Plaquemines Parish Com'n Council v. Delta Development Co., Inc.

Decision Date23 February 1987
Docket NumberNo. 86-C-0950,86-C-0950
Citation502 So.2d 1034
CourtLouisiana Supreme Court

Page 1034

502 So.2d 1034
No. 86-C-0950.
Supreme Court of Louisiana.
Feb. 23, 1987.

Page 1035

Jack Pierce Brook, Randall A. Karr, John R. Schupp, Broadhurst, Brook, Mangham & Hardy and Ernest R. Eldred, George L. Clauer, III, David M. Latham, Eldred, Clauer and Davis, APLC, for applicant.

Daniel Lund, Harold Carter, Jr., Francis Accardo, Montgomery, Barnett, et al., J. Minos Simon, Peter Butler, Aubrey B. Hirsch, Heebe & Hirsch, John McCollam, Marcel Garsaud, Jr., Andrew McCollam, III, Gordon, Arata, et al., Gene Lafitte, William Pitts, Ann Tate, Liskow & Lewis, Stephen R. Remsberg, Lemle, Kelleher, et al., Jack M. Wiss, Brent B. Barrier, Phelps, Dunbar, et al., Michael McAlpine, Johnson & McAlpine, for respondent.

Page 1036

CALOGERO, Justice *.

In this case, in which the Plaquemines Parish Commission Council seeks to be declared owner of, or to recover, certain mineral interests incident to parish lands from the heirs and donees of Leander H. Perez, Sr. and from Delta Development Co., Inc., a corporation whose stock is now purportedly fully owned by the four children of Perez, we must decide whether the district court and court of appeal were correct in maintaining an exception of ten year liberative prescription.

On August 25, 1983, the Plaquemines Parish Commission Council [hereinafter referred to as the Council], as governing authority of Plaquemines Parish, and as successor to and governing authority of the Grand Prairie Levee District and of the Buras Levee District, filed suit against Delta Development Co., Inc. 1 and fourteen named individuals. Those fourteen are heirs and donees of Leander H. Perez, Sr., and his wife, Agnes O. Perez, who are both deceased. The individual defendants can, and for purposes of this opinion, should be grouped separately. The first group consists of Leander H. Perez, Jr. and Chalin O. Perez, who are alleged to have breached their fiduciary duties as public officials. The second group consists of the four children of Leander H. Perez, Sr. and Agnes Perez, namely Leander Perez, Jr., Chalin Perez, Betty Perez Carrere and Joyce Perez Gelpi, each of whom have been recipients of donations inter vivos and have unconditionally accepted the successions of their parents. The third group consists of defendants who have or may have been recipients, by inter vivos donation or otherwise, of any property originally acquired through an alleged breach of fiduciary relationship by Leander Perez, Sr. 2

In its petition, the Council alleged that the three "public official" Perezes, Leander Perez, Sr., Chalin Perez and Leander Perez, Jr., wrongfully secured and retained personal interests in publicly owned mineral lands through breaches of their fiduciary duties as public officials and as attorneys. More specifically, the petition alleged that:

1) Judge Perez acquired unrecorded and secret overriding royalties in parish minerals through a family owned and controlled corporation, Delta;

2) Judge Perez acquired unrecorded and secret economic interests in parish minerals through the use of interposed parties,

Page 1037

unrecorded documents and secret counter letters;

3) The aforementioned interests were acquired through breaches of fiduciary duties;

4) The two public official sons of Judge Perez engaged in ongoing schemes to keep secret the breaches of duty and to conceal from the public knowledge of their personal gains; and

5) All of the defendants profited and continue to profit from the revenues.

The Council seeks to recover those mineral interests. In particular, the Council seeks "a declaration that it [is] the legal and rightful owner of the mineral interests, delivery of title of those interests from the defendants to [the Council] and an accounting and money judgment for all monies received by defendants attributable to those interests."

The defendants filed, among other pleadings, the peremptory exception of prescription. 3 For the purpose of deciding the exception, the trial court found it unnecessary to consider the merit of the plaintiff's substantive claim. At the hearing the defendants admitted, for the purpose of the exception of prescription only, that the mineral interests in question were acquired through breaches of fiduciary duties, and the trial judge and the litigants merely assumed that the manner in which Leander Perez, Sr. acquired the overriding royalties and other interests gave rise to a valid substantive claim on the part of the Council.

