In re Dean, 2017 CA 0155

• Decision Date: 29 March 2018
• Docket Number: NO. 2017 CA 0155,2017 CA 0155
• Citation: 247 So.3d 746
• Parties: SUCCESSION OF Nettie Lois DEAN
• Court: Court of Appeal of Louisiana — District of US

247 So.3d 746

SUCCESSION OF Nettie Lois DEAN

NO. 2017 CA 0155

Court of Appeal of Louisiana, First Circuit.

Judgment Rendered: MARCH 29, 2018

Christopher H. Riviere, Todd M. Magee, Thibodaux, Louisiana, Attorneys for Plaintiff/Appellee, Gerardo Perez, Independent Executor of the Succession of Lenda Dean

Stanwood R. Duval, C. Berwick Duval II, Kathryn W. Richard, Houma, Louisiana, Attorneys for Defendants/Appellants, Ken Serigne, Walter Cure IV, and Kristina Henderson

Ronald W. Morrison Jr., Metairie, Louisiana, Attorney for Intervenor/Appellee, Cherry Dean, Independent Executrix Of Succession of Nettie Lois Dean

John D. Schoonenberg, Houma, Louisiana, Attorney for Defendants/Appellees, Shawn Nettles and Alicia Nettles

Melanie M. Mulcahy, Metairie, Louisiana, Attorney for Defendant/Appellee, Elevating Boats, L.L.C.

Sharon M. Williams, Gregory W. Rome, Chalmette, Louisiana, Attorneys for Defendants/Appellees, Shawn Nettles Jr., Vivian Nettles, and Margo Carambat

BEFORE: GUIDRY, PETTIGREW, McDONALD, McCLENDON, WELCH, HIGGINBOTHAM, CRAIN, THERIOT, HOLDRIDGE, CHUTZ, AND PENZATO, JJ.¹

CRAIN, J.

This litigation arises out of a will dispute. After a trial on the merits, the trial court found the testator had testamentary capacity; however, finding undue influence, the trial court invalidated certain bequests in the will. The legatees of the voided bequests appeal the judgment and also seek review of two interlocutory rulings, namely, the denial of both an exception of no right of action and a motion to remove the independent executrix. After en banc consideration, we affirm the judgment on the merits, affirm the denial of the motion to remove the independent executrix, and reverse the denial of the exception of no right of action.

FACTS AND PROCEDURAL HISTORY

Nettie Dean died on August 26, 2010, at the age of 62. She was survived by two sisters, Cherry Dean and Lenda Dean Perez; one brother, Douglas Dean; her parents, Lynn Dean and Jacquelyn Dean; and several nieces and nephews. The bulk of her estate consists of units of ownership in Elevating Boats, L.L.C. (EBI), a predominantly family-owned business started by her father where Nettie worked for many years as the chief financial officer and secretary. The disposition of Nettie's units of ownership in EBI is the crux of the dispute in this litigation.

Ownership of the company is divided into two classes of units: "Class A" units, which carry all voting power, and "Class B" units, which have no voting power. Ten thousand Class A units were created, all of which were donated to Nettie by her parents in 2006. Nettie also owned over 25,000 Class B units, representing slightly more than six percent of the total Class B units. On February 1, 2007, without the knowledge of her family, Nettie donated 1,000 Class A units to Ken Serigne, the chief executive officer of EBI, and 1,000 Class A units to Walter Cure, the company's vice-president. Her remaining 8,000 Class A units, as well as all of her Class B units, were still owned by Nettie at the time of her death.

Nettie executed three wills. The first, an olographic will, was signed on March 7, 2007, and bequeathed her Class A units as follows: 2,000 units to each of three nephews, Troy Dean, Luke Dean, and Cy Dean, and 1,000 units each to Serigne and Cure. Her Class B units are not mentioned in that will. Other beneficiaries and their respective legacies include a friend, Janet Kaleher ($50,000), a nature conservancy (land in Arkansas), her sisters Cherry and Lenda (sterling silver), her brother Douglas (a vehicle, a storage trailer, and an RV travel trailer), and a small cash legacy to the caretaker of her pets.

The second will, also in olographic form, was executed on March 29, 2010, and bequeathed all of Nettie's Class A units to her nephew Troy. Her Class B units were left to EBI to be administered by Serigne and Cure to reward EBI employees, except for a small number left to Troy's son, Jax Dean. This will also bequeathed her house and vehicle to Cherry, and a truck to EBI. Other than those changes, the remaining bequests were the same as the 2007 will.

