Succession of Sandra A. McElveen Robiho .

Opinion

SUCCESSION OF SANDRA A. * NO. 2019-CA-0858 MCELVEEN ROBIHO * COURT OF APPEAL * FOURTH CIRCUIT * STATE OF LOUISIANA *******

CONSOLIDATED WITH: CONSOLIDATED WITH:

SUCCESSION OF MELISSA NO. 2019-CA-0859 MARIA ROBIHO

CONSOLIDATED WITH: CONSOLIDATED WITH:

MELVIN PAUL ROBIHO, JR. AS NO. 2019-CA-0860 ADMINISTRATOR OF THE ESTATE OF SANDRA A. MCELVEEN ROBIHO

VERSUS

BRANDON ROBIHO AND WHITNEY ROBIHO AS CO- ADMINISTRATORS OF THE ESTATE OF MELISSA ROBIHO

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2009-11755, DIVISION “D” Honorable Nakisha Ervin-Knott, Judge ****** JUDGE SANDRA CABRINA JENKINS ****** (Court composed of Chief Judge James F. McKay, III, Judge Daniel L. Dysart, Judge Sandra Cabrina Jenkins)

DYSART, J., CONCURS IN THE RESULT

Joshua Paul Mathews Roy M. Bowes ROY M. BOWES & ASSOCIATES 2550 Belle Chasse Highway Suite 200 Gretna, LA 70053

COUNSEL FOR APPELLANT

Steven A. Queyrouze ATTORNEY AT LAW 141 Robert E. Lee Blvd., Suite 133 New Orleans, LA 70124

Robert Angelle ATTORNEY AT LAW 3231 North I-10 Service Road West Metairie, LA 70002

COUNSEL FOR DEFENDANT/APPELLEE

REVERSED AND REMANDED

DECEMBER 30, 2020 SCJ JFM

This appeal arises from a dispute for unpaid legal fees between an attorney

and both the former and current administrators of two consolidated successions.

Appellant, Roy M. Bowes d/b/a Roy Bowes and Associates (“Bowes”), is an

attorney that represented the former administrator of the successions of Sandra A.

McElveen Robiho and Melissa M. Robiho. Melvin P. Robiho, Jr. (“Melvin, Jr.”) is

the former administrator, and appellee Steven A. Queyrouze (“Mr. Queyrouze”) is

the current independent administrator of the successions (collectively,

“Defendants”). Bowes appeals the trial court’s judgments: (1) granting

Defendants’ Peremptory Exception of Prescription; and (2) denying Bowe’s

Motion for a New Trial. For the reasons that follow, we reverse and remand. FACTUAL AND PROCEDURAL BACKGROUND

Bowes is an attorney who originally represented Melvin, Jr. individually as

an heir to the Successions of Melvin Paul Robiho, Sr. (“Succession of Melvyn,

Sr.”) and Sandra A. McElveen Robiho, and in his official capacity as the

administrator of the Succession of Sandra A. McElveen Robiho (“Succession of

Sandra”). Bowes began legal work for Melvyn, Jr. on October 19, 2009. In their

original contract executed on October 26, 2009, Bowes and Melvin, Jr. agreed to:

a fix sum fee of $20,000.00 or $250 per hour whichever amount is greater, to be paid upon the rendition of a Judgment of Possession in the Succession of Sandra M. Robiho or upon sale of the succession property located on A.P. Tureaud Ave.

While rendering services for these two successions, another succession was

opened for Melvin, Jr.’s sister, Melissa Robiho, who died intestate on June 4, 2011.

In August 2011, Melvin, Jr. became the administrator for the Succession of

Melissa Robiho (“Succession of Melissa”), and Bowes’ legal representation

included work for this succession as well.

In June 2013, Bowes and Melvin, Jr. amended their original attorney-client

contract. The contract formally extended representation to include the Succession

of Melissa and established the payment rate as hourly. A provision of the contract

reserved the right of Bowes to terminate the relationship for non-payment of costs.

