Opinion
NO. 17–CA–158
10-25-2017
Rahmon Iturbe HENDERSON ON BEHALF OF Wyonea Henderson ROLLAND v. Sharlene Ray RUFFINO
COUNSEL FOR PLAINTIFF/APPELLANT, RAHMON ITURBE HENDERSON ON BEHALF OF WYONEA HENDERSON ROLLAND, Jessica W. Hayes COUNSEL FOR DEFENDANT/APPELLEE, SHARLENE RAY RUFFINO, F. Evans Schmidt, Bryce M. Addison, New Orleans
COUNSEL FOR PLAINTIFF/APPELLANT, RAHMON ITURBE HENDERSON ON BEHALF OF WYONEA HENDERSON ROLLAND, Jessica W. Hayes
COUNSEL FOR DEFENDANT/APPELLEE, SHARLENE RAY RUFFINO, F. Evans Schmidt, Bryce M. Addison, New Orleans
Panel composed of Judges Fredericka Homberg Wicker, Robert M. Murphy, and Hans J. Liljeberg
MURPHY, J.
The plaintiff, Rahmon Iturbe Henderson (hereinafter "Rahmon"), appeals from an adverse judgment rendered on December 9, 2016 in favor of the defendant, Sharlene Ray Ruffino (hereinafter "Sharlene"), wherein the trial court dismissed Rahmon's motion to strike and granted the following brought by Sharlene: (1) motion to quash ex parte motion for voluntary substitution; (2) peremptory exception of no right of action; and, (3) motion for voluntary substitution. For the following reasons, we affirm the trial court's judgment.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Wyonea Henderson Rolland (hereinafter "Wyonea") was the mother of Rahmon and the grandmother of the defendant, Sharlene. In 2004, while Sharlene was living in Australia, Wyonea desired to purchase a home located at 8905 26th Street, Metairie, Louisiana, in Sharlene's name. In order to accomplish this, Sharlene gave Wyonea a power of attorney to act on her behalf in the purchase of the home. Wyonea used her own money, which she purportedly donated to Sharlene, in order to purchase the home in Sharlene's name. At the end of 2004, when Sharlene returned to Metairie, she moved into the home with Wyonea and began caring for her. When Hurricane Katrina hit in 2005, Wyonea evacuated to Houston and then settled in Tucson, Arizona. Sharlene split her time between Arizona and Louisiana while trying to find a home on the Northshore where she and her grandmother could live.
Rahmon is not the father of Sharlene.
According to the record, the alleged motivation for the donation stemmed from Wyonea's personal experience when her own mother passed away leaving a home, and Wyonea experienced difficulties in selling the home because a succession was never opened placing Wyonea in possession. The record reflects that Wyonea allegedly wanted Sharlene to have the new home she was purchasing and did not want Sharlene to have to open a succession upon Wyonea's death.
Before Wyonea could join Sharlene in Louisiana, Rahmon went to Arizona and took his mother and all of her belongings with him to Mexico. Prior to her death in 2011, Wyonea never returned to live in the United States.
According to Rahmon, his intent was to take his mother on a vacation to Mexico. However, allegedly because Sharlene had taken all of Wyonea's property and Wyonea had no place to live, she did not return to live in the United States, but remained with him in Mexico.
Rahmon filed a petition for damages on November 22, 2006 on behalf of his mother, Wyonea, pursuant to a power of attorney she executed in Rahmon's favor. The petition alleged that Wyonea's granddaughter, Sharlene, owed damages for conversion and breach of fiduciary duty as a result of her alleged unauthorized taking of immovable and movable property belonging to Wyonea following Hurricane Katrina. In March 2009, Rahmon amended the petition, wherein he reasserted the prior claims for conversion and breach of fiduciary duty, and asserted an alternative claim for revocation of any alleged donation inter vivos made by Wyonea to Sharlene based on nullity for want of form, failure to reserve enough property for subsistence, and nonperformance of conditions.
Wyonea was living at the time suit was filed.
Sharlene was alleged to have taken Wyonea's home located at 8905 26th Street, Metairie, Louisiana, in addition to cash, bank accounts, CDs, an automobile, and other personal property belonging to Wyonea. The petition further alleged that Wyonea had previously executed a power of attorney naming Sharlene as mandate and that Sharlene had breached her fiduciary duty owed to Wyonea.
Wyonea died on October 14, 2011 during the course of these proceedings. Thereafter, on May 11, 2015, Rahmon filed an ex parte motion for voluntary substitution claiming to be the sole and universal heir of Wyoena. In support of his motion, Rahmon attached an "Open Public Testament," allegedly executed on April 19, 2011 by Wyonea in Mexico naming him as Wyonea's sole and universal heir (hereinafter the "Mexican will"). On May 18, 2015, in accordance with La. C.C. art. 801, the trial court granted an ex parte motion to substitute Rahmon for Wyonea as the plaintiff. On September 22, 2015, Sharlene filed a motion for summary judgment seeking dismissal of the claims made against her. By judgment dated December 10, 2015, the trial court granted Sharlene's motion for summary judgment, in part, dismissing the claims for breach of fiduciary duty and conversion, leaving solely before the court "any claims for revocation of donations inter vivos of any movables."
Louisiana Code of Civil Procedure article 801 provides:
When a party dies during the pendency of an action which is not extinguished by his death, his legal successor may have himself substituted for the deceased party, on ex parte written motion supported by proof of his quality.
As used in Articles 801 through 804, "legal successor" means:
(1) The survivors designated in Article 2315.1 of the Civil Code, if the action survives in their favor; and
(2) Otherwise, it means the succession representative of the deceased appointed by a court of this state, if the succession is under administration therein; or the heirs and legatees of the deceased, if the deceased's succession is not under administration therein.
Also pending before the court was an exception of prescription filed by Sharlene, which by separate judgment rendered the same day, the trial court determined to be moot in light of its ruling on the motion for summary judgment. Rahmon does not appeal either of these judgments.
On August 1, 2016, Sharlene filed: (1) a motion to quash Rahmon's motion for voluntary substitution on the basis that the 2011 Mexican will was invalid under the laws of the Mexican State of Baja California Sur; (2) a peremptory exception of no right of action; and (3) a motion for voluntary substitution based on a 2003 Last Will and Testament allegedly executed by Wyonea making Sharlene her universal successor. In response, Rahmon filed a motion to strike claiming Sharlene's motions were untimely pursuant to the deadlines set forth in the court's scheduling order. Rahmon also filed an opposition to the motions and exception urged by Sharlene.
The matter, originally set for trial September 12, 2016, came for hearing on November 2, 2016, at which time the trial court conducted an extensive evidentiary hearing. The evidence presented focused primarily on the validity of the Mexican will purporting to make Rahmon the universal successor of Wyonea. The trial court considered expert testimony presented by both parties regarding the laws of Mexico, in addition to testimony from fact witnesses as to Wyonea's eyesight and ability to speak Spanish. Over Rahmon's objection, the court also admitted into evidence the transcript of a recorded telephone conversation in which Rahmon, Wyonea, and Sharlene all took part. Additionally, after review by both parties as to accuracy and there being no objection, the trial court allowed a translator to read into the record translations of the relevant Mexican laws at issue.
