Opinion
CIVIL ACTION NO: 03-0369, SECTION "T" (1)
March 22, 2004
MINUTE ENTRY
Before this Court is Defendant's Motion to Dismiss for Lack of Subject Matter Jurisdiction and/or Failure to State a Claim, or alternatively, for Summary Judgment, and Plaintiff's Memorandum in Opposition to Defendant's Motion to Dismiss. The Court, having studied the legal memoranda submitted by the parties, the record, and the applicable law, is fully advised on the premises and ready to rule.
ORDER AND REASONS
I. Background
Plaintiff Kathryn Barrett Tschirn ("Kathryn") filed this suit against her mother, Mary Kathryn Kurzweg ("Mary Kay"), and her step — father, Victor Jerome Kurzweg, III ("Jerry"), as co-executors of the Succession of Winifred Barrett Redmond (the "Succession"). In August of 1987 plaintiff was named heir to the Succession. On March 1, 1988, defendants filed a Petition for Probate and were appointed executors of the Estate. (Petition for Probate, Exhibit C.) In July of 1991, defendants petitioned the Probate Court for a Judgment of recognition and possession to put plaintiff in possession of all the assets of the Succession. (Petition for Recognition and Possession, Exhibit D.) On July 2, 1991, the Probate Court issued a Judgement recognizing the plaintiff as a residual legatee and ordering that she be placed in possession of the remainder of the Succession. (Judgment, Exhibit E.)
Six weeks after the Judgment of possession, defendants obtained an overwhelmingly broad Power of Attorney from plaintiff allegedly giving them control of every asset plaintiff was entitled to by way of the Judgment of possession to defendants. (Power of Attorney, Exhibit F). Plaintiff was unaware of the nature and existence of this Power of Attorney until she received a copy of it as an attachment to defendants' Motion to Dismiss in April 2003 (Exh. B.)
In April of 2002, the plaintiff obtained the Probate documents regarding her Great — Aunt's Estate and learned for the first time that she was an heir to the Estate (Exh B.), and plaintiff still has not been put in possession of the assets of the Estate.
II. Law and Analysis
The defendant's have raised the following five procedural defenses in response to the plaintiff's lawsuit:
A. That this case has already prescribed;
B. That this Court lacks jurisdiction because this is a probate matter;
C. That the amount in controversy is less than $75,000;
D. Plaintiff waived her right to a final accounting; and,
E. Power of Attorney.
This Court is not in the position to grant defendant's Motion to Dismiss because genuine issues of material fact still exist with regards to all five of the defendant's procedural defenses.
A. PRESCRIPTION
The plaintiff raises three valid oppositions to the defendant's procedural defense of prescription:
1) Contra non valentem
2) Louisiana Civil Code Article 3502
3) Louisiana Revised Statute 9:5621
1) Contra non valentem
The doctrine of contra non valentem serves to prevent the running of prescription in instances where the plaintiff was ignorant of, and/or unaware of certain facts to allow her to know that a cause of action existed on her behalf.
In citing the case of Reynolds v, Batson, 11 La. Ann.729, 730-731 (1856), the Supreme Court pointed out that ". . . the principal contra non valentem applied so as to prevent the running of liberative prescription: (1) Where there was some legal cause which prevented the courts or their officers from taking cognizance of or action on the plaintiff's actions; (2) Where there was some condition coupled with the contract or connected with the proceedings which prevented the creditor from suing or acting; and, (3) Where the debtor himself has done some act effectually to prevent the creditor from availing himself of his cause of action."
The plaintiff has effectively maintained that the defendants have performed certain acts deliberately to prevent plaintiff from availing herself of her cause of action. Therefore, contra non valemem may apply and prescription would not have begun to run until the plaintiff became aware that an action existed. As such, the motion to dismiss must be denied.
2) Louisiana Civil Code, Article 3502
The plaintiff claims that the assets of the Estate were wrongfully converted by the defendants. Article 3502 states that in such an instance where one asserts an action for recognition of a right of inheritance, a liberative prescription of 30 years applies. This prescription began to run at the time of the plaintiffs Great — Aunt's death, August 30, 1987. The prescriptive period of thirty years, pursuit to this Article, will not prescribe until 2017.
3) Louisiana Revised Statute 9:5621
Since it is disputed whether the property was misappropriated by defendants, the defendants may not rely on Louisiana Revised Statute 9:5621. The third paragraph of the statute states:
. . . This prescription does not apply to actions for the recovery of any funds or other property misappropriated by the succession representatives nor to actions for any amount not paid in accordance with the proposed payments shown on the final account.
Plaintiff has never been put in possession of her assets. Instead, the assets have remained in the possession of and under the control of the defendants to plaintiff's knowledge and belief. Therefore, plaintiff's claim has not prescribed.
