Gwen Gonsoulin v. Michelle Pontiff

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-177

GWEN GONSOULIN

VERSUS

MICHELLE PONTIFF

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-20104380
HONORABLE THOMAS R. DUPLANTIER, DISTRICT JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of Elizabeth A. Pickett, Billy Howard Ezell, and Shannon J.
Gremillion, Judges.

AFFIRMED.

Charles A. Mouton
Mahtook & Lafleur
P. O. Box 3605
Lafayette, LA 70502
(337) 266-2189
Counsel for Plaintiff-Appellee:
Gwen Gonsoulin

Bryan David Scofield
James Thomas Rivera
Scofield & Rivera
P. O. Box 4422
Lafayette, LA 70502
(337) 235-5353
Counsel for Defendant-Appellant:
Michelle Pontiff

PICKETT, Judge.

The defendant, Michelle Pontiff, appeals a judgment of the trial court

evicting her from a home owned by the plaintiff, Gwen Gonsoulin.

STATEMENT OF THE CASE

In June 1992, Michelle Pontiff and her husband purchased a house at 104

Citron Drive in Youngsville, Louisiana. By the end of that year, they could no

longer afford the house, and Pontiff and her husband executed a dation en

paiement in favor of Gwen Gonsoulin, Pontiff’s mother, on December 22, 1992.

Pontiff continued to live in the house, even after she divorced her husband.

In April 2010, Gonsoulin served a notice of eviction on Pontiff through a

justice of the peace court. Pontiff filed an exception, answer, and reconventional

demand alleging that the amount in dispute was greater than the subject matter

jurisdiction of the justice of the peace court, and the case was removed to the

Fifteenth JDC. Pontiff argued that Gonsoulin had granted a right of habitation in

favor of Pontiff which entitled Pontiff to use of the home until Pontiff’s death.

Gonsoulin claimed that she never executed such a document. The case proceeded

to trial.

At trial, Pontiff admitted that she could not produce a document granting her

a right of habitation. No such document had been recorded in the conveyance

records of Lafayette Parish. Pontiff claimed that her mother actually executed two

documents, one in Gonsoulin’s living room, and one at the Lafayette Parish

Assessor’s office, but that both had been lost or destroyed. Because a right of

habitation is a real right and must therefore be in writing, she sought to prove the

existence and contents of these documents by resorting to La.Civ.Code art. 1832,

which states:

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When the law requires a contract to be in written form, the
contract may not be proved by testimony or by presumption, unless
the written instrument has been destroyed, lost, or stolen.

Following a hearing, the trial court found that Pontiff had proven that

Gonsoulin executed a document at the assessor’s office purporting to establish a

limited right of habitation to Pontiff for the purpose of receiving a homestead

exemption on the property. The court found, however, that the cause of the

granting of the right of habitation was illicit and unconstitutional, and therefore the

document was a nullity. The trial court granted Gonsoulin a judgment evicting

Pontiff from the house. Pontiff now appeals.

ASSIGNMENTS OF ERROR

Pontiff alleges three errors by the trial court:

1. The district court erred, as a matter of law, when it held that granting a
Homestead Exemption was unconstitutional and unlawful.

2. The district court erred, as a matter of law, in failing to find an
alternate true cause under Civil Code articles 1970 and 1967, which is
valid and lawful.

3. The district court erred in finding a limited Right of Habitation, as a
matter of law, when no limitation exists in the forms provided by the
Tax Assessor’s Office.

DISCUSSION

“Habitation is the nontransferable real right of a natural person to dwell in

the house of another.” La.Civ.Code art. 630. “The right of habitation is

established and extinguished in the same manner as the right of usufruct.”

La.Civ.Code art. 631. A conventional usufruct is established by a juridical act.

See La.Civ.Code art. 544. Because the object of the right of habitation is

necessarily immovable property, it must be in writing, and will have effect on third

parties only after it is filed for registry. See La.Civ.Code art. 1839.

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At the trial, Pontiff attempted to prove that Gonsoulin’s attorney prepared

and Gonsoulin executed a right of habitation in favor of Pontiff, but that Gonsoulin

had lost or destroyed that document. The trial court did not find evidence to

support the existence of this document, and Pontiff abandons this contention by not

assigning as error that part of the trial court’s ruling.

