Court: Louisiana Court of Appeal; February 26, 2014; Louisiana; State Appellate Court
Desirea R. Eschete appeals a judgment that declared an act of donation null and void due to improper execution. Brian Louis Eschete filed for divorce on April 23, 2010, and signed an act of donation on November 8, 2010, transferring his half interest in their matrimonial home to Desirea. A judgment of divorce was issued on June 13, 2011. On December 14, 2011, Brian petitioned for nullity of the donation, asserting it was invalid as it was not signed in the presence of a notary public and two witnesses. The petition included a copy of the act with only Brian and Desirea’s signatures, and another copy filed publicly that included the notary and witnesses' signatures.
The trial court found that the act was not executed properly, as it was not signed 'before' a notary and two witnesses, and the donor and donee did not sign simultaneously. Desirea contended on appeal that the trial court erred in its findings regarding the presence of a notary and witnesses, the sufficiency of evidence to challenge the presumption of authenticity, and the application of rules for interspousal donations.
Under Louisiana law, donations inter vivos must comply with specific formalities to avoid nullity, requiring execution before a notary and two witnesses. Despite conflicting testimonies, it was established that the act was signed, but the core issue was whether it was executed in accordance with legal requirements. Brian testified he signed at the law office of his attorney, Ms. Robichaux, but claimed not to have seen her or the other witness at that time. The trial court ultimately upheld the nullity of the act based on these procedural failures.
Ms. Robichaux, Ms. Bourgeois, and Ms. Smith testified that Mr. Eschete signed a document around noon in the law office's waiting room after reviewing it with Ms. Bourgeois. Ms. Robichaux, positioned twelve feet away, claimed she could see Mr. Eschete sign but did not know the specifics of what he was signing. Ms. Smith, while making copies, also stated she could see Mr. Eschete but acknowledged she did not witness the signing itself. Ms. Bourgeois confirmed that she was alone with Mr. Eschete in the waiting room during the signing. The trial court accepted the witnesses' presence but concluded that neither Ms. Robichaux nor Ms. Smith was present to directly observe Mr. Eschete's signature on the document, thus failing to meet the requirements of an authentic act under LSA-C.C. art. 1833. The court emphasized the necessity for the notary and witnesses to be present to validate the signing, rejecting the argument for 'substantial compliance' based on precedent. The judgment of the trial court was affirmed, with costs assessed to appellant Desirea R. Eschete, and the court chose not to address the issue of multitasking during the signing process. The consideration of whether the act of donation violated LSA-C.C. art. 1747 was also pretermitted.
