In re Linder
| Decision Date | 19 July 2012 |
| Docket Number | No. 11–CA–633.,11–CA–633. |
| Citation | 92 So.3d 1158 |
| Parties | SUCCESSION OF Rosalie Bigman LINDER. |
| Court | Court of Appeal of Louisiana — District of US |
OPINION TEXT STARTS HERE
Charles B. Johnson, Attorney at Law, New Orleans, LA, Daniel T. McKearan, Attorney at Law, Harahan, LA, for Plaintiff/Appellee.
Perry R. Staub, Jr., Charlton B. Ogden, III, Donald J. Miester, Jr., Attorneys at Law, New Orleans, LA, for Defendant/Appellant.
Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.
[5 Cir. 2]This Court is intimately familiar with the facts of this case as it has had a long and protracted history, spanning over a period of seventeen years. In 1998, we affirmed the trial court's ruling and determined that the provision of the decedent's testament disinheriting a forced heir was invalid. Succession of Linder, 97–1269 (La.App. 5 Cir. 6/30/98), 717 So.2d 1276 (unpublished) (Linder I ). Then, in 2002, we affirmed the trial court's ruling that the decedent had testamentary capacity, that the statutory testament was valid as to form, that the plaintiff failed to prove undue influence in the execution of the will, and that denied the forced heir's request to annul the probated testament. Succession of Linder, 02–106 (La.App. 5 Cir. 7/30/02), 824 So.2d 523 (Linder II ). In 2006, we dismissed the executor's appeal from the trial court's denial of his exception of prescription as to the plaintiff's claim for reduction of excessive donations, finding that the interlocutory judgment was not appealable and remanded the matter to the trial court. Succession of Linder, 05–640 (La.App. 5 Cir. 2/14/06), 924 So.2d 293 (Linder III ). Finally in 2008, we vacated the judgment of possession that was rendered by the trial court [5 Cir. 3]on June 18, 2007 and remanded the case to the trial court. Succession of Linder, 08–394 (La.App. 5 Cir. 10/14/08), 994 So.2d 148 (Linder IV ).
Now, the parties are back before us for the fifth time on appellant's, Mrs. Jane L. Rosenthal's, appeal of the trial court's November 16, 2010 judgment, denying her Opposition to the Final Tableau of Distribution and Request for Reduction and Recalculation of Mass Estate.
During the pendency of Linder IV, the executor/appellee, Mr. Leo Guenther, filed a Petition for Homologation of Final Account on November 16, 2007, covering the period from January 1, 2007 through November 15, 2007. Although the trial court ordered the final account homologated on December 10, 2007, Mrs. Rosenthal opposed the homologation the following day. Mr. Guenther opposed the opposition on January 9, 2008, arguing that Mrs. Rosenthal'sopposition to the final account was untimely. After continuances and other delays, the trial court heard Mrs. Rosenthal's Opposition to the Final Tableau of Distribution and Request for Reduction and Recalculation of Mass Estate on June 18, 2010.
At the conclusion of the trial, the court took the matter under advisement and rendered its judgment, with written reasons, on November 16, 2010, denying Mrs. Rosenthal's opposition in part and granting it in part. The trial court denied Mrs. Rosenthal's request to revalue the oil and gas interests and accepted the valuation of $2,949.00 as depicted in the Amended and Restated Sworn Descriptive List. The court also denied Mrs. Rosenthal's request to reduce all particular legacies as well as her request to find that Mr. Guenther breached his fiduciary duty. The trial court ordered the final tableau be amended to reflect the following:
+------------------------------------------------+
¦ASSETS ¦ ¦$69,046.41¦
+--------------------------+----------+----------¦
¦ ¦ ¦ ¦
+--------------------------+----------+----------¦
¦DEBTS DUE ON DATE OF DEATH¦$21,745.00¦ ¦
+--------------------------+----------+----------¦
¦FUNERAL EXPENSES ¦$ 3,773.55¦ ¦
+--------------------------+----------+----------¦
¦ ¦ ¦ ¦
+--------------------------+----------+----------¦
¦LEGAL CHARGES ¦$ 1,657.00¦ ¦
+--------------------------+----------+----------¦
¦ ¦ ¦ ¦
+--------------------------+----------+----------¦
¦NET ESTATE ¦ ¦$41,870.86¦
+--------------------------+----------+----------¦
¦ ¦ ¦ ¦
+--------------------------+----------+----------¦
¦FORCED PORTION (1/4) ¦ ¦$10,467.72¦
+--------------------------+----------+----------¦
¦DISPOSABLE PORTION (3/4) ¦ ¦$31,403.14¦
+------------------------------------------------+
Mrs. Rosenthal moved for new trial on November 30, 2010, on the issues of the valuation of the estate's mineral interests, the calculation of the value of the estate, the method of satisfying her legitime, and on whether Mr. Guenther breached his fiduciary duty. The court denied the motion on January 20, 2011. Mrs. Rosenthal moved to designate the November 16th judgment as final. The trial court designated the judgment final and appealable pursuant to La. C.C. art. 1915. This appeal follows.