Melvin, Jr. signed the amended contract in his capacity as administrator for the

successions of Sandra and Melissa. Melvin, Jr. also executed a Personal Guaranty

guaranteeing the payment of prior and ongoing legal services provided by Bowes

for the benefit of the successions. In this Guaranty, Melvin, Jr. stated that payment

3 “will not be payable until the mortgage on the Tureaud Ave. property is paid in

full, or that property is sold, whichever comes first.”

In August 2014, Salvador Bivalacqua filed a Motion to Substitute to replace

Bowes as counsel of record. On September 24, 2014, Mr. Bivalacqua filed an

interim accounting that included the legal fees owed to Bowes as an unpaid debt of

the Succession of Sandra. On December 10, 2014, the trial court signed a

judgment homologating the interim accounting submitted on September 24, 2014.

In the homologated interim accounting, Bowes’ total legal fees of $42,348.22 were

included as a succession debt recognized by the court.

In June 2018, the A.P. Tureaud Avenue property was sold. In February

2019, Bowes filed a Petition of Intervention in the Succession of Sandra for

payment of his legal fees. In response, the newly appointed independent

administrator, Mr. Queyrouze, and Melvin, Jr., filed a Peremptory Exception of

Prescription, which asserted that Bowes’ claim for legal fees was barred by

prescription.

After a hearing, the trial court rendered a final judgment on April 12, 2019

granting Defendants’ Peremptory Exception of Prescription and dismissing Bowes’

Petition for Intervention, with prejudice. The trial court found that, as a matter of

law, prescription of three years for collection of debts for professional services

applied to Bowes’ claim for his attorney’s fees pursuant to La. C.C. art. 3494.

On June 14, 2019, the trial court denied Bowes’ Motion for a New Trial.

Bowes filed this timely devolutive appeal of the trial court’s April 12, 2019 and

June 14, 2019 judgments.

4 DISCUSSION

In this appeal, Bowes’ sole assignment of error is that the trial court erred by

ruling that his claim for attorney’s fees had prescribed under La. C.C. art. 3494.

Bowes contends that prescription on his claim was interrupted by the homologation

judgment on December 10, 2014.

Traditionally, prescription is a factual determination to be reviewed under

the manifest error standard of review. Bell v. Glaser, 08-0279, p. 4 (La. App. 4

Cir. 7/1/09); 16 So.3d 514, 516. Because we find that the trial court misapplied the

law of successions, we review the judgment granting the peremptory exception of

prescription under the de novo standard of review. Wells Fargo Fin. Louisiana,

Inc. v. Galloway, 17-0413, p. 8 (La. App. 4 Cir. 11/15/17), 231 So. 3d 793, 800.

Bowes contends that the trial court committed legal error by applying the

three-year prescriptive period of La. C.C.P. art. 3494 to his claim for unpaid legal

fees, which are a debt of the succession. We agree.

“Estate debts” are defined in La. C.C. art. 1415 as follows”

Estate debts are debts of the decedent and administrative expenses. Debts of the decedent are obligations of the decedent or those that arise as a result of his death, such as the cost of his funeral and burial. Administrative expenses are obligations incurred in the collection, preservation, management, and distribution of the estate of the decedent.

Louisiana courts have ruled that attorney’s fees incurred by the administrator

in his or her official capacity are debts of the estate when there is proof that the

attorney fees are expenses for the benefit of the succession and not for the personal

benefit of the administrator. See In Succession of Reno, (La. App. 1 Cir. 9/12/16),

202 So.3d 1147, 1156 (reversing the trial court’s homologation of tableau that

included attorney’s fees because “[i]t was impossible to clearly determine what

5 fees, if any, were incurred solely for the preservation, management, and protection

of the succession property”).

“A creditor of a succession under administration may submit his claim to the

succession representative for acknowledgment and payment in the due course of

administration.” La. C.C.P. art. 3241. An estate debt is considered acknowledged

by a succession representative when it is included in the tableau of distribution.

