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Succession of Triola

Court of Appeals of Louisiana, Fifth Circuit

December 27, 2017

SUCCESSION OF CHARLES VINCENT TRIOLA

         ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 711-486, DIVISION "B" HONORABLE CORNELIUS E. REGAN, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, GARY VICTOR TRIOLA Randolph P. Russell

          COUNSEL FOR DEFENDANT/APPELLANT, CHARLES TRIOLA Ernest A. Burguieres, III

          Panel composed of Judges Susan M. Chehardy, Robert M. Murphy, and Stephen J. Windhorst

          ROBERT M. MURPHY, JUDGE.

         Plaintiff, Charles J. Triola ("Charles"), appeals the trial court's March 10, 2017 judgment granting an exception of prescription in favor of defendant, Gary V. Triola ("Gary"), dismissing, with prejudice, Charles' claims for an accounting and reimbursement or delivery of his alleged undivided interest in property that he inherited in the succession of his mother.[1] Finding no error in the judgment below, we affirm.

         FACTUAL BACKGROUND AND PROCEDURAL HISTORY

         Charles and Gary are brothers. On September 15, 2011, their father, Charles V. Triola ("Decedent"), died testate leaving an olographic will and testament dated January 2, 2011, wherein he bequeathed his entire estate, including all bank accounts, home and contents, in full ownership, solely to Gary. The olographic will was presented for probate on March 2, 2012, and the trial court rendered a judgment of possession in favor of Gary.

         Subsequently, on July 23, 2012, Charles filed the instant action seeking to annul the probated testament and to "recover un-reimbursed claims" against Decedent's succession. Specifically, Charles claimed he was entitled to "an accounting and the reimbursement or delivery of [his] one-quarter (1/4) interest in his mother's succession held in usufruct" by Decedent, which pertained to property Charles inherited from his mother in 1965, in the Succession of Margaret (Marguerite) Essie Doucet Triola.[2]

         In response to Charles' claims for an accounting and reimbursement or delivery of his interest in the property inherited from his mother, Gary filed an exception of prescription pursuant to La. C.C. art. 340, which provides that "[t]he action of the minor against his tutor, respecting the acts of tutorship, is prescribed by four years, to begin from the day of his majority." Gary argued that Charles' claims for an accounting and reimbursement or delivery prescribed on March 11, 1977, four years after Charles reached the age of majority, and thus his claims filed in 2012 came 35 years too late. Gary also argued that any claim Charles may have had against Decedent, or any of Decedent's "heirs, successors and assigns," for an accounting or for reimbursement or delivery of property arising out of Charles' mother's succession were released and forever discharged by virtue of a final receipt and release Charles executed in favor of Decedent on November 30, 1978.

         Conversely, Charles argued that La. C.C. art. 340 was inapplicable because that codal provision deals with actions by a child against his tutor. Charles averred that he was not making a claim against his tutor, but rather, his claim was for "the return of his usufruct property" and, consequently, the law of usufruct applies. Similarly, Charles claimed that the 1978 receipt and release was irrelevant as it, too, dealt with tutorship issues and not with usufruct.

         Gary's exception of prescription came for hearing on March 7, 2017. The trial court took the matter under advisement and, thereafter, on March 10, 2017, rendered judgment granting Gary's exception of prescription and dismissing, with prejudice, Charles' claims for an accounting and for reimbursement or delivery of property from the succession of his mother.

         It is from this judgment that Charles timely filed the instant appeal.

         ASSIGNMENT OF ERROR

         On appeal, Charles avers that the trial court erred in granting the exception of prescription and thereby, in effect, dispossessing him of his interest in immovable property.

