Acurio v. Cage

257 So.3d 824

Michael Thomas ACURIO, Plaintiff-Appellant

v.Danielle Dickerson CAGE, a/k/a Danielle Dickerson Acurio, a/k/a Danielle Dickerson, Defendant-Appellee

No. 52,309-CA

Court of Appeal of Louisiana, Second Circuit.

September 26, 2018

STROUD, CARMOUCHE & BUCKLE, By: Nichole M. Buckle, TOMMY J. JOHNSON, Shreveport, Counsel for Appellant

WIENER, WEISS & MADISON, By: Franklin H. Spuiell, Jr., Anna Wheeler O'Neal, Reid A. Jones, Shreveport, Counsel for Appellee

Before BROWN, STONE, and STEPHENS, JJ.

STEPHENS, J.

Dr. Michael Thomas Acurio appeals a judgment by the Twenty-Sixth Judicial District Court, Parish of Bossier, State of Louisiana, granting a judgment which sustained the peremptory exception of no cause of action in favor of his previous spouse, Danielle Dickerson Acurio Cage.

For the following reasons, we affirm the trial court's judgment.

FACTS

Michael and Danielle were married for the first time in June 1998. That marriage ended in divorce in February 2000. Their initial marriage was under the terms of a matrimonial agreement and established a separate property regime. In early 2002 the couple remarried; the parties purportedly entered into a prenuptial matrimonial agreement dated January 25, 2002, with the purpose of establishing a separate property regime between them (the "agreement"). It was signed in the presence of a notary and one witness. Their second marriage began four days after signing the agreement.¹

In June 2009, Danielle filed a petition for divorce. A judgment was rendered on October 6, 2010, in which it was stated a community of acquets and gains existed between the parties, terminating it retroactively to June 2, 2009. That judgment also reserved to the parties any rights they may have had involving the agreement. Subsequently, Danielle filed a motion seeking a declaration that the agreement was invalid, as it did not meet the form requirements under the Louisiana Civil Code. The trial court agreed that the agreement failed for failure to adhere to form requirements, and Michael appealed that judgment to this court. This court reversed the trial court and upheld the validity of the agreement.² However, that opinion was reversed in Acurio v. Acurio , 2016-1395 (La. 5/3/2017), 224 So.3d 935 (" Acurio I "), where the Supreme Court of Louisiana found that the failure to meet all form requirements prior to the marriage rendered the agreement invalid. Specifically, the Acurio I court recognized that, "it is clear the legislature intended to make it onerous to waive one's community property rights, at least to the extent that certain procedural hurdles were put in place to ensure the parties consider the consequences of entering into a matrimonial agreement that is not favored by public policy." Id. at 938. Further, the Acurio I court stated, "we find the very fact that ‘an act under private signature duly acknowledged’ is presented as the sole alternative to an ‘authentic act’ is a telling recognition that both methods of execution are meant to be sufficiently arduous so as to provoke thought and consideration before entering into the agreement." Id. at 939-40. In invalidating the agreement, the supreme court concluded, "we find in order to have legal validity, a matrimonial agreement executed prior to marriage must be made by authentic act or signed and duly acknowledged prior to marriage." Id. at 940.

After the supreme court's invalidation of the agreement, Michael filed a petition for damages against Danielle in the trial court, alleging breach of contract, detrimental reliance, natural obligations, the clean hands doctrine, and equitable estoppel. He claimed that several days before their second marriage, the couple entered into an oral contract where Danielle agreed she would prepare and present a prenuptial matrimonial agreement reflecting the parties' intent to provide for a separate property regime governing all the rights between them during their marriage. According to Michael, Danielle knew he would not have married her again without the benefit of a matrimonial agreement separating their property. He asserted in his petition that this was a valid oral contract to make a subsequent valid prenuptial matrimonial agreement. He claimed she purported to do so and partially fulfilled her obligations, but ultimately breached their oral contract in two ways: (1) she failed to provide a notarial act, and/or (2) she failed to have the signatures of the parties to the agreement acknowledged prior to their marriage. Michael further asserted that Danielle represented to him that the agreement was valid, and he relied upon her representation to his detriment. Michael sought a trial by jury for his lawsuit.

