Opinion
NUMBER 2012 CA 0350 NUMBER 2012 CW 0142
03-06-2013
IN THE MATTER OF THE SUCCESSION OF COLEY AUSTILL SCOTT, SR.
Carey J. Messina Todd A. Rossi Alan J. Berteau Alexis A. St. Amant II Baton Rouge, LA Counsel for Appellant Coley A. Scott, Jr., individually and in his capacity as co-executor of the Succession of Coley Austill Scott, Sr. Thomas G. Hessburg Baton Rouge, LA Counsel for Appellant Charles A. Scott Thomas W. Acosta, Jr. Port Allen, LA Counsel for Appellee Dawn Scott Preston J. Castille Jr. Edward Daniel Hughes Katia Desrouleaux Baton Rouge, LA Counsel for Appellee Steven S. Scott, individually and in his capacity as co-executor of the Succession of Coley Austill Scott, Sr. Christian P. Fasullo Baton Rouge, LA Counsel for Appellee Forrest Scott
Appealed from the
Nineteenth Judicial District Court
In and for the Parish of East Baton Rouge
State of Louisiana
Probate Number 81,518
Honorable Wilson E. Fields, Judge
Carey J. Messina
Todd A. Rossi
Alan J. Berteau
Alexis A. St. Amant II
Baton Rouge, LA
Counsel for
Appellant
Coley A. Scott, Jr.,
individually and in his capacity
as co-executor of the
Succession of Coley Austill
Scott, Sr.
Thomas G. Hessburg
Baton Rouge, LA
Counsel for
Appellant
Charles A. Scott
Thomas W. Acosta, Jr.
Port Allen, LA
Counsel for
Appellee
Dawn Scott
Preston J. Castille Jr.
Edward Daniel Hughes
Katia Desrouleaux
Baton Rouge, LA
Counsel for
Appellee
Steven S. Scott,
individually and in his capacity
as co-executor of the
Succession of Coley Austill
Scott, Sr.
Christian P. Fasullo
Baton Rouge, LA
Counsel for
Appellee
Forrest Scott
BEFORE: CARTER, GUIDRY, AND GAIDRY, JJ.
GUIDRY , J.
The decedent, Coley Austill Scott, Sr. (Coley), was married three times during his lifetime: twice to Katie Robison Scott (Katie) and once to Karen Carpenter Scott. From his first marriage with Katie, Coley had two children: Coley A. "Buddy" Scott, Jr. (Buddy) and Charles Scott (Charles). From his second marriage with Karen, he had three children: Steven Scott (Steven), Forrest Scott (Forrest), and Dawn Scott (Dawn). After divorcing Karen, Coley remarried Katie, but no children were born of his third marriage.
On September 19, 2004, Coley died at Our Lady of the Lake Regional Medical Center in Baton Rouge, Louisiana, leaving a substantial estate consisting of several companies and real estate. Prior to his death, Coley had signed three wills in 1982, 1999, and 2004, respectively. In the last two wills, Buddy (of the first marriage) and Steven (of the second marriage) were named as executors.
The 1999 testament provided that all of Coley's estate was to be divided equally among his five children. The 2004 testament, signed six days prior to Coley's death on September 13, 2004, named the following persons and entity as legatees: Buddy, Charles, Steven, Forrest, Katie, and the Dawn Scott Trust. The 2004 testament gave a greater portion of Coley's estate to the children of his first marriage, through their mother Katie. The 2004 testament also named Katie as an executor, but she later died, leaving only Buddy and Steven as co-executors. Prior to Katie's death, all three testamentary co-executors designated in the 2004 testament executed their oaths of office, and letters testamentary were issued. The 2004 testament was probated, and Coley's succession was placed under administration.
On March 30, 2007, Dawn filed a "Contradictory Motion to Annul Probated Testament," wherein she asserted that the 2004 testament should be declared invalid, because the decedent "lacked the mental and physical capacity to understand, formulate, and legally execute a binding Last Will & Testament" and because the testament was a result of the undue influence exercised over the decedent by his then wife, Katie. By the time Dawn filed her motion to annul, Katie, a co-executor and named legatee under the 2004 testament, had died. Buddy (individually and as testamentary co-executor of Coley's succession), Forrest (individually and as co-trustee of the Dawn Scott Trust), Steven (individually, as testamentary co-executor of Coley's succession, and as co-trustee of the Dawn Scott Trust), and Charles were all named as defendants in Dawn's suit. Although Katie died before Dawn's suit was filed, Katie's succession was never named as a defendant.
