Margarete Wabnig v. the Estate of Gertrude Maria Wabnig, Norbert Wabnig and Paul F. Wabnig

MARGARETE WABNIG * NO. 2020-CA-0520

VERSUS *
COURT OF APPEAL
THE ESTATE OF GERTRUDE *
MARIA WABNIG, NORBERT FOURTH CIRCUIT
WABNIG AND PAUL F. *
WABNIG STATE OF LOUISIANA
*******

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2019-11383, DIVISION “D”
Honorable Nakisha Ervin-Knott, Judge
******
Judge Rosemary Ledet
******
(Court composed of Judge Daniel L. Dysart, Judge Rosemary Ledet, Judge Regina
Bartholomew-Woods)

Connie P. Trieu
TRIEU LAW, LLC
1800 Carol Sue Avenue, Suite 7
Gretna, LA 70056

COUNSEL FOR PLAINTIFF/APPELLANT

Gilbert R. Buras, Jr.
ATTORNEY AT LAW
710 Carondelet Street
New Orleans, LA 70130

Leonard L. Levenson
Christian W. Helmke
Colleen Boyle Gannon
Donna R. Barrios
LEONARD L. LEVENSON & ASSOCIATES
650 Poydras Street, Suite 2750
New Orleans, LA 70130

COUNSEL FOR DEFENDANTS/APPELLEES

AFFIRMED; FRIVOLOUS APPEAL
DAMAGES DENIED

April 21, 2021

This is a suit for damages arising out of two successions. The Appellant—
RML
DLD
Margarete Wabnig (“Ms. Wabnig”)—appeals the trial court’s judgment granting
RBW
an exception of prescription filed by the Appellees—the Estate of Gertrude Maria

Wabnig and Norbert Wabnig—and, thus, dismissing the causes of action against

them.1 The Appellees answered the appeal, seeking frivolous appeal damages. For

the reasons that follow, we affirm the trial court’s judgment and deny the

Appellees’ request for frivolous appeal damages.

BACKGROUND

Paul K. Wabnig (“Father”) and Gertrude Maria Wabnig (“Mother”) married

in 1951. Three children—Norbert, Paul, and Ms. Wabnig (collectively, the

“Children”)—were born of the marriage. In 1959, Father died testate. In his will,

he donated his interest in the marital community and his separate property to the

Children, equally, and conferred on Mother a usufruct over the entirety of his

estate. A succession was opened, and a judgment of possession was entered in

1960.2

1
The Appellees separately filed exceptions of prescription. For ease of discussion, we refer to
the Appellees’ exceptions of prescription as a single exception.
2
Succession of Paul K. Wabnig, Civil District Court No. 369-183, Div. “C”.

1

Because, at the time of Father’s death, the Children were minors, Mother

was appointed the Children’s natural tutrix. In 2010, Mother died testate. In her

will, Mother donated her entire estate to the Children, equally. A succession was

opened and remains pending.3

On October 29, 2019, Ms. Wabnig commenced this case by filing a pleading

styled a “Petition for Damages.” In essence, the petition sets forth the following

allegations:

 That when Ms. Wabnig reached the age of majority in 1976, Mother
failed to place her in possession of her legacy from Father and instead
falsely informed Ms. Wabnig that Father had donated his entire estate to
Mother;

 That in the following years, Mother made various inter vivos donations to
Norbert and Paul, thus reducing Ms. Wabnig’s legacy from Father;

 That Mother conferred on Paul a power of attorney and that, under that
authority, Paul made additional inter vivos donations to himself and
Norbert of property held by Mother, further reducing Ms. Wabnig’s
legacy from Father; and

 That, like Mother, Norbert and Paul concealed from Ms. Wabnig the
existence of her legacy from Father.

In light of these allegations, the petition asserts that Mother’s succession “is

responsible to [Ms. Wabnig] for any damages [for] fraudulently concealing her

legitime, failing to account, failing to render her legitime at the termination of the

usufruct, failing to render her legitime at the termination of her minority, breach of

fiduciary duty and conversion of her legitime.” The petition further asserts that

Norbert and Paul “are both liable unto [Ms. Wabnig] for damages as they actively

concealed her legitime from her, for years while they self-dealt, in an attempt to

get more-than-their fair share of each of their Father’s and [Mother’s] estates.” The

petition concludes with the prayer that, “after all due proceedings are had, … there
3
Succession of Gertrude Maria Wabnig, Civil District Court No. 2010-4893, Div. “N”.

2

be judgment rendered herein in favor of [Ms. Wabnig] and against all defendants

for all damages suffered by [Ms. Wabnig], together with all legal interest and costs

associated with the prosecution of this claim and for all general and equitable relief

as is just.”

In response, Appellees filed various exceptions, including an exception of

prescription. After a hearing, the trial court sustained the exception of prescription

on June 1, 2020.4 This appeal followed.

