Larry S. Turner v. Timothy Shane Turner

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

24-697

LARRY S. TURNER

VERSUS

TIMOTHY SHANE TURNER

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APPEAL FROM THE
THIRTY-FIFTH JUDICIAL DISTRICT COURT
PARISH OF GRANT, DOCKET NO. C-28504
HONORABLE WARREN D. WILLETT, DISTRICT JUDGE

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JONATHAN W. PERRY
JUDGE

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Court composed of Van H. Kyzar, Jonathan W. Perry, and Charles G. Fitzgerald,
Judges.

AFFIRMED.

Donald R. Wilson
Wilson and Wilson
P. O. Box 1346
Jena, Louisiana 71342
(318) 992-2104
COUNSEL FOR PLAINTIFF/APPELLANT:
Larry S. Turner

Kenneth A. Doggett, Jr.
Attorney at Law
1100 Martin Luther King Drive
P. O. Drawer 13498
Alexandria, Louisiana 71315-3498
(318) 487-4251
COUNSEL FOR DEFENDANT/APPELLEE:
Timothy Shane Turner

PERRY, Judge.

This case involves an action to revoke a donation inter vivos of immovable

property for the alleged ingratitude of the donee. After the close of the petitioner’s

case, the trial court granted the donee’s motion for involuntary dismissal, finding no

evidence to support the revocation action. For the following reasons, we affirm the

trial court’s judgment.

FACTS AND PROCEDURAL HISTORY

Timothy Turner (“Timothy”) is one of three sons born to Larry S. Turner

(“Larry”) and his first wife, Nancy Jo (“Nancy”). Larry and Nancy were divorced

on June 13, 2003. Larry then married Judy Marie Rogers (“Judy”). On May 14,

2018, while married to Judy, Larry donated approximately eighteen acres of his

separate property in Grant Parish to Timothy but reserved a lifetime usufruct of the

property. In June 2020, the marriage of Larry and Judy ended in divorce.

Approximately one month later, Larry married Linda Turner (“Linda”).

Several years later, on July 13, 2023, Larry sent a letter to Timothy attaching

a new written agreement which reaffirmed Larry’s lifetime usufruct on the donated

property and further provided a lifetime usufruct to Linda. Timothy refused to sign

the new agreement.

Shortly thereafter, on November 8, 2023, Larry filed a petition to revoke his

inter vivos donation to Timothy. Larry based this petition on La.Civ.Code art. 1556,

alleging Timothy’s ingratitude in the following particulars: (a) Timothy has had no

contact with Larry since the donation was made; (b) Timothy has refused to permit

Larry to see and visit with his two grandchildren and has not visited Larry at his

home; (c) Timothy unreasonably refused to extend the existing usufruct in Larry’s

favor to Linda; and (d) Timothy’s refusal to extend the lifetime usufruct to Linda

has sorely aggrieved Larry and constitutes cruel treatment as provided in

La.Civ.Code arts. 1556 and 1557.

After Timothy answered Larry’s petition denying the various allegations, this

matter proceeded to a judge trial where several witnesses testified. At the conclusion

of Larry’s case in chief, the trial court granted Timothy’s motion for involuntary

dismissal for failure to prove the grounds necessary to revoke the donation. Larry

then perfected this appeal.

ASSIGNMENT OF ERROR
Larry contends that the trial court erred as a matter of law in including and

adding the element of illegality to proof of “cruel treatment” sufficient to support

the revocation of a donation for ingratitude pursuant to the provisions of

La.Civ.Code art. 1557.

APPELLANT’S ARGUMENT

Larry contends that the judgment of the trial court in involuntarily dismissing

his suit is erroneous and requires this court to conduct a de novo review because the

trial court included “illegality” as an element of proof to revoke the donation. He

further argues that upon a correct application of La.Civ.Code art. 1557, the evidence

created a prima facie case entitling him to revoke the 2018 donation to Timothy. In

support of his argument that his son cruelly treated and grievously injured him, Larry

relies on the fact that Timothy’s refusal to modify the usufruct to include Linda hurt

him badly.

APPELLEE’S POSITION

From the outset, Timothy argues that de novo review is not appropriate

because the trial court did not impose “illegality” as an element of proof to revoke a

donation inter vivos. Instead, he asserts that the trial court simply ruled that

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Timothy’s refusal to extend the usufruct to Linda, a woman Larry married two years

after the donation to Timothy, does not equate to ingratitude sufficient to revoke a

donation.

Beyond that, Timothy points out that the trial court reviewed the allegations

of Larry’s petition and found no support that: (a) Timothy had no contact with Larry

since the donation; and (b) Larry’s two grandchildren, ages nineteen and twenty,

were not permitted to have contact with him. Timothy further argues that his refusal

to extend the usufruct to Linda was not personal to Larry and cannot be grounds for

cruel treatment. Additionally, even if this court were to find that Timothy’s refusal

to sign the extension of the usufruct was personal to Larry, it was not so serious to

constitute cruel treatment under the law and jurisprudence. Moreover, contrary to

Larry’s assertion that cruel treatment is a subjective determination, the jurisprudence

is void of any support for that contention. Timothy argues that accepting Larry’s

argument would broaden the limiting language of La.Civ.Code arts. 1556 and 1557

to include instances where the donor could seek revocation by simply telling the

donee that the donee’s actions hurt his feelings.

