Julian E. Long v. Linda Long Minton

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

07-33

JULIAN E. LONG

VERSUS

LINDA LONG MINTON

**********

APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 204,289
HONORABLE HARRY FRED RANDOW, DISTRICT JUDGE

**********

ELIZABETH A. PICKETT
JUDGE

**********

Court composed of Elizabeth A. Pickett, Billy Howard Ezell, and J. David Painter,
Judges.

AFFIRMED.

Larry Alan Stewart
Stafford, Stewart & Potter
P. O. Box 1711
Alexandria, LA 71301
(318) 487-4910
Counsel for Plaintiff-Appellant:
Julian W. Long

Larry Woodrow Rivers
Attorney at Law
5208 Jackson St., Suite A
Alexandria, LA 71301
(318) 445-6581
Counsel for Defendant-Appellee:
Linda Long Minton

Larry B. Minton
Attorney at Law
P. O. Drawer 13320
Alexandria, LA 71315-3320
(318) 487-0115
Counsel for Defendant-Appellee:
Linda Long Minton

Pickett, Judge.

The plaintiff, Julian W. “Dooksie” Long, appeals a judgment of the trial court

finding that Linda Long Minton paid for nineteen share of stock which her father sold

to her in 1986.

STATEMENT OF THE CASE

Julian E. Long founded Long’s Preferred Products, a closely held corporation

originally owned by Mr. Long and his wife, Alma Katherine Long. In the 1970s, both

of their children, Linda “Susie” Long Minton and Julian W. “Dooksie” Long went to

work for the corporation. By 1984, Mr. Long had transferred 20 of his 100 shares of

stock to his children, 10 each to Mrs. Minton and Dooksie Long. In 1986, Mr. Long,

concerned about his wife’s gambling habit, decided to transfer nineteen shares of

stock to Mrs. Minton and Dooksie Long. In a previous trial, Judge Ross Foote of the

Ninth Judicial District Court held that that transaction from Mr. Long to Mrs. Minton

was a sale, and this court affirmed that judgment. Minton v. Long’s Preferred

Products, an unpublished opinion bearing docket number 02-260 (La.App. 3 Cir.

10/2/02), 829 So.2d 669. Following rendition of that judgment, Mr. Long filed this

suit on April 15, 2001, seeking to rescind the sale of nineteen shares to Mrs. Minton

on the basis that she had not paid for them. After Mr. Long died on August 6, 2005,

Dooksie Long was substituted as plaintiff in this suit.

Following a four-day trial before a jury, the jury concluded that Mrs. Minton

had paid for the nineteen shares of stock. The trial court issued a judgment in

conformity with the jury’s findings on August 22, 2006.

ASSIGNMENTS OF ERROR

The appellant, Julian W. “Dooksie” Long, asserts three assignments of error:

1

1. The jury erred in finding that the monthly payments received by Mr.
Long were in payment for the purchase price of the stock.

2. The jury was clearly wrong in failing to accept the uncontradicted
testimony of both accounting experts that the payments paid to Mr. Long
were corporate dividends or distributions.

3. The jury erred in finding that the full purchase price was paid because
the monthly payments paid by the corporation were not sufficient to
satisfy the purchase price.

DISCUSSION

All three of the appellant’s assignments of error question whether the jury

committed manifest error in its determination that the purchase price of the stock had

been paid. The supreme court set forth the standard of review for an appellate court

when considering a factual finding by the trial court in Rosell v. ESCO, 549 So.2d

840, 844-45 (La.1989) (citations and footnote omitted):

It is well settled that a court of appeal may not set aside a trial
court’s or a jury’s finding of fact in the absence of “manifest error” or
unless it is “clearly wrong,” and where there is conflict in the testimony,
reasonable evaluations of credibility and reasonable inferences of fact
should not be disturbed upon review, even though the appellate court
may feel that its own evaluations and inferences are as reasonable. The
appellate review of fact is not completed by reading only so much of the
record as will reveal a reasonable factual basis for the finding in the trial
court, but if the trial court or jury findings are reasonable in light of the
record reviewed in its entirety, the court of appeal may not reverse even
though convinced that had it been sitting as the trier of fact, it would
have weighed the evidence differently. Where there are two permissible
views of the evidence, the factfinder’s choice between them cannot be
manifestly erroneous or clearly wrong. In applying the manifestly
erroneous--clearly wrong standard to the findings below, appellate
courts must constantly have in mind that their initial review function is
not to decide factual issues de novo.