         LAW AND ARGUMENT

         An exception of prescription is a peremptory exception, which a defendant may raise at any time. La. C.C.P. art. 928(B). In reviewing a peremptory exception of prescription, the standard of review requires an appellate court to determine whether the trial court's findings of fact were manifestly erroneous. Herrera v. Gallegos, 14-935, pp. 12-13 (La. App. 5 Cir. 10/28/15), 178 So.3d 164, 169. An appellate court should not upset factual findings of a trial court absent manifest error or unless clearly wrong. Adams v. Grefer, 11-1157, p. 7 (La. App. 5 Cir. 9/11/12), 99 So.3d 1083, 1086. Although the factfinder is afforded deference, appellate courts have a duty to review the facts. State v. Lauricella Land Co., L.L.C., 10-790, p. 11 (La. App. 5 Cir. 4/28/11), 65 So.3d 712, 718, citing State, Dept. of Transp. & Development v. Schwegmann Westside Expressway, Inc., 95-261, pp. 8-9 (La. 3/1/96), 669 So.2d 1172, 1177.

         In order for this court to determine whether the lower court manifestly erred in finding that Charles' claims against Decedent's succession for an accounting and reimbursement or delivery of his interest in property that he inherited from his mother's succession had prescribed, we find it necessary to recount the events and actions taken by Decedent for or on behalf of Charles and Gary following the death of their mother, Margaret. The following facts are gleaned from the record of the Succession of Margaret (Marguerite) Essie Doucet Triola, which record was admitted into evidence at the hearing on the exception of prescription.

         1. Succession of Margaret (Marguerite) Essie Doucet Triola

         Charles and Gary were the only children born of the marriage of Decedent and his first wife, Margaret. Margaret predeceased Decedent over 53 years ago, on April 26, 1964, when Charles and Gary were minors, aged nine and seven years old, respectively.

         On May 11, 1965, Decedent filed a petition, entitled "Succession of Margaret (Marguerite) Essie Doucet Triola," notifying the court that his wife had died, survived by himself and his two minor sons. In the petition, Decedent represented that Margaret died intestate, possessed of an undivided one-half interest in community property located in St. Bernard Parish and St. Tammany Parish. Recognizing that an inventory and appraisal of Charles and Gary's interest in his deceased wife's property was necessary, Decedent requested the court to issue an order that same be conducted.[3] Decedent further petitioned the court that he be permitted to qualify as the natural tutor for his minor sons and requested the appointment of an undertutrix.

         Following the court's appointment of a notary and two appraisers in both St. Bernard Parish and St. Tammany Parish, an inventory and appraisal of the minor boys' property was conducted on May 26, 1965, and certificates were issued and recorded, establishing a minor's mortgage in favor of the minor boys and against Decedent in both Parishes.[4] The value of each minor child's interest in and to the property was established at $75.00 each for the property located in St. Tammany, and $5,400.00 each for the property situated in St. Bernard.

         By judgment dated June 14, 1965, Decedent was confirmed as the natural tutor for his minor sons; an undertutrix was also appointed.[5] Oaths were filed and letters of tutorship were issued to Decedent and the undertutrix, Ruby Doucet Bairnsfather.[6]

         On that same day, June 14, 1965, Decedent filed a petition, together with a sworn descriptive list and computation for inheritance tax purposes, seeking to be placed into possession of an undivided one-half interest of all the property belonging to the community, which existed between Decedent and Margaret, and to a usufruct of the remaining undivided one-half interest owned equally by his minor sons, Charles and Gary. A judgment of possession was signed that same date recognizing and decreeing Decedent to be the surviving spouse in community with Margaret and as the owner of an undivided one-half interest in and to the community property described in the judgment. Decedent was also recognized as the usufructuary of the remaining undivided one-half interest. The June 14, 1965 judgment of possession further recognized and decreed Charles and Gary as Margaret's sole heirs and, as such, placed them each into possession of their mother's undivided one-half interest in the community, subject to the usufruct in favor of their father, Decedent herein.

         Also on June 14, 1965, in his capacity as the "duly qualified natural tutor" of Charles and Gary, Decedent filed a petition seeking court approval to sell the real estate situated in St. Bernard Parish as described in the judgment of possession. The undertutrix concurred with the sale of the property.[7] Thereafter, a judgment was issued authorizing Decedent, as the natural tutor of the minor boys, to sell the St. Bernard real estate in which Charles and Gary had an interest.[8] In order to protect the ...


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