Succession of Joan Triche Flood VS Olando Flood, Linda S. Melancon

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I SIC NO DE FOi F l U f A ION 3LICAT STATE OF L ANA UIS COUKl OF APPEAL P1RST CiRCl11T 20L2 C 0561 1 SS1Ci SUCC OF JOAN TRICHE PLOOD RSUS VE nNDO OU QI f LINDfIS MELANCON nient Jud ReEZdered MAY 1 0 2013 APPEALED f TI I JUDICIAL DISTRICT ROM L WLNTY HIRD 7 COURT IN AND F TIiL l ASStJMPT OR ARISH OF ON E 1 STA OF LOUISIANn I OCKE C NUMBER 6523 JNORa13LL FATPH TURFAU iUDGE H r fta T r ba I3aa Laric Irwin tt Mattt W Pryor ss P i b Is r4 e o s Attorneys forPlaintiffs Appellants Olanda Fiood and Estate of Joseph es Gonza Louisiana Michael Flood r l tR Galbraitli Attorneys Fo Defendanl Appellee JoShua I Melder Dr He 1 ll ert l r ood I ianirnotid Louisiana I FOI li1 UIIN YE AND N1cUONALD JJ RGW TiC I f ALll McUfltV J Chis is a sad case It contests tihe validity of a sale and assignment of intecest in the succession ofi Joan Tricbe Flood the succcssiou a Louisiana resideut who died on August 4 2007 Joan Triche Flood the decedent was survived by five cliildren Dr f3erb Flood II Dr Flood the testamentaiy rt tor ie sion exec of tl succc and the ciefendant in lhis case John M Flood Heloise rJ Siminons Ms Si Peter Flood and Joseph M Flood mons l i BACKGtLOIINll INFORMA7 PHN SUCCESSION CASE ION A petition 1or probate oC statutory testament was filed by Dr Flood on nugust 24 2007 Ncarly two yeais later on iune 2 2009 a sworn detailed dcscriptive list and a tabteau of distribution w filed by Dr Flood along with a ere judgrnent of parlial possessioil On June 9 2099 Ms Simmons filed an opposilion to the Cirst tableau of distribulior Vts SimiYions asserted that Ur k had failed to perfonn the duCy lood ecf irnpc upon hin l L C art 3331 to render an acco annually and she y CP t u ied aintai n that t 1e first leau tal of distribution lacked substantiatioil and explanaYion of iterris listed for payment Ms Simmons asked that Dr Flood be removed as executor and also that he be ordered to render an account far his on administrati On July 9 2009 Nls Simmor filecl n opposition to Dr Flood interim s s unt acc Cor the pet of August 4 2007 througll December 31 2008 and iod znaintaincd that she opposcd the account due in part to a lack of substantiation anation icl porltiitiity cxp a oior review Jolu M I by letter dafed January 31 2010 to lVis Simmons attorney stated that he as a lood siienl p in lzis sister Heloise I Sinuuons efforts re the succession and he irtnec s 1s arding favoied an indepcndent review of Dr Flooc netions in regard to the succession 1 noted that s e he 1ad contributed what he cuuld financially but was unable to continue to contribute to Ms Simmons eftorts 2 Ou July 24 2009 V S filed a motion to compel discovery s mmons asseeting that the deeed who was widowed and elderly suffered fi nt s Alzheime diseasc an lhad diniinished capacity for a nutnber of yeats prior to her deatti Ms Siininons maintained Niat Dr Flood had power of attorney for tlle decedcnt and handled all of her finai affairs but never rendered an account of cial his servic and repeatedly cei lo do so used Ms Simmons noted that while in a nursing home facility the decedent was ped and r as a result of tllat incident Dr Flood recovered approximately 500 000 for Uae decedent dama and 415 for his loss of consortium Ms Simmons s es 000 1 iaintained tb Dr F invested tYie 6500 in an annuity with himself i t lood 000 aatcd dcsi ati tl beneficiary upon ddeadi ie s cedent She asserted that Dr Flood llad r cash value in the aunuity g553 to the exclusion of the ceived ttie 36 780 sother children anci residuary e decedent gatees Ms Simmons also mait that Dr Flood inade substantial transfers to tained hiinself and his wife and children from decedent assets which exceeded 60 s 000 just two days after dec sdeath which was contrary to decedent will as it dent s exclucled hf other cl and residuar legatees Ms Sinlmons asked that Dr r ildren y Plood bc compelled to respo to her discovery requests id On March 17 2009 after a heari Dr F resigned as executor without g lood disdlarge or release The part stipulated tttat Lii S Melancon was appointed ies ida dative t stamentary executrix and that Dr l would immediately deliver all lood documents and assets of the snccession to Ms Melancon On October 23 2009 after a hearing the parties stipulated to a judgme t provicling that Dr Flood would resporid to rcqucsts for productioa by Ms nons Sinu provide financial statements to Ms Simmons provide files from the i vsuiL Ia fited on ihe deceden be