Succession of Carroll
72 So. 3d 384
La. Ct. App.2011Background
- Decedent Agnes Wylonda Carroll executed a durable power of attorney naming Ethyl and Gary as mandataries and Ethyl as executrix.
- Ethyl and Gary organized AWC, L.L.C. and, acting for decedent, purchased the stepchildren’s interests in the family home and other assets; decedent sold most remaining assets to AWC.
- Decedent executed an Arkansas will in January 2007 leaving virtually all to Ethyl; Louisiana will drafted later mirrored Arkansas will with special legacies to others and universal bequest to Ethyl.
- Hampton prepared the Louisiana will and later assisted with probate; he testified decedent was competent and consulted a physician letter supporting capacity.
- Plaintiffs (Thomas and Donna) allege fraud and conspiracy against Hampton, Dawkins, Ethyl, Gary, and AWC; they seek to annul probated will and recover damages.
- District court sustained Hampton’s dilatory exception of improper cumulation of actions, the no cause of action exception, and granted a special motion to strike the tort claims against Hampton, awarding attorney’s fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Improper cumulation of actions | Cruse argues cumulation proper since both petitions include fraud and damages | Hampton argues statutes require separate procedures for will annulment and tort claims | Improper cumulation sustained |
| No cause of action against Hampton | Plaintiffs allege conspiracy and intentional tort to defraud forced heirs | Hampton owed duty to his clients; no malice toward plaintiffs shown | No cause of action sustained |
| Special motion to strike | Motion misapplied; tort claims arise from petitioning conduct | Motion to strike warranted; claims arise from protected petition activity | Special motion to strike affirmed; defenses awarded attorney fees |
Key Cases Cited
- City of New Orleans v. Board of Directors of Louisiana State Museum, 739 So.2d 748 (La. 1999) (no cause of action standard; plaintiff must show potential remedy on petition)
- Montalvo v. Sondes, 637 So.2d 127 (La. 1994) (attorney owed duty to client; not to adversary absent malice)
- Penalber v. Blount, 550 So.2d 577 (La.1989) (personal accountability for intentional tortious conduct by attorney)
- Thinkstream, Inc. v. Rubin, 971 So.2d 1092 (La. App. 1st Cir. 2007) (special motion to strike burden-shifting framework)
- Melius v. Keiffer, 980 So.2d 167 (La. App. 4th Cir. 2008) (statutory scope of Article 971 and constitutional rights)