Elizabeth A. Engolio As Executrix of the Succession of Donald Luke LeDoux VS Verna Fuselier and Kelly Bourgeois

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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2009 CA 1193 ELIZABETH A ENGOLIO AS EXECUTRIX OF THE SUCCESSION OF DONALD LUKE LEDOUX VERSUS VERNA FUSELIER AND KELLY BOUGEOIS V Judgment Rendered JUL 292010 On Appeal from the Eighteenth Judicial District Court In and for the Iberville State of Louisiana Docket No 64884 Honorable J Robin Free Judge Presiding Stephen C Carleton Counsel for DefendantsAppellees J Michael Monsour Verna LeDoux Fusilier and Baton Rouge Louisiana Kelly LeDoux Bourgeois Rene C Gautreaux Counsel for PlaintiffAppellant Thibodaux Louisiana Paulette Guzzetta Arceneaux io BEFORE DOWNING GAIDRY AND McCLENDON JJ MCCLENDON J The plaintiff appeals a trial court judgment in favor of the defendants which granted the defendants an offset to the plaintiffs conversion claims s Plaintiff claims arose from an alleged breach of fiduciary duties owed to a now deceased interdict For the reasons that follow we affirm FACTS AND PROCEDURAL HISTORY On June 3 1993 Donald Luke LeDoux was struck by a Southern Pacific Railroad train while driving in Terrebonne Parish He was incapacitated and subsequently interdicted 2 Mr LeDoux sister Verna Fusilier was named his s curatrix and his daughter Kelly Bourgeios was named his undercuratrix Mr LeDoux died on February 18 2005 and his succession was later opened 3 He left a testament leaving the entirety of his estate to Paulette Guzzetta Arceneaux Ms Fusilier and Ms Bourgeois disputed the validity of the will but the will was determined to be valid and was eventually probated While the trial s court ruling on the validity of the testament was being appealed the court appointed an independent executrix Elizabeth A Engolio to administer Mr sestate After this court affirmed the ruling upholding the validity of the LeDoux will and the supreme court denied Ms Fusilier and Ms Bourgeois application s s for writ of certiorari the trial court appointed Ms Arceneaux as the dative testamentary executrix in Mr LeDoux ssuccession This litigation began on March 7 2007 when the independent executrix filed a petition for damages against Ms Fusilier and Ms Bourgeois asserting that the defendants while serving as curatrix and undercuratrix in the interdiction Mr LeDoux sclaims for personal injuries were litigated in the suit entitled Paulette Guzzetta Arceneaux et al v Southern Transportation Co et al Civil Action No 108879 of the 32nd Judicial District Court Parish of Terrebonne State of Louisiana Mr LeDoux sclaim was eventually settled and after costs and attorneys fees were paid 720 was placed into a 58 053 trust account for his use See Interdiction of Donald L LeDoux Docket No 14432 of the 17th Judicial District Court Parish of Lafourche State of Louisiana See Succession of Donald Luke LeDoux Probate No 9135A of the 18th Judicial District Court Parish of Iberville State of Louisiana 4 In re Succession of Ledoux 06 1667 La 1 Cir 6 958 So 1219 unpublished App 07 8 2d opinion writ denied 07 1393 La 9 964 So 360 07 28 2d 2 converted Mr LeDoux funds for their own use and mismanaged his affairs s resulting in loss to the estate On May 24 2007 Ms Fusilier and Ms Bourgeois answered the petition and Ms Fusilier filed a reconventional demand alleging that any recovery by Ms Arceneaux should be completely offset by the amounts owed Ms Fusilier for curatrix fees attendant care fees and rent On August 2 2007 Ms Arceneaux filed a supplemental and amending petition requesting a jury trial Ms Arceneaux also filed an exception raising the objection of prescription to Ms Fusilier claims incurred prior to May 24 2004 based on s The exception liberative prescription of three years of prescription was subsequently sustained Ms Arceneaux next filed a motion for partial summary judgment regarding certain sums she alleged were owed to Mr LeDoux estate by Ms s Fusilier and Ms Bourgeois totaling 109 51 607 Specifically Ms Arceneaux asserted that after Mr LeDoux died Ms Fusilier and Ms Bourgeois used Mr s LeDoux funds to pay 75 in legal fees and costs in contesting the 08 354 validity of his will without first seeking or obtaining court authority Ms Arceneaux further contended that Ms Fusilier and Ms Bourgeois used 1 00 000 of Mr LeDoux funds after his death for the payment of Ms Fusilier personal s s credit card charges Lastly Ms Arceneaux alleged that between December 1996 and May 2005 33 of Mr LeDoux funds was spent on gifts 13 254 s donations and employee bonuses without court approval Ms Fusilier and Ms Bourgeois conceded that these expenditures were made without the express authority of the court but argued that they were made with tacit approval from the court or Ms Arceneaux Following a hearing the trial court ruled in favor of Ms Arceneaux in the above amounts and judgment was signed on March 28 MEN On June 26 2008 Ms Fusilier and Ms Bourgeois filed a motion