97-2815 La.App. 4 Cir. 6/24/98, Succession of Harvey v. Dietzen

• Decision Date: 24 June 1998
• Citation: 716 So.2d 911
• Parties: 97-2815 La.App. 4 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 911

716 So.2d 911

97-2815 La.App. 4 Cir. 6/24/98

SUCCESSION OF Allen Leroy HARVEY and Belinda Turlich Harvey v. Gary H. DIETZEN, et al.

No. 97-CA-2815.

Court of Appeal of Louisiana, Fourth Circuit.

June 24, 1998.

Lynn Perkins Perez, Perez & Perez, Braithwaite, for Plaintiff/Appellant.

Thomas M. Richard, Chopin, Wagar, Cole, Richard, Reboule & Kutcher, Metairie, for Defendants/Appellees Linda Barrett and The Home Insurance Company.

Before BARRY, BYRNES and WALTZER, JJ.

[97-2815 La.App. 4 Cir. 1] BYRNES, Judge.

On behalf of herself and as administratrix of her late husband's succession, plaintiff, Mrs. Belinda Turlich Harvey, appeals a summary judgment dismissing her claims against the defendants, Linda G. Barrett and The Home Insurance Company. We affirm in part, reverse in part, and remand.

Originally, on February 6, 1987 the trial court appointed Mrs. Harvey as administratrix of the succession but she never qualified for that position. After Gary Dietzen, a business partner of the late Allen Harvey, filed a petition for declaration of a vacant succession on June 20, 1990, the trial court appointed Ms. Linda Barrett as administratrix on July 31, 1990, and her letters of administration were issued on January 15, 1991. When Mrs. Harvey challenged Ms. Barrett's appointment, Ms. Barrett filed a memorandum in opposition to plaintiff's motion to rescind the judicial order declaring the succession vacant. The trial court found that Ms. Barrett's appointment was improper because the succession was not vacant. Thereafter, Mrs. Harvey was recognized as the administratrix of the succession on September 18, 1991, and Ms. Barrett withdrew.

[97-2815 La.App. 4 Cir. 2] On October 23, 1991, Mrs. Harvey also filed suit against Ms. Barrett, and the trial court granted the defendant's exception of no cause of action. On appeal, this court reversed and held that Mrs. Harvey's petition sufficiently stated a cause of action for breach of Linda Barrett's duties to the succession while serving as administratrix in Succession of Harvey v. Dietzen, 616 So.2d 1288 (La.App. 4 Cir.1993). ¹

After the case was remanded and a hearing on the defendant's motion for summary judgment was held, the trial court dismissed Mrs. Harvey's claims against Ms. Barrett and her insurer, arising out of the breach of duty owed by Ms. Barrett as the administratrix of the Succession of Allen Leroy Harvey to Belinda Turlich Harvey and the succession. ² The plaintiff's appeal followed.

In the present appeal of the summary judgment dismissal, Mrs. Harvey contends that the trial court erred in not considering whether issues of material fact [97-2815 La.App. 4 Cir. 3] existed as to whether Ms. Barrett breached her fiduciary duty and failed to act as a prudent administratrix of the succession. Mrs. Harvey alleges that Ms. Barrett's actions caused: (1) plaintiff and the succession to incur expenses when Mrs. Harvey returned to Louisiana from Hawaii to oppose the appointment of Ms. Barrett and the attempted succession property sale; (2) plaintiff and the succession to suffer damages in the form of attorneys' fees; and (3) plaintiff to suffer mental pain and anguish.

Appellate courts review summary judgments de novo; an appellate court asks the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. Cantrell v. Pat O'Brien's Bar, Inc., 97-0545 (La.App. 4 Cir. 1/7/98); 705 So.2d 1205. Procedurally, the court's task on a motion for summary judgment is determining whether the moving party's supporting documents--pleadings, depositions, answers to interrogatories, admissions and affidavits--are sufficient to resolve all material factual issues. LSA-C.C.P. art. 966(B).

In Gibson v. Roberts, 97-0454 (La.App. 4 Cir. 10/15/97); 701 So.2d 501, this court reviewed La. C.C.P. art. 966, as amended by Act 483 of 1997, which legislatively overruled the jurisprudential presumption against summary judgment. Noting that summary judgment is favored, this court stated:

... the movant's burden does not require him to negate all essential elements of the adverse party's claim, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. La. C.C.P. art. 966 C(2).

Id. at 503.