DISCUSSION

The dispositive issue before us is whether the trial court erred in sustaining

the exception of prescription. This court has set forth the standard of review of a

trial court’s judgment on an exception of prescription as follows:

When no evidence is introduced, the judgment is reviewed
simply to determine whether the trial court’s decision was legally
correct. A de novo standard of review applies. In this context, the
exception of prescription must be decided on the facts alleged in the
petition, which are accepted as true.

When evidence is introduced, the trial court’s factual findings
on the issue of prescription generally are reviewed under the
manifestly erroneous-clearly wrong standard of review. When
evidence is introduced but the case involves no dispute regarding
material facts, only the determination of a legal issue, an appellate
court must review the issue de novo, giving no deference to the trial
court’s legal determination. . . .

Ordinarily, the defendant—the party asserting a peremptory
exception of prescription—bears the burden of proof. When the
plaintiff’s claim is prescribed on the face of the petition, however, the
burden shifts to the plaintiff to establish that his or her claim has not
prescribed.

Wells Fargo Fin. Louisiana, Inc. v. Galloway, 17-0413, pp. 8-9 (La. App. 4 Cir.

11/15/17), 231 So. 3d 793, 800 (citations, quotation marks, and alterations

omitted).

4
The trial court initially ruled orally from the bench and later rendered a written judgment.

3

Ms. Wabnig contends that the trial court erred in granting the exception of

prescription for two reasons: (1) the petition sets forth an imprescriptible

revendicatory action; and (2) even if the causes of action set forth in the petition

are facially prescribed, they remain viable under the doctrine of contra non

valentem. We address each argument separately.

Revendicatory Action

Ms. Wabnig contends that the trial court erred in sustaining the exception of

prescription because the petition sets forth an imprescriptible revendicatory action

for the return of the movable and immovable property constituting her legacy from

Father.5 A revendicatory action is an action whereby “[t]he owner of a thing is

entitled to recover it from anyone who possesses or detains it without right and to

obtain judgment recognizing his ownership and ordering delivery of the thing to

him.” La. C.C. art. 526. Such actions are of two kinds: (1) a petitory action for the

recovery of immovable property; and (2) an innominate real action for the recovery

of movable property. La. C.C. art. 526, cmt. (b); see also Songbyrd, Inc. v.

Bearsville Recs., Inc., 104 F.3d 773, 777 (5th Cir. 1997).

The Appellees point out that, contrary to Ms. Wabnig’s contention, the

petition does not seek the recovery—that is, the return—of her legacy; indeed, the

petition is devoid of any request for the recovery of any identifiable thing. Instead,

as the Appellees point out, the only relief sought by the petition is monetary

damages.

5
In ruling from the bench, the trial court found that the petition set forth various delictual causes
of action; and the trial court sustained the Appellees’ exceptions of prescription as to those
causes of action. Apart from arguing that those claims are subject to the application of the
doctrine of contra non valentum, discussed elsewhere in this opinion, Ms. Wabnig does not
challenge the trial court’s finding that those causes of action are facially prescribed.

4

Similar arguments were presented in Melancon v. Melancon, 244 So.2d 905

(La. App. 1st Cir. 1971). There, the plaintiff sought to recover the monetary value

of a legacy from her mother consisting of certain property, which the plaintiff

claimed the defendant, her tutor, had mismanaged or converted. Although the

petition was styled an “action in revendication,” it sought relief only in the form of

monetary damages representing the value of the assets mismanaged or converted

by the defendant. The plaintiff contended that, “since mostly cash was involved, a

dollar is a dollar and it is immaterial to an action for revendication that the

defendant does not have the same currency that he originally received for the

plaintiff . . . [since] [h]e can replace it with other money.” Id. at 906. The appellate

court disagreed, reasoning that “the revendicatory action, by definition, involves a

claim by one party for specific and identifiable property retained by or in the

possession of another party” and that “[i]n seeking a sum of money representing

the value of expended cash or deteriorated movables, plaintiff’s action does not

meet that requirement of an action in revendication.” Id. at 907.

The same is true here. The petition in this case does not seek to recover any

particular thing in the possession of any of the Appellees. Instead, the petition—

styled a “Petition for Damages”—seeks relief only in the form of monetary

damages.6 Thus, here, as in Melancon, the petition does not set forth a

revendicatory action.7 Accordingly, the trial court did not err in finding that the

causes of action set forth in Ms. Wabnig’s petition are facially prescribed.

6
Indeed, the petition breaks those monetary damages down into the following categories: (1)
past, present, and future emotional damages; (2) loss of use; (3) loss of income; (4) loss of
business opportunity; (5) attorney’s fees and court costs; (6) inconvenience; and (7) other
damages that may be proven at trial.
7
As a corollary to her argument that the petition sets forth a revendicatory action, Ms. Wabnig
contends the trial court erred in sustaining the exception of prescription because the Appellees

5

Contra Non Valentem

Ms. Wabnig contends that, even if the causes of action set forth in the

petition are facially prescribed, they remain viable under the doctrine of contra non

valentem. This court has explained the application of the doctrine as follows:

The doctrine of contra non valentem is a jurisprudentially-
created, limited exception [to prescription] where in fact and for good
cause a plaintiff is unable to exercise his cause of action when it
accrues. The doctrine is based on the premise that, in some
circumstances, equity and justice require that prescription be
suspended because the plaintiff was effectually prevented from
enforcing his rights for reasons external to his own will.