REVOCATION OF DONATION INTER VIVOS

A donation inter vivos is a contract by which the donor gratuitously divests

himself, at present and irrevocably, of the thing given in favor of the donee who

accepts it. La.Civ.Code art. 1468. “Louisiana Civil Code Article 1556 establishes

revocation as an exception to the general rule established in La.Civ.Code art.

1468[.]” Broussard v. Ave Maria Rosary & Cenacle, Inc., 21-508, p. 10 (La.App. 3

Cir. 6/1/22), 340 So.3d 1204, 1213. Specifically, in Faulk v. Richoux, 24-112, p. 7

(La.App. 3 Cir. 11/6/24), 397 So.3d 445, 451, this court stated:

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[Louisiana Civil Code Article] 1556 provides exceptions to the
irrevocability of inter vivos donations, one of which allows a donor to
revoke a donation inter vivos if the donee exhibits ingratitude toward
the donor. Revocation for ingratitude is limited to situations where the
donee attempted to take the life of the donor or is guilty of “cruel
treatment, crimes, or grievous injuries” toward the donor. La.Civ.Code
art. 1557.

Generally, “‘grievous injuries’ sufficient to revoke a donation [inter vivos] has

been defined as any act ‘naturally offensive’ to the donor.” La.Civ.Code art. 1557,

Comment (b).; see also Faulk, 397 So.3d 445. Moreover, under La.Civ.Code art.

1557, an act of the donee that is offensive to the donor is not to be considered a

ground for revocation unless the offense is serious. Consider for example, Perry v.

Perry, 507 So.2d 881 (La.App. 4 Cir.), writ denied, 512 So.2d 465 (La.1987)

(directing the sheriff to seize personal property of the donor/parents); Spruiell v.

Ludwig, 568 So.2d 133 (La.App. 5 Cir. 1990), writ denied, 573 So.2d 1117 (La.1991)

(accusing the donor/parents as being involved in racketeering activities and that the

donor/mother was a crooked thief); and Sanders v. Sanders, 33,865 (La.App. 2 Cir.

9/27/00), 768 So.2d 739 (denying that the donor was his father and telling the donor

that he wished he would die). “[W]hether a donee has committed a ‘grievous injury’

upon a donor depends heavily upon the facts and circumstances specific to the case.”

Erikson v. Feller, 04-1033, p. 7 (La.App. 3 Cir. 12/8/04), 889 So.2d 430, 434.

Finally, because La.Civ.Code art. 1557 provides an exception to the general rule

stated in La.Civ.Code art. 1556, it must be strictly construed. Faulk, 397 So.3d 445.

INVOLUNTARY DISMISSAL

An involuntary dismissal may be granted by the trial court pursuant to

La.Code Civ.P. art. 1672(B), which provides:

In an action tried by the court without a jury, after the plaintiff
has completed the presentation of his evidence, any party, without
waiving his right to offer evidence in the event the motion is not

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granted, may move for a dismissal of the action as to him on the ground
that upon the facts and law, the plaintiff has shown no right to relief.
The court may then determine the facts and render judgment against the
plaintiff and in favor of the moving party or may decline to render any
judgment until the close of all the evidence.

Although the trial court is given much discretion in granting a motion for

involuntary dismissal, its decision to grant the motion is generally reviewed pursuant

to the manifest error standard of review. Touchet v. Hampton, 06-1120 (La.App. 3

Cir. 2/7/07), 950 So.2d 895. “When evaluating a motion for involuntary dismissal,

the trial court must consider all the evidence, without any special inferences in favor

of the opponent of the motion, and grant the dismissal if the plaintiff has not

established proof by a preponderance of the evidence.” Smith v. Schumpert, 48,126,

p. 3 (La.App. 2 Cir. 6/26/13), 117 So.3d 315, 318; see also Trahan v. Acadiana Mall

of Del., 14-232 (La.App. 3 Cir. 10/1/14), 149 So.3d 359. Likewise, a trial court has

authority to weigh evidence and assess credibility in a motion for involuntary

dismissal. Straughter v. Gov’t Emp. Ins. Co., 05-699 (La.App. 5 Cir. 3/14/96), 926

So.2d 617; see also Scarborough v. Ybanez, 09-1324 (La.App. 3 Cir. 4/7/10)

(unpublished opinion).

It is well-established that appellate courts review a trial court’s findings of fact

to determine whether those findings constitute “manifest error” or if they are “clearly

wrong.” Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). If the trial court’s findings

of fact are not manifestly erroneous or clearly wrong, we cannot reverse them. Id.

