Succession of Nita Marie LeBeau (2009CA2289 Consolidated With 2009CA2290)
Annotate this Case
Download PDF
NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2009 CA 2289 SUCCESSION OF NITA MARIE LEBEAU Consolidated With I 111x FIELDING CHADWICK PHILLIPS KAY PHILLIPS ELLIOTT PAMELA PHILLIPS SULZER JAMES GARNET GENIUS ALBERT SIDNEY GENIUS MARGARET ANITA GENIUS LAURIE GENIUS CHAPPLE AND JAMES RODNEY GENIUS VERSUS R WITTY Judgment Rendered May 7 2010 On Appeal from the On Appeal from the 18 Judicial District Court In and For the Parish of Pointe Coupee Trial Court Probate No 17 268 Trial Court No 39 853 Honorable J Robin Free Judge Presiding Neal R Elliott Jr Baton Rouge LA J Peyton Parker Jr Baton Rouge LA PlaintiffsAppellees Fielding Chadwick Phillips et al Counsel for Defendant Appellant Herbert R Witty BEFORE WHIPPLE HUGHES AND WELCH JJ 2 HUGHES J This is an appeal from a judgment awarding a portion of the heirs in a succession proceeding damages against the succession executor on claims he mismanaged the estate and failed to assess a portion of the estate expenses s and charges against his mother interest in the estate which he inherited as s her heir For the reasons that follow we amend the trial court judgment and affirm as amended FACTS AND PROCEDURAL HISTORY This succession proceeding was filed on April 24 1981 following the death of the decedent Nita Marie LeBeau on April 18 1981 A petition to probate Miss LeBeau slast will and testament was filed on May 6 1981 Miss LeBeau will named the following as legatees of her immovable s property her sister Alta LeBeau Witty a twothirds share her nephew Murray LeBeau a onesixth share her nephew Malcolm Genius a twenty fourth share her niece Shirley G Phillips a twentyfourth share her nephew Winston Genius a twentyfourth share and her nephew Garnet Genius a twenty share The will provided that s any of said fourth hould legatees predecease me the bequest to him or her as stated above shall be inherited by my lawful heirs according to law Winston Genius predeceased Miss LeBeau Miss LeBeau will further provided that all of her debts were to be s paid out of the cash money that she left at her death and that the balance of the cash money after the payment of debts was bequeathed to her sister Alta LeBeau Witty Mrs Witty was further bequeathed the balance of Miss LeBeau estate s Mrs Witty was also appointed executrix and her 1 We note that all cash was applied to the debts of the succession 3 son Herbert R Witty was designated as the alternative executor in the event she was unable to serve Alta LeBeau Witty was confirmed as testamentary executrix for the succession of Miss LeBeau on May 6 1981 Mrs Witty filed a detailed descriptive list showing as assets of the succession an interest in three tracts of immovable property valued at 65 the mineral interests in the 00 809 three tracts of land valued at 1 00 576 184 mineral royalty checks received in the amounts of 23 and 49 and numerous bank accounts 00 335 00 892 savings accounts and certificates of deposits valued at 70 These 00 583 assets totaled 1 Debts of the succession were listed in the 00 195 394 detailed descriptive list totaling 74 00 240 The total value of the succession amounted to 1 00 955 319 On May 24 1982 Mrs Witty filed a petition for possession in the district court requesting that she be placed in possession of her share of the immovable property of the succession and accepting the legacy unconditionally Thereafter the court signed a judgment sending Mrs Witty into possession of the legacy bequeathed to her by decedent of 2 3rds of the immovable property belonging to decedent Annual accounts were filed by Mrs Witty on September 16 1982 and on July 11 1983 The district court issued judgments homologating these accounts on April 24 1984 and March 16 1984 respectively Also on July 11 1983 Mrs Witty petitioned the district to be relieved of her duties as executrix due to personal illness Mrs Witty son Herbert R Witty joined s in the motion seeking to be appointed as the alternate executor The motion was granted and Mr Witty was appointed executor of the estate Mrs Witty died shortly afterward E After his appointment as executor Mr Witty filed annual accounts on November 13 1985 for 1983 1985 March 4 1987 for 1986 March 18 1988 for 1987 June 1 1989 for 1988 May 11 1990 for 1989 May 13 1991 for 1990 June 9 1992 for 1991 November 24 1993 for 1992 May 19 1994 for 1993 February 17 1995 for 1994 January 14 1997 for 1995 January 14 1997 for 1996 February 6 1998 for 1997 March 18 1999 for 1998 May 4 2000 for 1999 July 13 2004 for 2000 2003 and February 26 2007 for 2004 2005 Judgments of homologation were signed by the district court as to all ofthese accounts On March 15 2005 Mr Witty applied to the trial court to be discharged as executor to have Murray LeBeau placed in possession of his onesixth legacy bequeathed to him under Miss LeBeau will and to have s the three remaining one twenty fourth legacies bequeathed to Shirley G Phillips Garnet Genius and Malcolm Genius placed in the registry of the court Mr Witty motion was granted and the court issued a judgment s placing