Opinion
NUMBER 2017 CA 1063
04-06-2018
BILLIE ELIZABETH HENDRICKS v. KEITH LAIRD BRYANT
Claiborne W. Brown Mandeville, LA Attorney for Appellant Plaintiff in Reconvention - Keith Laird Bryant Jack M. Alltmont New Orleans, LA Attorney for Appellee Defendant - Asset Planning Services, Inc. William J. Dutel Andrea D. Neal Patricia G. Young Mandeville, LA Attorneys for Appellee Defendant in Reconvention Billie Elizabeth Hendricks
NOT DESIGNATED FOR PUBLICATION
Appealed from the 22nd Judicial District Court In and for the Parish of St. Tammany, Louisiana
Trial Court Number 2016-14319 Honorable Martin Coady, Judge Claiborne W. Brown
Mandeville, LA Attorney for Appellant
Plaintiff in Reconvention -
Keith Laird Bryant Jack M. Alltmont
New Orleans, LA Attorney for Appellee
Defendant - Asset Planning Services, Inc. William J. Dutel
Andrea D. Neal
Patricia G. Young
Mandeville, LA Attorneys for Appellee
Defendant in Reconvention
Billie Elizabeth Hendricks BEFORE: McCLENDON, WELCH, AND THERIOT, JJ. WELCH, J.
The defendant/plaintiff-in-reconvention, Keith Laird Bryant, appeals a judgment of the trial court sustaining the peremptory exception raising the objection of prescription filed by the plaintiff/defendant-in-reconvention, Billie Elizabeth Hendricks, and dismissing Mr. Bryant's reconventional demand against Ms. Hendricks. Finding no error in the judgment of the trial court, we affirm the judgment and issue this memorandum opinion in compliance with Uniform Rules—Courts of Appeal, Rule 2-16.1(B).
On October 13, 2016, Ms. Hendricks filed a petition to partition property by licitation against Mr. Bryant, her brother. In the petition, Ms. Hendricks alleged that she and Mr. Bryant each owned an undivided one-half interest in particularly described immovable property, which was condominium unit #250, Woodcrest in Beau Chene Subdivision, in Mandeville, Louisiana ("the condominium"). Ms. Hendricks also alleged that they inherited the condominium from their parents through the termination of The Billy C. Bryant and/or Dorothy E. Bryant Revocable Living Trust Agreement ("the trust"), as evidenced by the authentic act terminating the trust that was executed by Ms. Hendricks and Mr. Bryant in their capacities as co-trustees and beneficiaries of the trust on July 8, 2015 ("the act of termination"). Ms. Hendricks further asserted that she did not reside in Louisiana; that she no longer wished to co-own the property with Mr. Bryant; that she desired to have the property partitioned, but Mr. Bryant objected and continued to occupy the condominium; and that the parties could not agree upon the terms and manner of a non-judicial partition of the condominium. Ms. Hendricks also asserted that the condominium could not be partitioned in kind, and therefore, sought to have the condominium sold judicially to effect a division of the net proceeds of the sale between the owners.
In response to Ms. Hendricks' petition, on December 12, 2016, Mr. Bryant filed an answer, asserting the affirmative defenses of error and fraud (i.e., that his consent to the act of termination was vitiated through error and fraud), and a reconventional demand against Ms. Hendricks, and third party demand against Asset Planning Services, Inc. ("Asset Planning"), who was hired by both Ms. Hendricks and Mr. Bryant to settle the estate of their mother, Mrs. Dorothy Bryant. In the reconventional and third party demand, Mr. Bryant alleged that he was fraudulently induced by Ms. Hendricks and Asset Planning to execute the act of termination, that he sustained damages as a result of their actions because the act of termination provided Ms. Henricks with the right to demand partition by licitation, and therefore, he sought damages and attorney fees from Ms. Hendricks and Asset Planning pursuant to La. C.C. art. 1953, et seq.
Both Ms. Hendricks and Asset Planning responded to Mr. Bryant's reconventional and third party demand by filing a peremptory exception raising the objection of prescription. In the exceptions, Ms. Hendricks and Asset Planning noted that the act of termination was signed by Ms. Hendricks and Mr. Bryant on July 8, 2015, that Mr. Bryant's claims that Ms. Hendricks and Asset Planning fraudulently induced him to sign the act of termination were based on La. C.C. art. 1953 and were delictual in nature, and that pursuant to La. C.C. art. 3492, delictual actions were subject to liberative prescription of one year, which begins to run from the day the injury or damage is sustained. Thus, Ms. Hendricks and Asset Planning argued that Mr. Bryant's alleged damage occurred on July 8, 2015 when he signed the act of termination and that his claims against Ms. Hendricks filed on December 12, 2016—more than one year from the date his damage or injury was allegedly sustained—were prescribed.
