Succession of Carroll

72 So. 3d 384, 2011 La. App. LEXIS 886, 2011 WL 2857194
CourtLouisiana Court of Appeal
DecidedJuly 20, 2011
DocketNo. 46,327-CA
StatusPublished
Cited by16 cases

This text of 72 So. 3d 384 (Succession of Carroll) 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
Succession of Carroll, 72 So. 3d 384, 2011 La. App. LEXIS 886, 2011 WL 2857194 (La. Ct. App. 2011).

Opinion

WILLIAMS, J.

|! Plaintiffs, Thomas B. Cruse, Jr. and Donna Cruse Cagle, appeal the district court’s rulings sustaining defendant’s dilatory exception of improper cumulation of actions and peremptory exception of no cause of action. They also appeal the district court’s grant of a special motion to strike in favor of defendant, Bruce E. Hampton. For the following reasons, we affirm.

FACTS

Agnes Wylonda Carroll (“the decedent”) and Travis Carroll were married for more than 33 years. No children were born during their marriage; however both Travis and the decedent had children from prior marriages. On July 17, 2003, Travis Carroll died intestate; the decedent died testate on January 3, 2008. This dispute involves the decedent’s three surviving adult children, Thomas B. Cruse, Jr. (“Thomas”), Donna Cruse Cagle (“Donna”) and Ethyl Joyce Hornsby (“Ethyl”). Ethyl’s son, Gary Roark (“Gary”) and Bruce E. Hampton, an attorney, are also involved in this dispute.

[386]*386On July 21, 2003, the decedent executed a durable power of attorney, naming Ethyl and Gary as her mandataries. The document also named Ethyl as executrix of Travis Carroll’s succession. On May 18, 2006, a Judgment of Possession was rendered in Travis Carroll’s succession, placing his children (“the stepchildren”) in possession of his interest in the community property, subject to the decedent’s usu-fruct.

On November 8, 2006, Ethyl and Gary organized AWC, L.L.C. (“AWC”) in the state of Arkansas; Ethyl and Gary were the sole members 1 ?of the company. Subsequently, acting on the decedent’s behalf, Ethyl and Gary purchased the stepchildren’s interests in the family home and other “income producing” assets.1 The decedent then sold most of her remaining assets to AWC.

In January 2007, the decedent was hospitalized in Arkansas. While there, she executed a will (“the Arkansas will”), in which she bequeathed virtually all of her estate to Ethyl, to the exclusion of Thomas and Donna. The Arkansas will was drafted by Robert Dawkins, an attorney practicing in Arkansas.

Soon thereafter, the decedent returned to Louisiana and retained the services of defendant, Bruce Hampton, an attorney practicing law primarily in Union Parish. On behalf of the decedent, Hampton prepared an act of donation, wherein the decedent transferred ownership of certain property, including her interest in the family home, to Ethyl. Hampton also drafted a cash sale deed, conveying one acre of land and a home/workshop to Gary. Several weeks later, the decedent and Ethyl asked Hampton to determine whether the Arkansas will would be valid in Louisiana. Hampton was uncertain about whether the will would meet Louisiana’s statutory requirements. Therefore, he drafted a “revised” will (“the Louisiana will”), which essentially mirrored the terms of the Arkansas will. In the Louisiana will, the decedent made certain “special legacies,” by which she bequeathed certain pieces of jewelry to Donna, Ethyl and her granddaughter. Additionally, just as the Arkansas will, the Louisiana will made Ethyl the | ^universal legatee of the remainder of the decedent’s estate. The will contained the following statement, “This bequest to [Ethyl] is due to her dedicated care and attention given to me[,] and for her having given up her job and income to do so.”

On April 27, 2007, Hampton and the decedent met to review the terms of the Louisiana will. The decedent affirmed that the Louisiana will expressed her desire concerning her property. She informed Hampton that it was not her desire to bequeath any of her property to Thomas and Donna. She also informed Hampton that all of her children were over the age of 24 and were not permanently incapable of caring for themselves. At the hearing on the exceptions, Hampton testified that the decedent was competent at the time the will was prepared and executed, and she was able to answer questions appropriately. Additionally, Hampton presented a letter from a physician which stated that the decedent was mentally capable of making business decisions and executing a will.

The decedent died almost a year later, on January 3, 2008. Subsequently, Ethyl, who had been named executrix of the decedent’s estate, retained Hampton to probate the will. On August 7, 2008, Hampton filed the necessary pleadings and documents to probate the will. A judgment of [387]*387possession was rendered on August 1, 2008, recognizing Ethyl as the universal legatee in accordance to the provisions of the decedent’s will.

On November 22, 2008, Thomas and Donna filed a pleading entitled “Petition to Annul and/or Declare Invalid Probated Testament of Agnes |4Wylonda Johnson Carroll and Action to Annul and/or Rescind Real Estate Transactions and Recover All Damages and Attorney’s Fees Due on Account of Fraud.” Ethyl, Gary and AWC were named as defendants. On November 4, 2009, plaintiffs amended their petition, adding as defendants Dawkins, the attorney who prepared the Arkansas will, and Hampton, the attorney who prepared the Louisiana will. Plaintiffs alleged, inter alia, that Hampton and Daw-kins (1) “engaged in and concealed a scheme to use [the] court in order to defraud each plaintiff and to intentionally bring about a result which each and both [attorneys] knew wrongfully invaded the interests of plaintiffs in a manner prohibited by [the] laws of forced heirship;” (2) “acted separately and in concert, to aid and assist [Ethyl and Gary] in order to convert and/or conceal certain property interests and succession rights which [all defendants] knew rightfully belonged to plaintiffs as forced heirs of [the decedent];” and (3) failed to communicate with plaintiffs with regard to their dealings with the decedent, Ethyl and Gary.2

Hampton filed a peremptory exception of no cause of action and a dilatory exception of improper cumulation of actions. Thereafter, Hampton filed a special motion to strike the allegations contained in the amended petition. The district court sustained the exception of improper cumulation, noting that the original petition sought to have the will and act of donation nullified, and the amended petition contained tort allegations, ie., fraud. |fiThe court stated, “The actions cumulated by the First Amending and Supplemental Petition are not mutually consistent with the original petition and do not employ the same sort of procedure as the original petition.”3 The court also sustained the peremptory exception óf no cause of action and granted the special motion to strike. The court stated:

The plaintiffs are non-clients of [Hampton] and there are no allegations that [Hampton] acted with specific malice or intent personally to inflict direct harm upon them. [Hampton] has no legal duty to a person intentionally left out of a testament by a testator.
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[T]he attorney does not owe a legal duty to contact non-clients when acting [on] his clients’ behalf.

The court awarded Hampton $7,500 in attorney’s fees.

Plaintiffs appeal.4

DISCUSSION

Exception of Improper Cumulation of Actions

Plaintiffs contend the district court erred in sustaining the dilatory exception [388]*388of improper cumulation of actions.

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Cite This Page — Counsel Stack

Bluebook (online)
72 So. 3d 384, 2011 La. App. LEXIS 886, 2011 WL 2857194, Counsel Stack Legal Research, https://law.counselstack.com/opinion/succession-of-carroll-lactapp-2011.