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Court of Appeals of Louisiana, First Circuit

July 28, 2015

JOJUYOUNGHI CLEAVER, AS SURVING SPOUSE & AS TUTRIX OF HER MINOR CHILD, KAYODE JI JAGA
v.
WESTERN NATIONAL LIFE INSURANCE COMPANY (SUCCESSOR COMPANY TO AMERICAN GENERAL ANNUITY INSURANCE COMPANY)

Page 407

          Appealed from the Nineteenth Judicial District Court, In and for the Parish of East Baton Rouge, Louisiana. Docket Number 617512. Honorable Todd W. Hernandez, Judge Presiding.

         M. Janice Villarrubia, Baton Rouge, LA, Counsel for Plaintiff/Appellant, Jojuyounghi Cleaver, as natural tutrix for the minor child, Kayode Ji Jaga.

         Emily E. Eagan, New Orleans, LA, Counsel for Defendant/Appellee, Western National Life Insurance Company (Successor Company to American General Annuity Insurance Company).

         B. Troy Villa, James R. Raines, Joseph J. Cefalu, III, Baton Rouge, LA, Counsel for Defendants/Appellees, Shona Satomi Pratt and Hiroji Pratt.

         Mark R. Callender, Baton Rouge, LA, Counsel for Intervenor/Appellant, Laila Minja, mother and natural tutrix for the minor child, Tkumsah Geronimo Jaga.

         BEFORE: WHIPPLE, C.J., PETTIGREW, McCLENDON, HIGGINBOTHAM, and HOLDRIDGE, JJ. Pettigrew, J., Concurs with the results only, and assigns reasons. McClendon, J., concurs in part and dissent in part and assigns reasons. Higginbotham, J., concurs.

          OPINION

Page 408

          [2014 0972 La.App. 1 Cir. 2] WHIPPLE, C.J.

         This is an appeal filed on behalf of two minor children from a judgment of the trial court sustaining the defendants' exception of no cause of action and dismissing the children's claims asserting an interest in an annuity policy owned by their deceased father. For the following reasons, we reverse the judgment insofar as it sustained defendants' Shona Pratt and Hiroji Pratt's (hereinafter collectively referred to as " the Pratts" ) objection of no cause of action. We render judgment maintaining the Pratt defendants' exception of prematurity, and we affirm the judgment of dismissal, as amended to reflect that the dismissal of plaintiffs' claims against the Pratts is without prejudice. We further vacate the judgment insofar as it dismissed plaintiffs' claims against the defendant Western National Life Insurance Company (" Western National" ) and remand for further proceedings.

         FACTS AND PROCEDURAL HISTORY

         Geronimo Ji Jaga, a/k/a Elmer Pratt (" the decedent" ), died on June 3, 2011, in Tanzania, Africa. On November 28, 2011, a joint petition to open his succession was filed by Shona Pratt, Nikki Michaux, Hiroji Pratt, and Jojuyounghi (" Joju" ) Cleaver in the Sixteenth Judicial District Court for the Parish of St. Mary. The petition alleged that jurisdiction in the Sixteenth Judicial District Court was proper because the decedent left property within this jurisdiction. Additionally, the petition alleged that the decedent fathered five children prior to his death, namely: (1) Nikki Michaux, born on July 20, 1970; (2) Hiroji Pratt (date of birth not specified), born during the decedent's marriage to Linda Session, from whom he was divorced in 1995; (3) Shona Pratt (date of birth not specified), also born during the decedent's marriage to Linda Session; (4) Kayode Ji Jaga (date of birth not specified), born after the decedent's divorce in 1995 and while the decedent was married to Joju Cleaver; and (5) Tkumsah Geronimo Jaga, born on February 11, 2010.

         [2014 0972 La.App. 1 Cir. 3] Separate and apart from the succession proceedings, on December 6, 2012, Joju Cleaver, as surviving spouse of the decedent and as natural tutrix for the minor child, Kayode Ji Jaga, initiated the instant proceedings by filing a petition in the Nineteenth Judicial District Court for the Parish of East Baton Rouge Parish, titled " Petition for Legitime and for Marital Portion,"