The following is a summary of the testimony and evidence presented at the hearing.
Testimony of Sharlene Ray Ruffino
Sharlene testified that as a young girl, she lived with her brother and parents in a four-plex owned by Wyonea. When she was sixteen months old, her mother, who was Wyonea's daughter, committed suicide. Following her mother's death, Sharlene continued to live with her father, brother, and Wyonea in the four-plex for years. According to Sharlene, Wyonea was like a mother to her. Even after Sharlene and her family eventually moved out of Wyonea's property, they continued to spend almost every weekend with Wyonea, as well as extended periods of time over the summer. As Sharlene lived in different places, they maintained their close relationship by speaking on the phone often and writing letters to each other. Sharlene testified that when she was in high school, she sought help from Wyonea for her Spanish class. Although Wyonea knew a few words of Spanish, Sharlene stated that Wyonea was unable to help her with the class. Sharlene visited Mexico with Wyonea when she was growing up, and though Wyonea was able to speak a few words in Spanish while there, Wyonea never engaged in a conversation in Spanish with anyone. Sharlene further testified that Wyonea was an avid reader until she developed Macular Degeneration and, by 2004, Wyoena was no longer able to read. According to Sharlene, when she lived with Wyonea in 2004 and 2005, Wyonea was no longer able to watch television due to her inability to see the television.
Macular Degeneration causes loss of central vision in the eye and, at present, is considered to be an incurable disease.
Sharlene also testified that Wyonea had become very forgetful during 2005. In support of this testimony, Sharlene introduced a document, dated November 9, 2005, entitled "Mini–Mental State Examination ("MMSE")," which was accepted into evidence. The report of this examination indicated that Wyonea had developed mild dementia.
Sharlene testified that she lived in Australia for a period of time in 2004. While there, Wyonea contacted her and explained that she was selling the four-plex and desired to buy a house in Sharlene's name. In order to accomplish this, Sharlene stated that she had to execute a power of attorney in Australia and send it to Wyonea. Once the power of attorney was properly in place, Wyonea then purchased a home located in Metairie, Louisiana in Sharlene's name. When Sharlene returned to the United States in the fall of 2004, she went to live in this home with Wyonea.
Sharlene testified that, on August 27, 2005, two days before Hurricane Katrina struck south Louisiana, she went to Los Angeles, leaving Wyonea in the care of Vincent, Sharlene's brother. Vincent evacuated with Wyonea to Houston and when they learned they would not be able to return to the Metairie home, they proceeded to Tucson, Arizona. According to Sharlene, she met Vincent and Wyonea in Tucson, where they were assisted by Treena Cross in caring for and finding an assisted living facility for Wyonea. Sharlene testified that she returned to Metairie and then found a place for her and Wyonea to live on the North Shore. Before Wyonea could join Sharlene in Louisiana, however, Rahmon went to Arizona and took his mother and all of her belongings with him to Mexico. According to Sharlene, Rahmon prevented Wyonea from speaking to her on the phone after Wyonea went to live with him in Mexico. Wyonea never returned to live in the United States.
Recorded Telephone Conversation
Sharlene testified regarding a telephone conversation she recorded that took place between Rahmon, Wyonea and herself in the summer of 2005. Over Rahmon's objection, the recording of the conversation was played and a transcript of the conversation was admitted into evidence. In this conversation, Rahmon suggested that Wyonea come to live with him in Mexico and that she rent the Metairie house for $1,600.00 per month. Wyonea responded by advising Rahmon that the Metairie house belonged to Sharlene. Rahmon referenced a conversation he had with Wyonea the previous day wherein he told Wyonea that he would come to Metairie on August 15 to help her pack up the Metairie house. Wyonea became upset and denied having ever told Rahmon that the house was in both her name and Sharlene's name. Wyonea repeated that the house was in Sharlene's name only and that Sharlene could sell the house right now. Rahmon suggested to Wyonea that she have Sharlene sign a document stating that the house would belong to Wyonea until she died, at which time Sharlene would then own the house. Wyonea refused to follow his suggestion. Rahmon then stated that there was $7,500.00 "in that house which belongs to me." Rahmon reminded Wyonea that she had "5 or 6 grandchildren, just not one." Rahmon suggested for a second time that Wyonea agree to live with him and rent out the Metairie house. Wyonea responded that she did not want to rent out the house and stated "[t]his is my home. This is where I live." Sharlene and Rahmon then discussed Wyonea going to Mexico to visit in September when the weather would be cooler.
Deposition Testimony of Wyonea Henderson Rolland
Wyoena's deposition, which was taken on May 13, 2008 when she was 89 years old, was admitted into evidence. At that time, Wyonea testified that she was not able to see people's features. She was unable to read any of the documents presented to her during the deposition. Wyonea appeared to be confused; she was unsure as to how many grandchildren she had, where she lived, how long she had been in Metairie, or where she was currently staying. Further, Wyonea could not remember any details concerning the purchase of the Metairie home. When asked whether she had made any phone calls while she was living in Mexico, she stated that she did not have "that much acknowledge [sic] of Spanish." Elaborating further, Wyonea testified that, "I understand a—Spanish a little bit. But not very much."
Wyonea's deposition testimony regarding the allegations set forth in the lawsuit Rahmon filed on her behalf was very unclear. She testified that the Metaire house was her house and that Sharlene would have the house after she died. Wyonea denied that Sharlene had taken any of her property. When asked to describe the damages she suffered as a result of Sharlene allegedly taking her property, Wyonea could not think of any.
Testimony of Teena Cross
Teena Cross testified that she was a nurse and that she assisted Wyonea and Sharlene in Tucson following Hurricane Katrina. Specifically, Treena explained that she helped to find an assisted living facility where Wyonea could live. Treena testified that when she presented Wyonea with the lease for the assisted living community, Wyonea was unable to read it and that the lease had to be read to her. Teena explained that she and the business manager had to place their finger on the lease to show Wyonea where to sign and that without them doing so, Wyonea would not have known where to sign her name. Teena testified that she spoke Spanish fluently and was with Wyonea in the company of other persons who were conversing in Spanish. Teena stated that she never witnessed Wyonea engaging in Spanish conversation.