the nursing home incident and s ai regarling identify all gii he made Ior t lecedent and ot matters s t ze er TI PRI CASE SENT ln July 2Q09 Joseph M Flood died following a motor vehicle accident in ii awa eph I lood k lo A F resided in Llawaii with his wifc Olanda Flood Mrs i laintififiri is luo the K ti cas Some tirne af her husband death Mta Flood contacteci Dr Clood to ask er s for a Mrs Flood was living in ecessitous circumstanees subsisting on 744 oan per month ir Social Securily disability payments Mrs Flood had a seventh grade ion edlacat suffeced fi dcprc and was unci She did not have a sion iployed telephone and had to be contacked by mail Dr l declined Mrs Flood lood request for a loan Later Dr Flood coutacted MTS P ther daughter seeking to buy her late husband lood l h rou s st iriterc in the succession for 00U 10 Dr f lood knew thati Mr Flood was s eiated re by cotu in Hawaii i reg to 1 husba fatal accident isel ard er id s Dr Floocl was represetited by counsel iri I regard Yo the succession ouisiana in Dr Flood had 11is col in Louisiana clraft an agreeinent for the sale of nsel Mrs Flood intecest iu the succession Dr Flood attorney drafted the agreeznent s s anG3 itled subi it to Dr lood or l f his approval Dr Flood sent t documei 1e t directly to Mrs Flood in Hawaii without givirig it back to his attorney On August l3 20 t 0 Virs Flood siied the document without consulting her attorney She scnt ii back to llr Flood nd Dr Flood sent her a check for 10 000 On July 20 011 rs F i a rto contest the validiry of tlie ood ilcd lotion salc aiid assigniT of interest in the successiori to Dc 1lood based upon the vice ent of consent specifically error and fi She asked that the court resciud the saLe aud nd assignment of ii declare it null and declare that a 20 interest in the ierest 4 cnssion f iJoan 1 Fl was sa part of the paLrimony of Joseph M Flood riche od ail ilis eslate Mrs Flood asse in l motion that Dr lood knew that she was in ted i er neccssitous circun and tadv of her limited financial stability and stances olc nta e hcr limited abiliry to understan the conscqueuces of her actions by circurnventing her counsel and ei her witl a clsh paytnenL ticing 3lly ncc denying the asseitions Dr l Gled an auswer lood ln tl alternative and in the event the co e n grantud a rescission of the sale and assi of interest he asserted a nment enticruai d recom demac foa repayrncnt o f 000 0 A 1 was eld on tf nla Thereafter tlle district cou ruled in earing c lc t vor it o1 Dr T findin tliat the sale and assi of interest was a valid and lood nment able entorce contract and denying Mrs Flood inotion to rescind the sale and s merat interest he assigi ot l distcict court noted that i this Court were a court of f quiTy e anci not a co of law a diffcrent twould be reached t u Mrs l is appealing tt judgment ancl makes the following assignments tood at of error l The Tri Court committed legal error when it failed to find fraud ridcr e i tl cicar ci resented into evidence flafly stances rcuar rirz contr ign ur evidcnce as well as equity dicted The l Court co Ierror in concluding that Hawaii riai f tunitt gal law applied as o o Louisiana law with regard to the osed ication app of fraud detined in tFie tCivil Code ouisiana 3 I Trial Gour e when it conceded that principles of equity he rred dictate a different result since Louisiana courts are courts of boYh equity aa law azid should considec all facts and evidence when d y equit will not abt tl law it should not orily be considered ate oe it should bc followed S T N NMI C ASS OF ERROR NQ 2 THE CHOICE OF T SSUE AW I7ie district c deterrnine that Hawaii ourt law applied to thi5 case llete the proper choice law to be applied to an issue is a question of law of v rwliich tlii courl t the pleuary and unlimited constitutioilal power and la tr as niity ztl a to i rzo Woole v Lucksinger 2006 La App 1 Cir tiv evic le o y 1140 50i08 12 4 So 31 l 5R reversed iu pai on other grounds 2009 3ci 3S9 t 0571 La 4 1 6l So 507 1 l 3d Louisiana Civil Code article 3515 provides Except as otherwise provided in this Book an issue in a case having contacts vit other states is governed by the law of Yhe state whose p would be most seriously impaired if its law were not licies applied to that issue That state is deterrnined by evaluating the strength and ence pertiT of the relevant policies of all involved states in the light of 1 the relationshi of each stat to the parties and the dispute and 2 e tlie p an needs of the iiiteistate and intei systems licies national iii1 incli the F