JOJUYOUNGHI CLEAVER, AS SURVING SPOUSE & AS TUTRIX OF HER MINOR CHILD, KAYODE JI JAGA
WESTERN NATIONAL LIFE INSURANCE COMPANY (SUCCESSOR COMPANY TO AMERICAN GENERAL ANNUITY INSURANCE COMPANY)
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.
Janice Villarrubia, Baton Rouge, LA, Counsel for
Plaintiff/Appellant, Jojuyounghi Cleaver, as natural tutrix
for the minor child, Kayode Ji Jaga.
E. Eagan, New Orleans, LA, Counsel for Defendant/Appellee,
Western National Life Insurance Company (Successor Company to
American General Annuity Insurance Company).
Villa, James R. Raines, Joseph J. Cefalu, III, Baton Rouge,
LA, Counsel for Defendants/Appellees, Shona Satomi Pratt and
Callender, Baton Rouge, LA, Counsel for Intervenor/Appellant,
Laila Minja, mother and natural tutrix for the minor child,
Tkumsah Geronimo Jaga.
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.,
0972 La.App. 1 Cir. 2] WHIPPLE, C.J.
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
AND PROCEDURAL HISTORY
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.
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,"
directly against Western National as the named
defendant. 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. 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."
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.
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. 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.
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
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.
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.]
LSA-R.S. 22:912(B)(1), plaintiffs contend that ...