Succession of Garcia

628 So. 2d 152, 1993 La. App. LEXIS 3638, 1993 WL 495664
CourtLouisiana Court of Appeal
DecidedNovember 30, 1993
DocketNo. 93-CA-0981
StatusPublished

This text of 628 So. 2d 152 (Succession of Garcia) 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 Garcia, 628 So. 2d 152, 1993 La. App. LEXIS 3638, 1993 WL 495664 (La. Ct. App. 1993).

Opinion

WALTZER, Judge.

The issues to be resolved in this appeal are 1) whether the appellant’s claim for services rendered to the succession is considered a law charge which would ensure its status as a special privilege against the succession; and 2) if it is a law charge and considered within the same category as attorney’s fees for services of the succession, whether it should be paid first because it was first in time.

BACKGROUND FACTS

Vicki K. Garliek, appellant herein, was hired on July 10, 1990 by the former executrix of the Succession of Emilio C. Garcia, Sr. to perform accounting and tax preparation work for the succession. Breit & Garcia, Inc. was the closely-held corporation the stock of which constituted a major asset of the succession. Garliek’s work included preparing the corporation’s tax returns. All of appellant’s services were rendered after Garcia’s death and were clearly for the benefit of the succession. At the conclusion of her work, she presented her invoice for professional services in the amount of $3,881.00.

Subsequently, the original executrix was removed by court order. The trial judge appointed Lisa C. Matthews and Joe L. Horne, appellees herein, to serve as co-executors and attorneys for the succession in December, 1990. At the time of their appointment, the co-executors agreed to serve as attorneys for the succession and be paid as such, waiving all compensation in respect to their tasks as executors. Appellees did [154]*154not pay Gar lick’s invoice when presented, and on July 9, 1991, Garlick obtained and recorded a judgment for the value of accounting services rendered to benefit the succession in the principal amount of $3,881.00, plus interest and attorneys’ fees. This judgment was upheld on appeal, 606 So.2d 36, and the reasonableness of the accountant’s fee is not at issue.

On November 25, 1992, the co-executors filed a Second Partial Tableau of Distribution in the succession, listing Garlick’s claim for the principal amount of her judgment in the category of “Wages of clerks and secretaries.” Garlick opposed homologation of the tableau, contending that her judgment constitutes a law charge, thus ranking equally with appellees’ claim for their attorneys fees. Following a hearing on the matter, the court rendered judgment on January 25, 1993 dismissing the opposition holding that Garlick’s claim was properly categorized in the Second Tableau.

The Tableau lists funds on hand of $40,-425.32; court costs of $362.08; reserve for future court costs of $1,000.00; payment on account for attorneys’ fees of $39,063.24; Garliek’s privileged claim, categorized as wages of clerks and secretaries of $3,881.00; and ordinary debts totalling $532,366.47. The Tableau carries forward appellees’ claim for additional unpaid attorneys’ fees of $11,-114.42.

Garlick appealed that judgment, assigning as error the trial court’s failure to classify her claim as a privileged law charge.

THE LAW

A privilege is a right, which the nature of a debt gives to a creditor, and which entitles him to be preferred before other creditors, even those with mortgages. L.S.A.C.C. art. 3186 (emphasis added). In determining the privileged status, vel non, of Garlick’s claim, and its rank with respect to the other debts set forth in the Second Tableau, we note:

“Although the notion of privilege was simple in Roman law, it has become uncertain and confused in modern law; they have brought together under this name things quite different, to such an extent that it is today impossible to give to privilege a self-contained and unified theory; it is necessary to proceed by the way of analysis, and to choose from the confused mass.” 2 Planiol, Civil Law Treatise, No. 2545.

In making this analysis, we proceed on the basis that the codal privileges are stricti juris, and can be claimed only for those debts to which a privilege is expressly granted in the Civil Code. L.S.A.C.C. art. 3185.

The general privileges on movable property are defined and ranked by Article 3191 of the Code:

“The debts which are privileged on all the movables in general, are those hereafter enumerated, and are paid in the following order:
“1. Funeral charges.
“2. Law charges.
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“6. The salaries of clerks, secretaries, and other persons of that kind.”

Appellees contend that Garlick’s claim is properly categorized as a “salary of clerks, secretaries, and other persons of that kind.” Appellant contends her claim is in the nature of a law charge. We find it to be neither. Ms. Garlick was not a salaried employee of the decedent or of his closely-held corporation. She was engaged to render professional services after Garcia’s death for the benefit of the succession. Since Ms. Garlick’s judgment is not for “back pay”, or for a salary for a period of employment, but rather for a professional fee, we find the trial court’s judgment granting homologation of the Second Tableau of Distribution as respects this debt is clearly wrong Canter v. Koehring Co., 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Rosell v. ESCO., 549 So.2d 840 (La.1989).

Neither is the claim a law charge. Article 3195 of the Louisiana Civil Code defines law charges:

“Law charges are such as are occasioned by the prosecution of a suit before the courts. But this' name applies more particularly to the costs, which the party east has to pay to the party gaining the cause. It is in favor of these only that the laws [155]*155[law] grants the privilege.” L.S.A.C.C. art. 3195 (emphasis added).
This definition is particularized in the following Code article:
“The creditor enjoys this privilege, not with regard to all the expenses which he is obliged to incur in obtaining judgment against his debtor, but with regard only to such as are taxed according to law, and such as arise from the execution of the judgment.” L.S.A.C.C. art. 3196.

The codal grant of this privilege is founded on a direct relationship to a litigated court action.

“When the expenses were made to liquidate (transform into money) the property of the debtor, these expenses should be levied on the sums thus obtained; the law declares them privileged.
These expenses are not always judicially incurred; they include also a certain number of extrajudicial expenses, such as expenses' of seals and inventory.
On the other hand, there are privileged in this title not only the expenses incurred for liquidating the property of the debtor and for distributing the price to his creditors, but also those made to preserve or to recover certain property in the interest of creditors: such are the expenses of the revocatory action ..., those of a revindication exercised against a third person on behalf of the debtor ..., or expenses of a sequestration.” 2 Planiol, Civil Law Treatise, No. 2552.

The French source clearly limits the law charge to the context of a judicial action, such as the real property actions, or a liquidation proceeding, and refers to taxable costs.

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Related

Arceneaux v. Domingue
365 So. 2d 1330 (Supreme Court of Louisiana, 1978)
In Re Ford's Succession
91 So. 2d 71 (Louisiana Court of Appeal, 1956)
Rosell v. Esco
549 So. 2d 840 (Supreme Court of Louisiana, 1989)
Canter v. Koehring Company
283 So. 2d 716 (Supreme Court of Louisiana, 1973)
Malloy v. Smith
129 So. 2d 298 (Louisiana Court of Appeal, 1961)
Succession of Moise
107 La. 717 (Supreme Court of Louisiana, 1901)
Livaccari v. Demarest
352 So. 2d 792 (Louisiana Court of Appeal, 1977)
Garlick v. Succession of Garcia
606 So. 2d 36 (Louisiana Court of Appeal, 1992)

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Bluebook (online)
628 So. 2d 152, 1993 La. App. LEXIS 3638, 1993 WL 495664, Counsel Stack Legal Research, https://law.counselstack.com/opinion/succession-of-garcia-lactapp-1993.