Murray LeBeau in possession of his legacy and depositing the remaining legacies in the court registry the judgment further discharged s and relieved Herbert R Witty of all responsibility as executor in the succession upon payment of all court costs and attorney fees then due Subsequently the heirs of Shirley G Phillips and Malcolm Genius also filed Z In this pleading Mr Witty stated that of the original legatees under the will only Murray LeBeau was still living at that time Further it was asserted that Winston Genius who inherited a twentyfourth interest in the immovable property under Miss LeBeau will predeceased Miss s LeBeau and that his lapsed legacy was inherited by Mrs Witty although it does not appear that any of the judgments of possession rendered by the district court disposed of this interest Because the heirs of the deceased legatees had not established to the satisfaction of the executor their right to inherit those interests were initially deposited in the registry of the court 3 While Miss LeBeau will bequeathed an interest in three tracts of immovable property the s executor found it necessary to petition the court for authority to sell the immovable property to pay debts of the succession which was granted on February 28 1994 Miss LeBeau sinterest in the three tracts of land was stated as an 11 interest The entire parcel was appraised as having a value of 432 and the succession interest was appraised as having an approximate value 00 000 s of 47 The district court authorized the property to be sold for 44 with the 00 520 61 031 succession retaining the mineral rights Thus after this sale the only rights to the immovable property left to be distributed to the heirs were the mineral rights 5 petitions for possession and were placed in possession of their interests in the succession On March 14 2006 Fielding Chadwick Phillips Kay Phillips Elliott Pamela Phillips Sulzer James Garnet Genius Albert Sidney Genius Margaret Anita Genius Laurie Genius Chapple and James Rodney Genius as heirs of Shirley Genius Phillips Garnet Genius and Malcolm Genius filed a separate action via their Petition for Damages Arising from Testamentary Executor Breach of Fiduciary Duty Failure to Act as a s Prudent Administrator and Breach of Duty to Close Succession and named Mr Witty as the defendant In their petition for damages these plaintiffs alleged that Mr Witty failed to file a final account in accordance with LSAC art 3332 a twentyfour year administration of the succession P C was unwarranted Mr Witty failed to timely contest the overpayment of inheritance and estate taxes Mr Witty profited as a shareholder or principal W Exploration by means of the succession contract for services s of H with H W Exploration Mr Witty failed to file an annual account for each and every year the succession was under administration Mr Witty kept the succession under administration in order to fund his executor sfee with the mineral royalty payments the immovable property of the succession was wrongly sold in 1994 for less than market value the immovable property should not have been sold and that rather they should have been placed in possession of the property Mr Witty breached his fiduciary duty to collect preserve and manage succession property in accordance with LSAC P C art 3191 and the imprudent administration and breach of fiduciary duties by Mr Witty damaged the plaintiffs Mr Witty filed an answer to the suit denying the allegations In brief to the district court Mr Witty attributed many of the problems that had 11 arisen during the administration to the succession first attorney Sam s Amico D who was replaced in 1993 i e early distribution of legacy to Mrs Witty and the overpayment of taxes Further Mr Witty asserted that the extended administration of the estate was owing in part to a 1984 claim by Amoco Production Company Amoco to recoup previously overpaid royalties amounting to 240 Mr Witty claimed that owing to his 44 284 efforts and those of his attorneys he obtained the remission of 118 00 000 in overpayments through a 1992 compromise with Amoco Thereafter on January 26 2007 Mr Witty filed an exception of res judicata Following a January 29 2007 hearing the district court granted the exception of res judicata as to all accounts of the executor Herbert R Witty in the record that have been duly homologated The district court further ruled that a s to these judgments plaintiff ssuit is dismissed with prejudice The executor was ordered to file a last and final accounting for the period beginning January 2004 through March 5 2005 On February 26 2007 in the succession proceeding the executor filed an Annual and Final Accounting through December 31 2005 for the Period of January 1 2004 On March 5 2007 Fielding Chadwick Phillips Kay Phillips Elliott Pamela Phillips Sulzer Albert Sidney Genius Margaret Anita Genius Laurie Genius Chapple and James Rodney Genius filed an Opposition to 2004 and 2005 Annual and Final Accounting and Motion to Consolidate asserting their rights as heirs of legatees Shirley Genius Phillips Garnet Genius and Malcolm Genius The opposition alleged that the 2004 and 