of uphoiding tlie justified expectations ofparties olicies and ol miniinizit tE adverse consequences that might follow from ge subjecting a party to the law ofmot than sta one e Louisiana C Code article 3542 provides ivil xcept as otherwise provided in fhis T an issue of delictual itle or quasi obligatio is goveriled by tl law of the state delictuai s e whose olicies would be most scriously impaired if its la were not v applied to issue that hat ate T s is determiried by evaluatin the strength and nce pertiiie of the rele policies of Lhe involved states itl the light of ant 1 tlie contacts of each state to the parties and the events pertineiit giving rise t the dispute including the place of conduct and injury the domicile hai residence or place of busiriess of the parties itual and tl stat in wiuch tihe elationsl if any between the parties was c ip cGntercd arid 2 tl policics rcfen to in Arlicle 3515 as well as the e policies ofi cleterring wcongful conduct ar of repairing the d conscquences of injuri acts us An cxi ot thc ishows that Mrs Flood was domiciled in nination ecord Hawaii and enlered into the contract ne while in Hawaii Mrs Flood was otiations 6 in kiawaii when she deci to enter iiiin the contract sl signed the contract in ied e Hawsaii and th a was otariz by a otary public in Hawaii Under the i e ernPi re d tacts of this case we fand tl 1ia I a more si interest in protecting tat aii as nificant Nlrs Flood froin an alleged fraud than Louisiana does hus I after a de novo i fincl th IIa law should a iu this c we at aii ly se Uncier Ha law the st vaii dfor roving fraud r misrepresentation with ndat tto a written contract is extremely high and a written contract will be respe cancelled only ii1 a clear ca5e of fiaud or misi supported by clear and epresentation viricing coi evidence Island Directoiy Co Ine v lva Kinimaka Enterprises s e T IO lla i27 59 Y 935 94 J993 pp v 2d he cc T videc rrrust sho that 1 false representations tnade by defendants j with k of their fal or without knowledge of their truth or falsity owledge iry 3 ir3 contempla of ptainti reliance upon them and 4 plaintifP did rely ion s upcm tliem Har I s aii housand Prier v Andeysor 70 Naw 27fi 286 768 ds 2d P 12y3 1301 1989 Fishet v Grove Farn Co uc 123 F1aw 82 103 230 3d P 382 403 2009 Mts l asse t11at Dr Flood misled her uito signing the document by lood ts iling te her Ihat he was paying h not to sue hiin that at no time did he ask her to r seli rim ller intex ul lhe succession and that the document was provided directly esl to s Mi cl Flo althougll lood Iktieu that she was eepresented by counsel Howevet Mrs I testified that when Dr Flood later contacted her it lood as liot directly biit rakher througl her daughter Elizabeth Ftood Elizabeth Mes F1ood t Elizabekh tot ller that llr FLood would give her 10 esCifie khat 000 in rcturn for sigr a piece of paper that he sent her a document through in licabeth Lto sign and she signed it without reading it 7 L7r I tesi7fied thal lie c Eslirabeth told her he was trying to lood niacted i reael Mrs Plood ancl Mrs F ealled him bacic He testified that he told Mrs loocj Floocl he was willing to ay her 10 not to sue lum he would send hcr some 000 docanlents aiic vhcn sl signed and sent them back he would send her 10 e 000 The aprovidzs erit reen SALE 4ND ASSIGNMF O1 IN f CERH N 1 S he ued 1 undecsip individually and iu her capacity as the representative executor of the Estate of Joseph Micl Flood the ael 1 sta arzd he Esfate collectively Sellers do hereby sell and assign to Herl R Plood I 3uyer all of tlleir and tl Estate ert e s iuterest iu the r mainizlg undistribuled assets oP ihe Succession of Joan Triche Flc tlie Succession including but not lii to any od iited and all clai whethcr liquid or not that thc Succession nlay ns l te have oa have had against Herbert R Flood 1 or other parties Seilers iuill rctaiil any assets they have alr received fcotn the Successiou ady The consideration of for sic tliis transfer is TEN TEiOUSAND DOLLARS 10 which shall be paid by Buyer a eeasonable 00 000 time after execlition of the agreement and 2 receipt of au opiuion letter froi the atlorney representing the Estate stating that a n this agrcement is bii and e against 111e Seller and b ding ceable 1Poi s th Sellers ha legal authority to enter intio this agreement Sellers e hereby agT to ts reasonable steps to cure any legal or technical ee tke ll defect i7 this agreement to cause it to be enforceable and binding fully against them and the I This agreement shaLl he enforceable by state