Succession of Katie Robison Through Its Duly Appointed Co-Executors Charles Allen Scott, Coley Austill Scott, Jr. and Forrest Scott VS Dawn Scott and Steven Shane Scott
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2010 CA 0719 SUCCESSION OF KATIE ROBISON ET AL IIPd R VERSUS DAWN SCOTT AND STEVEN SHANE SCOTT Judgment Rendered NOV 3 2010 Appealed from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Docket Number 574 845 Honorable Wilson E Fields Judge Alexis A St Amant II Counsel for Carey J Messina Todd A Rossi PlaintiffAppellant Coley A Scott Jr Alan J Berteau as co executor of Sacha S Tessier the Succession of Scott Huffstetler Katie Robison Baton Rouge LA Thomas G Hessburg Jack M Dampf Baton Rouge LA Counsel for PlaintiffAppellant Charles A Scott as coexecutor of the Succession of Katie Robison Thomas W Acosta Jr Baton Rouge LA Counsel for Appellee Defendant Dawn Scott Preston J Castille Jr Counsel for Eugene R Groves Appellee Defendant John F McDermott Steven S Scott Katia Desrouleaux Gregory Oran Wilson Edward Daniel Hughes Baton Rouge LA Christian Fasullo Counsel for Baton Rouge LA PlaintiffAppellant Forrest Scott BEFORE PARRO GUIDRY AND KLINE JJ The Honorable William F Kline Jr retired is serving pro tempore by special appointment of the Louisiana Supreme Court 0a GUIDRY J Coexecutors of a deceased s legatee succession appeal a judgment dismissing their petition to annul a judgment that declared invalid the testament in which the deceased legatee had been granted a bequest Finding that the trial court erred in dismissing the petition to annul on the grounds of no right of action and waiver we reverse and remand FACTS AND PROCEDURAL HISTORY On September 19 2004 Coley Austill Scott Sr died at Our Lady of the Lake Regional Medical Center in Baton Rouge Louisiana Six days prior to his death on September 13 2004 the decedent executed a new will naming the following persons and entity as legatees Coley A Scott Jr Buddy Charles A Scott Steven S Scott Forrest Scott Katie Robison and the Dawn Scott Trust On March 30 2007 the decedent daughter Dawn Scott filed a Contradictory s Motion to Annul Probated Testament wherein she asserted that the September 13 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 Robison On December 23 2008 the trial court signed a judgment declaring the September 13 2004 probated testament null void and invalidated Thereafter on January 29 2009 Buddy and Charles as the duly appointed coexecutors of the Succession of Katie Robison filed a petition to annul the December 23 2008 judgment alleging that based on Dawn failure to join the s Succession of Katie Robison through its coexecutors in the action to invalidate 2 Forrest also joined in the lawsuit in another capacity but he is not a party to this appeal 3 the September 1 2004 testament the judgment should be annulled 3 Named as defendants in the petition to annul the judgment were Dawn Steven and the Dawn Scott Trust 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 rendered judgment sustaining the exceptions of no right of action and waiver and dismissed the petition to annul with prejudice in a judgment signed November 12 2009 It is from that judgment that Buddy and Charles as representatives of the Succession of Katie Robison now appeal DISCUSSION On appeal Buddy and Charles assert that the trial court erred in sustaining the objections of no right of action and waiver We agree The trial court dismissed the petition to annul on the basis of having sustained the objections of no right of action and waiver The premise for both objections however is basically the same Namely it is argued that because Buddy and Charles were named and participated in the proceedings to annul the September 13 2004 probated testament they should be barred from asserting that they did not participate in those proceedings in their capacity as representatives of the Succession of Katie Robison particularly since the individual rights and interests of Buddy and Charles in the proceedings were the same as any they would seek to assert on behalfof the Succession of Katie Robison 3 It was further alleged that the December 23 2008 judgment should be annulled for failure to join the Dawn Scott Trust in the action to annul the September 13 2004 testament however on appeal no one contests the dismissal in respect to the Dawn Scott Trust so our review is limited to the issue of the Succession of Katie Robison 4 The focus of the objection of no right of action is on whether a particular plaintiff has a right to bring the suit but it assumes that the petition states a valid cause of action for some person and questions whether the plaintiff in the particular case is a member of the class that has a legal interest in the subject matter of the litigation Howard v Administrators of Tulane Educational Fund 072224 p 17 La 7 986 So 2d 47 60 Katie Robison was a legatee of the September 13 08 1 2004 testament which legacy became an asset of her estate at her death As the succession representatives of her estate Buddy and Charles had a fiduciary duty to manage and