2005 annual and final account filed by the executor was not in compliance with the LSAC art 3332 requirements P C for a final account in that there was no listing of all of the estate debts and legacies or a breakdown of the proportionate shares of administrative 7 expenses to be borne by each respective legatee The opposition further claimed that there was no full and complete account of the administration and that it was erroneous for afinal account to contain onlypart of the assets of a succession The opposition further asserted that the executor failed to prove that he had paid his proportionate share of the total administrative expenses of the succession as required by LSA C art 1424 The opposition also sought consolidation of the succession proceeding with the separatelyfiled suit for damages against Mr Witty On March 6 2007 the trial court signed an order consolidating the two cases and setting the opposition for contradictory hearing On May 15 2007 the court signed a Judgment Homologating Annual and Final Accounting The plaintiffs filed a motion for new trial as to the court judgment s sustaining Mr Witty res judicata exception and after a July 17 2007 s hearing the motion was denied The plaintiffs then appealed the judgment This court reversed holding that prior trial court judgments homologating the executor annual accounts did not foreclose the claim for damages s sought by the plaintiff heirs See Phillips v Witty 20080111 La App 1 Cir 6 unpublished opinion 986 So 256 table 2008WL2332274 08 2d writ denied 2008 1462 La 10 992 So 1017 08 3 2d The matter was remanded for further proceedings in accordance with the opinion of this court Upon remand and following a trial held on April 14 2009 the trial court rendered judgment in favor of plaintiffs in the amount of 97 848 310 adopting the argument and posttrial memorandum of the plaintiffs as the reasons of the court for judgment Mr Witty has appealed the judgment and on appeal asserts the following assignments of error 0 I The lower court erred in adopting plaintiffsappellees theory that all of the royalty payments in the above succession during the administration of the succession in the amount of 000 800 represented only 1 of the mineral interest in the 3 property which was the property of the legatees Il The court apparently found that Herbert R Witty as executor committed malfeasance as executor because the attorney for the estate Sam D put Mrs Alta L Witty in Amico possession of her 2 legacy in the estate without putting the 3 residual legatees in possession III The court erred in adopting a theory proposed by plaintiffsappellees without any proof and not consistent with Petition for the allegations in the original petition entitled Damages Arising from Testamentary Executor Breach of s Fiduciary Duty Failure to Act as a Prudent Administrator and Breach of Duty to Close Succession IV The District Court decision was not based upon any s evidence since none was presented by plaintiffsappellees The plaintiffsappellees have filed an answer to the appeal asking this court to correct certain errors in the trial court judgment as to the names of the parties to award legal interest on the judgment amount from the date of judicial demand in accordance with LSAC art 1921 and to award P C costs On April 1 2010 this court issued an order to the trial court remanding this matter for the limited purpose of having the trial court sign a valid judgment which specifically names the parties in favor of and against whom the May 15 2009 judgment was rendered a On April 19 2010 the trial court signed an amended judgment that has been supplemented into the appellate record and which provided that judgment was rendered in favor of Fielding Chadwick Phillips Kay Phillips Elliott Pamela Phillips Sulzer A judgment that fails to specifically order judgment in favor of or against anyone is defective See Jenkins v Recovery Technology Investors 2002 1788 pp 3 4 La App 1 Cir 6 03 27 858 So 598 600 Carter v Williamson Eye Center 2001 2016 p 2 La App I Cir 2d 02 27 11 837 So 43 44 Rogers v Custom Built Garage 2001 0356 p 5 La App 1 Cir 2d 02 28 3 814 So 693 696 Scott v State 525 So 689 691 La App I Cir 1988 writ 2d 2d denied 558 So 1128 La 1990 2d N James Garnet Genius Albert Sidney Genius Margaret Anita Genius Laurie Genius Chapple and James Rodney Genius and against Herbert R Witty LAW AND ANALYSIS Propriety ofDamage Award In his assignments of error Mr Witty essentially contends that the plaintiffsappellees failed to prove by a preponderance of the evidence that he did not bear his proportional share of the expenses and charges of the succession as heir to his mother share of Miss LeBeau estate s s Mr Witty contends that the plaintiffsappellees submitted no proof in support of their position However at the April 14 2009 trial of the matter the entirety of both trial court records Succession of Nita Marie Lebeau Trial Court Probate No 17 and Phillips v Witty Trial Court No 39 were submitted 268 853 into evidence as well as Exhibits P 1 through P5 Thus Mr Witty s assertion that the plaintiffs appellees produced no proof is baseless and the