Ms. Rosenthal assigns seventeen errors. Specifically, she contends that the district court erred by:
1. valuing Mrs. Linder's mineral interests at $2,949.00 on the date of her death, when they were actually worth $2,549,571.00;
2. rejecting the appraisals that included information developed after the date of Mrs. Linder's death;
3. calculating Mrs. Linder's aggregate estate to be worth $69,046.41.00;
4. calculating Mrs. Linder's estate's net value to be $41,870.86;
5. calculating her legitime to be worth $10,467.72;
6. failing to reduce all of Mrs. Linder's will's legacies under La. C.C. art. 1511 to pay for her legitime;
7. failing to give her an undivided one-fourth of the Succession's oil and gas interest;
8. 5failing to give her an undivided one-fourth of the past and future royalties;
9. failing to require the particular legatee, Mr. Guenther, to return the oil and gas royalties accruing on his legacy under La. C.C. art. 1515;
10. finding that her legitime should be satisfied solely from the residue of the succession that would otherwise have been paid to Touro Synagogue, the residuary legatee;
11. finding that Mrs. Linder expressed a preference in her will under La. C.C. art. 1512 to pay an undisclosed forced heir her legitime solely from the residuary legacy;
12. failing to award her interest from the date she opposed the disinherison and demanded her legitime;
13. finding that Mr. Guenther had fulfilled his fiduciary duty; and 14. failing to award her damages for Mr. Guenther's breach of fiduciary duty.
She then argues in the alternative that the district court erred in:
15. finding that Mrs. Linder's estate was solvent because its liabilities significantly exceeded its assets, and the estate was only rendered solvent by Mr. Guenther's agreement to pay certain [sic] of its expenses;
16. finding that Mrs. Linder's estate was solvent because it impermissibly reduced the estate's liabilities by removing post-death expenses from its Article 1505 calculation; and
17. failing to find that all of Mrs. Linder's testaments lapses because the estate was insolvent.
[5 Cir. 6]Trial Testimony
Mr. Terry A. Johnston, of Atwater Consultants, Mr. Mike McKenzie, of Seek Production, LLC., and Mr. Guenther testified at the trial.
Mr. Johnston testified as an expert in petroleum engineering and mineral interest valuations and first became involved in the case as the court appointed appraiser. Pursuant to his appointment, Mr. Johnston provided the first appraisal—Atwater I—on May 17, 2005, which reflected a fair market value of $2,949.00 on the date of death, November 30, 1994. He was subsequently hired by Mrs. Rosenthal to complete additional appraisals. On May 17, 2005, he completed another appraisal in which the estate's oil and gas interests were valued at $261,528.00 as of March 1, 2005 (Atwater II). He then completed a March 4, 2008 appraisal which valued the oil and gas interests at $2,495,989.00 (Atwater III) and a June 14, 2010 appraisal which valued the interests at $2,549,571.00 (Atwater IV). Of the four appraisals, Mr. Johnston testified that Atwater I was the only appraisal that reflected a fair market value on the date of death. Atwater II reflected a fair market value as of March 1, 2005, while Atwaters III and IV reflected true values on the date of death. Mr. Johnston explained that a fair market valuation is restricted to the use of information that is available on a specified date, while true value works backward to determine an asset's worth on a previous date as opposed to what the asset was perceived to be worth at that time.
In Atwater I, Mr. Johnston stated that the fair market value of the estate's oil and gas interests on the date of death was $2,949.00. He explained, however, that Atwater I only considered the mineral reserves actually produced during the years preceding Mrs. Linder's death. In Atwater IV, however, he testified that he used post-production analysis, which involved a two-fold process. First, he took the sum of the total income derived from the sale of the oil and gas attributable to the [5 Cir. 7]mineral royalty interests the Succession owned in November 1994 until on or about June 1, 2010, which totaled $8,242,589.00. He then discounted that figure back to the date of death at a rate of 8 percent and determined the true value to be $2,395,111.00. He then determined the current fair market value of the remaining income as of April 1, 2010, and discounted that value back to the date of death to obtain the true value, which he determined to be $154,460.00. Finally, he took the sums of both true values and determined that the true value on the date of death was $2,549,571.00. Although he determined that this was what the...
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