LOUISIANA DISCIPLINARY BOARD
IN RE: EDWARD LARVADAIN, JR. DOCKET NUMBER 02-DB-017
This matter came before Hearing Committee 36 on November 6, 2003, regarding the formal charges levied against Respondent, Edward Larvadain, Jr., an Alexandria, Louisiana, attorney, by the Office of Disciplinary Counsel (ODC). The original complaint was filed by Ms. P. Spencer Torry, an attorney also practicing Alexandria, Louisiana, after consultation with her client, Mrs. Pearl Cobb. The gravamen of the charges concerns the execution of certain documents purporting to affect title to immovable property in Lecompte, Rapides Parish, Louisiana, at least at some point owned by Mr. David Price, now deceased.
Specifically, the Office of Disciplinary Counsel (ODC) alleged that Mr. Larvadain acted as a notary in Mr. Price's execution of certain acts, variously entitled "Cash Sale," "Cash Sale Deed," or "Cash Bill of Sale," purporting to convey certain parcels of property from Mr. Price to various individuals, without those individuals' knowledge or consent. The ODC also alleged that Mr. Price executed many of those transfers in Mr. Larvadain's presence by signing both Mr. Price's name and the name of the other party. The ODC further alleged that Mr. Larvadain, in his capacity as notary public, passed and filed those acts into the public record.
At the hearing, five acts affecting the subject property were admitted. The first, dated December 7, 1981, purported to convey from Mr. Price to Ms. Brenda Fay Durden the parcel of property described as "Lot One (1) of Block 2 of the Township of Lecompte, Rapides Parish, Louisiana," with a front of 70 feet on Hardy Street and 90 Feet on Ford Street. It was accepted by all who testified that this document was executed by Mr. Price in his own name and by Ms. Durden in hers.
The second document was dated March 17, 1993, and purported to be between Ms. Durden and Mr. Price, conveying back to Mr. Price a portion of the property described above, commencing 34.6 feet from the corner of Hardy Street to the intersection of Hardy and Ford Streets, in essence subdividing that lot. It was uncontroverted that this document was executed by Mr. Price on his own behalf and that he also signed Ms. Durden's name. Ms. Durden was not present when this was done.
The third document, dated June 1, 1993, conveyed the remainder of the lot from Ms. Durden to Ms. Peggy Bennett. Again, Mr. Price signed Ms. Durden's name. She was not present when this was done. There was no disagreement among those who testified that it appeared Ms. Bennett executed the document herself.
The fourth document conveyed from Ms. Durden to Mr. Price the same parcel that had been subject of the March 17, 1993, act. Once again, Mr. Price signed his own name and Ms. Durden's name, and Ms. Durden was not present when this was done. This document was dated December 13, 1999.
All of the aforementioned acts were notarized by Mr. Larvadain. The evidence established that he did not draft or prepare any of the acts of sale. Further, Mr. Larvadain testified he was not asked to, nor did he, act as attorney for any of the parties to the acts. The only thing he was asked to do, and which he did, was to act as notary. The evidence further established that for each act on which Mr. Price signed Ms. Durden's name, Mr. Price possessed, and produced to Mr. Larvadain, who reviewed the same, a power of attorney from Ms. Durden which empowered Mr. Price to act on her behalf in such transfers, including the authority to sign her name.
The fifth act conveyed from Ms. Durden the entirety of the lot originally the subject of the December 1981, transaction, to Mr. Jeffery Cobb and Ms. Pearl Cobb. This act is dated May 13, 2000. It was executed by Ms. Durden herself and notarized in California, where Ms. Durden had been living for years. Mr. Larvadain had no part whatsoever in the execution of this document. The Cobbs were represented by P. Spencer Torry in the transaction. The Cobbs did not request a title check on the property and consequently none was performed. Ms. Torry did, however, advise the Cobbs that one should have been performed.
Mrs. Torry testified that some time after Mr. Price died, she was approached by Ms. Cobb with a letter Respondent penned regarding the subject property being subject to the probate of Mr. Price's estate. At this point, Ms. Torry first became aware that there was some question regarding the ownership of the property. A title check was performed thereafter. Ms. Torry then wrote to Mr. Larvadain to request that he take action to correct the difficulties inherent in the transactions outlined above. A complaint, and then the Formal Charges, ensued.
Ms. Cobb testified that for many years she had operated a small café located on the subject property. She paid rent to Mr. Price for some time, apparently up to the time of his death on March 20, 2000. In May 2000, Ms. Cobb and her husband purchased the property from Ms. Durden. In October 2000, Ms. Cobb received a letter from Mr. Larvadain in which he expressed his intention to probate a copy of Mr. Price's will in lieu of the original, which he believed had been in Ms. Cobb's possession and lost or destroyed.
The last witness to testify was Respondent. He indicated that Mr. Price had been his client for many years. Mr. Price owned several pieces of immovable property in Rapides Parish. He wanted to be able to convey this property to those who happened to be in his current favor without the need to revise a will or have same probated; therefore, he would obtain sale documents conveying property to and from those people. To that end, he would approach Respondent with the sale documents, and powers of attorney from those people, and ask that Respondent act solely as notary. Respondent testified -- and the committee accepts this testimony as true - that the documents were prepared by various other attorneys at Mr. Price's request. The committee also accepts as true Respondent's testimony that Mr. Price would present valid powers of attorney to him, empowering Mr. Price to act in the capacity as attorney in fact for the transactions at issue, including signing the name of the other parties to the transactions.