issue becomes whether the proof offered by the plaintiffsappellees was sufficient to establish that Mr Witty failed to bear his proportional share of the expenses and charges of the succession The plaintiffsappellees position has its basis in the judgment of possession rendered in favor of Mr Witty mother on May 24 1982 s sending Mrs Witty into possession of the legacy bequeathed to her by decedent of 2 3rds of the immovable property belonging to decedent The plaintiffsappellees contend that this judgment placed Mrs Witty in possession of the immovable property and the mineral interests therein 10 8 citing LSAC arts 470 483 and 488 LSA R 31 31 31 C S 5 7 15 and 31 16 Exhibit P1 a copy of a May 4 1982 sale from Alta LeBeau Witty to H W Exploration recorded in the Pointe Coupee Parish conveyance records is indicative of Mrs Witty belief that she acquired ownership of s the mineral rights along with the interest she received in the immovable via the 1982 judgment of possession The property sold on May 4 1982 was described in the act of sale in pertinent part as follows AN UNDIVIDED 2 3RDS INTEREST IN AND TO ALL OIL GAS AND ANY AND ALL OTHER MINERAL INTERESTS DESCRIBED PROPERTY IN AND TO THE FOLLOWING property description omitted Being the 23rds mineral interests in the above described properties bequeathed to 5 Louisiana Civil Code Article 470 provides Rights and actions that apply to immovable things are incorporeal immovables Immovables of this kind are such as personal servitudes established on immovables predial servitudes mineral rights and petitory or possessory actions Louisiana Civil Code Article 483 provides In the absence of rights of other persons the owner of a thing acquires the ownership of its natural and civil fruits Louisiana Civil Code Article 488 provides in pertinent part Products derived from a thing as a result of diminution of its substance belong to the owner ofthat thing 8 Louisiana Revised Statute 31 provides Ownership of land includes all minerals occurring 5 naturally in a solid state Solid minerals are insusceptible of ownership apart from the land until reduced to possession 9 Louisiana Revised Statute 31 provides Minerals are reduced to possession when they are 7 under physical control that permits delivery to another Louisiana Revised Statute 31 provides A landowner may convey reserve or lease his 15 right to explore and develop his land for production of minerals and to reduce them to possession Louisiana Revised Statute 31 provides The basic mineral rights that may be created by a 16 landowner are the mineral servitude the mineral royalty and the mineral lease This enumeration does not exclude the creation of other mineral rights by a landowner Mineral rights are real rights and are subject either to the prescription of nonuse for ten years or to special rules of law governing the term of their existence Exhibit P2 is a copy of an act of correction by the notary for the act of sale Sam D Amico correcting the date stated in the act of sale from May 3 1982 to May 4 1982 11 vendor by her sister Nita LeBeau 00 904 733 and H The stated purchase price was W Exploration consent to the purchase was s evidenced by the signature of its managing partner Herbert R Witty The notary public for the act of sale was the first attorney for the Miss LeBeau s succession Sam D Amico Exhibit P 3 a copy of an April 15 2005 sale from H W Exploration to Herbert Witty and his wife which was recorded in the Pointe Coupee Parish conveyance records is also noteworthy In that act of sale H W Exploration represented by Herbert R Witty as its managing partner and Nola Bench Witty a general partner sold the mineral interests at issue to Herbert Roland Witty and Nola Bench Witty for the consideration of a dissolution of the Partnership Herbert Roland Witty and Nola Bench Witty signed the act of sale as both sellers and buyers In addition all of the annual accountings filed in the succession record reflect that it was the position as stated therein of the executrix and the executor Mrs Witty and then Mr Witty that Mrs Witty had received her share of the immovable property and the mineral interests In the nine annual accountings filed by the succession sfirst attorney Sam D Amico on behalf of Mrs Witty and Mr Witty the estate assets were listed and s included legal descriptions of the undivided interests in three tracts of immovable property followed by the listing as an asset the m ineral interests in the above described properties The listing of the immovable property and mineral interests therein was followed by this qualification LESS AND EXCEPTING the bequest of 2 3rds of the above described property heretofore delivered to the legatee Alta LeBeau Witty as per 12 judgment dated May 24 1982 i Similarly in the first two annual accountings filed by the succession current attorney Mr Parker on behalf s of Mr Witty the estate assets were also listed and included legal s descriptions of the undivided interests in the three tracts of immovable property followed by the listing as an asset the m interests in the ineral above described property The listing of the immovable property