Horrell v. Horrell

• Decision Date: 06 October 2000
• Docket Number: No. 99/CA/1093.,99/CA/1093.
• Citation: 808 So.2d 363
• Parties: Edward A. HORRELL, Sr. v. Walter J. HORRELL, Sr.
• Court: Court of Appeal of Louisiana — District of US

808 So.2d 363

Edward A. HORRELL, Sr. v. Walter J. HORRELL, Sr.

No. 99/CA/1093.

Court of Appeal of Louisiana, First Circuit.

October 6, 2000.

Order Filed July 16, 2001.

On Rehearing Aug. 15, 2001.

Writ Denied December 7, 2001.

COPYRIGHT MATERIAL OMITTED

Walter J. Horrell, Covington, for Defendant/Appellant, Pro Se.

Raymond P. Ward, New Orleans, Counsel for Plaintiff/Appellee, Edward A. Horrell, Sr.

Before: YE LVE RTON, THIBODEAUX, SAUNDERS, PETERS and AMY, JJ.^*

THIBODEAUX, J.

In this appeal, Walter J. Horrell, Sr., the Defendant, (hereinafter "Walter") contends that his siblings, the Plaintiffs, as intestate heirs to their father's succession, lack the legal capacity to assert an action to revoke a donation inter vivos executed by the decedent, Mr. Edward A. Horrell, Sr. (Mr. Horrell). Walter also argues that the trial court erred in granting summary judgment in favor of the Plaintiffs after finding through application of res judicata that the issue of Mr. Horrell's mental capacity to donate had been previously determined and could not be relitigated. Since we sustain Walter's peremptory exception of no right of action, we do not decide whether res judicata precludes a trial on the validity of the donation.

ISSUES

Walter urges us to consider:

(1) whether Mrs. Horrell as surviving spouse, administratrix and/or agent of the deceased has a right of action during the administration of the deceased's succession to challenge a donation inter vivos made by her husband;

(2) whether a deceased's heirs have the procedural capacity to challenge a donation inter vivos made to their sibling during the administration of the succession;

(3) whether a deceased's heirs have a right of action to challenge a donation inter vivos made by the deceased during the administration of his succession.

FACTS

On April 13, 1993, Mr. Horrell made an inter vivos donation of his separate property located in Covington, Louisiana to his son, Walter J. Horrell, Sr. The donation was valid in form, by authentic act and recorded in the conveyance records in St. Tammany Parish. That same day, Mr. Horrell executed a testament which also gave the Covington property to Walter. Walter presented both of these documents to Mr. Horrell, who was eighty-four years old, while Mr. Horrell was hospitalized in Mercy Hospital in New Orleans, Louisiana.

When Mrs. Clare Horrell, Mr. Horrell's wife, and their adult children learned of the donation, they presented Mr. Horrell with a "Revocation of Donation" which he executed on May 21, 1993. That document purported to annul the donation to Walter for "acts of ingratitude, cruel treatment and grievous injury." Mr. Horrell also executed a document granting Mrs. Horrell power of attorney over his affairs.

When Walter learned of the acts of his mother and siblings, he procured Mr. Horrell's signature on a document revoking the power of attorney in favor of Mrs. Horrell and on an incomplete petition to dismiss any suit Mrs. Horrell may file to revoke the donation.

On July 7, 1993, Mrs. Horrell petitioned the district court in St. Tammany Parish to revoke the inter vivos donation of the Covington property. The petition named Mr. Edward Horrell and Mrs. Horrell as his agent as Plaintiffs. Mr. Horrell died on July 9, 1993. On August 26, 1993, Walter filed a peremptory exception of no right of action asserting that Mrs. Horrell could not bring the action for these reasons: (1) Mr. Horrell had revoked the power of attorney; (2) Mr. Horrell's death terminated the mandate as a matter of law; and, (3) Mrs. Horrell hac11.4.no interest in the Covington property since it was the separate property of her deceased husband.

On August 31, 1993, Mrs. Horrell amended the petition to appear as Administratrix of the Succession of Edward A. Horrell, Sr., asserting that Mr. Horrell had lacked the mental capacity to execute the Act of Donation on April 13, 1993 and that he had executed a revocation of the donation on May 21, 1993. Walter responded by filing exceptions of vagueness and no right of action contending that since Mr. Horrell had died testate and had appointed a testamentary executor who was not Mrs. Horrell, then Mrs. Horrell was not the legitimate succession representative.

Mrs. Horrell responded on April 15, 1997 by petitioning the court to amend her petition to substitute her other children, Gaye Horrell Coffer, Michael Horrell, Edward Horrell, Jr., and Marie LeCour as Plaintiffs (referred to collectively as "Plaintiffs"). These Plaintiffs declared that they were substituted as Plaintiffs in order to "represent and protect their own interests" in the Covington property. Walter then filed a motion entitled "Exceptions" on June 10, 1997. Therein he alleged insufficiency of service of process, vagueness, lack of capacity and "all other declinatory and dilatory exceptions." The trial court denied all of these exceptions on September 26, 1997.

