Succession of Dorand

659 So. 2d 523, 94 La.App. 4 Cir. 1627, 1995 La. App. LEXIS 2119, 1995 WL 441885
CourtLouisiana Court of Appeal
DecidedJuly 26, 1995
DocketNo. 94-CA-1627
StatusPublished
Cited by5 cases

This text of 659 So. 2d 523 (Succession of Dorand) 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 Dorand, 659 So. 2d 523, 94 La.App. 4 Cir. 1627, 1995 La. App. LEXIS 2119, 1995 WL 441885 (La. Ct. App. 1995).

Opinion

11ARMSTRONG, Judge.

Before ARMSTRONG, LANDRIEU and MURRAY, JJ.

In this succession proceeding, appellants Leo A. Guenther and Hall Townsend, testamentary co-executors of the estate of the late Charles H. Dorand, appeal from a trial court judgment amending the sworn descriptive list to reduce the value of stock held by decedent at the time of his death and denying appellants additional fees incurred by them in defending the succession. We amend the judgment of the trial court in part and affirm it as amended.

Charles H. Dorand died on June 7, 1990. Leo Guenther and Hall Townsend were named co-executors in the decedent’s statutory will. Decedent was survived by two [524]*524grandchildren, Gay Dorand Zehner and Cari Dorand, a great-grandchild born to Carl, and two great-grandchildren born of a third grandchild who predeceased decedent. A month after decedent’s death Gay Dorand Zehner and Carl Dorand filed suit to annul decedent’s last will and testament on the ground that he lacked testamentary capacity. The trial court upheld the statutory will. This court affirmed that decision and the Louisiana Supreme Court denied Zehner and Dorand’s application for writ of certiorari.1

|2In the instant case, Gay Dorand Zehner and Carl Dorand2 opposed the tableau of distribution and final account and filed a motion to traverse the sworn descriptive list. They alleged that the sworn descriptive list excessively valued two pieces of immovable property (a residence and a piece of commercial property), household furnishings contained therein, and stock in a closely held corporation. They also claimed appellants were seeking fees to which they were not entitled. The trial court heard and viewed evidence concerning the valuation of the stock, the immovable property, and household furnishings. The trial court reduced the values in the sworn descriptive list as to the household furnishings and the stock. The court found the values placed on the immovable property were accurate. It amended the Tableau of Distribution and Final Account to reflect the reductions. The trial court also reduced the amounts of additional executor and attorney fees listed by appellants, from $10,175.00 to $3,392.00 for additional attorney fees, and from $7,800.00 to $2,600.00 for additional executor fees.

Appellants now appeal claiming the trial court erred in valuing the stock and in reducing the amount of additional executor and attorney fees for work done by them in defending the succession.

STOCK

The decedent held 100 shares of stock in American Electric & Display Co., Inc. (“American”), a company providing lighting services for trade shows, at the time of his death. American was a closely-held (family-owned) corporation, with the decedent holding approximately 87½% of the total shares of stock. The stock was valued at $162,925.08 on the sworn descriptive list. The trial court reduced that to $82,640.00, the valuation placed on the stock by appellees’ expert witness. One of the appellant/executors, Leo A. Guenther, was a certified public accountant who had done accounting for American for “many, many years.” Guenther stated that he had done “quite a few” successions and had given ^depositions in connection with some of those, but had not testified as an expert in any courts in succession proceedings.

Guenther valued the stock at “book” value, or the value of the stock based on the books of the company. That was $162,925.08. He valued the business as a “going concern,” and arrived at the $162,925.08 figure by averaging the book values of the business for two years — as of August 31, 1989, the end of the fiscal year prior to decedent’s death, and as of August 31, 1990, the end of the fiscal year in which deeedejnt died. He admitted that there “were quite a few tax liens” and didn’t know if those had been settled as of the time of decedent’s death. However, he further admitted that even after decedent’s death the U.S. Internal Revenue Service could have “easily come in and demandfed] payment of [the] payroll taxes and shut the business down.” He testified that the decedent had “sort of lost control of his company” about seven years prior to his death and someone else had taken over its management. Apparently, the person managing the business failed to pay payroll taxes for a number of years. Guenther said he had not factored-in the pending IRS problems when valuing the business and the stock. Guenther said the business had operated at a loss for the previous two or three years at the time he valued it. He did not factor-in this history of losses when making his valuation because he [525]*525thought the business was being mismanaged and someone else could operate it profitably.

Guenther stated that the executors, he and appellant Hall Townsend, concluded it would be in the best interest of the succession to sell the business. He said the business was finally sold six months after decedent’s death. The business only operated for three months after decedent’s death. Guenther said the actual cash value of the business, the value of the entire corporate assets of the business, “should be” $83,305.00. He said this was not the value of the shares of stock listed on the sworn descriptive list because it was not the value of the stock at the time of decedent’s death. Mr. Guenther admitted that his primary interest in seeing the stock valued at book value was because it would mean a higher fee for his work as executor, which was determined by statute at a percentage of the value of the succession.

I ¿Appellees presented the testimony of Jack Diemes, a certified public accountant. Mr. Diemes testified that he had previously worked on successions in the capacities of accountant and executor. He said his expertise in the area of successions lay in the valuation of stock in closely-held corporations. He had previously testified in federal and state courts concerning the value of such stock fewer than ten times, but had valued such stock “a lot more.” The trial court qualified Diemes as an expert in appraisal of stock and succession procedures.

Diemes valued the stock using a “liquidation” approach. He used the liquidation approach because the business was sold shortly after the decedent’s death and it was not going to be valued as a going concern. Diemes stated that even though the business operated for some three months after the decedent’s death, it was operating to be liquidated. He inferred an intent to liquidate from the fact that the business was sold six months after decedent’s death. However, Diemes said he would not have inferred an intent to liquidate if the business had been sold, hypothetically, two years after the decedent’s death. But, he said if he had not used the liquidation approach he would have taken “deep” discount on the value of the stock because the company was suffering losses for several years prior to the decedent’s death with no indication that it was going to have a turnaround and operate at profit subsequent to his death.

Diemes started with the book value of the stock as of August 31, 1990, the end of the company fiscal year, coming two months after the decedent’s death. He said he then increased or decreased that figure based upon the figures he had. He increased the liability of the corporation and came up with a liquidation value of $82,640.00. He said he considered debts incurred after the decedent’s death because he said in closing down a business the business will incur costs. He said he factored-in those costs into his valuation.

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Cite This Page — Counsel Stack

Bluebook (online)
659 So. 2d 523, 94 La.App. 4 Cir. 1627, 1995 La. App. LEXIS 2119, 1995 WL 441885, Counsel Stack Legal Research, https://law.counselstack.com/opinion/succession-of-dorand-lactapp-1995.