Lagarde v. Lagarde


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Docket Number: 2008-CA-01480-COA
Linked Case(s): 2008-CA-01480-COA
Court of Appeals: Opinion Link
Opinion Date: 12-15-2009
Opinion Author: Irving, J.
Holding: Affirmed in part, reversed and rendered in part and remanded.
Additional Case Information: Topic: Wills & estates - Gift of equity - Specific performance - Attorney's fees
Judge(s) Concurring: Lee and Myers, P.JJ., Griffis, Barnes, Ishee, Roberts and Maxwell, JJ.
Concur in Part, Dissent in Part 1: Carlton, J. with separate written opinion.
Concur in Part, Dissent in Part Joined By 1: King, C.J.
Procedural History: Bench Trial
Nature of the Case: CIVIL - WILLS, TRUSTS, AND ESTATES
Trial Court: Date of Trial Judgment: 05-29-2008
Appealed from: Hancock County Chancery Court
Judge: Jim Persons
Disposition: ORDERED SPECIFIC PERFORMANCE OF CONTRACT
Case Number: C2301-06-614
  Party Name: Attorney Name:   Brief(s) Available:
Appellant: CHRISTOPHER LAGARDE AND ELIZABETH BOSARGE




 CLEMENT S. BENVENUTTI



  
  • Appellant #1 Brief
    		•
    Appellee: ALAN LAGARDE AND LISA LAGARDE TIMOTHY LEE MURR  
    Synopsis provided by:

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    Topic: Wills & estates - Gift of equity - Specific performance - Attorney's fees
    Summary of the Facts: Alan and Lisa Lagarde filed a complaint for specific performance against the Estate of Mary Lagarde. The chancery court found that a contract entered into by Mary’s son, Alan, and his wife, Lisa, to purchase a home from Mary was valid, as to its original terms, and that a gift of equity given to Alan and Lisa by Mary constituted an inter vivos gift and survived Mary’s death. Two of Mary’s other children, Christopher Lagarde and Elizabeth Lagarde Bosage, appeal.
    Summary of Opinion Analysis: Issue 1: Gift of equity Christopher and Elizabeth argue that the chancellor erred in finding that the gift of equity survived Mary’s death and was validly and completely delivered to Alan and Lisa during Mary’s lifetime. The requirements of a valid inter vivos gift are that the donor be capable of making the gift, that the act is voluntary on the donor’s part, that the donor intends to make the gift, that the gift is complete with nothing left to be done, that the property be delivered by the donor and accepted by the donee, and that the gift be gratuitous and irrevocable. Here, the chancellor concluded that Mary had symbolically delivered the gift of equity when she signed the gift equity letter. However, even though Mary gave Alan and Lisa the gift equity letter, she retained dominion and control over the equity, because she died before she completed the transfer of equity to Alan and Lisa. Therefore, Mary’s gift equity letter was more of a promise or declaration of her intention to give Alan and Lisa a gift of equity in the amount of $50,000, rather than a complete and unconditional delivery of the same. Alan and Lisa would have had no legal means of enforcing the terms of the gift equity letter had Mary decided to rescind her offer. Issue 2: Specific performance Christopher and Elizabeth argue that the chancellor erred in granting specific performance of the original contract. The contract was executed on October 8, 2004, for a purchase price of $250,000. It is clear that, a little over a month later, Mary executed a gift equity letter wherein she agreed to give a gift of equity in the amount of $50,000 to Alan and Lisa to be used as a down payment to purchase the home. On the contract, “$51,200” is handwritten following the phrase “cash down payment at closing.” The record does not contain a contract wherein $50,000 is listed to represent the amount of the down payment due at closing. Based on Alan’s testimony on cross-examination, it is reasonable to conclude that a down payment of $50,000 was never listed in the contract that was signed by Mary. The chancellor found that the modified contract was unenforceable because Mary did not agree to the modifications in writing. However, the chancellor enforced the contract without the modifications. The chancellor was correct in doing so, as the contract specifically provides that its provisions “shall apply to bind the heirs, executors, administrators, successors and assigns of the respective parties.” Thus, on remand, if Alan and Lisa are prepared to purchase the family residence for $250,000 without the benefit of the $50,000 gift of equity, the chancellor shall order the estate to proceed with the sale. Issue 3: Attorney's fees Christopher and Elizabeth argue that the chancellor erred in awarding attorney’s fees against them. In breach of contract cases, attorney’s fees generally are not awarded absent provision for such in the contract or a finding of conduct so outrageous as to support an award of punitive damages. Because Alan and Lisa initiated litigation and did not prevail in their effort to get specific performance of the contract, as modified, they are not entitled to have Christopher and Elizabeth pay their attorney’s fees.


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