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
COUNSEL FOR DEFENDANT/APPELLANT, CHARLES TRIOLA Ernest A.
composed of Judges Susan M. Chehardy, Robert M. Murphy, and
Stephen J. Windhorst
M. MURPHY, JUDGE.
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. Finding no error in the judgment
below, we affirm.
BACKGROUND AND PROCEDURAL HISTORY
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.
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
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.
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.
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
from this judgment that Charles timely filed the instant
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.
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.
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.
Succession of Margaret (Marguerite) Essie Doucet
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,
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. 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
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. 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.
judgment dated June 14, 1965, Decedent was
confirmed as the natural tutor for his minor sons; an
undertutrix was also appointed. Oaths were filed and letters of
tutorship were issued to Decedent and the undertutrix, Ruby
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.
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. 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. In order to protect the ...