Ms. Hendricks and Asset Planning also filed motions for summary judgment on the basis that there were no genuine issues of material fact, that under the clear terms of the trust, its assets had to be distributed once both beneficiaries reached the age of 35 and that both Mr. Bryant and Ms. Hendricks were 35 years of age when they executed the act of termination. Hence, Asset Planning and Ms. Hendricks maintained that the act of termination was merely a confirmation of the required distribution, and whether Mr. Bryant was defrauded into signing the act of termination (which was denied) was irrelevant since the assets of the trust had to be distributed. Following the trial court's ruling sustaining the objections of prescription and dismissing Mr. Bryant's reconventional and third party demands, the motions for summary judgment were deemed moot.
After an evidentiary hearing on February 15, 2017, the trial court sustained the objections of prescription and dismissed both the reconventional demand against Ms. Hendricks, and the third-party demand against Asset Management. A judgment in accordance with the trial court's ruling was signed on September 5, 2017 and it is from this judgment that Mr. Bryant has appealed. On appeal, Mr. Bryant essentially argues that the trial court erred in sustaining the objection of prescription and in dismissing his reconventional demand against Ms. Hendricks.
The September 5, 2017 judgment was an amended judgment that was designated as a final judgment for purposes of an immediate appeal in accordance with La. C.C.P. art. 1915(B). The original judgment, signed on March 3, 2017, was a partial judgment that lacked the designation of finality for appeal as required by La. C.C.P. art. 1915(B). Following a rule to show cause why the appeal should not be dismissed that was issued by this Court, the trial court issued an amended judgment that complied with La. C.C.P. art. 1915(B), and written reasons setting forth why there was no just reason for the delay of an appeal. The merits of the rule to show cause was then referred to this panel. See Billie Elizabeth Hendricks v. Keith Laird Bryant, 2017-1063 (La. App. 1st Cir. 10/27/17) (unpublished action). Based on our review of the record and the factors set forth in R.J. Messinger, Inc. v. Rosenblum, 2004-1664 (La. 3/2/05), 894 So.2d 1113, 1122, we find no abuse of the trial court's discretion in designating this partial judgment as final and appealable in accordance with La. C.C.P. art. 1915(B), because judicial efficiency would best be served by reviewing the ruling on prescription, which ruling disposes of all Mr. Bryant's claims for damages, leaving only the issue of the partition of the condominium to be resolved. Therefore, we maintain this appeal.
On appeal, Mr. Bryant has not challenged the trial court's ruling on prescription as to Asset Planning, or its dismissal of his third party demand against Asset Planning.
Liberative prescription is a mode of barring actions as a result of inaction for a period of time. La. C.C. art. 3447. The objection of prescription may be raised by a peremptory exception. La. C.C.P. art. 927(A)(1). Generally, the burden of proving that a cause of action has prescribed rests with the party pleading prescription; however, when the face of the plaintiff's petition shows that the prescriptive period has run, the burden is on the plaintiff to prove suspension or interruption. St. Romain v. Luker, 2000-1366 (La. App. 1st Cir. 11/9/01), 804 So.2d 85, 88, writ denied 2002-0336 (La. 4/19/02), 813 So.2d 1083.
At the hearing on the objection of prescription, evidence may be introduced to support or controvert the objection when the grounds thereof do not appear from the petition. See La. C.C.P. art. 931; Kelley v. General Insurance Company of America, 2014-0180 (La. App. 1st Cir. 12/23/14), 168 So.3d 528, 533, writs denied, 2015-0157, 2015-0165 (La. 4/10/15), 163 So.3d 814, 816. When evidence is received at the trial of the exception, the appellate court reviews the trial court's factual findings under the manifest error-clearly wrong standard of review. Warren v. Board of Supervisors of Louisiana State University and Agricultural and Mechanical College, 2014-0310 (La. App. 1st Cir. 11/20/14), 168 So.3d 436, 439, writ denied, 2015-0068 (La. 4/2/15), 163 So.3d 795.
As previously set forth, in Mr. Bryant's reconventional demand, he claimed he was fraudulently induced to execute the act of termination, and sought damages and attorney fees from Ms. Hendricks pursuant to La. C.C.P. art. 1953. Louisiana Civil Code article 1953 provides that "[f]raud is a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other. Fraud may also result from silence or inaction." "The party against whom rescission is granted because of fraud is liable for damages and attorney fees." La. C.C. art. 1958. Allegations of fraud and wrongful conduct generally sound in tort (or are delictual in nature); therefore, the liberative prescription period set forth in La. C.C. art. 3492 is applicable to such claims. See Southern v. Bank One of Louisiana, N.A., 32,105 (La. App. 2nd Cir. 8/18/99), 740 So.2d 775, 779. Louisiana Civil Code article 3492 provides "[d]elictual actions are subject to a liberative prescription of one year[, which] ... commences to run from the day injury or damage is sustained."