Walter sought to probate the will in the Succession of Horrell in Orleans Parish. Mrs. Horrell and the Plaintiffs petitioned that court to annul the will on the ground that Mr. Horrell had lacked the mental capacity to execute a testament. That suit proceeded simultaneously with the instant suit.

On January 14, 1998, the trial court heard the exceptions of vagueness and no right of action regarding the First Supplemental Petition in which Mrs. Horrell appeared as administratrix of the Succession of Horrell. Without explaining its reasons, the trial court denied the exceptions.

On January 16, 1998, Walter filed a peremptory exception of no cause of action, challenging the Plaintiffs' claim that the donation was made under duress. The Plaintiffs filed a motion to strike the exception which the trial court granted. The trial court then ordered Walter to answer the petition.

Walter filed his answer on February 29, 1998. Immediately thereafter, the Plaintiffs moved for summary judgment based on res judicata. Their argument was that the Fourth Circuit Court of Appeal had found Mr. Horrell lacked the mental capacity to execute a testament on April 13, 1993, and therefore, Mr. Horrell also lacked the capacity to make an inter vivos donation that day.¹ The trial court granted summary judgment.

Walter filed a Motion for New Trial and an exception of no right of action contending that Plaintiffs were the improper party to bring this suit. The trial court denied both the motion for new trial and the exception, declaring the exception to have been untimely.

Walter now petitions this Court to consider whether the trial court erred in denying his exceptions and in granting summary judgment based on res judicata.

LAW AND DISCUSSION

Standard of Review

The peremptory exception of no right of action derives from La.Code Civ.P. art. 927. "The exception of no right of action tests whether the particular plaintiff falls, as a matter of law, within the particular class to which the law grants a remedy for the particular harm alleged." Ridgedell v. Succession of Kuyrkendall, 98-1224, p. 5 (La.App. 1 Cir. 5/19/99); 740 So.2d 173, 177. The exception relates specifically to the person of the plaintiff, questioning whether the plaintiff falls within the class of persons who have the legal interest and legal capacity to bring the cause of action asserted.

A defendant may plead the exception of no right of action in any court prior to the submission of the case for decision if proof of the ground for the exception appears in the record. La.Code Civ.P. arts. 927 and 2163; Mouton v. Dep't of Wildlife and Fisheries for the State of Louisiana, 95-101 (La.App. 1 Cir. 6/23/95); 657 So.2d 622, writs denied, 95-2161 (La.11/17/95); 663 So.2d 710 and 95-2164 (La.11/17/95); 663 So.2d 711. The trial or appellate court may also notice the objection of no right of action on its own motion. La.Code Civ.P. art. 927(B).

Whether a plaintiff has a right of action is a question of law. Since this is an appeal of a summary judgment, we have before us the record from below. We will review the question of law de novo considering the record before us and the substantive law regarding the heirs' right to bring this action. City of New Orleans v. Board of Directors of Louisiana State Museum, 98-1170 (La.3/2/99); 739 So.2d 748; Ridgedell, 740 So.2d 173. As customary in Louisiana courts, on consideration of an exception of no right of action, the averments of fact in the pleading will be taken as true in the absence of evidence to the contrary. Board of Directors of Louisiana Recovery District v. All Taxpayers, 529 So.2d 384 (La.1988).

Mrs. Horrell's Right of Action

Walter first challenges the trial court's denial of his peremptory exceptions of no right of action challenging Mrs. Horrell's right to bring a revocatory action on behalf of her husband as either his agent or the administratrix of his estate. Although the exceptions were filed in 1993, they were not set for hearing until September 26, 1997. By the time the exceptions were heard, Mrs. Horrell was no longer a party in the suit. Rather than dismissing the exceptions as moot because the challenged party was no longer a plaintiff, the trial court "denied" the exceptions, implying that Mrs. Horrell had a right of action. In an abundance of caution, we will review the trial court's denial of the exceptions.

Mrs. Horrell appeared in this suit in several capacities. In the original petition, she represented herself as Mr. Horrell's agent pursuant to a power of attorney. At the time this suit was filed, a mandate or power of attorney was defined as "an act by which one person gives power to another to transact for him and in his name one or several affairs." La.Civ.Code art. 2985 (West 1993). A power of attorney could be terminated in various manners, including revocation by the principal and death of the principal. La.Civ.Code art. 3027 (West 1993).

Mr. Horrell executed a revocation of the power of attorney shortly before July 5, 1993. This suit was filed on July...