In re Cook
| Decision Date | 16 December 2015 |
| Docket Number | No. 50,111–CA.,50,111–CA. |
| Citation | 189 So.3d 409 |
| Parties | SUCCESSION OF Joseph Robert COOK. |
| Court | Court of Appeal of Louisiana — District of US |
Cook, Yancey, King & Galloway, by Bernard S. Johnson, Shreveport, LA, for Appellant.
Gold, Weems, Bruser, Sues & Rundell, by Brian D. Landry, Bradley L. Drell, B. Gene Taylor, III, Alexandira, LA, for Appellees.
Before CARAWAY, PITMAN and CALLOWAY (Pro Tempore), JJ.
CALLOWAY, J., Pro Tempore .
During the last year of his life, Joseph Robert Cook ("Joseph") executed a will leaving the entirety of his estate to his daughter, Elizabeth Dianne Cook ("Dianne"), and in the alternative, his housekeeper. His sons, Robert Cook ("Robert") and David Cook ("David"), filed suit to invalidate the will on the grounds of undue influence by Dianne. Finding clear and convincing evidence of undue influence by Dianne over her father, the trial court invalidated the will. Dianne now appeals. Because we find no manifest error in the trial court's findings of fact and because we find the evidence of undue influence to be clear and convincing, we affirm.
In 1998, Joseph and his wife, Dorothy Lovett Cook ("Dorothy"), executed reciprocal wills leaving all their property to the other and then to their three children in equal portions. Dorothy died in 2005. On July 17, 2012, Joseph, a few days away from turning 90, executed a new will in which he bequeathed all his property to Dianne, and in the alternative, to Mary Margaret Thurman ("Thurman"), his housekeeper.
The execution of the new will followed months of increasing discord between Dianne and her brothers and of Dianne's increasing involvement in Joseph's daily life. At the center of the Cook family discord was Rodidaco, Inc. ("Rodidaco"), a family corporation formed in the 1970s by Joseph, a certified public accountant, and Dorothy, with their three children as the sole and equal shareholders. Upon incorporating Rodidaco, Joseph kept the stock certificates, which were endorsed in blank.
Rodidaco owns a large tract of land on U.S. Highway 80 on which is located Robert's law office, the Cook Law Firm, and Farm Park, Inc. ("Farm Park"), a trailer park and Rodidaco subsidiary developed by Joseph. Since Dorothy's death, Joseph has lived in a trailer at Farm Park. Dianne, who also lives at Farm Park next to Joseph, collects rental income from some of the trailers at Farm Park. David operates a restaurant and a granite yard on property owned by Rodidaco. None of the three siblings pay rent for their use of the Rodidaco property. In addition to the income generated by Farm Park, Rodidaco received income from mineral royalties, a pipeline servitude, and leases of radio and/or cell towers located on the property. Both Dianne and David testified that Joseph, although not a shareholder, lived out of Rodidaco, using its funds as needed for his expenses.
Dianne had moved back to Louisiana from California in 1995. From 1996 until 2008, she worked as the office manager for Robert's law firm. Dianne left Robert's employ when he did not increase her $135,000 salary, which she admitted was more than some of the attorneys at the firm were making. Dianne testified that Robert had promised that she would make more as they grew the business together, and she did not believe he was keeping that promise. Robert believed Dianne's demands equated to establishing a prohibited partnership between a lawyer and nonlawyer. A short time after she left his firm, Robert gave her $200,000. Referring to the payment as a severance, Robert testified that he was worried about Dianne not being able to pay her bills. Dianne said he paid it because of his promise to take care of her. Both agreed that, for tax purposes, they considered the payment a buyout of Dianne's interest in a related advertising business. Robert testified that his relationship with Dianne "went south" after she left his employ.
Dianne then worked for David for a few months. According to David, she left his employ after she tried to fire his wife's brother, who managed his Crawfish Palace restaurant. Dianne denied this.
In November 2009, Dianne had a car accident. Shortly after, she sold her house and moved to Farm Park next to her father and began taking care of him. The record indicates that she was, by this time, Joseph's daily companion and that she had taken charge of the bookkeeping and records associated with Rodidaco.