See La. C.C.P. Art. 3244. Further, inclusion in the tableau of distribution creates a

prima facie presumption of the validity of the claim. Id. Bowes’ legal fees were

included in the interim tableau of distribution via the homologation judgment.

This is an acknowledgment of his claim as a debt of the succession. This judgment

included Bowes’ legal fees as a debt of the Succession of Sandra. No appeal was

taken of the homologation order and no other challenges against the validity of the

claim were made.

An attorney’s claim for fees incurred in settling a succession is governed by

La. C.C. art. 3276:

The charges against a succession such as funeral charges, law charges, lawyer fees for settling the succession, the thousand dollars secured in certain cases to the surviving spouse or minor heirs of the deceased, and all claims against the succession originating after the death of the person whose succession is under administration, are to be paid before the debts contracted by the deceased person, except as otherwise provided for herein, and they are not required to be recorded. [Emphasis added.] Thus, the legal fees incurred by Bowes on behalf of Melvin, Jr., in his

official capacity as administrator of the Succession of Sandra, are a privileged debt

6 of the estates to be paid before personal debts incurred by the decedents themselves

because those legal fees were for settling the successions. 1

Under Louisiana law, attorney’s fees incurred in administering a succession

have a special privileged status, and are not subject to a three year prescriptive

period. 2 In Succession of Ford, 91 So.2d 71, 74 (La. App. 1st Cir. 1956), the court

held that attorney’s fees and expenses of the last illness were not subject to three

year prescription because “such expenses are a privileged charge against the estate,

and so long as the estate is not settled the heirs hold the property subject to such

charge.”

In an analogous case, Sanders v. Sanders, 85 So.2d 61, 62 (La. App. 1st Cir.

1955), the court declared that the Civil Code’s three-year prescriptive period does

not apply to a claim for funeral expenses, which holds a special privilege – just like

attorney’s fees – under La. C.C. art. 3276 (“funeral expenses are not a debt of the

deceased, but a charge upon the estate of a highly privileged nature”). According

to the Sanders court:

[I]n so far as property of the estate, funeral expenses are a privileged charge against same. This privilege upon the property of the estate does not need to be recorded, Article 3276, LSA-Civil Code. So long as the estate is not settled and the heirs hold the property in indivision or under administration, they hold it subject to such charge. “The usual statutes of limitation do not always apply to claims against the estate for matters arising after the death of decedent, as, for instance, for funeral expenses and costs of administration.” [Emphasis added]. Sanders, 85 So. 2d at 64 (citing 21 Am. Jur. Sec. 924 (1939)). Am. Jur. stated:

1 A lawyer’s fees for settling a succession are also a general privilege under La. C.C. art. 3252. Liviccari v. Demarest, 352 So.2d 792, 793-94 (La. App. 4th Cir. 1977). 2 Funeral expenses have the same privileged status as attorney’s fees under La. C.C. art. 3276.

7 The usual statutes of limitation do not always apply to claims against the estate for matters arising after the death of the decedent as for instance, for funeral expenses and costs of administration. Thus, it has been held that an attorney’s fee for services in probating a will is not a debt against the estate of the decedent in the nature of costs, against which such a statute of limitations will not run in favor of the heirs and devisees. Bowes’ claim for his attorney’s fees incurred in settling the Succession of

Sandra is a privileged charge against the property of the estate that is not subject to

the three-year prescriptive period for personal debts of the deceased. The trial

court erred as a matter of law in applying La. C.C. art. 3494 to a privileged debt of

the succession, and dismissing Bowes’ claim for attorney’s fees earned during the

administration of the succession.

CONCLUSION

For the reasons stated above, we reverse the trial court’s April 12, 2019

judgment granting the Defendants’ Peremptory Exception of Prescription and

remand for further proceedings.

REVERSED AND REMANDED