Testimony of Homero Castaneda Munoz
Over Rahmon's objection, Homero Castaneda was accepted by the court as an expert on Mexican law regarding "wills and testaments." Mr. Castaneda testified that, although he was not a public notary in Mexico, he was an attorney located in California and was licensed to practice law in Mexico. He explained that he often assisted people who own property in Mexico with wills and helped "people probate wills in Mexico." Specifically, Mr. Castaneda testified that he was familiar with the Civil Code for the Mexican State of Baja California, which contains a specific chapter regarding the requirements for the issuance of wills. Mr. Castaneda testified that he reviewed the April 19, 2011 Mexican will prepared for Wyonea and, thereafter, prepared a "declaration" that set forth and explained his findings. This declaration was admitted into evidence. According to Mr. Castaneda, if Wyonea was blind at the time she executed the Mexican will, the will would be null and void because it does not comport with the requirements of the Civil Code for the Mexican State of Baja California pertaining to the preparation of a will for a blind person. Mr. Castaneda further testified that if the person executing a Mexican will was unable to speak Spanish, the Civil Code for the Mexican State of Baja California required that an interpreter be present for the issuance of the will and the signing of the will. He further explained that, in this instance, Mexican law requires that both the Spanish testament and the translated testament be attached as an exhibit to the formalized testament. Mr. Castaneda testified that there was no translated testament attached to the Mexican will prepared for Wyonea. He further testified that there was no indication that an interpreter or translator performed the requisite duties pursuant to the Civil Code for the Mexican State of Baja California for preparing a testament for a person who does not speak Spanish.
The basis of Rahmon's objection was that Mr. Castaneda was not qualified to testify as an expert witness because he was not a public notary, which Rahmon contended was an elite, specialized position.
Mr. Castaneda was questioned regarding a medical certificate that was attached to the Mexican will, which stated that Wyonea was "healthy" and "cognitive." He explained that it was not customary to issue a medical certificate in this broad and nonspecific way. Rather, customarily, the medical certificate, which under Mexican law is required to be attached to the testament, indicates the type of tests that were done and the results of those tests, based upon which a determination would be made as to the testator's physical and mental state at the time of executing the testament. The medical certificate attached to the Mexican will did not indicate what tests were completed in order to determine Wyonea's physical and mental condition at the time she executed the will.
Testimony of Rahmon Iturbe Henderson
At the hearing, Rahmon testified that his mother, Wyonea, married his father, a Mexican man, in 1937 and lived in Mexico for ten or twelve years. He stated that Wyonea spoke Spanish and was able to communicate in Spanish with his family and friends. When confronted with a greeting card he sent to Wyonea in 1990, which contained a handwritten English translation of the Spanish message in the card, Rahmon explained that when he saw a "nice message," he translated it and spread it among his Mexican and English speaking friends. Rahmon elaborated that "if it was a card I wanted my mother to understand better yet, I would [translate] it."
According to Rahmon, in 2006 and 2007, after Wyonea had moved with him to Mexico, she played bridge. When she stopped playing bridge, she played solitaire using a magnifying glass. Rahmon testified that Wyonea could read and that she used a magnifying glass to read letters from friends. Rahmon acknowledged that Wyonea had been diagnosed with Macular Degeneration. Further, Rahmon admitted that he had previously testified in his 2008 deposition that Wyonea did not socialize because "she can't see well."
Rahmon testified that he was registered as a certified translator of the superior court of justice in La Paz, Mexico. Rahmon retained a notary to perform the April 19, 2011 Mexican will.
Testimony of Raquel Iturbe
Raquel, Rahmon's daughter, was called to testify on Rahmon's behalf. She claimed that when she was a child, Wyonea spoke to her and her siblings in Spanish. According to Raquel, during the time Wyonea lived in Mexico with Rahmon, from 2005 until 2011, she and Wyonea communicated in English, although she witnessed Wyonea communicating with her caretakers in Spanish. Raquel testifed that during the last several weeks of Wyonea's life, Wyonea came to stay with her in Oregon where she lives and, at that time, Wyonea was not blind, but was able to see Raquel and her children.
Testimony of Anna Watt
Anna, also Rahmon's daughter, testified that she had lived in the New Orleans area since 2001. Anna claimed that from 2001 until August 2005, she visited her grandmother, Wyonea, every weekend. She stated that Wyonea stayed with her for a few weeks in 2011 and, at that time, Wyonea was able to walk with a walker and was able to see. Anna acknowledged that Wyonea had been diagnosed with Macular Degeneration, a progressive disease, and that by 2008, Wyonea could not see well enough to read. Anna explained, however, that Wyonea was not like Helen Keller with "no sense of light." Anna also testified that when she was with her in 2011, Wyonea spoke Spanish. Further, Anna testified that, to her knowledge, Wyonea had not been diagnosed with either Alzheimer's disease or senility.
Testimony of Jose Antonio Alegre Ochoa
Mr. Alegre was called to testify, through an interpreter, as an expert witness on behalf of Rahmon. He testified that he is an attorney licensed to practice law in Mexico and lives in La Paz of California Baja Sur. The trial court accepted Mr. Alegre as an expert on "Mexican law," however, it was established that Mr. Alegre, in fact, does not have a law license and, while his Mexican notary license allows him to intervene in contracts and commercial matters, it does not allow him to prepare wills.
Mr. Alegre testified that Article 1418 of the Civil Code for the Mexican State of Baja California applies to a testator that is blind. According to Mr. Alegre, this provision is applicable to persons completely devoid of sight, not to persons with diminished sight. He further testified that Article 1422 applies to a testator that does not speak the Spanish language at all. When questioned regarding the medical certificate that was attached to the Mexican will, Mr. Alegre testified that he found it to be "completely normal" and, in his expert opinion, established that Wyonea "had physical and mental health" at the time she executed the Mexican will.
On cross-examination, Mr. Alegre testified that he and Rahmon were friends and had known one another for over thirty years. Further, he conceded that the medical certificate attached to the Mexican will contained no information identifying the testing performed to support the conclusion that Wyonea was in good physical and mental health at the time she executed the will.
An interpreter, who assisted the court in the testimony of Mr. Alegre, was asked by the trial court to translate into the record those provisions of the Civil Code for the Mexican State of Baja California pertaining to the execution of testaments by persons who are blind and by persons who are unable to speak Spanish. Article 1421 of the Civil Code for the Mexican State of Baja California was translated by the interpreter as follows:
[W]hen the testator is blind or cannot or does not know how to read, the testament will be read twice, once by the public notary as provided in Article 1417, and again in the same manner by one of the witnesses or another person the testator designates.
Additionally, Article 1422 was translated by the interpreter as follows:
[W]hen the testator does not know the language of the country, if they can—if they can, they will write their testament. That [testament] will be translated into Spanish by the interpreter designated by same. The translation will be transcribed as the testament in the respective protocol and the original will be filed in the corresponding appendix of the notary who intervenes in the act.
At the close of the hearing, having found the Mexican will to be invalid based on the testimony and evidence presented, the trial court issued an oral judgment granting Sharlene's motion to quash the ex parte judgment substituting Rahmon as plaintiff, granting the exception of no right of action, and granting the motion to substitute Sharlene as the proper plaintiff in this case. The trial court also denied Rahmon's motion to strike.
On December 2, 2016, Rahmon moved to appeal the trial court's rulings on his motion to strike and Sharlene's motions and exception, which the trial court granted on December 9, 2016. On that same date, the trial court issued a written judgment memorializing its prior oral rulings rendered at the close of the November 2, 2016 hearing. The trial court designated the judgment as final in accordance with La. C.C.P. art. 1915.
