Succession of McKinley

206 So. 3d 959, 16 La.App. 3 Cir. 503, 2016 La. App. LEXIS 2211
CourtLouisiana Court of Appeal
DecidedDecember 7, 2016
Docket16-503
StatusPublished
Cited by2 cases

This text of 206 So. 3d 959 (Succession of McKinley) 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 McKinley, 206 So. 3d 959, 16 La.App. 3 Cir. 503, 2016 La. App. LEXIS 2211 (La. Ct. App. 2016).

Opinion

GREMILLION, Judge.

11 Kevin McKinley appeals the trial court’s judgment ordering reimbursement to the estate of his father, Joe Andy McKinley, awarding ownership of a Browning “Sweet Sixteen” shotgun to his brother, Kenneth, and other matters related to the succession. For the following reasons, we affirm with instructions.

FACTUAL AND PROCEDURAL BACKGROUND

Joe Andy McKinley died testate on January 24, 2014. The appellant, Kevin McKinley, and his brother, Kenneth McKinley, are the only surviving heirs of Joe. On January 27, 2014, Kenneth initiated the succession of his father by filing a petition for rule to show cause to appoint an administrator, for a temporary restraining order, and for succession inventory. On February 28, 2014, Kevin responded by filing a petition for rule to show cause to probate a notarial testament and for confirmation of an independent administrator, namely himself. Following a mediation, the brothers entered into a settlement agree[961]*961ment in July 2014. Subsequently, Kevin terminated his counsel and failed to move forward with the terms of the settlement agreement.

In September 2014, Kenneth filed a motion and order for telephone status conference and to enforce the settlement agreement. Kevin’s former counsel, Steven G. Durio, filed a petition for intervention for the unpaid fees of $29,976.99 owed to his firm by Kevin.

In late October 2014, Kenneth filed a motion and order to reset the hearing to enforce the settlement agreement. Following a November 3, 2014 hearing, Kevin and Kenneth entered into a joint stipulation and consent judgment in which Kevin stipulated he would take various actions in accordance with settling the estate, such as composing lists and obtaining valuations, paying the monies owed to his former lawyer, and deferring the ownership of the Browning “Sweet 12Sixteen” shotgun to future court proceedings. Further, claims for reimbursement would continue to be negotiated.

On January 12, 2015, Kenneth filed a motion and order to compel and for contempt for Kevin’s failure to comply. On January 29, 2015, Durio filed a motion and order for attorney fees because his firm had yet to be paid for its services. Various motions were subsequently granted relating to the production of financial documents. On April 10, 2015, Durio again filed a motion and order for the payment of the fees owed to the firm by Kevin.

On May 15, 2015, Kevin filed a rule to show cause why he should not be reimbursed by the estate for the payment of the attorney fees as provided for in the Trust Agreement, urging that Kenneth was the “sole cause of the extensive litigation in this matter.” He further urged that the monies owed Durio be paid out of the trust account and deducted from Kenneth’s share.

On August 7, 2015, Kenneth filed a rule to show cause why he and/or the estate should not be reimbursed for estate monies expended by Kevin for his own personal benefit totaling $92,057.76. Kenneth further requested reimbursement for property taxes that he paid out of his personal funds for his father’s home. Kenneth also requested reimbursement of assorted expenses incurred by Kevin.

On August 25, 2015, Kevin filed a rule for expedited partial distribution of funds as a portion of inheritance which Kenneth opposed. Kevin thereafter dismissed his motion. On September 28, 2015, Kevin filed an answer and objection to Kenneth’s rule for reimbursement and Kevin filed motions for contempt, sanctions; attorney fees, and reimbursement. Kenneth thereafter filed oppositions to the motions.

On October 20, 2015, Kevin filed a motion for appointment of an independent administrator, for authority to act, and for contempt. On October 30,1 a2015, Kenneth filed a motion for expedited in-person status conference to address Kevin’s new motion for contempt (“and the repeated personal attacks on Kenneth and counsel for Kenneth therein”). The trial court issued a judgment on rules following a hearing on October 26, 2015. The trial court overruled Kevin’s exceptions of prescription, vagueness and ambiguity. It further ordered that Kevin’s motion for contempt and sanctions would be deferred until after a trial on the merits of the reimbursement claims.

Following a bench trial in January 2016, the trial court found that Kevin breached his fiduciary duty owed to his father and ordered that Kevin reimburse the estate the sum of $39,441.94 for personal expenses paid for with his father’s credit cards and checks he issued to himself in excess of his monthly allowance. The trial court also awarded the Browning “Sweet Sixteen” shotgun to Kenneth because his [962]*962bid of $850.00 exceeded Kevin’s bid of $777.00. The trial court ordered that Kenneth be reimbursed $1,320.69 for taxes he paid with personal funds on behalf of the estate. Finally, the trial court ordered that Kevin reimburse the estate $4,000.00 received in April 2014 as an allowance payment after his father’s death. In its judgment, the trial court set forth various instructions for concluding succession matters. Kevin now appeals and assigns as error:

1. The Trial Court erred in finding that Appellant breached a fiduciary duty by self-dealing and ordering reimbursements against the Appellant.
2. The Trial Court erred in failing to uphold the provisions of the Trust by failing to reimburse attorney fees, court costs, and other expenses of the Appellant in direct contravention of the terms of Paragraph 4.9 of the Trust.
3. The Trial Court erred when it held that the Browning “Sweet Sixteen” Shotgun (hereinafter referred to as “the shotgun”) had not previously been a completed donation or gift made to the Appellant, and ordered the parties to bid on the shotgun to establish ownership.
It4. The Trial Court erred in failing to include a $14,528.654 reduction of Kenneth McKinley’s share of his inheritance in its written ruling.
5. The Trial Court erred in finding that Appellant had caused a delay in removing Decedent’s personal effects from Cornerstone Assisted Living (hereinafter referred to as “Cornerstone”) and assessing the sum of $3,173.42 in rent against Appellant.

DISCUSSION

The will executed by Joe in October 2005, stated in part:

I leave my entire estate to Trustee for the McKinley Living Trust of 2005, wherever said estate is situated at the time of my death. I declare that the distribution plan for assets held in said trust, of even date hereof, as amended or restated, should be incorporated into the Will in the event that the trust is revoked or held invalid.
I name Kenneth W. McKinley executor of my Will, to serve without bond.
Executor may act as Independent Administrator or Independent Executor pursuant to La.Code Civ. P. Art. 3396.2

On January 20, 2012, Joe executed a Codicil to his last will and testament which stated in part:

1) I hereby remove Kenneth W. McKinley as executor of my Will and replace with Kevin J. McKinley
2) With the exception of this change, my Will executed on October 28, 2005, shall remain in full force and effect.

Kevin McKinley testified that in September 2011, his father fell and required hospitalization. At the time, he was living in Virginia.

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Bluebook (online)
206 So. 3d 959, 16 La.App. 3 Cir. 503, 2016 La. App. LEXIS 2211, Counsel Stack Legal Research, https://law.counselstack.com/opinion/succession-of-mckinley-lactapp-2016.