Andersen v. Succession of Bergeron

217 So. 3d 1248
CourtLouisiana Court of Appeal
DecidedApril 12, 2017
DocketNO. 2016 CA 0922
StatusPublished
Cited by6 cases

This text of 217 So. 3d 1248 (Andersen v. Succession of Bergeron) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Andersen v. Succession of Bergeron, 217 So. 3d 1248 (La. Ct. App. 2017).

Opinions

PETTIGREW, J.

laThis matter involves a family-owned limited liability company (LLC) that was formed in 2002, and later dissolved in 2009, by Rufñn Leon Bergeron, Jr. (RLB), the initial managing member. Over four years after the dissolution, the plaintiff, Mary Beth Andersen (Ms. Andersen), one of RLB’s six children and a member of the LLC, filed a petition for declaratory judgment seeking to have the dissolution of the LLC declared null and void; to order that certain property that had been transferred from the LLC to RLB, allegedly in violation of the LLC operating agreement, be transferred back to the LLC; and to order that the LLC be reinstated. However, during the trial on the matter, the district court granted a motion for involuntary dismissal of Ms. Andersen’s claims and signed a judgment to that effect on Oeto-ber 13, 2015. Ms. Andersen, as plaintiff, and Gregory Bergeron, as third-party defendant/defendant in reconvention, jointly appeal that judgment.

FACTUAL BACKGROUND

On November 12, -2002, RLB formed Lone Oak Farm, LLC, a company he envisioned for himself and his six children— Ms. Andersen, Gregory G. Bergeron, Paul D. Bergeron, Leah Ann Bergeron Jones, Michael Bergeron, and Amy Claire Ber-geron Lindsly. One of RLB’s children, Michael, opted out of participation in the business. On November 14, 2002, RLB executed the Articles of Organization of Lone Oak Farm, LLC, designating himself as the initial managing member. On that same date, RLB, together with five of the children (excluding Michael) and a son-in-law, James A. Andersen, executed the Operating Agreement for the company.4

• By two separate acts of transfer, executed on October 31, 2003, and on March 10, 2005, RLB contributed certain immovable and movable property that he owned to the LLC. These acts were signed by RLB in his individual capacity as the transferor and in his representative capacity as the manager of the LLC. No other capital contributions to the company were made,

LSometime in 2009, RLB approached the members of the LLC to discuss adding his son, Michael, as a member of the company, or alternatively, creating a new limited liability company that would include Michael. When some members of the company expressed disagreement and refused to allow Michael to be added as a member, RLB told the members that he was going to dissolve the company. By two acts of transfer executed by RLB alone, in his individual capacity and in his representa[1252]*1252tive capacity as the managing member of the LLC, on November 9, 2009, and on December 11, 2009, the immovable and movable property that had been transferred to the LLC by RLB were transferred back to RLB by the LLC. The November 9, 2009 transfer of immovable property contained specific property descriptions followed by a provision stating that the described property was “the same property” acquired by the LLC from RLB as his capital contributions on October 31, 2003, and March 10, 2005. That act also provided that it was made without any consideration and was accepted by RLB as a charge against his capital interest in the company.

Also, on December 11, 2009, RLB, acting under the authority of La. R.S. 12:1335.1, executed an Affidavit of Dissolution of Lone Oak Farm, LLC, representing that he, and no one else, held all membership interests in the company, and that the company was no longer doing business and had no debts. RLB sought to have the LLC dissolved by execution of the affidavit. The Secretary of State issued a Certificate of Dissolution, which was filed and recorded in the public records on December 18, 2009.

Approximately two and a half years later, on April 26, 2012, the notary public before whom the November 9, 2009 transfer of immovable property by the LLC to RLB was passed, Ralph B. Chustz (Mr. Chustz), executed a notarial act of correction pursuant to La. R.S. 35:2.1, stating that he made a clerical error in that act of transfer. He attested that the purpose and intention of the November 9, 2009 transfer was for Lone Oak Farm, LLC to convey back to RLB all of the immovable property it owned, but through a clerical error made by him, the act erroneously contained a section entitled “Less and Except” under which two lots of property that were intended to be transferred to RLB were erroneously listed, appearing to be excepted from the transfer. The act of correction lfichanged the description of the property conveyed in 2009 from 15 acres to approximately 160 acres. Shortly thereafter, RLB died on July 4, 2012.

PROCEDURAL BACKGROUND

Almost two years after RLB’s death, on April 11, 2014, Ms. Andersen filed the aforementioned petition for declaratory judgment in which she sought to have the dissolution declared invalid and the LLC reinstated, the 2009 transfers of property declared invalid and the property returned to the LLC, and the 2012 act of correction by Mr. Chustz declared null. The petition named as defendants the “Succession of Ruffin Leon Bergeron, Jr.,” through its independent executor, Gregory G. Berger-on, “and In His Capacity as Secretary of State, the State of Louisiana.” Gregory G. Bergeron, in his capacity as executor of the defendant, Succession of RLB, filed an answer to the petition. We note that service was requested on both, Gregory G. Bergeron, and Tom Schedler, in his capacity as Secretary of State, thus clarifying the intended name of the defendant in the petition.5 The Secretary of State did not appear throughout the litigation and, given the ultimate findings by the district court, is not involved or implicated in the final judgment.

Although the Succession of RLB was also named as a defendant, there are, likewise, no allegations directed at the succession. The record reflects that at the time this litigation began, the succession of RLB was under judicial administration in the 18th Judicial District Court. RLB’s last will and testament was filed in that suit record by Mr. Chustz, who prepared and [1253]*1253notarized the document. After certain individual bequests, the testament bequeaths RLB’s residual estate to all six of his children, to be shared equally. At that time, RLB’s residual estate included the property that is the subject of the act of transfer that the plaintiff seeks to invalidate. That testament named Gregory Ber-geron as executor, and he was appointed as such in the succession proceedings. The parties indicate that a motion was filed in the succession proceeding to remove Gregory Bergeron Ras executor and that he resigned as executor on April 8, 2014, (Ms. Andersen’s petition naming the succession as a defendant in this matter was filed three days later, on April 11, 2014.)

A petition for intervention opposing Ms. Andersen’s demands was filed on behalf of the true defendants implicated by Ms. Andersen’s allegations, “intervenors,” Paul D. Bergeron and Leah Bergeron Jones (members of the LLC), and Michael Bergeron, the child of RLB who had declined participation in the company. The intervenors also filed an answer including affirmative defenses and a reconventional demand.

As plaintiffs in reconvention, the interve-nors asserted the act of correction was valid and that RLB had authority to transfer property from the LLC back to himself and to dissolve the company.

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Bluebook (online)
217 So. 3d 1248, Counsel Stack Legal Research, https://law.counselstack.com/opinion/andersen-v-succession-of-bergeron-lactapp-2017.