Though Rahmon filed his motion for appeal prior to the trial court having signed the written judgment designating it as final, the Louisiana Supreme Court, noting that appeals are favored in law, has held that if a judgment is signed before anyone moves to dismiss the appeal, then the defect is cured. Overmier v. Traylor , 475 So.2d 1094, 1095 (La. 1985).
ISSUES PRESENTED FOR REVIEW
On appeal, Rahmon assigns as error the trial court's abuse of discretion in denying his motion to strike the untimely motions and exception brought by Sharlene. Rahmon also assigns as error the trial court's erroneous grant of Sharlene's exception of no right of action claiming the Mexican will naming him as Wyonea's universal heir to have been validly executed.
Conversely, Sharlene avers that the trial court correctly determined the Mexican will to be invalid, leaving in effect the 2003 will, which names Sharlene as the executrix and universal legatee. Hence, a determination as to the proper party to substitute as the plaintiff for the deceased, Wyonea, in these proceedings hinges on the validity of the Mexican will.
LAW AND DISCUSSION
1. Applicable Law and Standard of Review
A trial court is vested with vast discretion in deciding whether to modify a pretrial order when it is necessary to prevent manifest injustice. Absent an abuse of discretion, the decision of the trial court will be upheld. In deciding whether to modify a pretrial order, a trial court must be ever mindful of the fact that the objective of our legal system is to render justice between litigants upon the merits of the controversy rather than to defeat justice upon the basis of technicalities.
La. C.C.P. art. 1551 ; Naylor v. Louisiana Dept. of Public Highways , 423 So.2d 674, 679 (La. App. 1 Cir. 1982).
Naylor , 423 So.2d at 679–680.
The function of the exception of no right of action is to determine whether a plaintiff has a real and actual interest in an action or belongs to a particular class to which the law grants a remedy for a particular harm alleged. The burden of proof of establishing the exception of no right of action is on the exceptor. The exception of no right of action tests whether the plaintiff has a "real and actual interest" in the action, but it does not raise questions of the plaintiff's ability to prevail on the merits or whether the defendant may have a valid defense. At the hearing on the exception of no right of action, the exception may be submitted on the pleadings, or evidence may be introduced either in support of or to controvert the objection raised when the grounds thereof do not appear from the petition. An appellate court reviewing a lower court's ruling on an exception of no right of action should focus on whether the particular plaintiff has a right to bring the suit and is a member of the class of persons that has a legal interest in the subject matter of the litigation, assuming the petition states a valid cause of action for some person. The determination as to whether a plaintiff has a right to bring an action raises a question of law, which requires de novo review.
Hood v. Cotter , 08-0215, p. 17 (La. 12/2/08), 5 So.3d 819, 829 ; Dufrene v. Insurance Co. of State of Pennsylvania , 01–47, pp. 17-18 (La. App. 5 Cir. 5/30/01), 790 So.2d 660, 668.
Roubion Shoring Co., LLC v. Crescent Shoring, L.L.C. , 16–540, 16-541, p. 7 (La. App. 5 Cir. 5/17/17), 222 So.3d 921, 926.
Lemmon Law Firm, LLC v. Sch. Bd. of St. Charles , 13-376, pp. 11-12 (La. App. 5 Cir. 12/12/13), 131 So.3d 231, 236.
La. C.C.P. art. 931.
Eagle Pipe & Supply, Inc. v. Amerada Hess Corp. , 10-2267, pp. 11-12 (La. 10/25/11), 79 So.3d 246, 256.
Holly & Smith Architects, Inc. v. St. Helena Congregate Facility, Inc. , 06-0582, p. 9 (La. 11/29/06), 943 So.2d 1037, 1045.
Louisiana Code of Civil Procedure article 801 provides for the substitution of a deceased party when a party dies during the pendency of an action that is not extinguished by his death. If such is the case, the party's "legal successor" may have himself substituted for the deceased party, on ex parte written motion supported by "proof of his quality." Legal successor is defined, in pertinent part, as "the heirs and legatees of the deceased, if the deceased's succession is not under administration."
While the determination regarding whether a plaintiff is the proper party with the right to bring an action pursuant to La. C.C.P. art. 801 is a question of law subject to de novo review, in the case sub judice , the trial court made factual findings prior to making its decision on the law. This court reviews factual findings under the manifest error/clearly wrong standard of review. Under this standard, a lower court's factual findings can only be reversed when (1) the record reflects that a reasonable basis does not exist for the lower court's finding, and (2) the record establishes that the finding is clearly wrong. Where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The appellate review of fact is not completed by reading only so much of the record as will reveal a reasonable factual basis for the finding in the trial court, but rather, if the trial court's findings are reasonable in light of the record when reviewed in its entirety, the court of appeal may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the fact finder's choice between them cannot be manifestly erroneous or clearly wrong.
Bonin v. Ferrellgas , 03-3024, p. 11 (La. 7/2/04), 877 So.2d 89, 94.
Baumeister v. Plunkett , 95-2270, p. 7 (La. 5/21/96), 673 So.2d 994, 998.
Riser v. American Medical Int'l, Inc. , 620 So.2d 372, 376 (La. App. 5th Cir. 1993)citing Rosell v. ESCO , 549 So.2d 840, 844–5 (La. 1989).
Id.
Id.
The trial judge has broad discretion in determining the admissibility of expert testimony and who should or should not be permitted to testify as an expert. The trial court's ruling on the admissibility of expert testimony will not be disturbed absent an abuse of discretion. A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert's scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue. Generally, the test of competency of an expert is the expert's knowledge of the subject about which he is called upon to express an opinion. A combination of specialized training, work experience, and practical application of the expert's knowledge can combine to establish that person as an expert. Whether a witness has previously been qualified as an expert is also something the court can take into consideration when determining whether to qualify a witness as an expert. Although domestic law testimony is not admissible on the theory that the court itself is the expert on domestic law, foreign law testimony is admissible in order to assist the trier of fact.
Cheairs v. State , 03-0680, p. 10 (La. 12/3/03), 861 So.2d 536, 541.
State v. Otkins–Victor , 15-340, p. 108 (La. App. 5 Cir. 5/26/16), 193 So.3d 479, 525.
La. C.E. art. 702(1).
Otkins–Victor , 15–340, p. 108, 193 So.3d at 525.
Id. , 15–340, p. 109, 193 So.3d at 525.
State v. Craig , 95-2499, p. 14 (La. 5/20/97), 699 So.2d 865, 870, cert. denied, 522 U.S. 935, 118 S.Ct. 343, 139 L.Ed.2d 266 (1997).
Crowe v. Bio–Medical Application of La., LLC, 14-0917, p. 19 (La. App. 1 Cir. 6/3/16), 208 So.3d 473, 482.
Applying the legal precepts outlined above, we now turn to the facts presented in the instant case to determine whether the trial court erred in denying Rahmon's motion to strike and in granting Sharlene's exception of no right of action.
