Louisiana Allows Notaries to Sign an Act of Correction When the Notary has Made a Clerical Error. Lo

Andersen v. Succession of Bergeron, 2016-0922 (La. App. 1st Cir. 4/12/17), 217 So.3d 1248. On November 12, 2002, Ruffin Bergeron, Jr. formed Lone Oak Farm, LLC (the “LLC”), a company he envisioned for himself and his six children. However, one of Mr. Bergeron’s children, Michael, chose not to participate in the business.

Two days later, Mr. Bergeron executed articles of organization for the LLC designating himself as the initial managing member. On that same date, Mr. Bergeron and the five children other than Michael executed an operating agreement for the LLC.

By separate acts of transfer in 2003 and 2005, Mr. Bergeron contributed immovable and movable property to the LLC. The acts were signed by Mr. Bergeron in his individual capacity, as the transferor, and in his representative capacity as the manager of the LLC, as the transferee. No other capital contributions were made to the company. In 2009, Mr. Bergeron approached the members of the LLC to discuss adding his son, Michael, as a member of the company. When some members of the company expressed disagreement and refused to allow Michael to be added as a member, Mr. Bergeron advised them that he planned to dissolve the company. By two acts of transfer executed by Mr. Bergeron alone, in his individual capacity and in his representative capacity as the managing member of the LLC, on November 9, 2009 and December 11, 2009, the immovable and movable property of the LLC was transferred back to Mr. Bergeron. The November 9, 2009 transfer of immovable property contained legal descriptions of the property at issue and provided that the described property was “the same property” acquired by the LLC from Mr. Bergeron as his capital contributions. The act also provided that it was made without any consideration and was accepted by Mr. Bergeron as a charge against his capital interest in the company.

Also on December 11, 2009, Mr. Bergeron executed an affidavit of dissolution of the LLC, representing that he, and no one else, held all of the membership interests in the company, that the company was no longer doing business, and that the company had no debts. The Secretary of State issued a certificate of dissolution accordingly on December 18, 2009.

On April 26, 2012, the notary public before whom the November 9, 2009 transfer of immovable property by the LLC to Mr. Bergeron was passed executed a notarial act of correction under La. R.S. 35:2.1, stating that he made a clerical error in the act of transfer. The notary public attested that the purpose of the November 9, 2009 transfer was for the LLC to convey back to Mr. Bergeron all of the immovable property it owned. However, through a clerical error made by the notary, the act incorrectly contained a section entitled “Less and Except” under which two lots of property that were intended to be transferred to Mr. Bergeron were erroneously listed, therefore appearing to be excepted from the transfer. The act of correction changed the description of the property at issue from 15 acres to approximately 160 acres. Mr. Bergeron died shortly thereafter on July 4, 2012.

In April of 2014, Mr. Bergeron’s daughter, Mary Beth Andersen, filed a petition for declaratory judgment in which she sought to have the dissolution declared invalid and the LLC reinstated, the 2009 transfers of property declared invalid and the property returned to the LLC, and the 2012 act of correction by the notary declared null.

The court recognized that the error in the original act of transfer appeared to have had the effect of transferring only 15 acres, and excluding approximately 145 acres from the transfer. This arguably left a substantial amount of property in the LLC that was intended to be returned to Mr. Bergeron. However, the court noted that the substantiality of the error in terms of acreage was not the only factor in determining whether the error was clerical for purposes of being corrected by a notarial act of correction. Following a review of the testimony of the notary, the provisions of La. R.S. 35:2.1 and the jurisprudence, the court of appeal found the notarial act of correction to be proper and valid.

The court of appeal therefore affirmed the judgment of the trial court in all respects. Judge Calloway dissented and assigned reasons.