On May 8, 2008, four days before the trial on the motion to annul, Buddy filed a motion to align Steven as a co-mover in Dawn's motion to annul. According to a hearing transcript, Steven agreed to join in the motion to annul only in his official capacity as co-executor and to adopt by reference the arguments made by Dawn in support of her motion. On December 23, 2008, the trial court signed a judgment declaring the probated 2004 testament "null, void, and invalidated."
Thereafter, on January 29, 2009, Forrest and the duly-appointed co-executors of Katie's succession, Buddy and Charles, filed a petition to annul the December 23, 2008 judgment, on the basis of Dawn's failure to join the succession of Katie Robison, through its co-executors, in the action to invalidate the 2004 testament. Dawn, Steven, and the Dawn Scott Trust were named as defendants in the petition to annul the judgment.
In response to the petition to annul the judgment, Steven filed a peremptory exception raising the objection of no right of action. Dawn separately excepted to the petition to raise the objections of no cause of action and waiver. Following a hearing on the exceptions, the trial court sustained the objections of no right of action and waiver and dismissed the petition to annul the December 23, 2008 judgment with prejudice in a judgment signed November 12, 2009.
Buddy and Charles, as co-executors of Katie's succession, appealed the November 12, 2009 judgment dismissing the petition to annul the December 23, 2008 judgment. On appeal, this court reversed the November 12, 2009 judgment sustaining the exceptions raising the objections of waiver and no right of action. This Court held that Buddy and Charles, as co-executors of Katie's succession, had the right to challenge the 2008 judgment as necessary parties needed for adjudication pursuant La. C.C.P. art. 2931, and they had not waived their right to contest Dawn's failure to join Katie's succession in her action to annul the probated testament by their participation in that action in their individual capacities. Succession of Katie Robison v. Scott, 10-0719 (La. App. 1st Cir. 11/3/10) (unpublished opinion).
Thereafter, this Court rendered a decision on the appeal of the December 23, 2008 judgment declaring the 2004 testament invalid, concluding that Dawn's failure to join Katie's succession as a defendant was a fatal omission that rendered the 2008 judgment an absolute nullity. This court vacated the judgment, remanded the matter to the trial court for joinder of the succession of Katie Robison Scott, through its duly appointed succession representatives, and ordered the matter retried. In re Scott, 09-2054 (La. App. 1st Cir. 2/14/11)(unpublished opinion).
In the meantime, because his attorney fees were not being paid, on March 21, 2011, Steven filed a petition to file an amended tableau of distribution to reflect the accrual of additional fees since the filing of the initial tableau of distribution on November 16, 2009. The total debts allegedly owed and to be paid Steven, as co-executor of Coley's succession, was $755,068.15. While Buddy did not challenge the amount of Steven's tableaus, he opposed both of Steven's tableaus, arguing chiefly that because Steven breached his fiduciary duty to defend the 2004 testament, he was not entitled to have his attorney fees paid out of the succession.
In April 2011, Buddy filed his own petition for authority to file a tableau of distribution, requesting payment from the succession of his attorney fees, reimbursement for payment of federal estate taxes, and for certain loans allegedly made to Coley prior to his death, as well as to other corporate entities. Steven opposed Buddy's tableau, arguing that Buddy's attorney fees should not be classified as an estate debt because Buddy had a fiduciary obligation to defend the estate and contest the validity of the 2004 testament based on the overwhelming evidence presented to establish that the 2004 testament did not reflect Coley's volition. After a hearing on July 8, 2011, the trial court approved both of the tableaus for homologation, recognizing that both of the co-executors' attorney fees were estate debts to be paid by the succession in a judgment signed on September 30, 2011. Buddy and Steven have both appealed that judgment under docket number 2012 CA 0350.