1. Motion to Strike
Rahmon contends that the trial court erred in failing to grant his motion to strike the motions and exception of no right of action brought by Sharlene on the basis that they were filed after the expiration of the pretrial order's deadline for filing contradictory and dispositive motions. As noted previously, absent an abuse of discretion, the decision of the trial court will be upheld.
Based upon our review of the record in its entirety, and finding no prejudice to Rahmon in allowing the motions and exception to go forward, we find no abuse of the trial court's vast discretion in denying Rahmon's motion to strike. This assignment of error is without merit.
2. Exception of No Right of Action
In his next assignment of error, Rahmon avers the trial court erred in granting Sharlene's exception of no right of action and in dismissing his claim to proceed as the plaintiff in this case. Rahmon argues the trial court's conclusion that he had no right of action was based on the reliance on inadmissible evidence, which led to the erroneous finding that the Mexican will was invalid. Specifically, Rahmon contends that: Homero Casteneda Munoz was erroneously qualified to provide expert testimony; the testimony elicited at the hearing pertaining to alleged donations inter vivos made by Wyonea to Sharlene was inadmissible because it was irrelevant to the determination of whether or not Rahmon fell within the class of persons having a legal right or interest in pursuing the suit as plaintiff; the transcript of the recorded telephone conversation between Rahmon, Wyonea, and Sharlene was inadmissible as neither Rahmon nor Wyonea were allegedly aware that the conversation was being recorded; and the Mini–Mental State Examination ("MMSE") of Wyonea relating to a 2005 examination conducted by a physician in Arizona, which indicated Wyonea suffered from mild dementia, was inadmissible hearsay evidence.
a. The Alleged Inadmissible Evidence
As noted previously, absent a clear abuse of discretion, a trial court's ruling on the admissibility and relevancy of evidence will not be disturbed on appeal.
i. Expert Testimony of Homero Casteneda Munoz
Rahmon argues that Mr. Castaneda was not qualified to testify as an expert at the hearing because he was not a Notario Publico in Mexico, he had never before prepared an open public testament, and he had not previously been admitted in any court as an expert in Mexican law related to testaments. To the contrary, it was established that Mr. Castaneda's law practice involved probate matters, including having assisted clients with the probation of wills in Mexico. Further, Mr. Castaneda testified that he was licensed and had practiced as an attorney in Mexico for 14 years and, as such, was familiar with the Civil Code for the State of Baja California, especially those provisions that regulate how wills are issued and the requirements for the issuance of such wills. Moreover, Mr. Castaneda testified that he was familiar with the types, roles, appointments and limits of authority of Mexican Notario Publicos. He explained that he had previously appeared with non-speaking Spanish clients in the course of their having executed a Mexican will and had, on occasion, acted as an interpreter. Additionally, Mr. Castaneda testified that he had been admitted as an expert in Mexican law in an Arizona magistrate court. The record reflects that the trial judge specifically questioned Mr. Castaneda regarding his knowledge of wills in Mexico. Based upon our review of the record, we find no abuse of discretion in the trial court's decision to qualify Mr. Castaneda as an expert on Mexican law regarding "wills and testaments."
ii. Miscellaneous Testimony and Exhibits
Rahmon also avers the trial court abused its discretion in admitting into evidence the testimony pertaining to the alleged inter vivos donations, the recording and transcript of the telephone conversation that took place between Rahmon, Wyonea and Sharlene, and the MMSE test. We find no indication in the record that the trial court relied on this evidence in ruling on the exception of no right of action, which was based solely on a finding that the Mexican will was invalid due to Wyonea's inability to see and her inability to speak and/or read in Spanish. Accordingly, we find this assignment of error is without merit.
b. The Mexican Will
As part and parcel of his assignment of error that the trial court erroneously granted Sharlene's exception of no right of action, Rahmon contends the trial court erred in finding that the formal requirements to execute a Mexican testament for a testator who is blind and cannot speak the Spanish language were not met in this case, and in ruling that the Mexican will was invalid under Mexican law. According to Rahmon, the testimony and evidence presented at the hearing established that when Wyonea executed the Mexican will in 2011, she was clinically healthy, medically competent, able to see, and knew the Spanish language. Consequently, Rahmon argues, the Codal provisions relating to blind persons and persons unable to speak Spanish did not apply to Wyonea and, therefore, the testament should have been deemed valid and Sharlene's exception of no right of action overruled.
When making its determination regarding whether or not the formal requirements for executing a testament in Mexico were met, and in ruling on the applicability of these provisions to Wyonea at the time she executed the 2011 Mexican will, Rahmon argues the trial court should have relied on the testimony of his expert, Mr. Alegre, over that of Sharlene's expert, Mr. Castaneda. Concerning the requirements for a testator who is "blind or cannot or does not know how to read," Mr. Alegre testified that "blindness" means the state of being "devoid of sight." According to Mr. Alegre, Mexican law requires a testament to be read aloud to the testator only when the testator is completely blind or devoid of sight, not when the testator is unable to see due to diminished eyesight.
To the contrary, Mr. Castaneda testified that "blindness" refers to the inability to see what is in front of a person. According to Mr. Castaneda, if Wyonea was unable to identify documents or unable to see what was placed in front of her at the time she executed the Mexican will in 2011, the testament would be invalid under Mexican law because it was, admittedly, not previously read aloud to her.
The trial judge made a factual determination based on the credibility of the witnesses when deciding to credit Mr. Castaneda's testimony over Mr. Alegre's regarding what Mexican law requires when a testator is unable to see. We find no error as the record provides a reasonable factual basis for the trial court's decision. The evidence presented at the hearing established that Wyonea suffered from Macular Degeneration, a condition that negatively affects a person's ability to see. As early as May 2008, when Wyonea was deposed in this case, she was unable to read or even recognize various documents that were presented to her and was unable to identify facial features of the deposing attorney. The record establishes that she quit driving in 2005 and no longer played bridge because she was unable to see. Further, in Rahmon's own 2008 deposition, he testified that his mother "can't see well." The testimony of Teena Cross further confirmed that Wyonea was unable to see. She testified that in 2006, Wyonea was unable to see or read a lease agreement and required assistance in order to know where to sign her name on the document.
The trial court found that the credible evidence, particularly Wyonea's own deposition testimony, established that Wyonea "was sight impaired by 2009 and could not have possibly executed or read a will in 2011." Our review of the record convinces us that the trial court's conclusion was neither clearly wrong nor manifestly erroneous.
As to the requirements under Mexican law regarding a testator's ability to speak Spanish, Mr. Alegre testified that the Civil Code for the Mexican State of Baja California does not require Spanish to be the testator's first language, but rather, only applies "when [the testator does not] speak any Spanish." The trial court similarly rejected this interpretation and concluded, based on the evidence presented, that Wyonea was not able to read or understand Spanish at the time she executed the 2011 Mexican will. We find the record supports the trial court's factual determination.