See also State ex rel. Louisiana Dept. of Education-Food Service v. Bright Beginnings Child Care, Inc., 42,146 (La. App. 2nd Cir. 5/16/07), 957 So.2d 362, 366 (providing that "[f]raud is a tort, which is governed by the liberative prescription of one year" as set forth in La. C.C. art. 3492).
At the hearing before the trial court, Mr. Bryant argued that La. R.S. 9:2234, which provides for a two-year prescription period for actions by a beneficiary against a trustee, was applicable to his reconventional demand since his claims against Ms. Hendricks were based on her purported breach of fiduciary duty, as a trustee of the trust, to him, as a beneficiary of the trust. The trial court found, and we agree, that La. R.S. 9:2234 was not applicable to Mr. Bryant's claims. First and foremost, we note that Mr. Bryant did not allege in his petition, or testify at the hearing on prescription, that his action was based on an alleged breach of fiduciary duty. Rather, he unequivocally sought damages based on fraud pursuant to La. C.C. art. 1953, et seq. Furthermore, La. R.S. 9:2234(A), by its terms, only applies to actions for damages by a beneficiary against a trustee for any act, omission or breach of duty "arising out of the matters disclosed" in an accounting rendered by the trustee. The record before us contains no allegations or evidence that Mr. Bryant's claims arose out of a matter disclosed in an accounting by either Mr. Bryant or Ms. Hendricks, who were the co-trustees of the trust. Furthermore, while La. R.S. 9:2234(B) is applicable to all other actions by a beneficiary against a trustee other than those described in La. R.S. 9:2234(A), neither the reconventional demand nor the record establishes that Mr. Bryant's action was in his capacity as a beneficiary against Ms. Hendricks in her capacity as a trustee. Rather, the crux of Mr. Bryant's complaint concerns his execution of the act of termination. In that regard, the record establishes that Mr. Bryant executed the act of termination in his capacity as both co-trustee and beneficiary of the trust. Likewise, Ms. Hendricks executed the act of termination in her capacity as co-trustee and beneficiary of the trust. Hence, Mr. Bryant's action claiming damages as a result of his execution of the act of termination is an action by a co-trustee/beneficiary of the trust against another co-trustee/beneficiary of the trust. As such, it is not an action by a beneficiary against a trustee.
In this case, the trial court determined that the one-year liberative prescription period set forth in La. C.C. art. 3492 commenced to run on July 8, 2015, the date that Mr. Bryant executed the act of termination, and that Mr. Bryant's reconventional demand, filed on December 12, 2016, was prescribed. The trial court's factual findings in this regard are reasonably supported by the record and are not clearly wrong. Since Mr. Bryant's reconventional demand was filed more than one year from the date prescription began to run, it was prescribed on its face. At the trial on the objection of prescription, Mr. Bryant had the burden of proving that prescription was either interrupted or suspended; however, the record before us is devoid of any such evidence. Therefore, the trial court correctly sustained the objection of prescription and dismissed Mr. Bryant's reconventional demand.
On appeal, Mr. Bryant argues that the doctrine of contra non valentem should have been applied to interrupt prescription. Although the issue of contra non valentem was not presented to the trial court, based on our review of the record, we cannot say that it is applicable to the facts established herein. The doctrine of contra non valentem is a jurisprudentially created exception to a statutory prescriptive period where in fact and for good cause a plaintiff is unable to exercise his cause of action when it accrues; it is only applied in exceptional circumstances. See Specialized Loan Servicing, LLC v. January, 2012-2668 (La. 6/28/13), 119 So.3d 582, 585. The record in this matter establishes that both Mr. Bryant and Ms. Hendricks retained Asset Planning, and were in agreement to terminate the trust and to sell the condominium. The record also reveals that Mr. Bryant executed the act of termination before a notary, who was Mr. Bryant's attorney. While it is apparent that Mr. Bryant has changed his mind regarding the sale of the condominium and the time frame within which the sale might occur, the record does not establish any good cause as to why Mr. Bryant was unable to exercise his cause of action when it accrued. Therefore, we find no merit to Mr. Bryant's argument that contra non valentem should have been applied.
For all of the above and foregoing reasons, we find no error in and affirm the September 15, 2017 judgment of the trial court sustaining Ms. Hendrick's peremptory exception raising the objection of prescription, and dismissing Mr. Bryant's reconventional demand. All costs of this appeal are assessed to the defendant/plaintiff-in-reconvention, Keith Laird Bryant.
Pursuant to La. C.C.P. art. 934, "[w]hen the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection cannot be so removed, ...the action shall be dismissed." In this case, the trial court did not afford Mr. Bryant the opportunity to amend his reconventional demand, but rather, dismissed it. Thus, the trial court implicitly determined that the grounds for the objection of prescription could not be removed by amendment of the petition, and we find no error in this determination. --------
APPEAL MAINTAINED; JUDGMENT AFFIRMED.