While seeking to amend the tableau of distribution to secure payment of his attorney fees, Steven, in his capacity as co-executor of Coley's estate, and in accordance with this Court's opinion of February 14, 2011, filed an amendment to Dawn's motion to annul the 2004 testament on April 13, 2011, adopting all of Dawn's assertions and naming Katie's succession as an additional defendant. Buddy, as a co-executor of Coley's succession and Katie's succession, as well as Charles, as co-executor of Katie's succession, excepted to Steven's amendment to Dawn's motion, asserting that Steven lacked the procedural capacity, as co-executor under the 2004 testament, to challenge that same testament. They also asserted that Steven could not amend another party's pleading and that any action on the motion to annul had prescribed.
On September 30, 2011, the trial court denied all of the objections and permitted the amendment of Dawn's motion to annul. Buddy, Charles, and Katie's succession filed an application for supervisory writs under docket number 2012 CW 0142, seeking review of the trial court's September 30, 2011 ruling denying their objections. Again, they argue that Steven, in his capacity as a co-executor, must defend the 2004 testament, and in essence, cannot wear two hats - one as co-executor of Coley's succession and one as party plaintiff. They also contend that Steven cannot amend another party's pleadings, i.e. Dawn's motion to annul the 2004 testament, to name Katie's succession as an additional defendant. Finally, they argue that any action to annul the 2004 testament has prescribed.
On June 21, 2012, this court issued an interim order referring the writ to the same panel to which the related appeal was assigned. In the Matter of the Succession of Coley Austill Scott, Sr., 12-0142 (La. App. 1st Cir. 6/21/12) (unpublished writ action).
DISCUSSION
On appeal, both Buddy and Steven contest the trial court's September 30, 2011 judgment homologating the tableaus of distribution they each filed.
The primary purpose of succession administration is payment of the debts of the succession, and all powers and duties of an administrator are incidental to that purpose. Succession of Roberts, 255 So. 2d 610, 611 (La. App. 1st Cir. 1971), writ denied, 260 La. 682, 257 So. 2d 148 (1972). A succession representative may pay an estate debt only with the authorization of the court, except as provided by La. C.C.P. arts. 3224 and 3302. La. C.C.P. art. 3301. A succession representative must file a petition for authority to pay estate debts and must include in or annex to the petition, a tableau of distribution listing the estate debts to be paid when he desires to pay estate debts. La. C.C.P. art. 3303. Notice of a petition for authority to pay estate debts must be published once in the parish where the succession proceeding is pending and sent to any interested person who has petitioned the court for notice of the filing of a tableau of distribution. La. C.C.P. arts. 3304 and 3306.
If no opposition to the petition is filed, the court may grant the petition for authority to pay estate debts and homologate the tableau of distribution any time after the expiration of seven days from the date of publication or the date of sending notice to an interested person, whichever is later. La. C.C.P. art. 3307. If opposition is filed prior to homologation of the tableau of distribution, however, then the matter must be tried as a summary proceeding before a judgment homologating the tableau of distribution can be rendered. La. C.C.P. art. 3307. A judgment homologating a tableau of distribution is appealable, but it must be appealed suspensively. La. C.C.P. art. 3308.
Both Buddy and Steven challenged the respective tableaus of distribution each filed. Buddy challenged Steven's tableau contending that he was not entitled to have the estate pay attorney fees associated with his challenge of the 2004 testament. As co-executor of Coley's succession, Buddy argues that Steven was required, pursuant to La. C.C.P. art. 2931, to defend against the challenge to the 2004 testament, and his failure to do so amounts to a breach of his fiduciary duty, which is why he argues Steven should not be able to recover legal expenses associated with supporting the challenge of the testament.
Louisiana Code of Civil Procedure article 3191 states, in pertinent part:
A succession representative is a fiduciary with respect to the succession, and shall have the duty of collecting, preserving, and managing the property of the succession in accordance with law. He shall act at all times as a prudent administrator, and shall be personally responsible for all damages resulting from his failure so to act.See also La. C.C.P. art. 3221. A succession is the transmission of the estate of the deceased to his successors. La. C.C. art. 871. Therefore, it follows that part of the succession representative's fiduciary duty is to transmit property contained in the deceased's estate to his heirs. Matthews v. Horrell, 06-1973, p. 18 (La. App. 1st Cir. 11/7/07), 977 So. 2d 62, 75.