In her 2008 deposition, Wyonea testified that she did not have much knowledge of the Spanish language, and that she understood Spanish "a little bit. But not very much." Wyonea's testimony regarding her limited ability to understand Spanish was bolstered by the testimony of Treena Cross, who is fluent in Spanish. Ms. Cross testified that during the time she spent with Wyonea, she made several attempts to converse with Wyonea in Spanish, and Wyonea never gave any indication that she even understood the Spanish language. We find this evidence provides a reasonable factual basis for the trial court's conclusion that, at the time Wyonea executed the Mexican will in 2011, she was unable to sufficiently read, speak, or understand the Spanish language.
Considering the testimony and evidence submitted at the hearing, we find no error in the trial court's determination that, at the time Wyonea executed the Mexican will in 2011, she was unable to see and unable to speak and understand the Spanish language. Further, we find no error in the trial court's determination that, under Mexican law, because the requirements governing the execution of a testament by a person who cannot see and who cannot read or speak Spanish were not followed, the 2011 Mexican will is null and void.
Once it concluded that the Mexican will was invalid, the trial court properly turned to the 2003 testament executed by Wyonea in order to determine whether Rahmon had a right of action to proceed as the voluntarily substituted plaintiff for Wyonea in this case. The 2003 will named Sharlene as the universal legatee, not Rahmon. Accordingly, the trial court correctly determined that, under La. C.C.P. art. 801(2), Rahmon, who is not a legatee under the 2003 testament, was not the proper party to be substituted for Wyonea as the plaintiff in this matter and that Rahmon has no right of action or interest in this suit. Based on the record evidence, the proper party to be substituted for Wyonea is Sharlene. Consequently, the trial court was correct in granting Sharlene's exception of no right of action.
Based upon our review of the record in its entirety, we find no error in the trial court's denial of Rahmon's motion to strike. Additionally, we find the trial court correctly granted Sharlene's exception of no right of action and dismissed Rahmon's claim to Wyonea's action. We further find the trial court was correct in quashing Rahmon's ex parte motion recognizing him as the voluntarily substituted plaintiff, and in granting Sharlene's motion for voluntary substitution, substituting Sharlene, the universal legatee, as the plaintiff in accordance with La. C.C.P. art. 801(2).
For the foregoing reasons, we affirm the trial court's judgment.
AFFIRMED.
WICKER J., DISSENTS WITH REASONS
I respectfully dissent for the following reasons. This appeal arises out of a "Petition for Damages" filed by Wyonea Henderson Rolland on November 22, 2006, nearly five years prior to her death. In this petition, Ms. Rolland asserted claims of conversion and breach of fiduciary duty against defendant, Sharlene Ray Ruffino—her granddaughter. On March 30, 2009, Ms. Rolland amended her petition and raised a claim for revocation of donations inter vivos against Ms. Ruffino. During the pendency of this action, Ms. Rolland died on October 14, 2011. Thereafter, her surviving son, Ramon Iturbe Henderson, filed an "Ex Parte Motion for Voluntary Substitution," pursuant to La. C.C.P. art. 801. Ramon attached to this motion, as proof of his quality, a testament allegedly executed by Ms. Rolland in Mexico in 2011 (the "Mexican will") which named Ramon her "sole and universal heir." After the District Court issued an order granting Ramon's motion for voluntary substitution, the District Court granted defendant's motion for summary judgment and dismissed the conversion and the breach of fiduciary duty claims, leaving only Ms. Rolland's claim for revocation of donations inter vivos . On August 1, 2016, Sharlene filed her "Motion to Quash Order Granting Ex Parte Motion for Voluntary Substitution, Defendant's Peremptory Exception of No Right of Action, and Motion for Voluntary Substitution," attacking the 2011 Mexican will Ramon had submitted as his proof of quality and attaching a 2003 Louisiana testament which names Sharlene as Ms. Rolland's universal legatee. After a hearing on these motions and the exception of no right of action, the District Court issued a judgment granting Sharlene's motion to quash the order granting Ramon's ex parte motion for voluntary substitution, granting her exception of no right of action, and granting her own motion for voluntary substitution. Ramon appeals from this judgement.
At the time this action was filed, Ramon Iturbe Henderson, putative plaintiff in this action, was acting on behalf of his mother by virtue of a general power of attorney.
Ms. Rolland's testament was written in Spanish. The words "sole and universal heir" come from a translation of the will which was admitted into evidence at the hearing on defendant's motion to quash the order granting Ramon's motion for voluntary substitution, defendant's exception of no right of action, and defendant's motion for voluntary substitution.
Pretermitting the merits of the assignments of error on appeal, in my opinion, the District Court erred as a matter of law when it granted Defendant's "Motion to Quash Order Granting Ex Parte Motion for Voluntary Substitution, Peremptory Exception of No Right of Action, and Motion for Voluntary Substitution." When a party dies during the pendency of an action which is not extinguished by his death, his legal successor may have himself substituted for the deceased party, on ex parte written motion supported by proof of his quality. La. C.C.P. art. 801. La. C.C.P. art. 801 provides two independent definitions of "legal successor." In my view, La. C.C.P. art. 801(1) applies such that Ramon, as a designated survivor under La. C.C. art. 2315.1, should have been allowed to continue the action his mother initiated. Even if this action did not survive in Ramon's favor under La. C.C.P. art. 801(1), I find the District Court erred as a matter of law when it decided the validity of the Mexican will instead of suspending this proceeding to allow for a succession to rule on the validity of both the Mexican will and the will which names Sharlene as the universal legatee. The crux of the defendant's argument is that the legatee under the will is the proper plaintiff to be substituted in the case. However, there are two conflicting wills. Each party objects to the status of the other as "legatee" and ipso facto to the validity of the other's will. A succession has never been opened, and neither will has been probated or proved in a succession proceeding. A hearing on an exception of no right of action is not, in my opinion, the proper setting to decide a will contest, as the rules of procedure and evidence are different for each type of proceeding. Furthermore, it is my opinion that Sharlene cannot be substituted in this case as she is the named defendant and therefore has a conflict of interest. For that reason, I believe Ramon is the proper plaintiff absent a showing that he also has a conflict. If Ramon also has a conflict, the proper action would be for the court to stay this case pending the opening of the and the appointment of a disinterested representative.
In expressing the opinion that Ramon should be allowed to continue the suit, I do not mean to suggest that I believe he will succeed on the merits. I find only that Ramon has a right of action.
La. C.C.P. art. 801 includes the definition of "legal successor" for substitution purposes. As used in Articles 801 through 804, "legal successor" means:
(1) The survivors designated in Article 2315.1 of the Civil Code, if the action survives in their favor; and
(2) Otherwise, it means the succession representative of the deceased appointed by a court of this state, if the succession is under administration therein; or the heirs and legatees of the deceased, if the deceased's succession is not under administration therein.
