Berthelot ex rel. Pendergast v. Pendergast
989 So.2d 798, 2008 La. App. LEXIS 985, 8 La.App. 5 Cir. 116 (2008)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
A usufructuary is not liable for damage to property constituting an extraordinary repair, such as a failing foundation caused by regional soil subsidence, as the responsibility for such repairs lies with the naked owner unless the damage is proven to be the result of the usufructuary's fault or neglect.
Facts:
- Upon Harold Pendergast, Sr.'s death in 1994, his wife, Victoria Pendergast, became owner of one-half of their home and was granted a testamentary usufruct over the other half.
- The naked ownership of the other half was bequeathed to Harold's children from a prior marriage, Margaret Adolph and Harold Pendergast, Jr.
- The home's foundation had been shored along its perimeter in 1980.
- Victoria Pendergast resided in the home until May 2004, when she moved out due to age and infirmity.
- By 2004, the house had developed severe foundation problems, with the slab sinking in its center, causing cracks in the walls and misalignment of doors.
- In 2003, a sewer line was repaired within two to three weeks after problems with the toilets were noticed.
- Margaret Adolph first observed the severe damage in June 2004, having not been inside the house for several years.
- Expert testimony conflicted, with one expert attributing the damage to long-term 'areal subsidence' and another suggesting it was caused by soil being washed away by something like a broken pipe.
Procedural Posture:
- Victoria Pendergast, through an agent, filed suit against Margaret Adolph and Harold Pendergast, Jr. in the 24th Judicial District Court to partition the property.
- Margaret Adolph filed a separate suit in the same court against Victoria Pendergast, alleging a failure to act as a prudent administrator.
- The trial court consolidated the two suits.
- The property was sold at public auction with the proceeds deposited into the court registry.
- Following a trial on the merits, the trial court rendered judgment dismissing Margaret Adolph's claim against Victoria Pendergast.
- Margaret Adolph, as appellant, appealed the trial court's judgment to the Court of Appeal of Louisiana, Fifth Circuit.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does a usufructuary breach her duty to act as a prudent administrator when severe foundation damage to the property is caused by regional soil subsidence, an issue requiring extraordinary repairs, rather than by her own fault or neglect?
Opinions:
Majority - Chehardy, J.
No. A usufructuary does not breach her duty as a prudent administrator when foundation damage is caused by areal subsidence, which requires extraordinary repairs. The court affirmed the trial court's finding that the damage was due to areal subsidence, a long-term regional issue, rather than neglect by the usufructuary, Victoria Pendergast. Under Louisiana Civil Code art. 577 and 578, repairing a failing foundation is an 'extraordinary repair' for which the naked owner, not the usufructuary, is responsible. The burden was on the naked owner, Margaret Adolph, to prove the damage resulted from the usufructuary's fault or neglect, and she failed to meet this burden. The court also found no merit in the argument that Pendergast failed to notify the naked owners of the damage, as testimony indicated they were already aware of the problems.
Analysis:
This decision reinforces the clear statutory distinction in Louisiana property law between a usufructuary's duty for ordinary maintenance and a naked owner's responsibility for extraordinary repairs. It establishes that for a usufructuary to be held liable for major structural damage, the naked owner must prove the damage resulted directly from the usufructuary's specific 'fault or neglect.' The case underscores the significant burden of proof on the naked owner and the deference appellate courts give to a trial court's factual findings, particularly when based on competing expert testimony. It clarifies that large-scale, pre-existing, or regional structural issues are generally not the financial burden of the person holding the usufruct.