for summary judgment to have Ms Arceneaux remaining claims dismissed s In their motion Ms Fusilier and Ms Bourgeois alleged that the only remaining claims against them were for purported conversion of monthly checks from the 1 3 s interdict account made payable to cash in the amount of 500 over the 00 period from April 1997 through February 2005 Ms Fusilier and Ms Bourgeois alleged that Ms Arceneaux had no evidence to support her allegations that the funds were not used for the benefit of Mr LeDoux Ms Arceneaux sopposition to the motion for summary judgment addressed only the 500 monthly 00 checks and raised no other monetary claims Also on June 26 2008 Ms Fusilier and Ms Bourgeois filed a motion to strike Ms Arceneaux claim for a jury trial asserting that Ms Arceneaux s s remaining claims did not exceed 50 They also asserted that their own 00 000 claims existed mostly as potential offsets against the sums awarded Ms Arceneaux as the claims prior to May 24 2004 were prescribed and that the non prescribed claims that remained were well below the 50 threshold 00 000 On July 15 2008 Ms Arceneaux filed a motion for summary judgment on the issue of rent alleging that without a lease there was no rent obligation Ms Fusilier filed a cross motion for summary judgment on the issue of rent asserting that 125 per month from April 1996 through February 2005 or 00 00 375 13 represented the fair market value of the rental obligation She also made a claim of unjust enrichment On July 21 2008 Ms Arceneaux filed a motion for summary judgment and motion in Amine seeking to foreclose the defense of offset or compensation and further seeking to prohibit Ms Fusilier and Ms Bourgeois from referring to the defense during trial and in the presence of the jury On that same date Ms Arceneaux filed a second motion for summary judgment and motion in Amine asserting that if the trial court denied her motion for summary judgment on the issue of offset as to both defendants she moved for summary judgment as to Ms Bourgeois and to further prohibit Ms Bourgeois from referring to the offset defense in the jury presence s Following a hearing on these various pretrial motions the trial court denied Ms Arceneaux motion for summary judgment on the issue of rent and s denied Ms Fusilier and Ms Bourgeois s scross motion on the issue of rent The 0 court further granted Ms Fusilier and Ms Bourgeois motion for summary s s judgment dismissing Ms Arceneaux remaining claims The court also granted s their motion to strike the request for a jury trial Ms Arceneaux first motion in s Amine and her second motion for summary judgment and motion in limine were denied as well A bench trial was held on October 9 2008 on the remaining claims The trial court determined that Ms Fusilier and Ms Bourgeois s sclaims for offset as it concerned the amounts previously awarded to Ms Arceneaux in the judgment dated March 28 2008 amounted to a complete and total offset of that judgment based on the following relief granted to Ms Fusilier and Ms Bourgeois 13 for rental obligation 69 for curatrix fees and 00 375 00 000 00 750 118 for attendant care fees The offset claims granted in favor of Ms Fusilier and Ms Bourgeois as defensive relief totaled 201 plus legal 00 125 interest thereon The trial court further ordered that any affirmative relief granted in favor of Ms Fusilier and Ms Bourgeois was negated by the amounts awarded in the March 28 2008 judgment and that each side would take nothing from this final judgment Judgment was signed on October 28 2008 and Ms Arceneaux appealed ASSIGNMENTS OF ERROR On appeal Ms Arceneaux assigns the following as error 1 The trial court erred by granting summary judgment on the issue of her remaining claims for conversion when Ms Fusilier own deposition s testimony created a genuine issue of material fact 2 The trial court erred by granting defendants motion to strike the demand for a jury trial 3 The trial court erred by awarding Ms Fusilier attendant care fees when the evidence did not support such a finding 4 The trial court erred in awarding Ms Fusilier rent when the evidence did not support such a finding 5 5 The trial court erred by allowing compensation as a defense to the claims for conversion when the law prohibits such a defense to a claim of conversion 6 The trial court erred by allowing the defense of compensation for the claims against Ms Bourgeois when Ms Bourgeois raised no claims against the estate Summary Judgment Ms Arceneaux initially asserts that the trial court erred when it granted the motion for summary judgment filed by Ms Fusilier and Ms Bourgeois seeking to dismiss Ms Arceneaux remaining claims Ms Arceneaux urged a s claim for conversion of roughly 50 of the interdict money during his 00 000 s lifetime effected by writing monthly 500 checks made out to cash 00 Ms Arceneaux contends that in Ms Fusilier deposition she contradicted herself s numerous times and thus her credibility was at issue and genuine issues of material fact exist A motion for