and mineral interests therein was followed by this qualification LESS AND EXCEPTING the bequest of 23rds of the above described property heretofore delivered to the legatee Alta LeBeau Witty as per judgment dated May 24 1982 Beginning in 1995 following the trial court approval for sale of the s immovable property interests in 1994 the listing of assets in the annual accountings did not list immovable property as an asset of the estate and listed only the ineral m interest in the following property The listing of the mineral interests as an asset was followed by the property descriptions for the three tracts of immovable property to which the mineral interests were attached and then the annual accounts retained the following qualification property and mineral interests therein was followed by this qualification LESS AND EXCEPTING the bequest of 23rds of the above described property heretofore delivered to the legatee Alta LeBeau Witty as per judgment dated May 24 1982 Furthermore correspondence and documents in the record from and related to Amoco indicated that Amoco was paying royalties both to the estate and to H W Exploration 13 Although we find it of no consequence we note that in the first annual accounting filed by Mrs Witty this qualification was worded differently as follows Decedent sbequest of 23rds of the above described immovable property to Alta LeBeau Witty was delivered to said legatee as per judgment dated the 24th day of May 1982 13 Circumstances surrounding Mr Witty 2005 application to the trial s court seeking to be discharged as executor are also significant In connection with that pleading Mr Witty asked that one of the remaining heirs Murray LeBeau be placed in possession of his portion of the estate and that the interests of the remaining heirs who had died during the succession administration and whose heirs had not yet established their rights of succession be placed in the registry of the court However Mr Witty did not find it necessary to ask the trial court to grant a judgment of possession in his favor as to the share of the estate mineral interests that he s inherited from his mother Alta LeBeau Witty presumably because he was cognizant that these interests were encompassed by the 1982 judgment of possession in favor of Mrs Witty 14 Plaintiffsappellees position that Mrs Witty had been placed in possession of her share of the estate mineral interests thus removing those s assets from the estate of Miss LeBeau so that succession expenses were not deducted therefrom is also bolstered by 1994 written reasons of the trial court relating to a dispute over attorney fees charged by Sam D s Amico In those reasons the trial court acknowledged in its recitation of the factual and procedural history of the case that the mineral interests associated with the portion of the estate immovable property inherited by Mrs Witty had s been distributed to Mrs Witty were no longer under succession administration and no longer subject to the deduction of succession 14 The estate sonly remaining assets at that time were the mineral interests in the three tracts of immovable property previously sold during Mr Witty administration s We note that the original trial judge in this matter was Judge Ian W Claiborne and he rendered the 1994 judgment in favor of Sam Dand assigned the referenced written reasons dated Amico February 11 1994 Judge Claiborne was succeeded by the current trial judge in the matter Judge J Robin Free 14 expenses and charges The reasons of the trial court read in pertinent part as follows Mrs Alta LeBeau sold her interests in the mineral rights which she inherited from her sister Nita LeBeau to a family partnership named H W Exploration of which Herbert Witty is the managing partner Two thirds ofthe immovable property including mineral rights has already been distributed to Alta LeBeau Witty Mr s Witty mother by Judgment of Possession Although that portion of the property is no longer in the Succession the Estate of Alta LeBeau Witty and Mr Witty as her sole heir and legatee is responsible for a prorata share of debts and charges of the Succession of Nita LeBeau including Federal Estate Taxes attorneys fees and costs ofcourt After all debts and charges are determined Herbert R Witty as sole legatee and successor of Alta LeBeau Witty will be required to pay a prorata share of these debts and taxes The judgment currently on appeal ruled in conformity with the 1994 trial court findings and we conclude that the trial court records and the Pointe Coupee Parish conveyance records introduced as evidence in these consolidated cases constituted a sufficient basis for both the 1994 and the 2009 rulings No contradictory evidence was submitted to the trial court by Mr Witty 16 Thus we find no merit in Mr Witty assertions on appeal that s Although in response to the plaintiffsappellees trial court discovery requests Mr Witty denied having had knowledge prior to 1993 that his mother had been placed in possession of her portion of the LeBeau estate the discovery responses were introduced into evidence by the appellees plaintiffs rather than Mr Witty In particular