Typically, in fulfilling this fiduciary duty, a succession representative should act to sustain the validity of a testament; however, to the extent that endorsing a testament will result in the decedent's estate not being transmitted to the decedent's heirs or legatees in accordance with the decedent's wishes, then the succession representative cannot be held to have breached his fiduciary duty by not endorsing the acceptance of such a testament. See Succession of Morere, 3 Teiss. 155 (La. App. Orleans 1906).
In Succession of Morere, 114 La. 506, 38 So. 435 (1905), the succession representative caused to be probated a testament wherein he was named executor of his brother's succession, despite his knowledge that his brother lacked the mental capacity to confect a testament at the time the testament was executed. The appellate court declared the testament so confected to be null and void upon the testament being challenged by the testator's widow, and the Louisiana Supreme Court affirmed the appellate court's judgment. Succession of Morere, 114 La. at 517, 38 So. at 438. Following the executor's dismissal as the succession representative of his brother's estate, the former executor sought to file a final accounting seeking payment of certain expenses he had allegedly incurred as executor of his brother's estate, but the final accounting was also challenged by the testator's widow. Succession of Morere, 3 Teiss. 155. In finding that the former executor was not entitled to recover the expenses sought in the final accounting, the appellate court held:
It may not be doubted that it is the imperative duty of the executor of a last will and testament, who has accepted the trust, to do everything necessary to sustain the validity of the will under which he holds letters of executorship, and, that when he is brought into Court in his official capacity to defend an attack upon the validity of the will which he is executing, he may employ counsel to defend such suit in which, the service of such counsel, and likewise the executor'sSuccession of Morere, 5 Teiss. 155.
commissions, whatever may be the result of the litigation, may be chargeable to the estate[.] This is predicated [on] the theory that the executor is acting in the matter in good faith; for the benefit of all parties in interest, and not for his personal benefit and advantage.
If, however, the person named as the executor of a will is in bad faith; has full knowledge of the absolute nullity of the will; and, as in this case, knows of the notorious insanity of the person making the will at the time of its execution; is himself a secret debtor to the deceased in a large amount, and not only does not reveal these facts on presenting the alleged will to the Court for probate in order that the validity of the will may be inquired into contradictorily with all parties interested, before any order of probate is made, but who, on the contrary, hurriedly caused the will to be probated and himself to be recognized as executor thereunder, he but perpetrated a fraud on the Court and must personally bear all the expenses which his fraudulent action has entailed.
Initially, the appellate court in Succession of Morere held that only the fees sought by the former executor for his services should be disallowed. Because the court found that the attorneys hired by the former executor to probate and defend the invalid testament were "acting in absolute good faith," the court held that the attorney fees submitted by the former executor should be recoverable from the estate. Succession of Morere, 5 Teiss. 155. However, on the rehearing sought by the widow, the court found:
Reflection has convinced us that the complaint of appellant is well founded and that it was absolutely illogical for us to hold that forasmuch as Bartholomew Morere, the executor, was in bad faith and had practiced a fraud on the Court in having the will probated without advising the Court at the time he offered the will for probate of the notorious and habitual insanity of Pierre Morere he could not recover his commissions but that the other expenses which his fraudulent action entailed must be borne by the estate, notwithstanding the estate received no benefit therefrom whatsoever.Succession of Morere, 3 Teiss. 155.
....
No expense incurred by him in his effort to maintain this will can be imposed on the estate, whether that expense be for attorneys fees of for other purposes. Bartholomew Morere must bear all of these personally.
So while the executor of a succession is the proper party to be cited to defend an action challenging the testament whereunder the executor was appointed, see La. C.C.P. art. 2931, such a representative is not required to defend the validity of the testament. A succession representative may refuse to defend the testament, when the representative has credible knowledge or evidence that would not only justify the refusal to defend the testament, but also justify a refusal to submit the testament for probate to prevent the representative from being viewed as being in bad faith or having practiced a fraud on the probate court. See Succession of Morere, 3 Teiss. 155.