summary judgment is a procedural device used when there is no genuine issue of material fact Duncan v UIns Co 060363 p 3 A S La 11 950 So 544 54647 06 29 2d Appellate courts review summary judgment de novo using the same criteria that govern the trial court s consideration of whether summary judgment is appropriate Costello v Hardy 03 1146 p 8 La 1 864 So 129 137 04 21 2d The summary judgment procedure is expressly favored in the law and is designed to secure the just speedy and inexpensive determination of non domestic civil actions LSA C P art 966A A motion for summary judgment should only be granted if the 2 pleadings depositions answers to interrogatories and admissions on file together with the affidavits if any show that there is no genuine issue as to material fact and that the movant is entitled to summary judgment as a matter of law LSAC art 966B P C M The burden of proof remains with the movant However if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment the movant burden on the motion does not s require him to negate all essential elements of the adverse party claim action s or defense but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party claim s action or defense Thereafter if the adverse parry fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial there is no genuine issue of material fact art 966C 2 LSAC P C Once the motion for summary judgment has been properly supported by the moving party the failure of the non moving party to produce evidence of a material factual dispute mandates the granting of the motion Babin v Winn Dixie Louisiana Inc 000078 p 4 La 6 764 So 00 30 2d 37 40 See also LSAC art 9678 P C In support of their motion for summary judgment Ms Fusilier and Ms Bourgeois submitted excerpts from succession proceeding Ms Fusilier deposition taken s Ms Fusilier testified that checks in the for 500 were 00 cashed each month to use as petty cash for miscellaneous expenses for Mr LeDoux Although Ms Fusilier could not explain specific uses for the 500 00 cashed each month she testified that the money was used for her brother s benefit and not for her personal use In opposition to the motion for summary judgment Ms Arceneaux also filed excerpts from Ms Fusilier deposition as s well as a copy of Ms Fusilier answers to Ms Arceneaux request for admission s s of fact in which Ms Fusilier admitted that she cashed certain checks Ms Fusilier and Ms Bourgeois replied asserting that Ms Arceneaux offered no evidence that sufficiently opposed the motion for summary judgment Additionally they submitted the affidavit of Ms Fuslier in which she reaffirmed that although she could not recall the exact specifics as to the expenditure of the checks none of the cashed checks were spent on anything other than Mr s LeDoux benefit 7 Based upon our de nova review of the evidence we conclude that there is no genuine issue of material fact with regard to Ms Arceneaux remaining s conversion claims We determine that Ms Fusilier and Ms Bourgeois met their burden of proving that the cashed checks were spent for the benefit of Mr LeDoux during the period of his interdiction and Ms Arceneaux failed to present sufficient factual support for her contentions Therefore summary judgment was appropriately granted Jury Trial Demand In her next assignment of error Ms Arceneaux contends that it was error for the trial court to grant the motion to strike the demand for a jury trial Ms Arceneaux requested a jury trial in her First Supplemental and Amending Petition Thereafter following the granting of the partial summary judgment in favor of Ms Arceneaux on March 28 2008 Ms Fusilier and Ms Bourgeois moved to strike the jury demand asserting that Ms Arceneaux had no remaining viable claims and even if their contemporaneously filed motion for summary judgment seeking to dismiss the remaining claims was denied Ms Arceneaux s remaining claims did not exceed 50 exclusive of costs and interest as 00 000 required by LSA C 1732 P Ms Fusilier and Ms Bourgeois further asserted that their own claims existed only as potential offsets against the sums awarded Ms Arceneaux since the majority of their claims were prescribed and since the unprescribed portion of their claims totaled well less than the 50 00 000 threshold required for a trial by jury The right to a jury trial in a civil case in a Louisiana court is a statutory as opposed to constitutional right See LSAC arts 1731 1814 Riddle v P C Bickford 00 2408 p 5 La 5 785 So 795 799 01 15 2d Nonetheless Louisiana courts have recognized that the right to a civil jury trial is a basic right that should be protected in the absence of specific authority for its denial Brewton v Underwriters Ins Co 02 2852 p 4 La 6 848 So 03 27 2d 586 589 Therefore when a party makes a timely request and complies with 5 The amending petition added the following paragraph Petitioner prays for a trial by jury the other procedural requisites its right to a jury trial cannot be violated Spencer v State through Dept of Transp