The last will Nettie executed is in notarial form and was signed by her on August 20, 2010, a few days before her death. Terminally ill from cancer

and confined to a mattress on the floor, Nettie signed the will while several legatees named in the will stood nearby and observed, including Serigne and Cure. In this will, Nettie bequeathed her remaining 8,000 Class A units to Serigne, Cure, Luke, Troy, and Cy, to be divided equally. Those same individuals were bequeathed Nettie's Class B units, except for separate bequests of 840 units, each, to Serigne's daughter, Kristina Henderson, and to Troy's son, Jax. Most of the remaining bequests are similar to the prior wills, except Nettie's house and a travel trailer were left to Alicia and Shawn Nettles (Douglas' daughter and son-in-law), and the funds in a certain brokerage account were to be placed in trust for Alicia and Shawn's children.² Nettie died six days later.

Lenda filed a petition seeking to probate the March 29, 2010 will (March will) and challenging the validity of the August 20, 2010 will (August will), alleging Nettie did not have testamentary capacity when she signed the August will. Lenda further alleged that Cure, in violation of a relationship of trust, exerted undue influence on Nettie and caused her to sign the August will, which, when coupled with the previously undisclosed donations, resulted in Cure and Serigne acquiring a majority of the Class A units in EBI. Cherry, who was named executrix in both the March will and the August will, intervened in the proceeding and filed the originals of both wills with the court; however, she did not vouch for the authenticity of the August will and reserved her right to contest its validity. Per her request, Cherry was appointed independent executrix of Nettie's estate. Cherry later amended her petition of intervention to allege the August will was invalid due to Nettie's lack of testamentary capacity and was the subject of undue influence by Cure and Serigne. In the same proceeding, Cure, Serigne, and Henderson filed a petition to probate the August will. After all issues were joined, the competing claims proceeded to a five-day bench trial.

The evidence at trial established that Nettie was extremely ill in the final weeks of her life. Diagnosed with cancer

that metastasized to her brain, Nettie underwent brain surgery on April 7, 2010, followed by unsuccessful radiation. A CT scan on August 13, 2010, showed significant progression of the cancer and swelling of her brain. She was discharged home on August 17, 2010, under hospice care.

Nettie's primary caretaker throughout her illness was her sister Cherry, with whom she had a close relationship. Nettie first mentioned the possibility of making changes to her will while she and Cherry were going to the hospital for the August admission. Nettie confided that she was considering giving her house to Alicia and Shawn, her niece and nephew-in-law.

Cherry supported the idea and reassured Nettie that an attorney could help her prepare a will.

The day after being discharged home, Nettie had a meeting at her house with Serigne, Cure, and their spouses. Sitting in a wheelchair, Nettie told the two EBI executives that she was thinking about leaving the rest of her Class A units to her nephew, Troy. Serigne, who Lynn Dean had once considered the most important person to the success of EBI, expressed reservations about working for Troy and said he would talk to Troy about the situation. Over the next two days, Serigne, Cure, and Troy had extensive discussions to, as described by Serigne, "come to a working arrangement ... [as to] how Nettie would ultimately distribute her Class A voting units." During their final meeting, which took place at EBI, the three "came up with a plan on how the A [units] would be left." During these discussions, Serigne and Cure never disclosed to Troy that Nettie had already donated 1,000 of the Class A units to each of them.

This final meeting was interrupted when someone informed them Nettie needed a notary at her house. Serigne, Cure, and Troy went directly to Nettie's house. The testimony is conflicting about whether Serigne and Cure were invited to the house—they testified they were told to get a notary and get to the house, while Cherry testified she specifically told them not to come to the house.

They arrived to find Nettie lying on a mattress on her living room floor. In addition to Cure, Serigne, and Troy, several other people were in the house that morning, including Cherry; Alicia; Lynn Dean, who was suffering from severe dementia; Jacquelyn Dean, who was approximately 84 years old; Carl Heck Jr., a notary who previously had done work for the Dean family; and Gregory Schwab, Heck's nephew and an attorney with experience in preparing wills. Serigne had contacted Heck, who in turn called Schwab.

At some point Cure said, "All right, let's get started" and began asking Nettie what she wanted in her will, taking notes while she spoke. The nature of Cure's interaction with Nettie is disputed; Cure testified he was merely ensuring Nettie's will would reflect her wishes, while Cherry testified that Cure was "standing over" Nettie and "feeding numbers to her," which prompted Cherry to ask him to stop.

Schwab, who was also involved in the discussions with Nettie, returned to his office with Heck and prepared drafts of the August will. When they returned to Nettie's house, they were met on the front porch by Cure, who reviewed the drafts of the will and made some corrections. Schwab proceeded to review the will with Nettie, with the following people present: Serigne, Cure, Troy, Alicia Nettles, Mr. and Mrs. Dean, and Heck, and Nicole LeBouef, the Human Resources Manager for EBI, who was called by Serigne to be a witness to Nettie's will. Cherry was not present in the room. After being awake most of the night with...