A plain reading of the article suggests that, once a provision applies, further provisions need not be considered. Jurisprudence has confirmed, "the wording of C.C.P. art. 801 clearly shows that C.C. art. 2315 beneficiaries are to be given first preference in the definition of ‘legal successor.’ " Nathan v. Touro Infirmary , 512 So.2d 352, 355 (La.1987). The very first class of persons designated as survivors under La. C.C. Article 2315.1(A)(1) are "[t]he surviving spouse and or child or children of the deceased, or either the spouse or the child or children." No one disputes that Ramon is Ms. Rolland's only surviving child. The pleadings, including the original and supplemental petitions for damages filed before the death of Ms. Rolland, as well as Ms. Rolland's deposition testimony, her death certificate, and multiple witnesses' testimony at the exception hearing establish that fact in the record. If the first definition of "legal successor" applies, then Ramon is the only proper party to be substituted because there are no other surviving members of the first class of beneficiaries under Article 2315.1. Grandchildren do not belong in any of the classes of designated survivors, and courts have repeatedly refused to expand the statutory categories to include them. See Mazoue v. Avondale Indus. Inc. , 02-1569 (La.App. 4 Cir. 1/22/03), 839 So.2d 171, 172, writ denied , 03-0542 (La. 4/25/03), 842 So.2d 406 ; Dufrene v. Avondale Industries , 01-1474 (La. App. 4 Cir. 8/22/01), 795 So.2d 456, 459, writ denied 01-2613 (La. 10/26/01), 799 So.2d 1156. Additionally, the succession representative may only bring suit under Article 2315.1 in the absence of any class of beneficiary set out in Paragraph A. La. C.C. art. 2315.1(B) (Emphasis added).
Ms. Rolland was widowed and her other child pre-deceased her. Multiple parties and documents testify to these facts on the record.
Therefore, pursuant to La. C.C.P. art. 801(1), Ramon—as a survivor "designated in Article 2315.1 of the Civil Code"—is the "legal successor" and the proper party for substitution "if the action survives in [his] favor." Presumably this language is derived from La. C.C. art. 2315.1 which says, "If a person who has been injured by an offense or quasi offense dies, the right to recover all damages for injury to that person, his property or otherwise, caused by the offense or quasi offense, shall survive... in favor of [the listed beneficiaries]." (Emphasis added). The question is "what counts as an offense or quasi offense?" Because La. C.C. art. 2315.1 involves "the right to recover all damages for injury," courts have commonly interpreted the terms "offense or quasi offense" to encompass tort claims. Following the Supreme Court's ruling in Nathan , courts have repeatedly held that "the right to continue a tort action instituted prior to the tort victim's death belongs to article 2315.1 beneficiaries, not to the tort victim's heirs under succession law." Mazoue , 839 So.2d at 172, (citing Dufrene , 795 So.2d at 458 ); see, e.g. , Carl v. Naquin , 93-1725 (La. App. 1 Cir. 5/20/94), 637 So.2d 736, 738 (dismissing succession administrator as plaintiff because decedent was survived by a brother, a designated beneficiary under Article 2315.1 ).
Conversion and breach of fiduciary duty clearly fall into the category of tort personal injury claims. Thus, before summary judgment was granted on December 10, 2015, dismissing the claims of conversion and breach of fiduciary duty, Ramon was the only proper plaintiff as a matter of law because the action to recover damages for these offenses survived in his favor. See La. C.C. 2315.1(A). Nevertheless, with the claim for revocation of donations inter vivos remaining and attendant damages, the District Court granted Sharlene's exception of no right of action based on a determination that Ramon's proof of quality, the Mexican will he attached to his motion for voluntary substitution, was invalid. Sharlene argued that if Ramon's proof of quality failed, the substitution could not be sustained, and Ramon had no right of action to continue the suit.
The exception of no right of action tests whether the plaintiff belongs to the class of persons with a real and actual interest in bringing the suit. La. C.C.P. art. 681 ; La. C.C.P. art. 927 ; Ridgedell v. Succession of Kuyrkendall , 98-1224 (La. App. 1 Cir. 5/19/99), 740 So.2d 173, 177. Ramon's right of action derived from his relationship to the decedent not from the type of documentation he submitted as his proof of quality. As previously discussed, the action determines which category of "legal successor" may be substituted. When the action survives in favor of Article 2315.1 beneficiaries, the Nathan court declared, "[i]f there are C.C. art. 2315 beneficiaries in existence, they are the legal successors." 512 So.2d at 355. Although Ramon sought substitution by virtue of his status as the universal legatee under the Mexican will, his legal status as a designated beneficiary under La. C.C. art. 2315.1 was established on the face of the pleadings. A similar situation arose in Short v. Plantation Management Corp. , 99-0899 (La. App. 1 Cir. 12/27/00), 781 So.2d 46. A woman filed a negligence and strict liability suit against a nursing home, and died while the suit was pending. Id. at 50. The decedent's daughter was substituted for the plaintiff in her capacity as administratrix of the succession. Id. The defendants raised the exception of no right of action asserting that Article 2315.1 beneficiaries were the proper parties. Id. at 51. The court refused to grant the exception simply because the daughter was substituted as the legal successor under La. C.C.P. art. 801(2). Id. at 52. It was an established fact that the daughter was also a designated beneficiary under Article 801(1). Id. Comment (B) to La. C.C.P. art. 865 of explains, "The courts of this state have always professed never to favor technical objections and harsh rules of pleadings." The ruling in Short is consistent with this idea and with La. C.C.P. art. 5051 which provides, "The articles of this Code are to be construed liberally, and with due regard for the fact that rules of procedure implement the substantive law and are not an end in themselves." As a matter of law, pursuant to La. C.C.P. art. 801(1), if the action survived in favor of La. C.C. art. 2315.1 beneficiaries, Ramon was not obligated to present the will or prove its validity; he could have simply submitted the death certificate and affidavits establishing that he was the surviving son of the deceased as his proof of quality. See, e.g. , Austrum v. City of Baton Rouge , 282 So.2d 434, 438–39 (La.1973) (holding that deceased's children were properly substituted by ex parte written motion supported by duly notarized affidavit of two persons as to death and heirship of the deceased). If the petition established Ramon's right of action as a designated Article 2315.1 beneficiary, the court should not have considered evidence regarding the validity of the Mexican will. The argument that the proof of quality was insufficient amounts to a technical objection if the action survives in Ramon's favor, and the court should have chosen to do justice on the pleadings. La. C.C.P. art. 865.
A practical discussion of the claims still before the court at the hearing on the exception of no right of action leads me to believe that Ramon remained the only proper party to be substituted for his mother. In 1855, the Louisiana legislature, for the first time, specifically acknowledged the survival action and grounded it in the bedrock principle set forth in La. C.C. art. 2315 : "Every act whatever of man, that causes damage to another, obliges him, by whose fault it happened, to repair it." See Jason R. Johanson, Comment, Common Law "Intervention": The Rights of Successors and the Uneasy History of Louisiana's Survival Action , 77 Tul. L. Rev. 737, 738, 742. Previously, actions for personal injuries, even ones already instituted, died with the victim. Revisions to the survival action statute in 1960 along with the enactment of the Louisiana Code of Civil Procedure established that, with the exception of actions to enforce strictly personal obligations, both the right to enforce an obligation and an action already instituted are the property of the obligee, which survives and is heritable after his or her death. La. C.C.P. art. 426 ; La. C.C.P. art. 428. In its discussion of the history of the survival action, the court in J. Wilton Jones Co., Inc. v. Liberty Mutual Insurance Company explained the rationale behind the concept of a transferrable right of action when it remarked on the 1960 amendments:
[T]oday, unless the obligation to repair fault-caused damages is strictly personal, an instituted action to enforce that obligation does not abate on the plaintiff's death. Indeed, the obligation is purely one to pay money in an amount equated to the damage caused; and in this character it is not different from an obligation to pay money for contractual breach damages, or any other obligation to pay money.
