Jacquelyn Antoine v. The East Baton Rouge Council on Aging, The East Baton Rouge Metro Council, The State of Louisiana through the Governor's Office of Elder Affairs, Southern University of Louisiana, Dytasha Clark-Amar, and Dorothy Jackson

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL

j FIRST CIRCUIT
LJ
2019 CA 0109
11

i JACQUELYN ANTOINE

VERSUS

THE EAST BATON ROUGE COUNCIL ON AGING, THE EAST
BATON ROUGE METRO COUNCIL, THE STATE OF LOUISIANA
THROUGH THE GOVERNOR' S OFFICE OF ELDER AFFAIRS,
SOUTHERN UNIVERSITY OF LOUISIANA, DYTASHA CLARK-
AMAR, AND DOROTHY JACKSON

DATE OF JUDGMENT: fNOV 1 , ? 019

ON APPEAL FROM THE NINETEENTH JUDICIAL DISTRICT COURT
NUMBER 665344, SECTION 25, PARISH OF EAST BATON ROUGE
STATE OF LOUISIANA

HONORABLE WILSON E. FIELDS, JUDGE

Robert T. Garrity, Jr. Counsel for Plaintiff A
- ppellant
S. Ashley Marler Jacquelyn Antoine
Harahan, Louisiana

Davis Rhorer, Jr. Counsel for Defendant -Appellee
Assistant Parish Attorney City of Baton Rouge/East Baton Rouge
Baton Rouge, Louisiana Parish

Jeff Landry Counsel for Defendant -Appellee
Attorney General State of Louisiana through the
Kevin P. Landreneau Governor' s Office of Elderly Affairs
T. Jay Seale, III
Celeste H. Shields
Special Assistant
Attorneys General
Baton Rouge, Louisiana
Murphy J. Foster, III Counsel for Defendant -Appellee
Baton Rouge, Louisiana The East Baton Rouge Council

on Aging

Ernest L. Johnson Counsel for Defendant -Appellee
Baton Rouge, Louisiana Dytasha Clark -Amar

Jeff Landry Counsel for Defendant -Appellee
Attorney General Dorothy Jackson
Alejandro R. Perkins
Andrew F. Barr
Special Assistant
Attorneys General
Baton Rouge, Louisiana

Jeff Landry Counsel for Defendant -Appellee
Attorney General The Board of Supervisors of Southern
Thomas M. Flanagan University and A& M College
Camille E. Gauthier
Special Assistant
Attorneys General
New Orleans, Louisiana

BEFORE: McDONALD, THERIOT, AND CHUTZ, JJ.

Disposition: AFFIRMED.

2

CHUTZ, I

Plaintiff-appellant, Jacquelyn Antoine, appeals a trial court judgment

dismissing, with prejudice, her damage claims against all defendants on

peremptory exceptions raising the objections of prescription, no cause of action,

and no right of action. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On July 7, 2016, Helen Plummer executed a will at the Southern University
Elder Law Clinic ( SELC) that created a testamentary trust benefiting her great-

grandchildren and great- niece.
Ms. Plummer' s only surviving child,' Ms. Antoine,

was not named as a legatee. The will named Dytasha Clark -Amar, the Executive

Director of the East Baton Rouge Council on Aging ( COA), as the executrix of

Ms. Plummer' s estate, as well as the trustee of the testamentary trust created by the

will. The trust was to continue until the youngest of the trust beneficiaries reached

the age of thirty, a period of over twenty years. Dorothy Jackson, a member of the

COA Board of Directors and the Director of SELC, was named in the will as the

attorney for Ms. Plummer' s estate.

Following Ms. Plummer' s death on March 2, 2017, Ms. Antoine filed a

petition to annul her mother' s will and remove Ms. Clark -Amar as executrix and

trustee. That matter eventually was settled, David Koch was appointed by the

court to represent the decedent' s estate, and Ms. Antoine filed a motion to dismiss

her petition to annul the will and remove Ms. Clark -Amar as executrix and trustee.

Pursuant to that motion, the trial court dismissed Ms. Antoine' s petition, with

prejudice.

On January 12, 2018, Ms. Antoine filed a petition for damages against the

following defendants: COA; the City of Baton Rouge/Parish of East Baton Rouge

EBRP); the State of Louisiana through the Governor' s Office of Elder Affairs

Ms. Plummer was predeceased by another daughter, who died without issue.
3

GOEA); Southern University of Louisiana ( Southern); Ms. Clark -Amar; and Ms.

Jackson. According to the petition, Ms. Plummer became acquainted with Ms.

Clark -Amar and Ms. Jackson through her participation in certain COA programs.

