mandates recusal if:

The judge is biased, prejudiced, or interested in the cause
or its outcome or biased or prejudiced toward or against
the parties or the parties’ attorneys or any witness to such
an extent that the judge would be unable to conduct fair
and impartial proceedings.

In State in Int. of N.B., 52,002 (La. App. 2 Cir. 3/16/18), 248 So. 3d

532, 537, writ denied, 18-0617 (La. 5/25/18), 243 So. 3d 568, we explained:

The party seeking to recuse cannot merely allege lack of
impartiality; he must present some factual basis. Further,
the bias, prejudice, or personal interest alleged must be of
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a substantial nature and based on more than conclusory
allegations. (Internal citations omitted; emphasis added).

Furthermore, the inquiry is objective; proof of actual subjective bias is

unnecessary:

[T]o recuse a judge from a case, the moving party is
required to prove that “objectively speaking, ‘the
probability of actual bias on the part of the judge or
decisionmaker is too high to be constitutionally
tolerable.” Daurbigney v. Liberty Pers. Ins. Co., 18-929
(La. App. 3 Cir. 5/9/19), 272 So. 3d 69, quoting Rippo v.
Baker, ––– U.S. ––––, 137 S. Ct. 905, 197 L.Ed. 2d 167
(2017). (Emphasis in original).

Hatfield v. Herring, 54,048 (La. App. 2 Cir. 8/11/21), 326 So. 3d 944, 953,

writ denied, 21-01377 (La. 12/7/21), 328 So. 3d 424.

To preserve the issue of the trial court’s alleged bias (or other ground

for recusal) for appeal, the complaining party must raise the issue in a

written motion in the trial court before judgment. Only the grounds stated in

the written motion are preserved. La. C.C.P. art. 154; Wilson v. St. Landry

Par. Sch. Bd., 20-136 (La. App. 3 Cir. 12/23/20), 311 So. 3d 457, 464-5;

Cortes v. Lynch, 02-1498 (La. App. 1 Cir. 5/9/03), 846 So. 2d 945, 953.

Because Sonja failed to file a timely written motion to recuse, that

avenue of remedy is unavailable, and the trial judge’s alleged bias is not

preserved for appeal. Our review is limited to determining whether the trial

judge’s conduct (specified above) had prejudicial effect sufficient to deprive

Sonja of a fair trial. We hold that there was no prejudicial effect at all, since

this was a bench trial. There obviously was no risk of jury confusion.

Neither is there any indication that the trial court caused the witness (Randy)

to substantively alter his testimony, nor has Sonja articulated any prejudice

resulting from these acts. Therefore, we must conclude that there was no

prejudicial effect. Franks, supra. This assignment of error lacks merit.
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Rule 9.5/signing of judgment within 48 hours

Sonja asserts that the trial court erred in signing the judgment only 48

hours after making an oral ruling in open court. Uniform District Court Rule

9.5(b) requires that, if a judgment is not presented for signature when

rendered, but instead, is to be presented thereafter, the responsible attorney

must circulate the judgment at least five days prior to presentation for

signature so all parties have opportunity “for comment.”

In this appeal, Sonja can, through her assignments of error, make

whatever comments regarding the judgment that she wishes, and this court

can rule on whatever issues she properly raises. It would be wasteful and

pointless to vacate and/or remand for compliance with Rule 9.5. This

assignment of error is rejected for lack of merit.

CONCLUSION

The judgment of the trial court is AFFIRMED insofar as it

recognizes Randy Graham’s 49 percent ownership interest in the horse but is

REVERSED and VACATED in: (1) granting Randy Graham a right of first

refusal; and (2) setting the price at $1,500. The partition matter is

REMANDED with instructions to appoint a notary public and an

independent appraiser and otherwise conduct the partition in a manner

consistent with this opinion and the Code of Civil Procedure. The denial of

Sonja’s reimbursement claim against Randy Graham is AFFIRMED. The

declaration in the judgment that John Graham is a 25.5 percent owner is

AFFIRMED. The denial of Sonja’s reimbursement claim against John

Graham is REVERSED, and the claim is REMANDED for further

proceedings. The costs of this appeal are taxed in equal shares among all

three of the parties.
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