248 So.2d 878, 890 (La. App. 4 Cir. 1971). In holding that a personal injury claim survived in favor of beneficiaries after the death of the victim, the court concluded, "a tortfeasor's obligation to pay money to repair the damage he caused is not strictly personal as to the obligee victim" because the payment of money could benefit the obligee's heirs. J. Wilton Jones , 248 So.2d at 890 ; see La. C. C. arts. 1999 & 2001 ; see also Guidry v. Theriot , 377 So.2d 319, 324 (La. 1979).
Even after the dismissal of the per se tort claims, this action seeks damages based on allegations that defendant exhibited tortious-like behavior in her control of her grandmother's property. The claims before the court were for revocation of inter vivos donations for reasons including failure to retain subsistence and failure to perform conditions. The pleadings smack of fraud with allegations of "self-dealing" and improper assertion of dominion. The damages sought, including return of property, monetary damages equal to the value of property, and mental anxiety and anguish, are damages allegedly incurred by Ms. Rolland before her death. These allegations amount to an injury as the grounds for revocation would never be proven absent a showing of wrongdoing on the part of the Sharlene. Furthermore, the damages, should they be awarded, would compensate for the injury caused by the alleged bad behavior, as in a personal injury suit. Also like personal injury suits, where the money paid after death no longer brings the victim any particular comfort, the damages awarded could benefit the survivors of the deceased. For these reasons this case is one that should survive in favor of the designated survivors listed in La. C.C. art. 2315.1.
However, even if this claim does not "survive in favor" of Ramon as a 2315.1 beneficiary, Sharlene is an appropriate party to be substituted as she is the defendant in this action and therefore has a conflict of interest. Ramon, unless he also has a conflict of interest, is still a proper party plaintiff. Regardless of whether Ramon is able to prove that Sharlene is liable for the damages being claimed, the defendant in a claim for revocation of donations inter vivos cannot be substituted for the plaintiff. Howard v. Administrators of Tulane Educational Fund , 07-2224 (La. 7/1/08), 986 So.2d 47, is illustrative of this point. Beginning in 1886, Mrs. Josephine Newcomb repeatedly donated money to Tulane for the establishment of H. Sophie Newcomb Memorial College within Tulane University. Id at 51. Upon her death in 1901, Mrs. Newcomb, via olographic will, left her entire estate, excepting a few special legacies, to the "Administrators of the Tulane Educational Fund" as her universal legatee, expressing in her testament her
implicit confidence that the "Administrators of the Tulane Educational Fund" will continue to use and apply the benefactions and property, I have bestowed and may give, for the present and future development of this Department of the University Known as the H. Sophie Newcomb Memorial College which engrosses my thoughts and purposes, and is endeared to me by such hallowed associations.
Id. at 51–52. Nearly 100 years later, the Tulane board voted to close Newcomb College and to merge it into a single undergraduate university. The Howard plaintiffs—alleged collateral heirs of Mrs. Newcomb—brought suit to enjoin the closing of Newcomb College, asserting non-performance of the conditions placed on Mrs. Newcomb's donations inter vivos and causa mortis . Id. at 52. The Administrators of the Tulane Education Fund, as Ms. Newcomb's universal legatee, filed a peremptory exception of no right of action and, eventually, the Louisiana Supreme Court addressed the issue of whether "would-be" heirs had the right to assert a cause of action on behalf of a donor when the donee is the universal legatee. Id . at 53. The Supreme Court held that the right of revocation or enforcement of conditions on inter vivos or causa mortis gifts, belongs to the donor and his heirs or "would-be" heirs. Id. at 57 (incorporating La. C.C art. 1559 ; La. C.C. art 1610.1 ). Specifically, in cases where the obligation or condition was imposed on the universal legatee, "the revocation of the legacy could be demanded by the intestate heirs, i.e. , would-be heirs, because the revocation of the legacy would rebound to the benefit of those heirs." Howard , 986 So.2d at 57. As the Howard court recognized, this was the only equitable solution because "[i]f the would-be heirs had no action to proceed against the universal legatee, then the legatee could default on his obligations with impunity, and Articles 1559 and 1610.1 would exist without effect." Id. at 59.
The plaintiffs submitted affidavits tracing their ancestry back to Mrs. Newcomb's sister. The Court ultimately held that this was not enough to establish that they would be intestate or "would-be" heirs of Mrs. Newcomb, but the Court remanded the case to allow plaintiffs to amend their petition and establish a right of action.
La. C.C. art. 1559 provides the causes for which a donation inter vivos may be revoked, including ingratitude and non-performance of conditions. La. C.C. art. 1610.1 extends the same causes to gifts causa mortis .
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Howard allows for the persons who would benefit from the revocation of donations to institute an action against the donee, even if the donee is also the universal legatee. In the instant case, the donor, Ms. Rolland, had already instituted this action when she manifested an intention to revoke the donations by amending her petition. The right of action to enforce the conditions attending the donations or to revoke them belongs to the donor and to her heirs. No court has determined whether Sharlene is the heir/legatee under a valid testament. This is not a succession, and the testament to which Sharlene points has not been probated. The matter before the court is separate and apart from determining the legal heir of Ms. Rolland's estate. This action is an action for revocation and damages. The issue for trial was whether donations made to Sharlene by her grandmother should be revoked for non-performance of conditions or other valid causes. The proper party to bring the action or, in this case, to be substituted for the donor, was the party who would benefit from the revocation. For the simple reason that Sharlene is also the defendant in the initiated suit, substituting her as the plaintiff is out of the question. Obviously, she would never continue to seek revocation of donations made to her. The revocation would not benefit her. In this case, Ramon would be the heir intestate and is the proper party to be substituted.
In my view, Ramon, as a surviving son and qualifying legal successor under La. C.C.P. art. 801(1), is the proper party plaintiff to be substituted in this suit because he is a designated survivor as set forth in La. C.C. art. 2315.1. Sharlene, as the granddaughter, is not only unqualified under La. C.C.P. art. 801(1), but she also cannot be substituted under Article 801(2), even if she is Ms. Rolland's universal legatee, because she has a conflict of interest. For that reason, and because Ramon would be the heir intestate, I find he is the proper plaintiff absent a showing that he too has a conflict. If Ramon also has a conflict, I find the proper action would be for the court to stay this case pending the opening of the succession and the appointment of a disinterested representative.