Ms. Antoine alleged that after learning of Ms. Plummer' s financial status, Ms.

Clark -Amar, through fraud and deceit, persuaded Ms. Plummer that her family was

stealing from her and mismanaging her money. Ms. Antoine further alleged Ms.

Clark -Amar and Ms. Jackson conspired to induce Ms. Plummer to execute the July

2016 will creating a testamentary trust for her great- grandchildren and great-niece,

all for the benefit of Ms. Clark -Amar and Ms. Jackson and to the detriment of Ms.

Antoine.

With respect to the remaining defendants ( COA, EBRD, GOEA, and

Southern), Ms. Antoine alleged they were each negligent in failing to supervise

Ms. Clark -Amar and/ or Ms. Jackson and in failing to establish policies and

procedures to prevent employees from taking advantage of elderly clients for their

own gain. She further asserted Southern was liable for the illegal conduct of its

SELC director, Ms. Jackson.

Ms. Antoine claims she has suffered damages as a result of the fraud and

conspiracy of Ms. Clark -Amar and Ms. Jackson. Specifically, she alleges her

estate and that of her relatives have been diminished by the legal process

including the payment of executor fees), and she has had to expend substantial

sums to contest the defendants' negligent and illegal activities.

In response to Ms. Antoine' s petition, all defendants filed peremptory

exceptions raising the objections of prescription, no cause of action, and/ or no right

of action.'
Following a hearing, the trial court signed a judgment on August 30,

2018, sustaining the exceptions of prescription and no right of action and

2 EBRD raised the objection of no cause of action; COA raised the objections of prescription and
no cause of action; Ms. Clark -Amar raised the objections of prescription and no right of action;
and GOEA, Southern, and Ms. Jackson each raised the objections of prescription, no cause of
action, and no right of action.

II

dismissing Ms. Antoine' s claims against all defendants with prejudice.' The

judgment also sustained the exceptions of no cause of action and GOEA' s dilatory
exception of vagueness. The judgment further ordered that in the event the matter

was remanded after appeal, Ms. Antoine was to amend her pleadings to state a

cause of action against all defendants and to more clearly state the legal and factual

basis for her claims against GOEA.

Ms. Antoine now appeals, arguing in five assignments of error that the trial

court erred in sustaining the defendants' exceptions and dismissing her claims.

DISCUSSION

On appeal, Ms. Antoine raises arguments concerning each of the exceptions

sustained by the trial court. However, we find it necessary to only address the

exceptions of no right of action sustained by the trial court.

Ms. Antoine argues she did not bring this action against the defendants to

challenge the validity of Ms. Plummer' s will, but to seek damages resulting from

the creation of the will, which she maintains was induced by Ms. Clark -Amar and

Ms. Jackson' s fraud and misrepresentations. Ms. Antoine contends she has a right

of action because she is Ms. Plummer' s " daughter and sole [ intestate] heir," and

has furnished satisfactory evidence of the legal right of action to inherit as an

intestate heir."

Except as otherwise provided by law, an action can only be brought by a

person having a real and actual interest which he asserts. La. C. C. P. art. 681. The

function of the exception of no right of action is to determine whether the plaintiff

belongs to the class of persons to whom the law grants the cause of action asserted

in the suit. See La. C. C. P. art. 927A( 6). The focus is on whether the particular

plaintiff has a right to bring the suit. For purposes of the exception, it is assumed

3 Although neither EBRP nor COA raised exceptions of no right of action, a trial court or an
appellate court may notice on its own motion the petition' s failure to disclose a right of action
belonging to the plaintiff. La. C. C. P. art. 927( B); see Gisclair v. Louisiana Tax Commission,
10- 0563 ( La. 9/ 24/ 10), 44 So. 3d 272, 273 & 281 ( per curiam).

5

the petition states a valid cause of action for some person. The exception questions

whether the plaintiff is a member of the class who has a legal interest in the subject

matter of the litigation. It does not raise the questions of the plaintiffs ability to

prevail on the merits or whether the defendant may have a valid defense. Nu -Lite

Electrical Wholesalers, LLC v. Axis Construction Group, LLC, 17- 1204 ( La.

App. 1st Cir. 4/ 9/ 18), 249 So. 3d 10, 13, writ denied, 18- 0914 ( La. 9/ 28/ 18), 253

So. 3d 142.

The party raising an exception of no right of action bears the burden of

proof. To prevail, the defendant must show the plaintiff does not have an interest

in the subject matter of the suit or legal capacity to proceed with the suit. Whether

a plaintiff has a right of action is a question of law that is reviewed de novo on

appeal. Nu -Lite Electrical Wholesalers, LLC, 249 So. 3d at 13- 14.