And Dev 03 0539 p 7 App La 1 Cir 8 887 So 28 33 04 11 2d The courts will indulge every presumption against a waiver loss or forfeiture of the right of a litigant to a civil jury trial Martello v Circle K Stores Inc 040139 pp 34 La 1 Cir App 05 11 2 906 So 547 549 writ denied 05 0649 La 4 901 So 2d 05 29 2d 1074 The statutory source for of the right to a jury trial in civil cases is found in LSA C art 1731 which provides that e as limited by Article 1732 P xcept the right of trial by jury is recognized Article 1732 provides A trial by jury shall not be available in 1 A suit where the amount of no individual petitioner s cause of action exceeds fifty thousand dollars exclusive of interest and costs 2 A suit on an unconditional obligation to pay a specific sum of money unless the defense thereto is forgery fraud error want or failure of consideration 3 A summary executory probate partition mandamus habeas corpus quo warranto injunction concursus workers compensation emancipation tutorship interdiction curatorship filiation annulment of marriage or divorce proceeding 4 A proceeding to determine custody visitation alimony or child support 5 A proceeding to review an action by an administrative or municipal body 6 All cases where a jury trial is specifically denied by law Thus the legislature has restricted the right to a jury trial in certain types of cases including those involving interdiction or probate proceedings based on policy considerations such as time constraints the ongoing nature of certain proceedings and the intimate or personal nature of some proceedings In the present matter the succession representative filed suit against Ms Fusilier and Ms Bourgeois asserting that they breached their fiduciary duties as the curatrix and undercuratrix for the interdict Mr LeDoux Among the allegations against Ms Fusilier and Ms Bourgeois were the allegations that they 9 converted Mr LeDoux funds for their own use or the use of others failed to file s annual accounts and mismanaged his affairs while serving as curatrix and undercuratrix all of which resulted in loss to Mr LeDoux patrimony s At the time of trial the issues remaining before the court were curatrix fees attendant care fees and rent all amounts that Ms Fusilier and Ms Bourgeois contended were owed and that were incurred while Mr LeDoux was alive and interdicted Because the factual and legal issues unique to this particular matter are inextricably intertwined with and arise from the interdiction we find no error by the trial court in granting the motion to strike Accordingly we find this assignment of error to be without merit Rent and Attendant Care Fees Ms Arceneaux next two assignments of error address the trial court s s awards of rent and attendant care fees In both instances she asserts that no evidence supports the awards In her reconventional demand Ms Fusilier sought attendant care fees of no less than 2 per month from February 1997 through February 2005 00 000 The trial court awarded Ms Fusilier 1250 per month for ninety months 00 five or 118 00 750 Ms Arceneaux asserts that because Mr LeDoux was being provided attendant care by compensated caregivers twenty hours a day four seven days a week and because Ms Fusilier did not keep track of and did not remember how often she cared for Mr LeDoux there simply was no evidence to support the award Gregory M Ellis an expert certified public accountant and expert in financial planning and money management testified at trial that Ms Fusilier saved the estate approximately 2100 a month acting as an attendant care 00 coordinator rather than having an outside service perform that function Additionally in his affidavit Mr Ellis stated that any professional healthcare sitter service would have charged Mr LeDoux a substantial amount of money to a We recognize that Ms Fusilier and Ms Bourgeois filed their motion to strike the jury trial based on LSAC art 1732 rather than LSA C art 1732 P C 1 P 3 10 manage and administer his healthcare needs According to Mr Ellis the fair market value of the services that Ms Fusilier provided to Mr LeDoux was 00 845 188 The trial court awarded Ms Fusilier 125 per month in rent for the 00 months that Mr LeDoux lived in the home built for him on Ms property s Fusilier Ms Arceneaux asserts that because there was no contract for rent nor a court order for the payment of rent by Mr LeDoux it was error by the trial court to award Ms Fusilier 125 per month for 107 months or 13 00 00 375 To the contrary Ms Fusilier argues that failing to allow her to use the 00 375 13 rental amount as a defense would amount to unjust enrichment See LSAC art 2298 C Mr Ellis testified at trial that 125 per month was a fair market value 00 for a rental obligation for Mr LeDoux home s He also stated that because Ms Fusilier deferred her rent request while providing a home for Mr LeDoux on her property the residual value of the estate increased He also attested in his affidavit that Ms Fusilier decision not to ask for reimbursement for