Succession of Scurlock

140 So. 3d 318, 13 La.App. 5 Cir. 960, 2014 WL 1622380, 2014 La. App. LEXIS 1081
CourtLouisiana Court of Appeal
DecidedApril 23, 2014
DocketNo. 13-CA-960
StatusPublished
Cited by2 cases

This text of 140 So. 3d 318 (Succession of Scurlock) 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 Scurlock, 140 So. 3d 318, 13 La.App. 5 Cir. 960, 2014 WL 1622380, 2014 La. App. LEXIS 1081 (La. Ct. App. 2014).

Opinion

HANS J. LILJEBERG, Judge.

| ¡¡Plaintiff, John T. Scurlock, Jr. (“Tom”), appeals the trial court judgment sustaining defendants’ exceptions of prescription and dismissing his petition to reopen the succession of his mother, Frances Carr Scur-lock. He also appeals the denial of his motion for new trial. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Frances Carr Scurlock (“Frances”) died on September 7, 1990. She was survived by her husband, John T. Scurlock, Sr. (“John”), as well as her four children, Tom, Frank, Jeffrey, and Steven. Frances left a last will and testament, executed on August 21, 1990, in which she bequeathed 25 percent of her interest in some property in Kenner, Louisiana to Tom. The remainder of her estate was bequeathed to John and to her other three children, subject to a usufruct in favor of John.

A “Petition for Probate and for Possession,” naming John, Tom, Frank, Jeffrey, and Steven as petitioners, was filed on December 6, 1991. That same day, the trial court signed a “Judgment of Possession” in accordance with the terms set Lforth in Frances’ last will and testament. The judgment of possession was apparently amended thereafter on two occasions: May 12, 1994, and July 15, 2005.1

On July 20, 2012, Tom filed a “Petition to Reopen Succession, for Amended Judgment of Possession and Delivery of Legi-time.” In his petition, Tom asserts that the bequests to him in Frances’ will were less than the forced portion reserved to him under Louisiana law at the time of her death. Tom claims that he suffers from Bipolar Disorder I, which has caused him to be an absentee who has remained missing from his family for most of his life, including when his mother died, when her will was probated, and when the judgments of possession were rendered. He asserts that he was never given notice of the succession proceedings pertaining to Frances’ estate. Tom contends that he did not learn of his potential rights as a forced heir in his mother’s estate until he was contacted in 2011 by the attorney appointed for him in his father’s succession proceedings.2 In his petition, Tom requests that Frances’ succession be reopened, that the judgment of possession last rendered on July 15, 2005, be amended to recognize his rights as a forced heir entitled to one-eighth of her estate, and that his legitime be delivered.

On December 14, 2012, Patricia Scurlock (“Patricia”), in her capacity as the testamentary executrix of John T. Scurlock, Sr.’s succession, filed exceptions of prescription and no cause of action, seeking dismissal of Tom’s petition to reopen Frances’ succession. Patricia asserts that in Tom’s petition, he is seeking reduction of [321]*321an excessive donation, which is subject to liberative prescription of five years. She contends that because Tom did not bring his claim until 20 years after Frances’ IfiWill was probated and a judgment of possession was rendered, his claim is clearly prescribed.

Patricia also asserts that Tom has no cause of action, because: 1) he was a petitioner in the original petition for probate and possession filed in Frances’ succession proceeding; and 2) a claim for reduction of an excessive donation cannot be brought by a petition to reopen a succession under LSA-C.C.P. art. 3393. On December 26, 2012, Frank and Jeffrey filed exceptions of prescription and no cause of action raising the same arguments as Patricia raised in her exceptions.

In opposition to the exceptions of prescription and no cause of action filed by Patricia, Frank, and Jeffrey, Tom filed a memorandum asserting that he has set forth proper cause for reopening Frances’ succession, pursuant to LSA-C.C.P. art. 3393. He also contends that defendants’ exceptions are premature and that prescription of Tom’s claims was suspended under the doctrine of contra non valen-tum, because Tom was an absentee, incompetent, and disabled, which prevented him from discovering his rights as a forced heir. He further claims that although he was listed as a petitioner in the pleadings to initiate Frances’ succession proceedings, he, in fact, had no knowledge of these proceedings or his rights as a forced heir.

The exceptions of prescription and no cause of action came for hearing before the trial court on April 30, 2013. At the conclusion of the hearing, the trial court granted the exceptions of prescription filed by defendants, dismissed the petition to reopen Frances’ succession, and found the exceptions of no cause of action to be moot.

On May 9, 2013, Tom filed a motion for new trial, arguing that the trial court incorrectly applied the five-year prescriptive period in LSA-C.C. art. 3497 for reduction of an excessive donation to this case. He asserts that neither | (¡defendants nor the trial court has cited a prescriptive period for reopening a succession, and that he has set forth good and proper cause for reopening the succession in this case. After a hearing on July 2, 2013, the trial court denied Tom’s motion for new trial. Tom appeals.

LAW AND DISCUSSION

On appeal, Tom asserts that the trial court erred in granting defendants’ exceptions of prescription, dismissing Tom’s petition to reopen Frances’ succession, and denying Tom’s motion for new trial, where any applicable prescriptive period had not run or was suspended under the doctrine of contra non valentum. He claims that prescription has not run against his cause of action to nullify the judgment of possession, because his petition was filed on July 20, 2012, which was less than one year after Tom’s discovery of defendants’ fraud or ill practices in obtaining the judgments of possession which impinge on his rights as a forced heir. He further contends that even if the five-year prescriptive period for an action for reduction of an excessive donation applies, prescription was suspended under the doctrine of contra non valentum because Tom was an absentee, incompetent, and defendants filed a petition for probate falsely stating that Tom was a petitioner, which prevented him from asserting his undisputed rights as a forced heir.

LSA-C.C. art. 1503 provides that a donation mortis causa that impinges on the legitime of a forced heir is not null but is merely reducible to the extent necessary to eliminate the impingement. When a testator disposes of her entire estate to the [322]*322prejudice of a forced heir, the donation mortis causa is subject to an action by the forced heir for reduction of the donation and for recovery of the legitime. Kilpatrick v. Kilpatrick, 625 So.2d 222, 225 (La.App. 2 Cir. 9/22/93), writ denied, 631 So.2d 445 (La.1994). Where the plaintiff makes no attack on the |7validity of the will and seeks only to recover his legitime, such an action can only be construed as one for reduction of an excessive donation. Id.

In the present case, Tom’s petition to reopen Frances’ succession does not contain any language requesting annulment of the judgments of possession. Rather, in his petition, Tom requests that the succession be reopened for amendment of the judgments of possession to recognize his rights as a forced heir and for delivery of his legitime under the law. Because Tom has made no attack on the validity of Frances’ will and seeks only to recover his legitime, this action must be construed as one for reduction of an excessive donation.

The five-year prescriptive period set forth in LSA-C.C. art.

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Bluebook (online)
140 So. 3d 318, 13 La.App. 5 Cir. 960, 2014 WL 1622380, 2014 La. App. LEXIS 1081, Counsel Stack Legal Research, https://law.counselstack.com/opinion/succession-of-scurlock-lactapp-2014.