When findings are based on determinations regarding the
credibility of witnesses, the manifest error--clearly wrong standard
demands great deference to the trier of fact’s findings; for only the
factfinder 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. Where documents or objective evidence so contradict the
witness’s story, or the story itself is so internally inconsistent or

2

implausible on its face, that a reasonable fact finder would not credit the
witness’s story, the court of appeal may well find manifest error or clear
wrongness even in a finding purportedly based upon a credibility
determination. But where such factors are not present, and a factfinder’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.

The defendant pled the affirmative defense of payment and, therefore, had the

burden of proving by a preponderance of the evidence she paid for the stock at issue

or the purchase price was paid on her behalf. American Bank v. Saxena, 553 So.2d

836 (La.1989). To determine the facts in this case, the jury was required to assess the

credibility of the witnesses. In this case, the jury clearly made a determination that

Mrs. Minton was the more credible witness. She testified that in 1986, her father

approached her and told her he was going to sell her nineteen shares of stock in

Long’s Preferred Products at a price of $124,846.53. She stated that her brother

Dooksie Long was offered the same deal. A promissory note dated September 23,

1986, for $124,846.53 at an annual interest rate of twelve percent, payable on demand

with a term of five years, was introduced in the record. The note was not signed. A

prior judgment of the court determined a sale took place and the original note was

signed. Mrs. Minton agreed the note reflected the purchase price. The sole issue

before the jury was whether the purchase price was paid.

Mrs. Minton explained that she never approached her father about purchasing

the stock, nor did she negotiate the terms with him. It was her understanding that Mr.

Long would be paid by the corporation. Long’s Preferred Products was a Subchapter

S corporation, and she understood additional payments would be made to her father.

At the time, he was retiring, but he would continue to draw $4,000.00 each month

from the corporation. Mrs. Minton stated that she never wrote a check to her father

3

for the purchase of the stock. It was her belief corporate income was paid directly to

him. She also testified that her father never made a demand for payment on the note,

even though she saw her father virtually every day until early 1998. She testified, and

the records of the corporation indicate, that she was treated as a twenty-nine percent

shareholder in the corporation from 1986 until early 1996, when her father sold her

and her brother his remaining shares in the corporation, at which point she was

treated as a fifty percent shareholder. The detailed descriptive list filed in the

succession proceedings of Mrs. Long in 1996 (she died in 1990), did not include the

promissory note as a debt.

Mrs. Minton stopped working for the corporation in 1997. In early 1998,

Dooksie Long made an offer to purchase her fifty percent stake in the corporation.

She testified that she was willing to buy his shares at the same price. When word of

this exchange reached her father, Mr. Long confronted Mrs. Minton and told her that

he did not want her to own the company. Soon thereafter, Mr. Long and Dooksie

Long began taking legal action to rescind shares of stock from Mrs. Minton.

Dooksie Long testified that in 1986, his father did not sell nineteen shares of

stock to him, he only transferred the usufruct of the stock. The stock was “parked”

in his name. He testified that the corporation never agreed to pay Mr. Long for Mrs.

Minton’s stock. He stated that he did not remember much about the 1986 transaction.

The appellant’s brief puts a lot of weight on the expert testimony of Mr.

Daigrepont and Mr. Pesnell. Their charts and testimony, though, include very little

information from 1986 through 1988, as those records, with the exception of some

tax returns, are missing. The records also assume that the only money that was

distributed to Mr. and Mrs. Long, Mrs. Minton, and Dooksie Long was that which

4

appears on the tax returns. The appellant’s brief also claims that the numbers just do

not add up, and Mrs. Minton could not have paid for the nineteen shares of stock.

The jury, however, had evidence before it that Mr. Long never demanded payment

on the promissory note, which prescribed in 1991, and never tried to rescind the sale

until there was a disagreement.

Evidence was presented as to inconsistencies in the recordkeeping of the

company as to who was paid what and for what. The defendant called into question

the accuracy of the expert testimony based on assumptions for the crucial years of

1986 through 1990 for which there were almost no records at all. There was direct

testimony from Mrs. Minton that her father received, in exchange for the stock,

$4,000.00 per month, use of a car, health insurance, life insurance, and payments on

credit cards. Dooksie Long denied this, however, as the records were not available,

a credibility determination had to be made on this issue. The jury had ample evidence

to support their findings, and there is no manifest error in their conclusion that Mrs.

Minton paid Mr. Long for the stock.

As the jury’s verdict is supported by the evidence, we find no manifest error

in its conclusion. The judgment of the trial court is affirmed. Costs of this appeal are

taxed against the appellant, Dooksie Long.

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION.
Rule 2-16.3, Uniform Rules, Courts of Appeal.

5