On review, if there is a “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. Trial court findings based on credibility determinations must be

given “great deference” because “only the factfinder can be aware of the variations

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in demeanor and tone of voice that bear so heavily on the listener’s understanding

and belief in what is said.” Id.

ANALYSIS

Although Larry acknowledges that appellate courts generally review the

granting of a motion for involuntary dismissal using the manifest error standard, he

contends that this court should review this matter de novo because the trial court

erred as a matter of law in its application of La.Civ.Code art. 1557. In particular,

Larry argues that the trial court impermissibly included “illegality” as an element of

proof sufficient to support the revocation of a donation under La.Civ.Code art. 1557.

Under his reasoning, Larry suggests that the trial court stated that an act which is

legal cannot be “cruel” within the purview of the article. Thus, he concludes that

just because an act is legal does not mean it cannot also be cruel. For the following

reasons, we find no merit to Larry’s contention.

Larry’s argument is based on the following oral reasons for judgment spoken

by the trial court:

The other reason I encouraged [the parties to settle before the trial
began] is because, even if you prove what you said you were going to
prove, I didn’t think you could win. And I think you made a bad
decision in 2018 to donate the property to your son.

....

[You and your] new wife, you’re both working together to improve
your home, I understand all those changes. But that doesn’t mean that
your son has to change the deal. Morally, should he have? That’s not
for me to decide. Legally, he didn’t have to. Legally, he didn’t have
to change the deal from 2018. And I don’t find that his refusal to
change the deal constitutes cruel treatment to you[.]

After reviewing the trial court’s oral reasons and Larry’s argument, it is evident that

the trial court was not inserting a new element of proof. Rather, the trial court was

simply stating that Timothy’s refusal to sign the agreement Larry submitted to him

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did not alone constitute “cruel treatment, crimes, or grievous injuries” toward the

donor. Therefore, we will review the trial court’s judgment for manifest error.

The record shows that the trial court heard conflicting testimony about

Timothy’s lack of contact with his father as well as about whether Timothy prevented

his children from contacting their grandfather. After hearing the evidence Larry

presented, including Timothy’s testimony, the trial court resolved these questions

against Larry and in favor of Timothy. These credibility determinations of the trial

court will not be disturbed on appeal because we find its evaluation of the testimony

reasonable and fully supported by the record.

We now turn to the trial court’s determination that Timothy’s actions in

refusing to extend the lifetime usufruct to Linda did not constitute cruel treatment or

grievous injury. After reviewing the evidence, we find that Timothy’s decision to

not extend the lifetime usufruct to Linda simply showed him exercising his legal

right as the donee. The exercise of a donee’s legal right does not demonstrate such

cruel treatment or grievous injury as to warrant the revocation of the donation made

to him. See Watts v. Watts, 17-369 (La.App. 1 Cir. 12/29/17), 241 So.3d 330, writ

denied, 18-185 (La. 3/23/18), 239 So.3d 294 (holding that the donee’s pursuit of a

divorce from his donor/wife on a no fault basis was a legal remedy available to him

and did not show grievous injury as a matter of law). We understand Larry’s

emotional reaction to Timothy’s decision and his moral disappointment in Timothy’s

actions. However, feelings of emotional distress or perceived moral wrongs alone

are insufficient to justify the revocation of a donation. See Didier v. Simmons, 19-

1100 (La.App. 1 Cir. 5/11/20), 312 So.3d 279, writ denied, 20-700 (La. 9/29/20),

301 So.3d 1162 (granting the defendant son-in-law’s exception of no cause of action

against the plaintiff in-laws who sought to revoke donations made to him; in so

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ruling the court found that even though the son-in-law had an affair during his

marriage to their daughter, lied to them and their daughter about the affair,

humiliated and embarrassed them, and betrayed their trust, those actions alone did

not constitute cruel treatment); see also Succession of Plunkett, 213 So.2d 793

(La.App. 2 Cir. 1968) (holding that the husband’s cohabitation with another woman

during his marriage reflected upon his moral character and did not constitute

ingratitude to revoke a testamentary disposition1).

After carefully reviewing the evidence presented in Larry’s case in chief, we

find the trial court was not manifestly erroneous in its conclusion that the evidence

failed to show Timothy’s actions constituted cruel treatment or grievous injuries

sufficient to establish a prima facie case for revocation. Therefore, we find the trial

court correctly granted Timothy’s motion for involuntary dismissal of Larry’s

petition to revoke the inter vivos donation and properly dismissed Larry’s action for

revocation with prejudice.

DISPOSITION

For the foregoing reasons, we affirm the trial court judgment. Costs of the

appeal are assessed to Larry S. Turner.

AFFIRMED.

1
When Plunkett was tried and decided on appeal, former La.Civ.Code art. 1710 (1870)
allowed revocation of a testamentary disposition for the same causes which were sufficient to
revoke an inter vivos donation, namely grievous injury or ingratitude.

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