the rental s value of her land as well as for her attendant care services during Mr LeDoux s lifetime was of great value to the maintenance and preservation of his funds Upon review of the record we find no error in either the attendant care services amount or the rental amount as determined by the trial court Compensation Ms Arceneaux last two assignments of error pertain to the defense of s compensation Ms Arceneaux asserts that in this matter compensation is not a valid defense to the claim of conversion She also contends that Ms Bourgeois cannot use the defense since she had no claims against the estate Louisiana statutory law and jurisprudence recognize three kinds of setoff or compensation legal which is effected by operation of law contractual which is effected by the will of the parties and judicial which is effected by the courts Ms Fusilier was granted court authorization to build or purchase a home in Grosse Tete for Mr LeDoux 11 Richard v Vidrine Automotive Services Inc 98 1020 pp 78 La 1 App Cir 4 729 So 1174 1178 See also Tolbird v Cooper 243 La 306 99 1 2d 315 143 So 80 84 La 1962 2d Compensation takes place by operation of law when two persons owe to each other sums of money or quantities of fungible things identical in kind and these sums or quantities are liquidated and presently due LSAC art 1893 C s Buck Run Enterprises Inc v Mapp Const Inc 993054 p 5 La 1 App Cir 2 808 So 428 431 01 16 2d In such a case compensation extinguishes both obligations to the extent of the lesser amount LSAC art 1893 A claim C is liquidated when the debt is for an amount capable of ascertainment by mere calculation in accordance with accepted legal standards s Buck Run 99 3054 at p 5 808 So at 431 32 Compensation of obligations may take place also 2d by agreement of the parties even though the requirements for compensation by operation of law are not met 5 808 So at 432 2d LSA C art 1901 Buck Run 99 3054 at P s Judicial compensation takes place when a court decides two parties are mutually indebted to each other and adjusts the amounts owed in fixing the judgment LSA C art 1902 Buck Run 993054 at p 5 808 s 2d So at 432 The most usual case in which judicial compensation arises is one where the conditions for legal compensation do not exist and the party who is sued on a debt files a reconventional demand In these cases the trial court finds for each party and renders judgment for the difference between the amounts found to be owed Standard Roofing Co Inc v Ragusa Bros Inc 338 So 119 122 La 1 Cir 1976 2d App In this matter when Ms Fusilier filed her reconventional demand she alleged that any recovery by Ms Arceneaux should be completely offset by the amounts owed to her for curatrix fees attendant care fees and rent After Ms sexception of prescription was maintained and when the trial court Arceneaux granted the partial summary judgment in favor of Ms Arceneaux on March 28 a Article 1902 provides that a the obligation claimed in compensation is unliquidated lthough the court can declare compensation as to that part of the obligation that is susceptible of prompt and easy liquidation 12 2008 the court specifically recognized that Ms Fusilier and Ms Bourgeois could assert their viable claims as well as their prescribed claims as a defense to offset Ms s Arceneaux claims Thereafter following trial the trial court concluded that the parties were mutually indebted to each other and balanced the amounts found to be owed in fixing the judgment Thus this is a case of judicial compensation Furthermore because most of Ms Fusilier claims were s prescribed and therefore were not due and payable the requirements of legal compensation could not be met Ms Arceneaux contends that it was error to allow the defense of compensation since she obtained a judgment for conversion She cites LSAC C art 1894 which provides Compensation takes place regardless of the sources of the obligations Compensation does not take place however if one of the obligations is to return a thing of which the owner has been unjustly dispossessed or is to return a thing given in deposit or loan for use or if the object of one of the obligations is exempt from seizure The source of the bar to compensation as set forth in the second paragraph of LSAC art 1894 arises from an equitable principle and is meant to apply when C the one seeking compensation has plundered another or is guilty of bad faith or wrongdoing In looking at the source and reason for this exception the supreme court in Tolbird looked to the French commentators There are however some debts against which the debtor cannot propose a compensation 1st In the case of spoliation no compensation can be opposed against the demand for the restitution of the thing of which any person has been plundered according to the well known maxim spoliatus ante omnia restituendus 1 Pothier op cit supra p 460 This Latin maxim means that A party despoiled forcibly deprived of possession ought first of all to be restored Planiol agrees that the