In Succession of Horrell, 11-1577 (La. App. 4th Cir. 4/18/12), 89 So. 3d 1267, writ denied, 12-1348 (La. 9/28/12), 98 So. 3d 846, the appellate court affirmed the trial court's determination that a former testamentary executor was not entitled to be compensated for his efforts to faithfully execute a testament that was later invalidated because the testator (the former executor's father) lacked testamentary capacity at the time the testament was executed. The trial court denied the former executor compensation because it found that the former executor was aware that his father lacked testamentary capacity prior to the testament being executed, yet he still submitted the testament to his father for execution. Succession of Horrell, 11-1577 at p. 3, 89 So. 3d at 1269. Notably, the trial court only denied the former executor compensation for those fees and expenses associated with the former executor's efforts to defend the invalidated testament. The trial court awarded the former executor the "expenses and legal fees incurred in the administration of the estate." Succession of Horrell, 11-1577 at p. 3, 89 So. 3d at 1269.
A trial court is vested with discretion in setting a fee award, and the award can be disturbed only if that discretion has been abused. See Succession of Bankston, 405 So. 2d 1189, 1192 (La. App. 1st Cir. 1981); Succession of Horrell, 11- 0194, p. 3 (La. App. 4th Cir. 11/30/11), 79 So. 3d 1162, 1164-65, writ denied, 12-0180 (La. 3/23/12), 85 So. 3d 96. Moreover, in the event that it is determined that an administrator has been guilty of maladministration, a decision to penalize the administrator, by requiring the forfeiture of compensation, is left largely to the discretion of the court. See La. C.C.P. art. 3351, Official Revision Comments - 1960(h).
Implicit in the trial court's judgment is a finding that Steven's actions of not defending the 2004 testament against Dawn's challenge and aligning himself, in his capacity as co-executor of Coley's succession, with Dawn in challenging the testament, was done in good faith. Similarly, it is implicit in the trial court's judgment that Buddy's actions in defending the 2004 testament were equally in good faith. Based on the record before us, we cannot say that the trial court abused its discretion in awarding both co-executors their respective attorney fees. Thus, we affirm the trial court's judgment homologating and authorizing payment of the respective attorney fees of the co-executors.
Finally, in the appeal, both parties contest the trial court's failure to rank the debts listed in the tableau of distribution for payment. However, according to La. C.C.P. art. 3303(B), the tableau of distribution "shall list the proposed payments according to the rank of the privileges and mortgages of the creditors" only if there are insufficient funds to pay all the estate debts in full. There has been no assertion or showing by the parties that there are insufficient funds to pay all the estate debts in full so as to require that the payments be listed and ranked according to privileges and mortgages. Compare Succession of Kilpatrick v. First National Bank of Shreveport, 422 So. 2d 483, 486 (La. App. 2d Cir. 1982), writ denied, 429 So. 2d 126 (La. 1983).
Steven additionally asserts that the trial court erred in authorizing payment of the debts allegedly owed to Keener Dupont. We find merit in this assertion. Although Steven argues that one of the debts allegedly owed to Keener Dupont is subject to judicial proceedings, and thus is unliquidated and therefore not properly payable, there is nothing in the applicable law that prohibits the presentation or acceptance of such unliquidated claims. See La. C.C.P. arts. 3241-3249; Succession of Griffith, 415 So. 2d 670, 675 (La. App. 4th Cir. 1982). Rather, such unliquidated debts can and should be presented to the succession representative. See La. C.C.P. art. 3246, Official Revision Comments - 1960, comment (d). However, we, nevertheless, find that the trial court erred in authorizing payment of the Keener Dupont debts, because we find the evidence presented is insufficient to prove the existence of the debts or that the debts are debts of Coley's succession.
Of the two debts allegedly owed to Keener Dupont listed in Buddy's tableau of distribution, the first is allegedly the result of a personal loan made to the decedent by the company. A proof of claim was submitted by Keener Dupont, through Buddy as president of the company, on June 13, 2006, twenty-one months after Coley's death. The tableau of distribution submitted by Buddy, as well as the June 13, 2006 proof of claim, list the alleged loan amount and various payments allegedly made by Coley in remission of the loan. Other than the recitations made in the June 13, 2006 proof of claim and Buddy's tableau of distribution, the record does not contain any evidence of the alleged loan or payments.