In late 2009, during litigation involving David's granite business, Dianne testified that she was the sole owner of Rodidaco. This prompted David and Robert to ask Joseph for their Rodidaco stock certificates. After first calling Dianne, Joseph gave them the certificates. Explaining her testimony in the granite litigation, Dianne stated that Joseph had, over the years, allowed her and her brothers to claim losses to Rodidaco on their individual tax returns, with any refunds placed back into corporation. When David and Robert no longer wanted to participate in that arrangement, she took all the losses and filed tax returns showing herself as 100% owner of Rodidaco.
Around October 2011, Robert and David asked to see Rodidaco's financial records. According to Dianne, the request followed an argument with Robert during a family dinner outing. Joseph objected when Robert informed him that he had given someone permission to hunt on Rodidaco land. Dianne testified that when she asked Robert to honor Joseph's wishes, Robert "exploded," called her a "dominatrix," and said that he and David did not know what was going on with Rodidaco and Farm Park. She told Robert to be at Joseph's trailer the next day with David to see the records. Dianne claims that she allowed her brothers to see all that she had; the brothers allege that the records she provided were incomplete.
After the above episode concerning the corporate records, Dianne retained an attorney, Ken Mascagni ("Mascagni") of Cook Yancy, King and Galloway ("CYKG"), to represent her in dealing with Robert and David. Dianne testified that she felt like she'd be "bullied" otherwise. Mascagni wrote to Robert and David on December 10, 2011, informing them that, in light of their questioning the Rodidaco records and suggesting that Dianne had "shorted" them or the corporation, Dianne now "wants to terminate any mutual interest in the corporation and in any property." The brothers retained their own attorney. Both sides demanded records from the other.
Dianne made a proposal for dividing the property between the three siblings and allowing Joseph to retain income from the cell towers and royalties and to have a usufruct over his trailer. Robert testified that the three siblings met, without their attorneys, to discuss the agreement. However, their negotiations were unsuccessful.
In March 2012, Dianne closed on a house in Gulf Shores, Alabama, and had an elevator installed to accommodate Joseph. By May, Dianne and Joseph were spending four to five days at a time about every couple of weeks in Gulf Shores.
At the beginning of June 2012, Robert found a letter placed on his desk about a proposal to buy one of the towers on Rodidaco property. Joseph had written across the top of the letter, "I want my money up front." David went to Joseph to discuss the sale. But Dianne, who was present with Joseph, intervened and made it clear that the decision to sell had been made. This event precipitated the brothers scheduling the shareholder meeting on June 19, 2012, during which they exercised their majority shareholders' rights and removed Dianne as secretary of Rodidaco and their 89–year–old father as its president. Robert explained that Joseph was in declining health and that he had abdicated all his functions regarding Rodidaco to Dianne, who also had Joseph's power of attorney. He also explained that they had not discussed with Joseph his removal as president of Rodidaco ahead of the shareholders' meeting because the removal would not affect Joseph's livelihood, and they saw no reason to "rile him up."
Dianne, who had attended the shareholders' meeting by telephone and recorded it, immediately went to Joseph with the recording and told him "you wouldn't believe this if I told you so here I recorded it and you need to listen to this." She testified that, after playing the recording, he asked her to play it again and that she played it for him three times. She agreed with Joseph when he concluded that Robert and David had stolen from him. She testified that Joseph said he wanted his property back and asked her what he could do. She advised getting an attorney and suggested that he could "surely" get back the money he had put into the corporation. Dianne contacted Mascagni for a referral and went with Joseph to CYKG's offices to meet with another CYKG attorney.
On June 22, 2012, CYKG sent a demand letter to Rodidaco claiming that it owed Joseph $408,492.13, plus interest, as reflected on the books of the corporation "for loans made over a number of years to that corporation." Then, on July 3, 2012, a suit styled "Petition on Money Loaned" was filed on behalf of Joseph against Rodidaco while Joseph and Dianne were again in Gulf Shores. Dianne testified that they returned to Louisiana on July 15, 2012, and that she again accompanied Joseph to CYKG on July 17, 2012, to sign the verification for the suit against Rodidaco, to file a petition to probate Dorothy's will leaving all her property to Joseph, and to execute a new will which had been prepared by a third CYKG attorney, Stephen Yancey ("Yancey"). This new will purported to leave all Joseph's property, including the claim against Rodidaco, to Dianne or, alternatively, to Thurman. Dianne was present in the room when Joseph signed the new will and the verification for the suit against Rodidaco. Dianne admitted that she talked with Joseph about the lawsuit against Rodidaco and his new will, but she denied having "extensive" discussions. Regarding Joseph's decision to change his will, Dianne explained that...
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