maxim is the basis for the exception The demand for restitution of a thing of which the proprietor has been unjustly deprived This is the application of the maxim established by the canon law spoliatus ante omnia restituatur 2 Planiol op cit supra n 581 p 320 o The motive of equity is evident say Planiol and Ripert nothing ought to hinder the restitution of a thing taken away by an illegal act it primes all other consideration 7 Planiol et Ripert 13 Traite praticlue de droit civil francais 2e ed 1954 n 1289 p o 699 Tolbird 243 La at 314 15 143 So at 83 2d In further support of this interpretation the comments to Article 1894 note that wrongdoers or parties who have acted in bad faith are not allowed to set up the plea of compensation LSAC art 1894 Comment b C In this matter it is undisputed that Ms Fusilier failed to seek court approval for certain expenditures and that summary judgment was granted in Ms Arceneaux favor totaling 109 However in opposing the motion s 51 607 Ms Fusilier attested by affidavit that the 75 spent on attorneys fees and 08 354 the 33 spent on gifts donations and employee bonuses during her 13 254 s brother lifetime were expended on behalf of and in the best interests of the interdict Mr LeDoux and that it was her belief that the expenditures would have received court approval Ms Fusilier also testified at trial that the 13 254 33 amount included expenses for the wedding of Mr LeDoux s daughter Ms Bourgeois With regard to the 1 used to pay a personal 00 000 credit card Ms Fusilier testified that the credit card was paid by mistake She stated that she had her checkbook and her brother checkbook in her purse s and she grabbed the wrong one Once Ms Fusilier realized what she had done she deposited 1 into her brother 00 000 saccount The trial court in denying Ms Arceneaux motions in Amine specifically s concluded that Ms Fusilier did not steal anything and that there was no knowledge or intent to steal The trial court found no intent of wrongdoing or of 9 While recognizing that compensation in the Civil Code refers to legal compensation the supreme court in Tolbird found it applicable to judicial compensation stating In a case then where there is a main demand and a demand in reconvention and the judge finds for each party and renders judgment for the difference between the amounts found to be owed he thus effects compensation compensation a judicial whereby two payments are avoided The maxim A party despoiled ought first of all to be restored is as applicable to this kind of compensation for obvious reasons as it is to the legal compensation in the Code The motive of equity is equally evident here Where the plunderer sets up his opposing claim by way of reconvention here also nothing ought to hinder the one plundered from being first of all restored Tolbird 243 La at 318 19 143 So at 85 2d 14 bad faith and we find no manifest error in this factual determination See Stobart v State through Dep of Transp and Dev 617 So 880 La t 2d 1993 Accordingly under the specific facts of this case we find the exception to compensation in LSAC art 1894 inapplicable and find no prohibition to Ms C s Fusilier defense of compensation Thus in accordance with judicial compensation the trial court had the authority to declare the debts offset when the amount of Ms Fusilier sclaims were determined Ms Arceneaux made the further argument that Ms Fusilier prescribed s claims could not be used as a defense since there was no connexity between their claims Louisiana Code of Civil Procedure article 424 provides in pertinent part A person who has a right to enforce an obligation also has a right to use his cause of action as a defense Except as otherwise provided herein a prescribed obligation arising under Louisiana law may be used as a defense if it is incidental to or connected with the obligation sought to be enforced by the plaintiff In the instant case Ms Fusilier reconventional demand was based on claims for s payment or reimbursement in managing Mr LeDoux estate These claims were s incidental to and connected with the claims regarding the improper management of Mr LeDoux estate sought to be enforced by Ms Arceneaux s Therefore pursuant to LSA C art 424 Ms Fusilier prescribed claims could be used as P s a defense to Ms Arceneaux main demand s Although Ms Fusilier was unable to recover the full amount of 00 125 201 awarded to her for curatrix fees attendant care fees and rent because of the plea of prescription she was able to assert the prescribed obligations in satisfaction of Ms Arceneaux sclaims totaling 109 Thus 51 607 the obligation owed to Ms Arceneaux is extinguished by judicial compensation See Young v Fremin Smith Inc 265 So 341 342 La 4 Cir 1972 2d App Accordingly Ms Arceneaux last two assignments of error are without merit s 15 CONCLUSION For the foregoing reasons the judgment of the trial court is affirmed All costs of this appeal are assessed to Ms Areceneaux AFFIRMED 16

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