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Succession of Theobald

Court of Appeals of Louisiana, Fifth Circuit

December 27, 2018

SUCCESSION OF RAYMOND E. THEOBALD IN RE: THE MATTER OF RAYMOND E. THEOBALD

          ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 679-270 C/W 735-454, DIVISION "N" HONORABLE STEPHEN D. ENRIGHT, JR., JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLANT, EMILY T. WALET; CHRISTINE L. HERENDEEN, IN HER CAPACITY AS TRUSTEE FOR THE BANKRUPTCY ESTATE OF LUCY E. THEOBALD; AND DEAN R. THEOBALD Brad P. Scott, Ashley U.Schmidt, O. Genevieve Leslie.

          COUNSEL FOR PLAINTIFF/APPELLEE, DAVID M. DELYEA, JR., PAUL A. DELYEA, SR. AND ELIZABETH T. BAKER Roberto A. Contreras, Jeffrey A. Jones.

          Panel composed of Judges Susan M. Chehardy, Robert A. Chaisson, and John J. Molaison, Jr.

          ROBERT A. CHAISSON JUDGE.

         This case arises from a dispute among the surviving relatives of Raymond E. Theobald ("Mr. Theobald") concerning the allocation of settlement proceeds from wrongful death and survival claims filed by an attorney on their behalf. Emily T. Walet, Lucy E. Theobald, and Dean R. Theobald appeal a September 26, 2017 judgment of the trial court that dispersed and divided equally among six legatees of Mr. Theobald's last will and testament the funds from the net proceeds of the settlement. For the following reasons, we reverse the judgment of the trial court and render judgment in favor of the appellants.

         FACTS AND PROCEDURAL HISTORY

         Mr. Theobald died as the result of being struck by a motor vehicle on June 14, 2009. At the time of his death, he was survived by three children, Emily T. Walet, Lucy E. Theobald, and Dean R. Theobald, and one grandchild, Elizabeth Baker, the daughter of his predeceased daughter, Ann-Marie Theobald. Through his marriage to Edna Bailly Theobald, Mr. Theobald was also survived by two step-children, David Delyea, Jr. and Paul A. Delyea, Sr., neither of whom were adopted by Mr. Theobald. Mr. Theobald left a last will and testament in which he named Emily, Lucy, Dean, Elizabeth, David and Paul as legatees of his estate in equal portions.[1]

         All six legatees named in Mr. Theobald's last will and testament retained attorney Bruce H. Lizana to make a claim against the driver of the vehicle that struck Mr. Theobald and the driver's liability insurer.[2] In connection with his representation, Mr. Lizana requested and obtained an Acknowledgement and Waiver of Conflicts of Interests & Agreement for Disbursement of Proceeds (the "Conflict Waiver") individually from Emily, Lucy, Dean, Elizabeth, David and Paul.

         The Conflict Waiver states:

To the Heirs of Raymond E. Theobald:
Below is your Informed Consent of my firm representing each of you, to which you have agreed after a careful consideration of all the facts and even though there are actual and potential conflicts of interest. I wish to remind you of the circumstances and facts that give rise to the conflicts of interest, which you each told me you did consider in making your decision.
This representation will include the Wrongful Death claim and Survivor Action that arise as the result of the automobile/pedestrian accident of Raymond E. Theobald that occurred on June 14, 2009 on West Esplanade Avenue in Jefferson Parish, Louisiana and resulted in his death.
You have each told me you understand that for the Wrongful Death claim and pursuant to Louisiana law only the natural children of the decedent, Raymond E. Theobald are entitled to file a claim or lawsuit for their damages for the loss of their father. That is Emily, Lucy and Dean. Step children and grandchildren who were not adopted are not entitled by law to file a claim or lawsuit for their loss. That is David, Paul and Elizabeth. You have each further told me you understand the Survival Action is part of the Estate of Raymond E. Theobald.
The conflicts arise for several reasons. First, each of the natural children, Emily, Lucy and Dean had a unique and different relationship with their father. It would be necessary to determine what each would be entitled to based upon their particular relationship. Next, it would be necessary to determine what portion of any proceeds recovered would be ...

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