Page 409

directly against Western National as the named defendant.[1] In pertinent part, Joju alleged in her petition that the decedent had purchased an annuity from American General Annuity, later named as Western National, from proceeds he received from a civil rights lawsuit.[2] The petition further alleged that although Kayode is a " forced heir," he is not a named beneficiary of the annuity nor has he received anything as a result of his father's death. Rather, the decedent's two older children, Shona Pratt and Hiroji Pratt, were purportedly the named beneficiaries of the annuity. Accordingly, the petition alleged that as a forced heir, Kayode was entitled to receive his legitime, and, in calculation of the legitime, he was entitled to demand collation of any gifts which impinge on the legitime. On these bases, the petition prayed for judgment against Western National " for Kayode's legitime." [3]

         In response, Western National filed an exception of nonjoinder of a necessary party, alleging that Shona Pratt and Hiroji Pratt must be joined in the action, as they are the named beneficiaries of the annuity. Joju thereafter filed an amended petition, naming Shona Pratt and Hiroji Pratt as additional defendants. In response, the Pratts filed peremptory exceptions of no cause of action and nonjoinder of a party, dilatory [2014 0972 La.App. 1 Cir. 4] exceptions of prematurity and lack of procedural capacity, and a declinatory exception of lack of personal jurisdiction.

         Prior to a hearing on these exceptions, Laila Minja as natural tutrix for the minor child, Tkumsah Geronimo Jaga, filed a petition to intervene, alleging that Tkumsah was also a forced heir of the decedent.[4] The petition further alleged that, pursuant to LSA-R.S. 22:912(B), beneficiary designations for annuities are limited in that beneficiary designations may not transfer ownership rights reserved for forced heirs. In the alternative, Minja's petition alleged that the beneficiary designations in the decedent's annuity impinged on Tkumsah's legitime.

         In response to Tkumsah's petition to intervene, the Pratts filed the same objections as previously filed regarding Kayode's petition, namely, exceptions raising the objections of no cause of action and nonjoinder of a party, prematurity and lack of procedural capacity, and lack of personal jurisdiction. A hearing on all of the Pratts' exceptions was conducted on September 16, 2013. After hearing argument from counsel and taking the matter under advisement, the trial court sustained the Pratts' exception of no cause of action, pretermitted the other exceptions as moot, and dismissed plaintiffs' claims with prejudice.[5]

Page 410

          [2014 0972 La.App. 1 Cir. 5] Kayode Ji Jaga and Tkumsah Geronimo Jaga, through their respective tutors, now appeal the judgment sustaining the exception of no cause of action.

         DISCUSSION

          A court appropriately sustains the peremptory exception of no cause of action only when, conceding the correctness of the well-pleaded facts, the plaintiff has not stated a claim for which he can receive legal remedy under the applicable substantive law. City of New Orleans v. Board of Directors of Louisiana State Museum, 98-1170 (La. 3/2/99), 739 So.2d 748, 756. Therefore, the court reviews the petition and accepts the well-pleaded allegations of fact as true, and the issue at trial of the exception is whether, on the face of the petition, the plaintiff is legally entitled to any relief sought. See Ferrington v. Louisiana Bd. of Parole, 2003-2093 (La.App. 1st Cir. 6/25/04), 886 So.2d 455, 458, writ denied, 2004-2555 (La. 6/24/05), 904 So.2d 741. One of the primary differences between the exceptions of no cause of action and no right of action lies in the fact that a frequent focus in an exception of no cause of action is on whether the law provides a remedy against a particular defendant, while the focus in an exception of no right of action is on whether the particular plaintiff has a right to bring the suit. Robertson v. Sun Life Financial, 2009-2275 (La.App. 1st Cir. 6/11/10), 40 So.3d 507, 511. Generally, no evidence may be introduced to support or controvert the objection that the petition fails to state a cause of action. LSA-C.C.P. art. 931.

          Louisiana Revised Statute 22:912, governing the exemption of annuity proceeds from claims of creditors and others, contains a specific provision for claims of forced heirs. Specifically, LSA-R.S. 22:912(B)(1) states:

The lawful beneficiary, assignee, or payee, including the annuitant's estate, of an annuity contract shall be entitled to the proceeds and avails of the contract against the creditors and representatives of the annuitant or the person effecting the contract, or [2014 0972 La.App. 1 Cir. 6] the estate of either, and against the heirs and legatees of either person, saving the rights of forced heirs, and the proceeds and avails shall also be exempt from all liability for any debt of the beneficiary, payee, or assignee or estate, existing at the time the proceeds or avails are made available for his own use. [Emphasis added.]

         Citing LSA-R.S. 22:912(B)(1), plaintiffs contend that ...


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