Danielle responded with a peremptory exception of no cause of action and a motion for fees and costs.³ She argued that not only did Michael not state a cause of action in his petition, but the petition is frivolous, entitling her to costs and fees against him.⁴ A hearing on the exception was conducted. After argument by counsel, the trial court ruled and granted the exception of no cause of action on all theories of law; however, the trial court denied the request for sanctions. This appeal by Michael ensued.⁵

DISCUSSION

Peremptory Exception of No Cause of Action

Provided by La. C.C.P. art. 927(A)(5), the peremptory exception of no cause of action tests the legal sufficiency of the plaintiff's petition by determining whether the law affords a remedy on the facts alleged in the petition. Scheffler v. Adams and Reese, LLP , 2006-1774 (La. 2/22/07), 950 So.2d 641 ; Gipson v. Fortune , 45,021 (La. App. 2d Cir. 1/27/10), 30 So.3d 1076, writ denied , 2010-0432 (La. 4/30/10), 34 So.3d 298. A "cause of action," when used in the context of the peremptory exception of no cause of action, refers to the operative facts that give rise to the plaintiff's right to judicially assert the action against the defendant. White v. St. Elizabeth B.C. Bd. of Directors , 45,213 (La. App. 2d Cir. 6/2/10), 37 So.3d 1139. The purpose of the exception of no cause of action is not to determine whether the plaintiff will prevail at trial, but is to ascertain if a cause of action exists. Bogues v. Louisiana Energy Consultants, Inc. , 46,434 (La. App. 2 Cir. 8/10/11), 71 So.3d 1128. The exception is triable on the face of the petition, and for the purpose of determining the issues raised by the exception, the well-pleaded facts in the petition must be accepted as true. Fink v. Bryant , 2001-0987 (La. 11/28/01), 801 So.2d 346.

The burden of demonstrating that the petition states no cause of action is upon the mover. Wright v. Louisiana Power & Light , 2006-1181 (La. 3/9/07), 951 So.2d 1058 ; Scheffler, supra.

An appellate court's review of a trial court's ruling sustaining an exception of no cause of action is de novo because the exception raises a question of law, and the trial court's decision is based only on the sufficiency of the petition. Fink, supra. The essential question is whether, in the light most favorable to plaintiff and with every doubt resolved in plaintiff's favor, the petition states any valid cause of action for relief. Wright, supra.

On appeal, Michael raises five assignments of error, three of which are based on what he states are the "well pled factual allegations" of his petition. The petition sets forth the following claims, which, in his appeal brief, Michael argues the trial court should have accepted as true. A summary of the pertinent allegations are:

• Several days before the couple's January 29, 2002, marriage, Michael and Danielle entered into an "oral contract" where Danielle agreed to provide a valid prenuptial matrimonial agreement so that the parties' marriage would be subject to a separate property regime;

• Danielle, who had been married to Michael before in a marriage subject to a valid prenuptial matrimonial agreement, understood the importance of such an agreement to Michael. He claims she knew he would not remarry her without such an agreement;

• The couple's oral contract charged Danielle with responsibility of presenting a valid and enforceable matrimonial agreement;

• Pursuant to the oral contract, Danielle assumed the responsibility of creating the agreement, which may have included provisions benefiting her, as long as they pertained to Michael's "fundamental goal" to establish a separate property regime;

• Danielle prepared the agreement subject to the oral contract, which notably included a provision that the couple specifically would maintain separate checking, savings, and retirement accounts, not subject to the community property regime;

• Danielle partially fulfilled her obligation under the oral contract in that she drafted the agreement and provided a notary public for the execution of the agreement, but she failed to provide a valid and enforceable matrimonial agreement since "she (1) failed to provide a notarial act, and (2) failed to have the signatures of the parties to the prenuptial agreement acknowledged prior to the marriage";

• Danielle represented to Michael that the agreement was valid, but she misrepresented the truth. As a result, Michael married Danielle without a valid agreement;

• Because Danielle failed to present a valid agreement, she breached the oral contract entered into by her and Michael, subjecting him to significant monetary losses;

• Danielle knew Michael would go forward with the marriage if she represented to him that the agreement was valid, but that he would not marry her without a valid agreement;

• Danielle represented that the agreement was valid, and the couple lived in accordance with the agreement during their marriage—they had separate bank and retirement accounts, separate income streams, and separate credit cards. Their matrimonial domicile was purchased by Michael with "separate" funds and in his name only;

• Michael trusted Danielle's representations that the agreement was valid, which trust was reasonable because he loved Danielle;

• Michael

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