Florence E. Fessler v. Mary A. Brumfield

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-1458

FLORENCE E. FESSLER

VERSUS

MARY A. BRUMFIELD

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APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, NO. 80,267, DIVISION A
HONORABLE VERNON B. CLARK, DISTRICT JUDGE

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OSWALD A. DECUIR
JUDGE

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Court composed of Oswald A. Decuir, James T. Genovese, and Shannon J.
Gremillion, Judges.

AFFIRMED.

Clay Williams
Attorney at Law
202 W. North Street
Leesville, LA 71446
(337) 238-4707
Counsel for Defendant/Appellant:
Mary A. Brumfield

C. Anthony Eaves
Attorney at Law
100 South Third Street, Suite A
Leesville, LA 71446
(337) 239-6557
Counsel for Plaintiff/Appellee:
Florence E. Fessler

DECUIR, Judge.

Appellant, Mary Brumfield, appeals a judgment of the trial court granting the

petition of her sister, Florence Fessler, for partition by licitation of certain immovable

property. For the reasons that follow, we affirm.

FACTS

In 2004, sisters Florence Fessler (Fessler) and Mary Brumfield (Brumfield)

both became widows. With Christmas approaching, Fessler invited Brumfield to

come down from her home in Missouri and visit with her in Leesville, Louisiana.

Brumfield did so, and, while in Louisiana, she required hip surgery, stomach surgery,

and treatment for shingles. Fessler cared for Brumfield during her recovery. During

that period, the sisters concocted a plan to purchase a house located at 806 Pinckney

Drive in Leesville, Louisiana. The house in question was next door to the home

where Fessler lived with her son and daughter-in-law.

It appears that the sisters agreed that Brumfield would sell her home in

Missouri and purchase the house at 806 Pinckney in both parties’ names, and, in

return, Fessler would care for Brumfield for the rest of her life. There is some dispute

whether the agreement also required that Fessler pay utilities for the residence. In

early 2005, Fessler was scheduled to begin work at a new job so that she could pay

off a van she had purchased to accommodate her deceased husband’s wheelchair.

Brumfield paid off the van so that Fessler could accompany her to Missouri to

prepare her home for sale and to help care for her.

Two and one-half years later, the sisters returned to Leesville and executed

their plan to purchase the property at 806 Pinckney. The deed lists both Brumfield

and Fessler as owners. In the summer of 2007, shortly after the sisters took up

residence in their new home, they became involved in an altercation. The police were

called, and Brumfield was taken to the hospital for a mental evaluation at Fessler’s

request. Believing her sister to be mentally unstable, Fessler utilized the power of

attorney previously granted to Brumfield to transfer certain funds belonging to

Brumfield to accounts in Fessler’s name. The bank notified Brumfield, and the funds

were returned. Fessler’s power of attorney was revoked.

In addition, Brumfield denied Fessler access to the home and obtained a

restraining order against her. Fessler, in turn, had the utilities, which were in her

name, shut off. Unable to reconcile with Brumfield, on September 23, 2008, Fessler

filed a petition to partition the property at 806 Pinckney.

The trial court granted the partition by licitation. Brumfield lodged this appeal.

DISCUSSION

Brumfield assigns as error the trial court’s failure to consider both conditions

to be performed by Fessler in consideration for the contract entitling her to partial

ownership of the house, and in finding that Brumfield made the performance of the

conditions impossible. Stated more succinctly, the issue raised by these allegations

is whether the trial court erred in ordering the property at 806 Pinckney to be

partitioned by licitation.

This court, in Cooper v. Buxton, 07-1192, pp. 1-2 (La.App. 3 Cir. 4/2/08), 979

So.2d 1291, 1292, said:

Pursuant to La.Civ.Code art. 807 “[n]o 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.” Id. In the absence of an
agreement among the co-owners, a co-owner may demand a judicial
partition. La.Civ.Code art. 809. Generally, a partition in kind is favored
over a partition by licitation. La.Civ.Code art. 810; Tri-State Concrete
Co., Inc. v. Stephens, 406 So.2d 205 (La.1981). “Property cannot be
conveniently divided when a diminution of its value, or loss or
inconvenience for one of the owners, would be the consequence of

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dividing it.” Id. at 207. The party seeking partition by licitation has the
burden of proving that the property cannot be divided in kind. Id.;
McNeal v. McNeal, 98-1586 (La.App. 3 Cir. 3/31/99), 732 So.2d 663.
The decision of whether to divide property in kind or by licitation is a
question of fact to be decided by the trial court. Connally v. Nevils,
97-569 (La.App. 3 Cir. 10/29/97), 702 So.2d 1043 (quoting Green v.
Small, 227 La. 401, 79 So.2d 497 (1955)).

Our review of the trial court’s findings, therefore, is governed by the manifest

error standard of review. Rosell v. ESCO, 549 So.2d 840 (La.1989); Arceneaux v.

Domingue, 365 So.2d 1330 (La.1978). 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. Id. Under the manifest error standard,

the linchpin is whether the trial court’s findings are reasonable; in other words, if

there is a reasonable factual basis for the trial court’s finding, even if the appellate

court feels its own evaluation of the evidence is more reasonable, the trial court’s

findings cannot be reversed. Lewis v. State, Through the Department of

Transportation and Development, 94-2370 (La.4/21/95), 654 So.2d 311.

In this case, Brumfield does not contest that the property cannot be divided in

kind. Instead, she argues that Fessler failed to meet the conditions of their prior oral

agreement regarding the property and, therefore, is not an owner. Specifically, she

alleges that the trial court erred in failing to find that Fessler breached a condition of

their agreement when she cut off utilities and in finding that Brumfield prevented

Fessler from completing the condition of lifetime care.

“As a general rule, parol evidence is inadmissible to vary, modify, explain, or

contradict a writing.” Guidry v. Hedburg, 98-228, p. 5 (La.App. 3 Cir. 11/4/98), 722

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So.2d 1036, 1039. However, there are limited circumstances where parol evidence

will be admissible. Louisiana Civil Code Article 1848 provides:

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 a simulation, or to
prove that the written act was modified by a subsequent valid oral
agreement.

While it does not appear that Brumfield’s assertions meet the criteria of Article 1848,

the trial court considered evidence of the prior agreement between the sisters.

Nevertheless, the court concluded that the partition by licitation was warranted and

that the proceeds should be distributed as described in the deed. This is a factual

finding of the trial court and is, therefore, entitled to deference from this court. We

find no manifest error in the trial court’s determination.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs

of these proceedings are taxed to appellant, Mary Brumfield.

AFFIRMED.

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