specific performance Flood Mrs testified that Dr F wanted to pay her to keep her from suing lood hin but the agreement is Ly clea sale aiid assignment of inYei in t est ie succession llr Flood did not telt her what iet inlerest in the succession w s worth and Mrs Flood could have easily consulted her attorney had she any oi est qt about the value of the interest in the succession We find no manifest roa ir tlle qistric court finding that Mrs Flood failed tio prove fraud by clear t aud c evid undcr f Iawai i law g i inci mnce R S aIAI LOUI Lr1W ANALYSIS er At1 ndin th Ciawaii law applied to this case the dist court went on t ict to f3nd that under citl ilawaii law or i there was no fraud proven err ouisiana law by Mcs Floo C we fix that Ilawaii law applies to this case out of an l tlioupt l d abunclance of caution we also analyze Nlrs Flood clauns under Louisiana law s raud is a misrepresentai or a suppression oi the teuth rnade with the ion iritentio7i either to obtain an unjust advantage for one pa or to cause a loss or ty ee inconveniei to the other l aud r may also result fi silenc or inaetion La C a 1953 F does not vitiate conse when the pairty against whom the t raud nt fraud wat dirceted could have ascertained t11e truth without difficulty i7vciuence inc or spccial ckill This exception cioes not apply when a relation of lence confi as reasonably inducer a to rely on the other assertions or y ai s ntalions res a re5 1 C art 1954 Ft need only be pruved by a pi eponderance of the evidence arid may be establislted by circumstantial evidence La C ait 1957 The eYistence of fiaud is a question of fact Fra cannot be predicated on d mistake or negligence no matter how g Ft intent which constitutcs oss audulent the ii to deceive is a necessary elettieitt of fraucl Whiteliead v Aineriean tent sliac 2G02 La p I Cir 12i20 437 So 678 682 vorl t Coac O027 02 2d I tGNMEN s AS OF CRI20R NO 1 n tbsc assignilie7 tf erro Mrs Flood asserts that uncontradicted evidence and admis5ions by Di Floo provc fraud She argues in brief that Dr Flood 1 mistepresented tl trutt an Ilicl several facts from l in making the transactio e er l and that at the veiy least he took advautage of her She asserts that hc Mrs Flood argument th the dist cour igriored the priuciples of equity wifl be addressed s at ict t in assi of en number three nmeiil oa y tionally ui inier circ her counsel by contacting her directly ii7 an altempt to vented ey oi p iher dcsp nIbr mone Mrs Plood asserts that Dr N told her he rali y lood would pay hcr eiot to sue Irirn but t he did not inforill hcr of the eXistence of iat laims in excess of a million dollars that were made against hirn by other heirs to thc successiou h lthou Mrs lood rts liat l P ass 1 things were hidden from her by Dr luou Mr 1 teslified thal whe she allect Dr I to ask for a loan one of ci loc lood ie tl reasons lie gave f Curr clown her rec was that there was a claim against or ing uest hitu regarding the succession She testified she knew about the claim against him because therc tiver a few notices that uaine to her attorney and he mailed the e riotices to rr1e She testi tl she could read and that she understood some ecl at Icgal language Thus tl fact t11e Mrs Fiood knew iliat there were claims against c the s via the nolices fi her own attorn should have ut her on iccescion om y e notic to investigate those clain if sl had any question about their value or s ie t al the value of I interest in the succession er Mrs 1 testifiicd th 7ooci tShe did nol show the coiitract to her attorney as s ie was afi Le 4tiould advise hea t to sign it and tllat shc did not read the aid ot atr Ifact tl Mcs Flood as afi that her attorney would advise her ment he at aid rot le sign the a is indicative tllat she knew it was a bad deaL As for Mrs reement s lood failur ko read the ageeement bef she sigiled it the law is clear in that I ore ard re It is wel settled lhat a party who signs a written inslrument is presumed to rits contents and cannot avoid its obGgations by contending that he did not Jcno reacl it that kic did not understaud it oi that tl other party failed t explain it to e o him Sec c T v Brasseaux 433 So 133 l37 La 1983 Flidalgo v g Qedel 2d Su Co L 2t La App 1 Cir 12 2010 WL 5480730 st l 10 75 0 10 22 d ishc unpub 10 leat CMrS l d lo rnade a bad bargaiu in agreeiug lo tal 10 for her e 000 tin the successio 1 ll n fact lYial a contracl works a hardship tere ir l wever I ure upor one of thr arties loes not auttioriae a court to set it aside Englemann v r l p u 0 LaA 136 121 So 194 195 La