Ms. Antoine' s petition alleges that fraud was perpetuated upon Ms. Plummer

when Ms. Clark -Amar and Ms. Jackson suppressed and misrepresented the truth,

thereby leading Ms. Plummer to believe her family was stealing from her and

mismanaging her money. Ms. Antoine further contends this fraudulent conspiracy

caused Ms. Plummer to execute the will creating a testamentary trust for her great-

grandchildren and great- niece, which led to the diminution of Ms. Plummer' s

estate through the payment of unnecessary executrix and trustee fees, as well as

attorney fees required to defend the validity of the will.

Assuming for the purposes of the exception of no right of action that the

petition states a cause of action for the diminution of the decedent' s estate as a

result of the alleged fraudulently conspiracy between Ms. Clark -Amar and Ms.

Jackson, Ms. Antoine is not the party entitled to bring the action. Under La. C. C. P.

0

art. 685, 4 the succession representative is the proper plaintiff to bring any action
belonging to the decedent' s succession. See In re Ewing, 34,413 ( La. App. 2d Cir.

3/ 2/ 01), 781 So.2d 885, 899- 90. The trial court appointed David Koch as executor

of Ms. Plummer' s succession to replace Ms. Clark -Amar. Because Ms. Antoine is

not the succession representative for her mother' s succession, she has no right to

bring a suit on an action belonging to Ms. Plummer' s succession. See La. C. C.P.

art. 685.

Furthermore, Ms. Antoine acknowledged she is not a named legatee in her

mother' s will. Additionally, she is not a forced heir since she was over the age of

twenty-three when her mother died, and she does not allege she was permanently

incapable of caring for herself due to mental incapacity or physical infirmity. See
La. C. C. art. 1493. Because Ms. Antoine is neither a forced heir nor a legatee

named in Ms. Plummer' s will, she has no interest in her mother' s estate. Despite

Ms. Antoine' s arguments to the contrary, any rights she may have had if her

mother had died intestate are irrelevant since her mother died testate.5

Accordingly, the trial court correctly found that Ms. Antoine had no right of action

and sustained the exceptions of no right of action. Further, because there was no

way for Ms. Antoine to remove the grounds of the objection by amending her

4 This provision provides as follows:

Except as otherwise provided by law, the succession representative appointed by a
court of this state is the proper plaintiff to sue to enforce a right of the deceased or
of his succession, while the latter is under administration. The heirs or legatees of
the deceased, whether present or represented in the state or not, need not be joined
as parties, whether the action is personal, real, or mixed.

5 As Ms. Plummer' s only surviving child and intestate heir, Ms. Antoine had a right to bring an
action challenging the validity of Ms. Plummer' s will. See In re Succession of Guidry, 06- 1089
La. App. 3 Cir. 12/ 6/ 062), 945 So. 2d 187, 188 ( an heir is among those with a justiciable interest
in opposing a succession proceeding); Succession of Moran, 485 So.2d 623, 625 ( La. App. 4th
Cir.), writ denied, 488 So. 2d 204 ( La. 1986) ( the law grants a cause of action to annul a probated
testament to those persons who would realize some benefit should the attack be successful). As
previously noted, the record indicates Ms. Antoine exercised this right, but dismissed her petition,
to annul the will after reaching a settlement. Further, if Ms. Antoine had any right to bring a
claim for the litigation expenses she incurred in challenging the actions of Ms. Clark -Amar and
Ms. Jackson, it would have been in the context of the action she brought to annul the will.

petition,
the trial court properly dismissed Ms. Antoine' s claims against all

defendants, with prejudice.' See La. C. C. P. art. 934; O' Brock v. White, 18- 1345

La. App. 1st Cir. 4/ 12/ 19), 276 So. 3d 178, 184.

CONCLUSION

For the reasons assigned, the August 30, 2018 judgment of the trial court

dismissing, with prejudice, the claims of plaintiff, Jacquelyn Antoine, against

defendants, the East Baton Rouge Council on Aging, the City of Baton

Rouge/ Parish of East Baton Rouge, the State of Louisiana through the Governor' s

Office of Elder Affairs, Southern University of Louisiana, Dytasha Clark -Amar,

and Dorothy Jackson, is affirmed. Plaintiff is to pay all costs of this appeal.

AFFIRMED.

6 Because we conclude Ms. Antoine' s claims against all defendants were properly dismissed on
exceptions of no right of action, we pretermit consideration of the remaining exceptions
sustained by the trial court.
N.