In the absence of a written promise to pay or written acknowledgement of a debt, a debt against the decedent's estate may be proved by parol evidence and may be recognized only if the statutory requisites and burden of proof provided in La. R.S. 13:3721and 3722 are met. Succession of Dean, 375 So. 2d 162, 164 (La. App. 2d Cir.), writ denied, 376 So. 2d 1272 (La. 1979). Those statutes provide, respectively:
§ 3721. Parol evidence to prove debt or liability of deceased person; objections not waivable
Parol evidence shall not be received to prove any debt or liability of a deceased person against his succession representative, heirs, or legatees when no suit to enforce it has been brought against the deceased prior to his death, unless within one year of the death of the deceased:
(1) A suit to enforce the debt or liability is brought against the succession representative, heirs, or legatees of the deceased;
(2) The debt or liability is acknowledged by the succession representative as provided in Article 3242 of the Code of Civil Procedure, or by his placing it on a tableau of distribution, or petitioning for authority to pay it;
(3) The claimant has opposed a petition for authority to pay debts, or a tableau of distribution, filed by the succession representative, on the ground that it did not include the debt or liability in question; or
(4) The claimant has submitted to the succession representative a formal proof of his claim against the succession, as provided in Article 3245 of the Code of Civil Procedure.
The provisions of this section cannot be waived impliedly through the failure of a litigant to object to the admission of evidence which is inadmissible thereunder. [Emphasis added.]
§ 3722. Same; evidence required when parol evidence admissible
When parol evidence is admissible under the provisions of R.S. 13:3721 the debt or liability of the deceased must be proved by the testimony of at least one creditable witness other than the claimant, and other corroborating circumstances.
Initially, we observe that the formal proof of claim on behalf of Keener Dupont was not submitted within one year of Coley's death. Further, even if the formal proof of claim had been timely submitted, the burden of proof provided in La. R.S. 13:3722 clearly has not been established. Thus, we find that payment of this debt was not properly approved.
As for the second Keener Dupont debt listed in Buddy's tableau of distribution, the debt is expressly listed as a "[p]ayment due from Duralite, LLC to Keener DuPont Wire Co. - $273,806, plus interest and attorney fees." According to Buddy's tableau of distribution, this debt was apparently listed as a debt of Coley's succession because "the succession drained all of the assets of Duralite to pay succession debts and estate taxes." Other than this assertion in Buddy's tableau of distribution, the record does not contain any basis for recognizing Duralite's alleged debt as a debt of the succession, nor is there any proof establishing that Duralite is indebted to Keener Dupont, other than the mere allegations contained in Keener Dupont's petition against Duralite that was attached to the tableau of distribution submitted by Buddy. Without sufficient proof establishing the alleged debts as debts of Coley's succession, we likewise find that the trial court erred in authorizing payment of Keener Dupont's unliquidated claim against Duralite. Compare Succession of Vazquez, 07-0816, pp. 4-5 (La. App. 4th Cir. 1/16/08), 976 So. 2d 209,213-14.
Now we turn to the remaining issues that are presented in the separate writ application filed by Buddy, Charles, and Katie's succession. The first issue raised in the writ application concerns whether Steven, as co-executor of Coley's estate, can challenge the 2004 testament, which issue we have already addressed in the connected appeal. Thus, the only issues left to be addressed from the writ application are: (1) whether Steven has authority to amend the motion to annul that was filed by Dawn; and (2) whether prescription bars any amendment of the petition. We find no merit in these contentions.
On May 8, 2008, Buddy filed a motion to have Steven re-aligned and joined with Dawn on her motion to annul the 2004 testament, which motion was granted by the trial court. As a result of that ruling, for all intents and purposes, Steven became as much of an author and proponent of the motion as Dawn. As such, we find that the trial court properly allowed Steven to amend the motion to annul.
Moreover, we find that prescription does not bar the filing of the amendment. An action to annul a testament is subject to a liberative prescriptive period of five years. La. C.C. art. 3497. The prescriptive period begins to run from the date the will is filed for probate. In re Succession of Stark, 06-190, p. 9 (La. App. 3d Cir. 7/5/06), 934 So. 2d 901, 908. The 2004 testament was filed for probate on November 17, 2004. The initial motion to annul the 2004 testament was filed by Dawn on March 30, 2007, clearly within the applicable prescriptive period; however, Katie's succession was not named as a party in the initial motion, and Steven's amendment of the motion to name Katie's succession as a party did not occur until April 13, 2011, more than six years after the 2004 testament was filed for probate.