It is the opinion of this Court that the plaintiff has successfully pled her case to establish the existence of genuine issues of material fact sufficient enough for this Court to deny the defendant's motion to dismiss due to the running of prescription
B) SUBJECT MATTER JURISDICTION
The defendant seeks to have the plaintiff's action dismissed for want of subject matter jurisdiction. A motion under Rule 12(b)(1) of the Federal Rules of Civil Procedure should be granted "only if it appears certain that the plaintiff cannot prove any set of facts in support of his claim that would entitle him to relief." Home Builders Ass'n of Mississippi, Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998) (citing Benton v. United States) 960 7.2d 19,21 (5th Cir. 1992)). A case is properly dismissed for lack of subject matter jurisdiction [only] when the court lacks the statutory or constitutional power to adjudicate the case." Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1187 (2nd Cir. 1996).
The defendant asserts that this Court lacks subject matter jurisdiction because they allege that this is still a probate matter to be handled in state court. However, because the probate matter was concluded in 1991, this Court is of the opinion that it has the power to adjudicate this matter. Therefore, defendants' Motion to Dismiss for lack of subject matter jurisdiction is denied.
C) JURISDICTIONAL AMOUNT
The defense asserts that plaintiff lacks the amount in controversy necessary for this Court to possess diversity jurisdiction. In the Court's opinion, however, the plaintiff has pled with specificity facts that adequately prove that the amount in controversy does in fact exceed $75,000.00, excluding interests and costs. Therefore, defendants' Motion to Dismiss for lack of jurisdictional amount is denied.
D) WAIVER OF ACCOUNTING
The defendants contend the records from the succession proceeding reflect that a Waiver of Final Accounting was signed by Kathryn. The Kurzwegs have been unable to determine when the waiver was actually signed and whether it was signed after Kathryn's 18th birthday on September 8, 1990. Defendant's rely on Louisiana Civil Code Art. 1919 which provides that "[a] contract made by a person without legal capacity is relatively null and may be rescinded only at the request of the person or his legal representative." They argue that Kathryn has not asserted any claim to rescind the Waiver and the time to do so has long since expired.
Plaintiff disagrees with the position of the defendants' attempt to assert. They contend the document entitled "Waiver of Final Accounting" was signed originally by someone signing the name Kathryn Barrett Kurzweg, and then the name "Kurzweg" is whited out and the name "Tschirn" is written over it. To plaintiff's knowledge, there is no such person as Kathryn Barrett Kurzweg. They believe the signature on the "Waiver of Final Accounting" is not that of the plaintiff's.
Additionally, whoever it was that signed that document did so on February 6, 1989, at which time plaintiff was only 16 years old and was not an emancipated minor. Plaintiff first became aware of this document after she obtained the probate file from the court in April 2002 (Exh.B). A comparison of the signature "Tschirn" on this document and the signature "Tschirn" on the Power of Attorney (Exh.F) clearly shows that these are two distinctly different signatures.
Plaintiff contends simply that plaintiff was never placed in possession "of all of the remainder of the estate." Instead, the defendant's wrongfully converted all of the remainder of plaintiff's Estate.
For the aforementioned reasons, defendant's Motion to Dismiss is denied in this regard.
E) POWER OF ATTORNEY
The defendant contends that the Complaint does not assert any claim for an alleged violation of the Power of Attorney in favor of the Kurzwegs after Kathryn was placed in possession of the remainder of the assets of the Succession. The defendant believes that the Complaint fails to state a claim for relief against the Kurzwegs based on any action taken by them after Kathryn was placed in possession.
Plaintiff claims that she was unaware of any such Power of Attorney dated August 12, 1991 in favor of her mother and step — father (Exh.B). Plaintiff maintains at no time was she aware of the signing of any such Power of Attorney, or any other document outlined on page 20 of plaintiff's memorandum.
Plaintiff does maintain that through misrepresentation and/or deception and/or fear and duress, she would sign anything that her mother would tell her to sign (Exh.B), and that there were partial documents, or blank pages called "signature sheets" that she would be given. She would sign and return these sheets without knowing the content of the document or what body of the document would be placed above her signature afterwards. (Exhibits B and G).
Plaintiff has expressed the extent of her fear that had been imparted to her in her early childhood and that she still continues to experience the tremendous level of fear of her mother who has inflicted both bodily harm and mental anguish to her.
Since genuine issues of material fact still exist, defendant's Motion to Dismiss regarding the Power of Attorney is denied.
III. Conclusion
When a question of material fact exists relating to a Motion to Dismiss/Motion for Summary Judgment, it is inappropriate for said judgment to be granted. The Court looks at every such motion in the light most favorable to the non — moving party. All inferences must be granted in favor of the non — moving party. Whenever it is shown that there are contested issues of fact, the granting of the motion to dismiss and/or summary judgment is inappropriate. Galindo v. Precision American Corp., 745 F.2d 1212-1216 (5th Cir. 1985).
Accordingly,
IT IS ORDERED that the Defendant's Motion to Dismiss for Lack of Subject Matter Jurisdiction, and Failure to State a Claim, and Motion for Summary Judgment is and the same hereby are DENIED.