In the Succession of Louis Andrew Thomas, II (2010CA0576 Consolidated With 2010CA0577)

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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2010 CA 0576 G IN THE SUCCESSION OF LOUIS ANDREW THOMAS II Consolidated With 2010 CA 0577 RICHARD S THOMAS VERSUS LOUIS ANDREW THOMAS III Judgment Rendered DEC 2 Q 7010 On Appeal from the Twenty Second Judicial District Court In and For the Parish of St Tammany State of Louisiana Docket No 2007 30066 c 2009 10348 w Honorable Richard A Swartz Judge Presiding Bobbie Monroe Bankston Counsel for PlaintiffAppellant William L Nealy Baton Rouge Louisiana Richard S Thomas William J Fausterman Jr Counsel for DefendantAppellee Louis Andrew Thomas III Slidell Louisiana Jake A Airey S Michelle Blanchard Counsel for DefendantsAppellees Louis Andrew Thomas III and Slidell Lousiana the Succession of Louis Andrew Thomas II BEFORE WHIPPLE McDONALD AND McCLENDON JJ McCLENDON J In this consolidated succession matter an adult child and legatee of the decedent appeals from a judgment granting an exception of prescription and dismissing his claims against another adult child and legatee For the following reasons we affirm FACTS AND PROCEDURAL HISTORY The decedent Louis A Thomas II executed a last will and testament on December 15 2003 bequeathing his residence and automobile to his son Louis A Thomas III Louis The decedent divided the remainder of his estate between Louis and another son Richard S Thomas Richard giving Louis seventy percent and Richard thirty percent Decedent purposely made no provisions for his other adult children James Thomas Marilyn Thomas and Patricia Sweeney Louis was named executor in the will Decedent died on February 1 2006 On January 22 2009 Richard filed suit against Louis seeking the return of the value of three annuities to decedent estate On April 17 2009 Richard s filed an amended petition specifically alleging that fraud had been committed by Louis regarding the sale of the annuities to the decedent On the same date Louis filed his answer and an exception of prescription On May 18 2009 pursuant to a joint motion to consolidate the court consolidated this matter with the previously filed succession proceeding of the decedent Following a hearing on the exception of prescription held on October 21 2009 the trial court issued reasons for judgment on October 22 2009 The trial court determined that Richard had sufficient notice regarding the three annuities at issue when a information and documents regarding the annuities were II provided to plaintiff in response to discovery requests issued in the succession 1 This is the matter entitled Richard S Thomas v Louis A Thomas III bearing suit number 2009 10348 of the 220 Judicial District Court for the Parish of St Tammany z This is the matter entitled Succession of Louis A Thomas II bearing suit number 2007 30066 of the 22 Judicial District Court for the Parish of St Tammany See Succession of Louis A Thomas II c Richard S Thomas v Louis Andrew Thomas III 2010 CA 1001 w w c 2010 CA 1002 also decided this date 2 proceedings by plaintiff to defendant as administrator of the estate Because the discovery responses were mailed to Richard on March 20 2007 and because suit was not filed until January 22 2009 Richard cause of action against s Louis including claims of fraud prescribed one year from the date the documents were provided to Richard or on March 28 2008 Accordingly the trial court granted Louis exception of prescription s Judgment maintaining the exception and dismissing Richard petition was signed on November 30 2009 s Richard appealed DISCUSSION Pursuant to LSAR 22 an annuity is classified as a form of S 47 17 insurance 3 It is described as a contract sold by insurance companies that pays an income benefit for the life of a person for the lives of two or more persons or for a specified period of time or a contract that may provide for a series of payments to be made or received at regular intervals at the direction of the contract holder LSA R 22 However annuity contracts are generally S 47 17 recognized as investments rather than as insurance Succession of Halligan 03 1168 p 6 La 1 Cir 9 887 So 109 113 writ denied 042619 App 04 17 2d La 12 888 So 875 04 17 2d 3 Louisiana Revised Statute 22 was renumbered from R 22 by Acts 2008 No 415 47 S 6 1 eff Jan 1 2009 4 An annuity contract is also defined in LSA R 22 as follows S 9126 2 The term annuity contract shall include any contract which a Is issued by a life insurance company licensed to provide the contract in the state in which it was issued at the time of issue b States on its face or anywhere within the terms of the contract that it is an annuity including but not limited to an immediate deferred fixed equity indexed or variable annuity irrespective of current pay status or any other definition of annuity in Louisiana law c Provides the contract owner the ability to defer United States income taxes on any interest earned and not distributed to the owner d Transfers some risk of financial loss to the insurance company for financial consideration e Was approved as an annuity contract by the Insurance of the state in which it was issued prior to issue Department of Louisiana Revised Statute 22 was renumbered from R 22 by Acts 2008 No 415 912 S 647 eff Jan 1 2009 3 1 In this matter decedent while living in Florida purchased a 75 000 annuity from Jackson National Life Insurance Company Jackson National on November 15 2002 naming Richard S Thomas Patricia Sweeney and Louis A Thomas III as beneficiaries On July 14 2004 the decedent changed the beneficiaries to Louis and Louis wife On March 10 2004 decedent purchased s a 75 annuity from Allianz Life Insurance Company of North America 000 Allianz naming Louis as