SUCCESSION OF RAYMOND E. THEOBALD IN RE: THE MATTER OF RAYMOND E. THEOBALD
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.,
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.
composed of Judges Susan M. Chehardy, Robert A. Chaisson, and
John J. Molaison, Jr.
A. CHAISSON JUDGE.
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
AND PROCEDURAL HISTORY
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.
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. 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.
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.
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 ...