preserve the property of the succession pursuant to La C art P 3191 Moreover they had a duty to defend the administration See La C arts 734 and 3249 P succession while under As the motion to annul the September 13 2004 testament would result in voiding the bequest to Katie Robison Buddy and Charles as the representatives of the Succession of Katie Robison clearly had a legal interest in seeking to preserve the legacy as property of the succession Although any defenses Buddy and Charles would raise on behalf of the Succession of Katie Robison would be common to those raised on their own behalf the law nevertheless required that Buddy and Charles be specifically cited as the representatives of the Succession of Katie Robison and not just individually Louisiana Code of Civil Procedure article 2931 states that a probated testament may be annulled only by a direct action brought in the succession proceeding against the legatees the residuary heir if any and the executor if he has not been discharged The action shall be tried as a summary proceeding Emphasis added Therefore we conclude that Buddy and Charles as coexecutors of the Succession of Katie Robison do have a right ofaction Katie Robison was named a legatee in the September 13 2004 probated testament however by the time Dawn filed the motion to annul the testament on w1 March 30 2007 Katie Robison had died and her succession was under the administration of her sons Buddy and Charles In the motion to annul the probated testament Dawn named Buddy individually and as testamentary co executor of the Succession of Coley A Scott Sr and Charles as defendants in the action Although reference was made to Katie Robison death and to her being a s legatee under the contested will Katie Robison was not cited as a defendant either individually or through her succession representatives in the motion to annul the probated testament In Succession of Hoffpauir 411 So 2d 714 716 La App 3d Cir 1982 an action to collate an allegedly excessive donation was filed against the person who was the duly appointed succession representative however the person was named only in her individual capacity and not as succession representative The court held that the action could only be brought against the succession through the succession representative and since the action was filed against defendant individually and not as the succession representative the court found that the trial court properly dismissed the action Moreover in order for Buddy and Charles actions in participating in the s proceedings to annul the September 13 2004 probated testament to constitute waiver they would have had to appear in the proceedings as representatives of the succession In Jeffries v Estate of Pruitt 598 So 2d 379 38485 La App 3d Cir writs denied 599 So 2d 306 and 605 So 2d 1124 La 1992 although the plaintiff failed representative proceedings representative to name because on as the a defendant behalf of the had waived defendant the estate the made the objection duly appointed general court of lack held succession appearances that the of joinder in the succession and service Specifically counsel for the succession representative filed pleadings on her behalf 4 Katie Robison died on February 14 2006 reel in her capacity as succession representative which the court found was sufficient to constitute a general appearance and therefore waiver with regard to the court s jurisdiction over the defendant There is nothing in the record before us to indicate that Buddy or Charles s actions in the proceedings to annul the September 13 2004 probated testament would in any way constitute a general appearance or waiver of the objections of lack of joinder and service with respect to the Succession of Katie Robison Nor do we find that allegations made by Buddy and Charles in their capacity as representatives of the Succession of Katie Robison in pleadings filed in a separate court proceeding were sufficient to bar them from raising the objections as to joinder and service as a party is not inexorably bound by testimony given on the witness stand or by factual allegations contained in pleadings from another suit See Scogg ns v Frederick 98 1815 pp 5 6 La App 1 st Cir 9 744 So 2d 99 24 676 681 82 writ denied 99 3557 La 3756 So 2d 1141 00 17 Therefore we find that the trial court did err in sustaining the objections of no right of action and waiver CONCLUSION For the foregoing reasons we find that the trial court erred in dismissing the petition to annul the December 23 2008 judgment on the basis of no right of action and waiver Having concluded that the coexecutors of the Succession of Katie Robison do have a right of action and did not waive the right to contest the failure to join the succession as a necessary party needed for just adjudication we reverse the November 12 2009 judgment of the trial court and remand this matter for further proceedings consistent with this opinion All costs of these proceedings are cast to the appellee Steven Scott REVERSED AND REMANDED 7
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