It is not the 1929 Ort App e tie ct rovi of courts to relieve a party of a bad bar rio matter how harsh ain C I oys 1 42eall tiic v D dt L I tiay y Ianagement C ait Propert A L 2009 2145 l App I Cir 7 12 So 1116 1131 writ denied 2010 La a 9i10 3d 1 18 29 10 48 So 1092 2d Tl1e district courl deterinined that based upon the ovidence presenled there was i evideuce to satisfy the requisitc element of intent to defi by Dr isufficicnt looci I3ascd upon tF evidence we cam say that the district cour committe e t c d est manii error in that determinadon I his assi of eiror L r merit ent nF7 o C N IGNMI OF GRKOR NO 3 S A In tl assignmei f e17or Mrs I asserls that tlle district court eired is to lood when it conceded that prinr of eqliity dictated a dit result yet failed to iples ferent rulc in her favor When a taw is clear and uuambiguous and its application does not lead to absurd c the law shall be applied as written and no further nseqizences i retatioi intec may be made in search of the intent of the legislature La C art 9 Vhen no rule fot a parlicular situation can be derived fi legislation or oin custom the court i bound to procecd ac equity To decide equitably gto ordu t so rc i made toji re cc 1aud prc usages La C art 4 st aso vailing Our aaalysis of tl disti court ten pages of re ior judgment shows e ict s sons that t district coui ie tsitnply ausspoke and meailt to say that that there was no need to resort to equity because the law was clear nci unambiguous but that under JJ a pui eq fi the outcorne ofll cas4 woulcl have been different ly italilu ametuork e J r t iitl Ihtii s nl m it Tlli sigzi ef c has no anecit eiit rrnr hercfoie foi I tlie forc reasons the distcict courC judgment denying going Olaiida I s lood motion Yo contcst Uie validiry ofthe sale and assignme of interest it iii the suc of Joan Triche Flood is afGrtned No assessment of costs will be ession made in this case RMED AFF 12 SUCCESSION OF JOAN FIRST CIRCUIT TRICHE FLOOD COURT OF APPEAL VERSUS STATE OF LOUISIANA OLANDO FLOOD LINDA S MELANCON NO 2012 CA 0561 l iIHN J dissenting I disagree with the majority conclusion that Hawaiian law rather than s Louisiana law is applicable Generally issues of delictual or quasi delictual obligations are governed by the law of the state whose policies would be most seriously impaired if its laws were not applied La C art 3542 also see La C art 3515 Article 3542 provides that the policies of deterring wrongful conduct and repairing the consequences of injuries acts are among the policies to be considered in analyzing a choice of law issue Both of these policies are highly relevant to the allegations of fraud raised by plaintiff herein Mareover this case concerns a Louisiana succession and involves the disposition of assets located in Louisiana Thus a weighing of the pertinent policies preponderates in favor of applying Louisiana law Under the circumstances the policies of Louisiana will be most seriously impaired if its law is not applied to this case Additionally I disagree with the majoriry alternative conclusion that there s was no manifest error in the trial court finding that fraud was not proven under s Louisiana law In Louisiana fraud can result from silence or inaction as well as actual misrepresentations La C art 1953 Moreover fraud need only be proven by a preponderance of the evidence and can be established by circumstantial evidence La C art 1957 Dr Flood knew that plaintiff was in extremely necessitous circumstances since he had refused her request for a loan At trial he admitted that he thought the fact that she needed money presented him with an an opportunity Seizing on s plaintiff desperation for money he I offered his former sister who has only a seventh education law in grade 00 000 10 if she would sign some papers and not sue him However he failed to advise her either that the papers consisted of a sale and assignment of her interest in the succession of Joan Triche Flood or of the potential value of that interest Further although he knew she was represented by counsel he deliberately chose to contact her directly rather than through counsel The totality of these circumstances clearly establishes Dr Flood intent to take unfair advantage of s s plaintiff necessitous situation by not advising her of the actual nature of the transaction or the potential value of the interest conveyed Thus the trial court manifestly erred in concluding fraud was not established under Louisiana law Accordingly I respectfully dissent 2

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