Brenda Bower v. Marx Menard

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

11-1005

BRENDA BOWER

VERSUS

MARX MENARD

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APPEAL FROM THE
TWENTY-SEVENTH JUDICIAL DISTRICT COURT
PARISH OF ST. LANDRY, NO. 10-C-4640-C
HONORABLE ALONZO HARRIS, DISTRICT JUDGE

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JAMES T. GENOVESE
JUDGE

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Court composed of Oswald A. Decuir, Billy Howard Ezell, and James T.
Genovese, Judges.

AFFIRMED.

Nicholas Bellard
Bellard Law Offices LLC
532 Court Circle
Crowley, Louisiana 70526
(337) 783-2992
Counsel for Defendant/Appellant:
Marx Menard

Robert B. Purser
Meghan L. Young
Post Office Box 1670
Opelousas, Louisiana 70571-1670
(337) 948-0815
Counsel for Plaintiff/Appellee:
Brenda Bower

GENOVESE, Judge.

Brenda Bower sued Marx Menard for the return of one-half of the funds

Mr. Menard received when he redeemed six certificates of deposits (CDs) and the

funds in a checking account which named them as alternate depositors. The trial

court rendered judgment in favor of Ms. Bower. Mr. Menard appeals. For the

following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Mr. Menard and Ms. Bower lived together, but never married, from 1992

until 2009. In 2002, six CDs were purchased from Farmers State Bank & Trust

Company (Farmers State Bank) located in Church Point, Louisiana, in the name of

Marx Menard or Brenda Bower. Shortly after their relationship ended in 2009,

Mr. Menard obtained the funds by redeeming all six CDs and closing their joint

checking account.

Ms. Bower filed suit against Mr. Menard alleging co-ownership of the CDs

and the funds in the checking account and seeking the return of one-half of the

funds Mr. Menard received when he redeemed same. Ms. Bower alleged that she

and Mr. Menard each contributed to the purchase of the CDs and the funds on

deposit in the checking account. She asserted that when the CDs were purchased,

both she and Mr. Menard were present. She and Mr. Menard also opened the

checking account together; however, she never received any monies therefrom

when Mr. Menard redeemed the CDs and closed the checking account.

Mr. Menard did not deny redeeming the CDs, closing the checking account,

or obtaining the funds as a result thereby. However, he disputed Ms. Bower’s

allegation that she had any ownership interest in either the CDs or the funds in the

checking account.

A trial was held on April 20, 2011. At trial, Ms. Bower testified that she

began living with Mr. Menard shortly after they met in 1992 and continued living

with him until their relationship ended in 2009. According to Ms. Bower, she and

Mr. Menard shared everything during their eighteen-year relationship, including

the day-to-day responsibilities associated with managing Mr. Menard’s bar, Cajun

Country Lounge, in Church Point. Though she did not receive a paycheck,

Ms. Bower testified that she worked at the bar; she regularly performed the

bookkeeping, she worked as a bartender, she cleaned the bar, she cooked suppers

hosted at the bar, and she frequently closed the bar. Ms. Bower further testified

that the interest payments from the CDs were used by both her and Mr. Menard to

support their household and their lifestyle.

The testimony of Debra Matte, Customer Service Representative for

Farmers State Bank & Trust Company, corroborated Ms. Bower’s assertion that

Mr. Menard and Ms. Bower were present when each of the CDs were purchased

and that the checking account named them as alternate depositors. Ms. Matte

testified that she personally sold the CDs to Ms. Bower and Mr. Menard. She

further testified that Farmers State Bank & Trust Company considered both

Ms. Bower and Mr. Menard as having an ownership interest in the CDs and the

checking account, and that either Ms. Bower or Mr. Menard could have redeemed

the CDs and closed the checking account at any time. The evidence presented at

trial revealed that the proceeds Mr. Menard received when he redeemed the CDs

and closed the checking account totaled $355,007.65.

According to Mr. Menard, he purchased the CDs and put them and the

checking account in both his and Ms. Bower’s names in case of an emergency; if

something were to happen to him, he wanted Ms. Bower to have access to the

money to provide for herself and his children; he did not consider Ms. Bower a

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co-owner. Mr. Menard disputed Ms. Bower’s claims that she worked at his bar

and claimed that she never contributed money towards their living expenses.

Instead, he alleged that he supported Ms. Bower completely during the entire

eighteen years of their relationship. Mr. Menard testified that the money in the

checking account and the money used to purchase the CDs was money that he had

acquired from the sale of farming equipment, from a personal injury settlement,

and from the sale of his bar. However, he did not introduce any documentary

evidence corroborating this contention. Alternatively, Mr. Menard argued that the

CDs were an incorporeal movable and that he never transferred ownership of the

CDs by authentic act. See La.Civ.Code art. 473 and La.Civ.Code art. 2481.

The trial court took the matter under advisement and, on May 13, 2011,

issued Reasons for Judgment, awarding Ms. Bower $177,503.82 as her one-half

interest in the CDs and the funds from the checking account. A judgment

consistent with the trial court’s written reasons was signed June 15, 2011. From

this judgment, Mr. Menard appeals.

ASSIGNMENTS OF ERROR

Mr. Menard alleges that the trial court erred in the following respects:

1. The [t]rial [c]ourt erred in awarding [Ms.] Bower any money for
the certificates of deposit without [Ms. Bower] producing any
evidence at all as to a valid donation inter vivos being made of the
incorporeal movable CDs, or that there was actual valid purchase
of the CDs by Ms. Bower. Absent such evidence[,] there can be no
valid donation and any transfer is absolutely null.