Likewise, Gonsoulin does not appeal the finding of the trial court that she

executed a document at the Lafayette Parish Assessor’s office. It is clear that until

2000, the Lafayette Parish Assessor allowed residents to take advantage of the

homestead exemption by executing a form document granting a “right of use of

habitation” to the occupants of a house. When a new assessor was elected in 2000,

he ended this practice and destroyed the forms.

The question raised in this appeal is the effect of this document. Pontiff

introduced two forms into the record, both with the same operative language:

BE IT KNOWN, that on this ___ day of __________before the
undersigned Notary Public and witnesses personally appeared
_____________________ a resident of Lafayette Parish, Louisiana
who says as follows:

______________________occupies a residence at
__________________in the city of Lafayette, Louisiana, on property
owned by _______________________Affiant described as being
LOTS _______________________ to the City of Lafayette,
Louisiana.

I hereby certify that no rent in any form is collected on this
property. Since there is no rent collected, Affiant does hereby grant
unto the said ________________ the right of use of habitation of said
property allowing him to claim Homestead Exemption under the laws
of the State of Louisiana.

In her first assignment of error, Pontiff argues that the trial court erred in

finding that the cause of the contract was unlawful. The supreme court discussed

cause in Baker v. Maclay Properties Co., 94-1529, p. 14 (La. 1/17/95), 648 So.2d

888, 895-96:

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LSA-C.C. art. 1966 provides that an obligation cannot exist
without a lawful cause. Cause is the reason that a party obligates
itself. LSA-C.C. art. 1967. The cause of an obligation is unlawful
when the enforcement of the obligation would produce a result
prohibited by law or against public policy. LSA-C.C. art. 1968. A
contract is absolutely null when it violates a rule of public order, as
when the object of a contract is illicit or immoral. A contract that is
absolutely null may not be confirmed. LSA-C.C. art. 2030. Persons
may not by their juridical acts derogate from laws enacted for the
protection of the public interest. Any act in derogation of such laws is
an absolute nullity. LSA-C.C. art. 7. See Holliday v. Holliday, 358
So.2d 618 (La.1978).

It is clear from the testimony of Conrad Comeaux, the current assessor of

Lafayette Parish, and Vicky Domingue, a long-time employee of the assessor’s

office, that the effect of filing this document was that the property was listed as

exempt from property taxes. As owner of the land, Gonsoulin was clearly not

entitled to claim a homestead exemption in this property. See La.Const. Art. VII,

Sec. 20. The trial court did not err in finding that the cause of the contract was

illegal.

In her second assignment of error, Pontiff claims that there was a valid

alternative cause. We are not persuaded by the argument that the effect of the

“right of use of habitation” had a legitimate cause, as Gonsoulin wanted to avoid

the payment of taxes, and Pontiff has paid the property taxes instead of Gonsoulin

since 2000. The clear purpose of the document was to exempt the house from

property taxes, not find someone else to pay them. The fact that Pontiff, who paid

no rent for over eighteen years, paid the property taxes since 2000 is not

dispositive of the issue before us. Furthermore, there is no validity to the argument

that in 1996 Gonsoulin executed a document that met the requirements of Article

VII, Section 20(A)(4) and therefore the cause of the contract is licit. First, that

provision of the constitution applies very clearly to usufructs, not a right of

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habitation. Second, Section 20(A)(4) was not added to the Louisiana Constitution

until 2004. See Acts 2004, No. 929. This assignment of error strains credulity.

Finally, we find no error in the trial court’s finding that there was a limited

right of habitation. “When the words of a contract are clear and explicit and lead

to no absurd consequences, no further interpretation may be made in search of the

parties’ intent.” La.Civ. Code art. 2046. In the absence of the actual document

executed by Gonsoulin, Pontiff introduced the forms used by the assessor’s office.

The forms very clearly state that “the right of use of habitation” is granted

“allowing him to claim Homestead Exemption.” The trial court found that the

words of the document are clear and explicit and lead to no absurd consequences.

We find no error in that determination.

CONCLUSION

The judgment of the trial court is affirmed. Costs of this appeal are assessed

to Michelle Pontiff.

AFFIRMED.

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