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Mollere v. Mollere

Court of Appeals of Louisiana, Fifth Circuit

March 28, 2018

CRAIG MOLLERE AND LIBBY MOLLERE ENGLADE
v.
KEVIN P. MOLLERE, INDIVIDUALLY AND HIS CAPACITY AS EXECUTOR OF THE SUCESSION OF EARLINE WEBER MOLLERE AND AS PRESIDENT AND SOLE SHAREHOLDER OF MOLLERE FURNITURE AND APPLIANCES, INC. AND MOLLERE FURNITURE AND APPLIANCES, INC.

          ON APPEAL FROM THE FORTIETH JUDICIAL DISTRICT COURT PARISH OF ST. JOHN THE BAPTIST, STATE OF LOUISIANA NO. 69, 698, DIVISION "C" HONORABLE J. STERLING SNOWDY, JUDGE PRESIDING

          PLAINTIFF/APPELLANT, CRAIG MOLLERE AND LIBBY MOLLERE ENGLADE Robert R. Faucheux, Jr. Christophe L. Faucheux

          Lindsay M. Faucheux COUNSEL FOR DEFENDANT/APPELLEE, KEVIN MOLLERE William D. O' Regan, III

          Panel composed of Judges Fredericka Homberg Wicker, Marc E. Johnson, and Robert A. Chaisson

          MARC E. JOHNSON JUDGE

         Plaintiffs/Appellants, Craig Mollere and Libby Mollere Englade, appeal the sustaining of an exception of no right of action that dismissed their action in favor of Defendant/Appellee, Keven P. Mollere, [1] individually and in his capacity as executor of the Succession of Earline Weber Mollere and as president and sole shareholder of Mollere Furniture and Appliances, Inc., and Mollere Furniture and Appliances, Inc. (hereinafter referred to as "Mollere Furniture") from the 40thJudicial District Court, Division "C". For the following reasons, we overrule the exception of prescription raised by Keven in this appeal and affirm the judgment of the trial court.

         FACTS AND PROCEDURAL HISTORY

         The facts pertinent to this appeal are as follows.

         On November 6, 1980, Articles of Incorporation (hereinafter referred to as "the Articles") for Mollere Furniture were executed and adopted by Wilbert J. Mollere, Earline W. Mollere and Keven Mollere.[2] Among the provisions set forth in the Articles was Article IX, which provided that in the event Wilbert predeceased Earline, Mollere Furniture would provide full maintenance, support and medical care for Earline until her death.[3]

         Wilbert died on April 27, 2003. Following Wilbert's death, Keven became the president of Mollere Furniture. In a judgment of possession rendered on September 25, 2003, Earline was awarded all of the community property that existed between her and Wilbert as the surviving spouse and the universal legatee of Wilbert. On October 21, 2015, Earline passed away. Keven was confirmed as the independent executor of Earline's succession on March 1, 2016.

         On August 23, 2016, Plaintiffs filed a "Petition for Damages Caused by Breach of Fiduciary Duty and Breach of Contract" against Keven, individually and in his capacity as independent executor and as president and sole shareholder of Mollere Furniture. In their petition, Plaintiffs alleged Keven had been granted power of attorney by Earline to handle her affairs, and as power of attorney, Keven breached his fiduciary duty to Earline by failing to demand and seek enforcement of the maintenance and support provision of Article IX. Plaintiffs further alleged that Keven, as president and controlling officer in charge of the operations of Mollere Furniture, failed to take any steps to ensure that Mollere Furniture fulfilled its obligations to Earline under the maintenance and support provision of Mollere Furniture's Article of Incorporation. As a result of the breaches of fiduciary duties, Plaintiffs alleged that Keven's actions caused damage and diminution to the patrimony of Earline because she was forced to expend sums of her own money to provide for her own maintenance, support and medical care following the death of Wilbert.

         After filing an Answer that denied the allegations of the petition, Keven filed "Peremptory Exceptions for No Cause of Action and No Right of Action" on December 8, 2016. In his exceptions, Keven asserted Plaintiffs had no cause of action because no power of attorney ever existed for Earline, and the succession of Earline had no legal basis for maintenance and support of Earline, since those obligations would not be required after Earline passed away. Keven further asserted Plaintiffs had no right of action because they had no right to challenge the legacy left to them in Earline's will, as Earline could have disposed of any and all of her personal property without the consent of any party.

         A hearing on Keven's exceptions was held on February 9, 2017. During the hearing, the trial court overruled Keven's exception of no cause of action and took the no right of action under advisement. In a judgment rendered on February 16, 2017, the trial court sustained Keven's peremptory exception of no right of action and dismissed Plaintiffs' petition against Keven in each of his capacities with prejudice. In its reasons for judgment, the trial court found that the maintenance and care provision of Article IX of Mollere Furniture's Articles of Incorporation was a contract for the exclusive benefit of Earline, and the article was a strictly personal obligation between Mollere Furniture and Earline. "As legatees of Earline Weber Mollere, " without mentioning their rights in other capacities, the trial court held that Plaintiffs lacked the right to pursue their causes of action. The instant appeal of that judgment followed.

         PEREMPTORY ...


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