2. The [t]rial [c]ourt erred in misapplying the burden of proof in this
matter. As Plaintiff and in attempting to prove a donation[,]
Ms. Bower had the burden of proving the validity of a donation by
“strong and convincing evidence[.”] The [c]ourt in this matter has
shifted the burden onto Mr. Menard to prove where the funds in
the CDs originated.

3. The [t]rial [c]ourt in this matter has erred in creating some form of
“palimony” or co-ownership by unmarried persons as a legal
regime to justify the award unto Ms. Bower[].

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LAW AND DISCUSSION

An appellate court may not set aside a trial court’s findings of fact in
absence of manifest error or unless it is clearly wrong. Rosell v. ESCO, 549
So.2d 840 (La.1989). “To reverse a factfinder’s determination under this
standard of review, an appellate court must undertake a two-part inquiry: (1)
the court must find from the record that a reasonable factual basis does not
exist for the finding of the trier of fact; and (2) the court must further
determine the record establishes the finding is clearly wrong.” S.J. v.
Lafayette Parish School Bd., 09-2195, p. 12 (La.7/6/10), 41 So.3d 1119,
1127. If a trial court’s findings are reasonable based on the entire record and
evidence, an appellate court may not reverse those findings even if it is
convinced that it would have weighed the evidence differently. Id. “The
basis for this principle of review is grounded not only upon the better
capacity of the trial court to evaluate live witnesses, but also upon the proper
allocation of trial and appellate functions between respective courts.”
Edwards v. Daugherty, 98-635, p. 4 (La.App. 3 Cir. 6/9/99), 736 So.2d 345,
348, writ denied, 99-2034 (La.9/17/99), 747 So.2d 568.

Sylvester v. Fontenot, 10-1115, p. 6 (La.App. 3 Cir. 3/9/11), 58 So.3d 675, 679-80.

Mr. Menard’s assignments of error assert that the trial court erroneously held

that the funds in the Farmers State Bank accounts were co-owned and that the trial

court erroneously divided the funds equally. The trial court gave reasons for its

determination that the funds were co-owned as follows:

Looking at the totality of the circumstances in this case, the
evidence and testimony were strong and convincing that Marx
Menard intended to give [Ms. Bower] an interest in the CDs at issue.

The CDs were in the name of Marx Menard or Brenda Bower.

Mr. Menard testified that he wanted [Ms. Bower] to have the
money for [her] and the children if something had happened to him.

In this case, all of the CDs except one was [sic] in the name of
Marx Menard or Brenda Bower.

[Mr. Menard] could have easily put only one or none of the
CDs in the name of Brenda Bower or Marx Menard, if that was not
his intention.

There were no documents introduced that the money to open
the CDs came from farming or a personal injury claim.

Louisiana Civil Code Article 797 provides that “[o]wnership of the same

thing by two or more persons is ownership in indivision. In the absence of other

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provisions of law or juridical act, the shares of all co-owners are presumed to be

equal.” Thus, “there is a presumption that a joint bank account is owned in equal

shares by each depositor.” Sylvester, 58 So.3d at 681 (citing Cooper v. Hibernia

Nat’l Bank, 405 So.2d 540 (La.App. 4 Cir.1981)). “That presumption can be

rebutted by appropriate evidence.” Id. (citing Succession of Hodge, 424 So.2d 363

(La.App. 2 Cir.1982)). It is evident from its reasons for judgment that the trial

court clearly found Ms. Bower more credible.

When the findings are based on determinations regarding the
credibility of witnesses, the manifest error–clearly wrong standard
demands great deference to the findings of fact, for only the factfinder
is cognizant of the variations in demeanor and tone of voice that bear
so heavily on the listener’s understanding and belief in what is said.

Id. at 682 (quoting Hebert v. Rapides Parish Police Jury, 06-2001, p. 3 (La.

1/16/08), 974 So.2d 635, 654 (on rehearing)). We find the evidence supports the

trial court’s determination that Ms. Bower and Mr. Menard were co-owners of the

CDs and the checking account. Each of the six CDs and the checking account state

on its face that the funds were deposited by and are payable to Marx Menard or

Brenda Bower. Mr. Menard offered no competent, documentary evidence to

support his assertions that the CDs and money in the checking account were his

alone. Therefore, we find that Mr. Menard failed to overcome the presumption

that the funds were jointly owned by him and Ms. Bower. We also find no

manifest error in the trial court’s award of $177,503.82 to Ms. Bower representing

her one-half interest in the CDs and the funds in the checking account.

Finally, in brief, Ms. Bower requests additional damages for what she

categorizes as Mr. Menard’s frivolous appeal “instituted for the sole purpose of

delay.” An appellee, such as Ms. Bower, may seek additional damages on account

of a frivolous appeal. See La.Code Civ.P. art. 2164. However, an appellate court

does not have jurisdiction to consider a request for damages for a frivolous appeal

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absent an appeal or an answer to an appeal. See La.Code Civ.P. arts. 2121 and

2133. Consequently, Ms. Bower’s request is not properly before this court and

will not be considered.

DECREE

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

Defendant/Appellant, Marx Menard, is to bear all costs of this appeal.

AFFIRMED.

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