The trial court tried the exception on evidence and stipulations. This, of course, was appropriate. However, because of our resolution of the limited issue before us and the legal reasons for that resolution, we place in this opinion more emphasis on the facts in the record before us as they relate to the alleged wrongful acts of Judge Perez. Defendants at the hearing admitted to breaches of fiduciary duty on the part of the "public" Perezes because they felt the alleged breaches were inapposite to the issue of prescription. On the contrary, we find the breaches of duty central to the disposition of the exception of prescription. For this reason, the facts which we recite hereinafter depict in detail those breaches of fiduciary duty.

We do point out, however, that this case has not yet been tried on the merits, so some part of what we recite as facts in this opinion may be subject to contest anew when and if they become important concerning plaintiff's merits claims at trial hereafter. Furthermore, the merit of plaintiff's cause of action, assuming their allegations are true, is not before us. That legal question, as well as the adequacy of plaintiff's proof in support, will be decided in the future.

The trial court rendered judgment in favor of all the defendants, holding that the Council's suit was a personal action subject to ten years liberative prescription 4 and that the Council's suit was barred because liberative prescription had commenced to run in 1941 and had run without suspension or interruption, such that the claim now made by the Council prescribed in 1951. The court of appeal affirmed. 486 So.2d 129 (1986). The Council then sought writs in this Court. We granted a writ of review. 489 So.2d 909 (1986).

Among the assignments of error presented by the Council is the contention that prescription was suspended or interrupted by the equitable doctrine of contra non valentem agere nulla currit praescriptio. 5 Both lower courts refused to apply the doctrine in the case before us. Because we find the Council and its predecessors were "effectually prevented" from availing themselves of their cause of action

Page 1038

by the affirmative acts of concealment, misrepresentation, legal challenges and fraudulent conduct on the part of Leander Perez, Sr., and the further affirmative concealment on the part of his public official sons who succeeded him, Leander Perez, Jr., and Chalin Perez, we hold the doctrine of contra non valentem is applicable, such that prescription was indeed suspended between 1941 and at least 1980. The exception of prescription was erroneously sustained.

Status and Duties owed by the Public Official Perezes

In order properly to analyze the facts in the record before us, and considering that plaintiff's claims are much delayed assertions against public officials, we feel it important first to emphasize the high degree of trust and confidence placed in public officials by the electorate in this state and nation. We deem it also pertinent to note at the outset, that affirmative as well as negative duties are placed on such public officials, even more especially on those whose public office also imposes a duty which entails legal representation.

In 1919, Leander Perez, Sr. was appointed district court judge of the judicial district which included Plaquemines Parish. 6 He was elected District Attorney of the same judicial district in 1924 and served the Parish continuously as its District Attorney until 1960. In 1954, Judge Perez appointed his son, Leander Perez, Jr., to the position of Assistant District Attorney. In 1960, Perez, Jr., was elected District Attorney, succeeding his father. After that election, Perez, Jr. appointed Perez, Sr. to the position of Assistant District Attorney. Perez, Jr. remained the Plaquemines Parish District Attorney until January 1, 1985.

In 1961 the Plaquemines Parish Charter for Local Self-Government became effective, and Judge Perez was elected, without opposition, to membership on the new Plaquemines Parish governing body, the Plaquemines Parish Commission Council. Judge Perez served as President of the Council and Commissioner of Public Affairs until 1967, when he was replaced by his son, Chalin, who was elected to that same position that year. Chalin Perez served as Commissioner of Public Affairs from 1967 through 1983. The Plaquemines Parish Charter for Local Self-Government placed responsibility for the administration of all Plaquemines Parish public lands in the hands of the Commissioner of Public Affairs. 7

At all times relevant to this case, 1912 La. Acts No. 125 (codified as amended at La. Rev. Stat. Ann. 16:2 (West 1982 & Supp.1987) and id. 42:261 et seq. (West 1965 & Supp.1987)) named the District Attorney as the sole and exclusive legal advisor to the levee boards, the police jury, and other parish governing authorities within his district. 1912 La. Acts No. 125 expressly prohibited levee boards from using any attorney other than the local District Attorney, unless "real necessity" to do so existed and such necessity was depicted in a resolution promulgated by a given levee board and approved by the Attorney General

Page 1039

and the Governor. The predecessors of the Council, the Grand Prairie and Buras Levee Districts, and the Plaquemines Parish Police Jury, owned and controlled 8 public lands in Plaquemines Parish during Judge Perez's eight successive four year terms as...

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