when requested to disclose why Mrs Witty had been placed in possession of her succession interest by the 1982 judgment of possession while the other heirs interests were left under administration for some twenty four years Mr Witty answered I was not informed about the partial judgment of possession until I employed J Peyton Parker Jr who informed me of this fact It was the decision of my attorney Sam D Mr Parker enrolled as counsel of record in June of 1993 We note that Mr Amico sdiscovery response seemingly conflicts with the fact that he signed the 1983 act of sale as Witty W Exploration acquired Mrs Witty s the managing partner of H W Exploration whereby H mineral interests that she inherited from Nita LeBeau We question whether Mr Witty could have believed himself a bona fide purchaser of mineral interests from Mrs Witty at a time when he claims he did not realize Mrs Witty had yet acquired possession of the interests Moreover the failure of Mr Witty to produce at trial royalty payment records which should have been either in his possession or that of his attorney to substantiate his contention that his mother s s share of the estate royalty proceeds were placed under the administration of the succession s rather than paid directly to her andor him as her successor raises an unfavorable inference 15 the plaintiffsappellees failed in their burden of proof Accordingly the trial court judgment in favor of the plaintiffsappellees in the amount of 97 848 310 is affirmed Failure to Award Judicial Interest In answer to this appeal the plaintiffsappellees contend the trial court failed to award judicial interest on the judgment amount from the date of judicial demand in accordance with LSA C P art 1921 Louisiana Code of Civil Procedure Article 1921 provides The court shall award interest in the judgment as prayed for or as provided by law In their petition seeking damages plaintiffsappellees prayed for legal interest from the date of judicial demand until paid along with an award of all costs Therefore the trial court judgment in their favor should have included legal interest and costs Accordingly we amend the judgment to award legal interest from the date ofjudicial demand March 14 2006 and all costs ofthese proceedings Ordinarily where a litigant fails to produce evidence or a witness available to him and a reasonable explanation is not made for that course of action there is a presumption that the production of such evidence or witness would have been adverse to his cause Wise v Bossier Parish School Board 20021525 p 12 La 6851 So 1090 1098 03 27 2d Nor do we find any merit in Mr Witty assertion that the trial court judgment is inconsistent s with the allegations made by the plaintiffs in their petition for damages since the appellees appellees plaintiffs asserted in their petition that Mr Witty breached his fiduciary duty to collect preserve and manage succession property imprudently administered the estate and breached his fiduciary duties These allegations were sufficient to put at issue the claim later specified in the opposition to the executor final accounting that proportionate shares of administrative expenses s were not borne by each respective legatee particularly Mr Witty Further there is no indication that Mr Witty objected in the trial court that the plaintiffsappellees arguments subsequent to the filing of their petition impermissibly expanded the scope of their pleadings 18 Based on the plaintiffs arguments and posttrial memorandum designated as the trial court s reasons for judgment the judgment awarded in plaintiffsappellees favor is based on Mr Witty s failure to contribute the proportional share of the succession expenses and charge out of his s mother share of the estate which she was placed in possession of in 1982 and represents the value of the estate that the plaintiffsappellees would have received from the estate had Mr Witty assessed a proportional share or the estate expenses and charges against Alta LeBeau Witty s s portion of the estate which he subsequently inherited We have determined herein that the trial court did not err in finding that the plaintiffsappellees were damaged by this act of mismanagement imprudent administration andor breach of fiduciary duty on the part of Mr Witty Although Mr Witty challenged in this appeal that such an award was warranted he did not challenge the manner in which it was calculated Therefore we do not undertake an independent calculation ofthe damage amount awarded 16 CONCLUSION For the reasons assigned the May 15 2009 judgment of the district court in favor of plaintiffsappellees Fielding Chadwick Phillips Kay Phillips Elliott Pamela Phillips Sulzer James Garnet Genius Albert Sidney Genius Margaret Anita Genius Laurie Genius Chapple and James Rodney Genius is hereby amended in part to award legal interest on the judgment amount from the date of judicial demand March 14 2006 until paid and to award costs in these consolidated cases we affirm the judgment as amended All costs of this appeal are to be borne by Herbert R Witty AMENDED AFFIRMED AS AMENDED 17
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