[97-2815 La.App. 4 Cir. 4] To be actionable, the defendant's conduct must be both the cause-in-fact and a legal cause of the defendant's damages. Conduct is a cause-in-fact of harm to another if it was a substantial factor in bringing about that harm, i.e., but for the defendant's conduct, the plaintiff would not have sustained the injury. Quick v. Murphy Oil Company, 93-2267 (La.App. 4 Cir. 9/20/94); 643 So.2d 1291, 1295, writ denied 94-2583 (La.1/6/95); 648 So.2d 923. To provide legal cause, the plaintiff must show that the risk of the particular injury which the plaintiff suffered was within the scope of the protection of the duty that the defendant breached. Id. at 1207-08. The existence of a duty is a question of law which may be resolved on summary judgment. Richter v. Provence Royal Street Co., L.L.C., 97-0297 (La.App. 4 Cir. 10/8/97); 700 So.2d 1180.

To recover, the plaintiff must show that the actions of Ms. Barrett as the former administratrix of the succession were the cause-in-fact and the legal cause of Mrs. Harvey's claimed damages. These damages are reviewed as follows:

I. ATTORNEYS' FEES

It is well settled that attorneys' fees can only be granted if specifically provided for by statute or contract. Succession of Harvey, supra, 616 So.2d 1281 at 1285 (La.App. 4 Cir.1993). In that prior related decision this court held that: "... there is no provision of law or contract which gives rise to the award of attorneys' fees against Gary Dietzen." Id. For the same reasons there is no merit to Mrs. Harvey's claim for attorneys' fees against Ms. Barrett in the instant case.

II. TRAVEL EXPENSES

Mrs. Harvey claims damages for the cost of her flying from Hawaii to Louisiana and the cost of living in Louisiana including rent, utilities, food, medical costs, buying an automobile, furniture, curtains, appliances, etc. while she [97-2815 La.App. 4 Cir. 5] challenged the appointment of Ms. Barrett as administrator when the succession was found to be vacant.

Mrs. Harvey would have had living expenses if she stayed in Hawaii. It was her decision to move to Hawaii without personally pursuing her duties as succession representative. To oppose the sale, it was not necessary for Mrs. Harvey to leave Hawaii. If she appointed a resident agent for service of process and filed the appointment in the succession proceeding, she could have remained in Hawaii and served as the succession representative. Opposition to Ms. Barrett's administration and attempted property sale did not mandate that Mrs. Harvey incur travel and living expenses to defend her claims. The risk that Mrs. Harvey would set up another household in Louisiana and incur travel and living expenses is not within the scope of the protection of the duty owed to her by Ms. Barrett.

III. MENTAL PAIN AND ANGUISH

On appeal Mrs. Harvey argues that she suffered from severe mental pain and anguish caused by Ms. Barrett's breach of her fiduciary duty and failure to act as a prudent administratrix of the succession.

La. C.C.P. art. 3191 provides:

A succession representative is a fiduciary with respect to the succession, and shall have the duty of collecting, preserving, and managing the property of the succession in accordance with law. He shall act at all times as a prudent administrator, and shall be personally responsible for all damages resulting from his failure to act.

A nonresident succession representative may execute a power of attorney appointing a resident of the state to represent him in all acts of his administration. A resident succession representative who will be absent from the state temporarily similarly may appoint an agent to act for him during his absence. In either case, the power of attorney appointing the agent shall be filed in the record of the succession proceeding.

[97-2815 La.App. 4 Cir. 6] Mrs. Harvey claims that Ms. Barrett breached her fiduciary duty to the succession by:

(1) Twice petitioning the trial court to sell the property under an invalid agreement;

(2) Agreeing with Dietzen's attorney to petition the court for approval of the sale if the Harvey heirs could not reach an agreement to sell;

(3) Failing to (a) attach a copy of the agreement to the petition for private sale and (b) to provide the widow and heirs with a copy of the agreement until a few days prior to her withdrawal as curatrix;

(4) Failing to make demand that Safeguard/Dietzen pay the estate for tank rentals;

(5) Failing to request or review the proposed purchasers' shareholder and board minutes, tax returns, and royalty agreement by which Dietzen claimed and deducted a fee on the Harvey tank rentals;

(6) Failing to respond to Dietzen/Safeguard's memorandum which stated that Ms. Barrett could sell the one-half community interest in property owned by Mrs. Harvey individually;

(7) Failing to withdraw as curatrix once the widow qualified as administratrix and filing an opposition to the motion to rescind the judicial order declaring the succession vacant; and

(8) Other acts and omissions.

In opposition, the defendants contend that the psychiatric report of Dr. Paul Kantack is deficient for summary judgment purposes because it was not given under oath. In Powers v. Tucker, 29,190 (La.App. 2 Cir. 2/26/97); 690 So.2d 922, 926, the statements of the defense medical expert in a letter...