beneficiary Lastly on January 28 2006 the decedent purchased a 6 annuity from Allianz naming his six great grandchildren as 000 the beneficiaries Of the three annuities at issue Louis sold the last two to the decedent as a licensed insurance agent Richard maintains that Louis has undertaken a continuing scheme of taking money from the decedent and concealing his actions for his own benefit to Richard detriment s He contends that Louis deliberately kept information from him and he did not know that he had a claim until Louis deposition was s taken on January 23 2009 Richard also argues that Louis violation of the s insurance code in selling the annuities to his father amounted to fraud per se Thus he asserts because the time limitations provided for in LSA R 9 S 5606A do not apply in cases of fraud the trial court erred in granting the exception of prescription Louisiana Revised Statute R 9 provides S 5606A No action for damages against any insurance agent broker solicitor or other similar licensee under this state whether based upon tort or breach of contract or otherwise arising out of an engagement to provide insurance services shall be brought unless filed in a court of competent jurisdiction and proper venue within one year from the date of the alleged act omission or neglect or within one year from the date that the alleged act omission or neglect is discovered or should have been discovered However even as to actions filed within one year from the date of such discovery in all events such actions shall be filed at the latest within three years from the date of the alleged act omission or neglect 5 We note that of the beneficiaries only four were Louis grandchildren s C The one year and three year periods of limitation provided in LSA R 9 S 5606A are peremptive LSA R 9 Klein v American Life S 5606D Cas Co 01 2336 p 4 La 1 Cir 6 858 So 527 530 writs denied 03 2073 App 03 27 2d La 03 7 11 857 So 497 2d 03 2101 La 11 857 So 499 03 7 2d However the peremptive period provided for in Subsection A does not apply in cases of fraud LSAR 9 S 5606C In this matter given that Richard has made allegations of fraud which if proven would preclude the application of the peremptive period found in LSA S 5606A R 9 we choose to initially address the oneyear period from the date of discovery within which Richard had to file suit Further even if we were to find s that the peremptive periods do not apply Richard claims of fraud are nevertheless subject to the liberative prescriptive period of one year applicable to delictual actions and contained in LSA C art 3492 Ebrahimi 06512 P 5 La App 5 Cir See Shermohmad v 2d 06 31 10 945 So 119 122 Prescription commences to run from the day injury or damage is sustained Damage is sustained when the damage has manifested itself with sufficient certainty to support accrual of a cause of action Cole v Celotex Corp 620 2d So 1154 1156 La 1993 Shermohmad 06512 at p 5 945 So at 122 2d Richard asserts that under the facts of this case his mere apprehension that something was wrong was insufficient to commence the running of time limitations He argues that Louis as agent and executor of the estate purposely kept him in the dark with regard to decedent sfinancial information and then attempted to hide the truth with regard to his self dealing Richard alleges that it was not until he was able to take the deposition of Louis on January 23 2009 by court order that he began to have knowledge of some of Louis actions s 6 In 1999 the legislature amended LSA R 9 adding subsection D which expressly S 5606 makes both the one year and threeyear periods of limitation peremptive Acts 1999 No 905 1 Subsection C of LSA R 9 provides S 5606 The peremptive period provided in Subsection A of this Section shall not apply in cases of fraud as defined in Civil Code Article 1953 5 He contends that it was only then that he knew that Louis as an insurance agent moved money out of the decedent accounts through the annuities s When evidence is introduced at the hearing on a peremptory exception of prescription the trial court findings of fact are reviewed under the manifest s error clearly wrong standard of review Babineaux v State ex rel Dept of Transp and Dev 042649 p 3 La 1 Cir 12 927 So 1121 App 05 22 2d 1123 The record shows that at the hearing on the exception Richard offered into evidence the entire suit record including the exhibits in the consolidated succession proceeding The exhibits included the annuity documents produced by Louis on March 20 2007 in response to a subpoena issued by Richard on February 27 2007 With regard to at least the last two Allianz annuities the documents clearly show the named beneficiaries and that Louis was the agent for his father Based on the record the trial court concluded that Richard had sufficient knowledge after March 20 2007 to excite his attention and put him on notice that an inquiry was necessary We agree and find no manifest error in this factual finding of the trial court Because Richard was aware or should have been aware of the alleged damage on March 20 2007 and because Richard did not file his petition until January 22 2009 more than one year after the date of discovery his suit was therefore untimely Accordingly the trial court correctly maintained Louis s peremptory exception raising the objection of prescription CONCLUSION For the foregoing reasons we affirm the November 30 2009 judgment of the trial court All costs of this appeal are assessed to Richard S Thomas AFFIRMED 8 The subpoena return was certified that it was forwarded to Richard on March 20 2007 q With regard to the March 20 2007 subpoena return we also note that Richard did not file a motion to compel compliance with the subpoena until May 29 2009 r

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