In Ray v. Alexandria Mall Through St. Paul Property and Liability Insurance, 434 So. 2d 1083, 1086-87 (La. 1983), the Louisiana Supreme Court established the following criteria for determining whether La. C.C.P. art. 1153 allows an amendment that changes the identity of the party or parties sued to relate back to the date of the filing of the original petition:
(1) The amended claim must arise out of the same transaction or occurrence set forth in the original pleading;
(2) The purported substitute defendant must have received notice of the institution of the action such that he will not be prejudiced in maintaining a defense on the merits;
(3) The purported substitute defendant must know or should have known that but for a mistake concerning the identity of the proper party defendant, the action would have been brought against him;
(4) The purported substitute defendant must not be a wholly new or unrelated defendant, since this would be tantamount to assertion of a new cause of action which would have otherwise prescribed.
Article 1153 allows for new plaintiffs and defendants to be added by amended pleadings if the applicable criteria are met. Where there is some factual connexity between the original and amended assertions, together with some identity of interest between the original and the additional or supplemental parties, amendment should be allowed. Holmes v. Triad Hospitality, 11-1486, pp. 3-4 (La. App. 3d Cir. 5/16/12), 89 So. 3d 532, 535.
In Findley v. City of Baton Rouge, 570 So. 2d 1168, 1170 (La. 1990), the Louisiana Supreme Court provided the following explanation regarding what prejudice a party is protected against:
The gravamen of the second criteria is prevention of prejudice to the defendant in preparing and conducting its defense. A fundamental purpose of prescriptive statutes is to protect a defendant from stale claims and from the loss or non-preservation of relevant proof. Prescriptive statutes seek to prevent prejudice to a defendant either by a delay in notification of the claim (the prejudice usually being the deprivation of an opportunity to perform a timely investigation of the claim) or by the loss of documents or witnesses which the defendant would have gathered or preserved if timely notified. Tate, Amendment of Pleadings in Louisiana, 43 Tulane Law Review 211 (1969). While designed to protect a defendant against prejudice from lack of notification of a claim within the period of limitation, prescriptive statutes are not designed to protect a defendant against non-prejudicial pleading mistakes that his opponent makes in filing the claim within the period.
In this case, without question, the claim against Katie's succession arises out of the same transaction and occurrence as set forth in the original motion to annul. Moreover, the co-executors of Katie's succession, Buddy and Charles, were well aware of the filing of the motion to annul, and although Buddy and Charles have been participating in the proceedings in different capacities, for the purposes of La. C.C.P. art. 1153, their knowledge and participation is sufficient to support a finding that Katie's succession is not a wholly new or unrelated defendant. The prior proceedings in this matter strongly indicate that, but for the mistake procedurally regarding the legal consequences of Buddy and Charles' participation in the proceedings in capacities other than in representation of Katie's succession, the action would have been brought against Buddy and Charles as co-executors of Katie's succession.
Thus, we find that the criteria outlined by the Louisiana Supreme Court in Ray are met and that amendment of the motion to annul to add Katie's succession as a defendant relates back to the timely-filed original motion so that prescription does not bar the addition of Katie's succession as a defendant in the motion to annul the September 13, 2004 motion. Accordingly, we find no merit in the writ application filed by Buddy as co-executor of Coley's succession, Charles, and the succession of Katie Robison through Buddy and Charles as co-executors.
CONCLUSION
For the foregoing reasons, we vacate that portion of the September 30, 2011 judgment that authorizes payment of any debts allegedly owed to Keener Dupont Wire Co., but in all other respects, the judgment of the trial court is affirmed. Further, finding no merit in the arguments raised in the related writ application, we deny the application. All costs associated with this matter are charged to the Succession of Coley A. Scott, Sr. through its duly-appointed co-executors, Coley A. Scott, Jr. and Steven Scott.
SEPTEMBER 30, 2011 JUDGMENT AFFIRMED IN PART AND VACATED IN PART; WRIT DENIED.