In the opinion of the committee, the ODC did not prove, by clear and convincing evidence, that the subject transactions were false or putative or simulated transfers of immovable property. There was no testimony that money did or did not actually change hands in the transactions. There was no adequate showing that the subject transactions were false, putative, or fraudulent transactions.
A charge not proven at all was that Respondent filed the transactions in the Rapides Parish public records. Although the sale documents admitted in evidence contained the Clerk of Court's stamp showing they were filed in the public records, the committee accepts as true Respondent's testimony that he did not file them. He testified he told Mr. Price that Mr. Price should file them, and thought that is probably what happened.
What was proven by clear and convincing evidence is that Respondent acted as a notary public on three sales involving immovable property in which Mr. Price signed Ms. Brenda Durden's name, and failed to note on the sale documents that he did so on her behalf pursuant to a power of attorney.
The first contention raised by Respondent that warrants discussion is that he was not acting as an attorney but simply as a notary. The committee finds it impossible to separate the actions of an attorney when acting as a notary from the practice of law. The vast majority of attorneys hold notarial licenses solely by virtue of their licenses to practice law. Further, Respondent in his testimony made it quite clear that Mr. Price sought his services as an attorney for many years prior to his death, and Respondent gave him legal advice, in addition to providing notarial services. It must also be noted that attorneys have been found in violation of the Code of Professional Conduct for actions that have nothing whatsoever to do with the practice of law. See, as an example In Re McMahon, 96-2835 (La. 2/7/97); 687 So.2d 371.
The second contention that bears discussion is Respondent's contention that, because the formal charges asserted that he passed and filed the documents, he cannot be found in violation of the charge if he only "passed," but did not also file them. It is true that an attorney's due process rights are violated if he was not given notice of the charges prior to his hearing. In Re: Nevitte, 2002-1962 (La 9/30/02); 827 So.2d 1135. In the opinion of the committee, though, Respondent was given more than adequate notice of the facts sought to be proven, and that is all that is required. Such was the import of the ruling in the pre hearing conference and at the time of the hearing, and that is the committee's ruling now. The Office of Disciplinary Counsel's use of the conjunctive rather than disjunctive, except as will be discussed infra. , will not be the factor upon which this committee bases its ruling.
The committee finds that the following facts were proven by clear and convincing evidence:
1) Respondent acted as a notary public in connection with an act of sale, in which Mr. Price signed Ms. Brenda Durden's name, dated March 17, 1993;
2) Respondent acted as a notary public in connection with an act of sale, in which Mr. David Price signed Ms. Brenda Durden's name, dated June 1, 1993;
3) Respondent acted as a notary public in connection with an act of sale, in which Mr. David Price signed Ms. Brenda Durden's name, dated December 13, 1999;
4) On none of the documents was it noted that Mr. Price signed Ms. Durden's name, or that he did so pursuant to a power of attorney on Ms. Durden's behalf;
Respondent admitted in testimony that, had the form used for the sales been one of his own drafting, it would have included a provision reflecting that the document was executed pursuant to a power of attorney. Thus, Respondent knew or should have known that where one party signs for the other, the notary must state in the acknowledgment that the document is being executed by Party A on behalf of Party B. La.R.S. 35: 511. On three separate occasions, Respondent failed to indicate this. In the committee's view, however, the inquiry does not end there.
Respondent also testified that he instructed his Mr. Price to file the acts of sale along with the powers of attorney in the public records at the courthouse. The committee accepts this testimony as true. The Committee finds that Respondent correctly advised Mr. Price to file the powers of attorney. If Mr. Price followed Respondent's advice, there would be no possibility of mistake on the part of anyone searching the public record that he had executed the documents acting as attorney in fact. This is the great mystery in this matter. No evidence was adduced to show that the powers of attorney were or were not filed into the public record. In the committee's opinion, this constitutes a fatal flaw in the proof of the charges against Respondent.
Even absent the above proof, it was clear to the committee that neither Mrs. Torry nor Mrs. Cobb had any difficulty in recognizing that Mr. Price signed Ms. Durbin's name. All of the transactions admitted into evidence were between relatives. Mr. Price, Mrs. Cobb, Ms. Durden, and Ms. Bennett were all related to, and knew, each other. Had the Cobbs allowed Mrs. Torry, as she recommended, to get a title search done at the time they attempted to purchase the property from Ms. Durden, they would have easily discovered that, according to the public records, Ms. Durden no longer owned the property. Additionally, Mr. Larvadain testified that Mr. Price was going to leave the property to Ms. Cobb, but that shortly before his death she fell out of his favor and he decided to leave it to someone else. He further suggested that Mrs. Cobb found out that Mr. Price, in his will, left the property to someone other than Mrs. Cobb. According to Mr. Larvadain, the will possibly was lost or destroyed under suspicious circumstances. Additionally, the timing of the Cobbs' purchase was questioned by Respondent as suspicious because it occurred after Mr. Price's death, and before a copy of his will was probated.
Accordingly, under the facts, circumstances, and evidence presented, the committee finds that no violation of any Rule of Professional Conduct was proven by clear and convincing evidence.
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MICHAEL D. HISLOP
CHAIR, HEARING COMMITTEE 36