Because contra non valentem is an exceptional remedy
recognized by our jurisprudence which is in direct contradistinction to
articles in our Civil Code, it must be strictly construed. Thus, the
Louisiana Supreme Court has cautioned that the doctrine applies only
in exceptional circumstances. Louisiana jurisprudence has recognized
four such circumstances:

(1) Where there was some legal cause which prevented
the courts or their officers from taking cognizance of
or acting on the plaintiff’s action;

(2) Where there was some condition coupled with the
contract or connected with the proceedings which
prevented the creditor from suing or acting;

(3) Where the debtor himself has done some act
effectually to prevent the creditor from availing
himself of his cause of action; or

(4) Where the cause of action is neither known nor
reasonably knowable by the plaintiff even though
plaintiff’s ignorance is not induced by the defendant.

Ramos v. Le, 2018-0677, pp. 5-6 (La. App. 4 Cir. 12/12/18), 261 So.3d 959, 963-

64 (citations, quotation marks, and alterations omitted).

may be entitled to assert an imprescriptible claim of acquisitive prescription as a defense to any
revendicatory action brought by her. Because we find that the petition does not set forth a
revendicatory action, we pretermit discussion of her corollary argument.

6

Ms. Wabnig contends that Mother, Norbert, and Paul concealed from her the

existence of her legacy from Father and that she only learned of the existence of

the legacy in 2018. Ms. Wabnig contends this concealment warrants the

application of the third and fourth categories of the doctrine of contra non

valentem.

The trial court, however, found that Ms. Wabnig’s claim of concealment was

contradicted by evidence establishing that she was aware of the existence of her

legacy from Father by 2007, meaning that the causes of action set forth in the

petition—all of which are delictual in nature—prescribed years before the petition

was filed in 2019. The trial court summarized the evidence as follows:

[D]ocuments produced in [Mother’s] succession proceedings
demonstrate that [Ms. Wabnig] had knowledge of her [legacy from
Father] prior to 2018. In response to request for production of
documents, [Ms. Wabnig] produced documents that indicate that in
2008, two years prior to Mother’s death, [Ms. Wabnig] was aware that
she and her brothers inherited from their father (referring to an e-mail
communication between Margarete and Peter Funston). There is also
an e-mail from 2007, which is e-mail communication between [Ms.
Wabnig] and Mr. Eschelmann, which indicates that [Ms. Wabnig] was
aware of her [legacy] from her father before 2018. Additionally, there
was a letter authored by [Ms. Wabnig], which is dated October 9,
2008, to her brothers, which recognizes her knowledge of the fact that
she and her brothers inherited from their father. So based upon these
documents, it is evident [Ms. Wabnig] knew about her [legacy] years
before 2018.

In light of this evidence, we cannot say the trial court’s finding was manifestly

erroneous.

APPELLEES’ ANSWER TO APPEAL

Contending that Ms. Wabnig’s appeal is frivolous, the Appellees seek

frivolous appeal damages in the form of attorney’s fees and costs incurred in

connection with this appeal. This court set forth the principles governing requests

for frivolous appeal damages as follows:

7

Appellate courts shall render any judgment which is just, legal,
and proper upon the record on appeal and may award damages for
frivolous appeal. La. C.C.P. art. 2164. The statute permitting frivolous
appeal damages must be strictly construed in favor of the appellant, as
it is penal in nature. Frivolous appeal damages will be awarded if the
appellant is trying to delay the action or if the appealing counsel does
not seriously believe the law he or she advocates. An appeal may also
be deemed frivolous if it does not present a substantial legal question.
Appeals are always favored and, unless the appeal is unquestionably
frivolous, damages will not be granted due in part to the possible
chilling effect on the appellate process.

Johnson v. Johnson, 08-0060, pp. 5-6 (La. App. 4 Cir. 5/28/08), 986 So.2d 797,

801 (citations, quotations, and alterations omitted). Expanding on these principles

this court has explained as follows:

Although a successful appeal is by definition non-frivolous, the
converse is not true. Even when an appeal lacks serious legal merit,
frivolous appeal damages will not be awarded unless the appeal was
taken solely for the purpose of delay or the appellant’s counsel is not
serious in the position he advances.

Any doubt regarding whether an appeal is frivolous must be
resolved in the appellant’s favor.

Miralda v. Gonzalez, 14-0888, pp. 33-34 (La. App. 4 Cir. 2/4/15), 160 So.3d 998,

1019 (citations, quotations, and alterations omitted). Applying these principles, we

cannot say that Ms. Wabnig’s appeal is frivolous. Accordingly, we deny the

Appellees’ request for frivolous appeal damages.

DECREE

For the foregoing reasons, the trial court’s judgment is affirmed; the

Appellee’s request for frivolous appeal damages is denied.

AFFIRMED; FRIVOLOUS APPEAL DAMAGES DENIED

8