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In re Shell

Court of Appeals of Louisiana, Fifth Circuit

May 30, 2019

IN RE: GAYAN SHELL, WIFE OF / AND PAUL L. JUAREZ

          ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 551-126, DIVISION "M" HONORABLE HENRY G. SULLIVAN, JR., JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLANT, LYNN O. DUPREE, IN HER CAPACITY AS INDEPENDENT DATIVE EXECUTRIX OF THE SUCCESSION OF MARJORIE O. BLAKE Irl R. Silverstein

          COUNSEL FOR DEFENDANT/APPELLEE, PAUL L. JUAREZ Philip C. Ciaccio, Jr.

          Panel composed of Judges Marc E. Johnson, Robert A. Chaisson, and Stephen J. Windhorst

          STEPHEN J. WINDHORST JUDGE

         Appellant/plaintiff, Lynn Dupree as executrix of the Succession of Marjorie Blake, seeks review of the district court's judgment granting appellees/defendants, Paul Juarez and the unopened succession of Gayan Shell Juarez's, exception of prescription and dismissing with prejudice plaintiff's petition to annul a judgment terminating the community of acquets and gains between Paul Juarez and Gayan Shell and establishing a separation of property regime. The district court also ruled that defendants' exceptions of no right of action and no cause of action were moot. For the reasons stated herein, we vacate the district court's judgment and grant appellees' exceptions of no right and no cause of action.

         FACTS AND PROCEDURAL HISTORY

         On March 21, 2000, Paul L. Juarez and Gayan Shell Juarez filed a joint petition to terminate their legal matrimonial regime and enter into a separation of property regime ("petition to terminate"). On that same day, the trial court signed a judgment terminating the community of acquets and gains between Paul L. Juarez and Gayan Shell and establishing a separation of property regime in accordance with La. C.C. art. 2329.

         Paul Juarez and his now deceased wife, Gayan Shell Juarez, were caretakers for Marjorie Blake for approximately seven or eight years. According to certain lawsuits filed on behalf of Ms. Blake, Paul and Gayan Juarez allegedly stole money from Ms. Blake prior to her death and diminished her estate. On June 5, 2018, Lynn Dupree, in her capacity as independent dative executrix of the Succession of Marjorie Blake, filed this suit, a petition to annul judgment, against Paul Juarez, seeking (1) to nullify the March 21, 2000 judgment that terminated the community of acquets and gains between Paul Juarez and Gayan Shell based on fraud; (2) to reestablish the community of acquets and gains, which existed prior to that judgment; (3) to appoint an attorney to act as the administrator of the Succession of Gayan Shell Juarez, who died on September 20, 2015; and (4) reasonable attorney's fees under La. C.C.P. art. 2004.

         In the petition to annul, Ms. Dupree on behalf of Ms. Blake's succession asserted that the allegations set forth in the petition to terminate were based on fraud and that the judgment terminating the community should be nullified. Specifically, Ms. Dupree alleged that the representation in the petition to terminate that Paul and Gayan Juarez were gainfully employed full-time and capable of paying their own separate debts was fraudulent. In making this allegation, Ms. Dupree relied on a letter from Mr. Juarez to the Department of Social Services, in which he sought disability benefits because he was completely unemployed as of September 23, 1996 due to a stroke he suffered in 1994.

         According to the petition to annul, Ms. Dupree filed three other related actions on behalf of Ms. Blake's succession, including (1) a revocatory action against Paul Juarez, Elicia Claire and/or Lauren Elaine Juarez, seeking to set aside a trust agreement wherein Paul and Gayan Juarez transferred their family residence at 1808 Lake Michigan Drive, Harvey, Louisiana, to The Paul and Gayan Juarez Family Trust on January 27, 2015; (2) a breach of fiduciary duty claim against Paul Juarez, while acting in his capacity as agent under a Power of Attorney allegedly executed by the decedent, Marjorie Blake; and (3) a claim based upon conversion and fraud against Paul and Gayan Juarez.

         On July 10, 2018, defendants filed exceptions of no right of action, no cause of action, and prescription, seeking dismissal of the petition to annul. Defendants argued that Ms. Dupree had no right of action because neither Ms. Dupree on behalf of Ms. Blake's succession nor Ms. Blake was a party to the separation of property agreement or a creditor of the matrimonial regime that was terminated. Defendants further argued that Ms. Dupree had no cause of action because the challenged judgment did not result in the deprivation of a legal right in that she was not a party to the judgment or a creditor of the community that was terminated. Finally, defendants argued that the petition to annul was prescribed because Ms. Dupree was aware of the facts upon which the petition is based in 2015, but did not file suit until 2018, well beyond the one-year prescriptive period set forth in La. C.C.P. art. 2004.

         After a hearing, the district court granted the exception of prescription and dismissed the petition to annul with prejudice, and ruled that the exceptions of no right of action and no cause of action were moot. Ms. Dupree, on behalf of Ms. Blake's succession, appealed this judgment.

         LAW ...


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