In the Matter of the Succession of Marilyn Ann Barbier

STATE OF LOUISIANA

4161tiA &I a_
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FIRST CIRCUIT

2023 CA 1321

IN THE MATTER OF THE SUCCESSION OF
MARILYN ANN BARBIER

Judgment Rendered:

On Appeal from the Nineteenth Judicial District Court
In and for the Parish of East Baton Rouge
State of Louisiana
Docket No. 104695

Honorable Tiffany Foxworth- Roberts, Judge Presiding

John F. McDermott Counsel for Appellee
Tom S. Easterly Randall James Roberts
Michael S. Walsh
Peyton T. Gascon
Baton Rouge, Louisiana

Jude C. Bursavich Counsel for Appellant
Lance J. Kinchen Cecile Ourso Caballero
Timothy W. Hardy
Baton Rouge, Louisiana

McCLENDON, J.

In this appeal, a legatee challenges the trial court's judgment that denied her

request to reopen a succession and dismissed her claims with prejudice. For the reasons

that follow, we affirm.

The decedent, Marilyn Ann Barbier, died testate on May 5, 2018. At the time of

her death, Ms. Barbier was single, having been married but once and legally divorced.

No children were born of the marriage, and Ms. Barbier never adopted any children.

Ms. Barbier's Last Will and Testament (Testament), dated July 1, 2003, contained

three bequests. The first bequeathed her interest in a Grand Isle camp to Floyd J.

Roberts, Sr., or to his children by roots, if he did not survive her.' In her second bequest,

Ms. Barbier divided the credit shelter portion 2 of her estate into eleven equal shares,

giving a one -eleventh share to Marie Tassin McDonald, Babette Breaux, Rebecca Ann

Roberts, Randall James Roberts, Lori Ourso Babin, Cecile Ourso Caballero, Floyd Roberts,

Jr., Regina Roberts Rieger, Claire Tassin Combs, and Carol Mury Higginbotham. The

remaining one -eleventh share was divided equally between John Ourso and Chad Ourso,

the sons of Sidney Ourso. Ms. Barbier left the rest and remainder of her estate to BR &

R Foundation ( Foundation), a tax- exempt charitable organization. In the Testament, Ms.

Barbier also named Randall James Roberts ( Mr. Roberts) to serve as independent

executor.

On May 24, 2018, Mr. Roberts filed a Petition to File and Execute Notarial

Testament and to Appoint Independent Executor for the administration of Ms. Barbier' s

succession. On May 29, 2018, he was confirmed as independent executor.

I Floyd I Roberts, Sr., who was Ms. Barbier's brother, died on December 25, 2013, leaving four children,
Floyd J. Roberts, Jr., Randall I Roberts, Regina R. Roberts, and Rebecca A. Roberts, all of whom survived
Ms. Barbier.

2 The Testament defined the credit shelter portion, in pertinent part, as follows:

Credit Shelter Portion" means the largest amount of my property that can pass free of
federal estate tax after considering all other taxable transfers made by me during my
lifetime and by reason of my death, and by ( i) utilizing all federal estate tax credits
allowable to my estate, other than the state death tax credit, and ( ii) by maximizing the
use of the state death tax credits allowable to my estate after utilizing all other federal
estate tax credits allowable to my estate without otherwise increasing the total death taxes
due on such property.

2

On December 5, 2019, Mr. Roberts filed a Petition for Possession, together with a

detailed descriptive list of all property belonging to Ms. Barbier at the time of her death.

At the time of her death! Ms. Barbier owned a forty -percent interest in the Grand Isle

Camp, and she owned a 91. 8251301 percent interest in BR & R Investment Company,

LLC ( BR & R), which constituted the vast majority of her estate.

In connection with preparing the Petition for Possession, Mr. Roberts, as

independent executor, engaged the services of Postlethwaite & Netterville ( P& N), an

accounting firm, to independently value Ms. Barbier's interest in BR & R. Mr. Roberts also

engaged the services of the accounting firm of Hannis T. Bourgeois ( Bourgeois) to serve

as estate accountants, as well as an estate attorney. Additionally, Mr. Roberts engaged

the services of the accounting firm of Malcolm M. Dienes ( Dienes) to value BR & R' s

interest that the Foundation, as residual legatee, would receive. The accountants at

Bourgeois disagreed with the valuation of BR & R' s interest as provided by Dienes, and

Mr. Roberts relied on the advice given to him by the Bourgeois accountants and the estate

attorney. The P& N report was used by Bourgeois and the estate attorney to prepare the

Petition for Possession.

Ms. Barbier' s interest in BR & R was valued at $ 13, 211, 000. 00. After deductions

for funeral expenses and debts for federal and state income tax, the total net value of

Ms. Barbier' s estate at the time of her death was calculated to be $ 13, 680, 019. 51, and

the credit shelter portion of the estate was determined to be $ 11, 046, 000. 00. After

splitting the credit shelter portion into the eleven shares, each legatee was entitled to a

value of $ 1, 004, 181. 82. 3 The remainder of the net value was bequeathed to the

In the Petition for Possession, Mr. Roberts asserted that Rebecca Ann Roberts, Lori

Ourso Babin, Floyd Roberts, Jr., and John Ourso and Chad Ourso desired to receive their

portion of Ms. Barbier's estate as a cash payment. He further averred that the remaining

legatees desired to receive an interest in BR & R in satisfaction of their respective interests

in Ms. Barbier's estate. As a result, and based on the P& N valuation report, it was

3 John Ourso and Chad Ourso's two one -twenty-second shares, which together made up one one -eleventh
share, each had a value of $502, 090. 91.

3

calculated that each of the legatees desiring an interest in BR & R would receive a

9. 9364044 percent interest.

On December 12, 2019, the trial court signed a Final Judgment of Possession in

conformity with the Petition for Possession, recognizing the particular legatees and

placing each of them in possession of an undivided one -eleventh share, including the

one -eleventh share split between John Ourso and Chad Ourso.4 On February 7, 2020,

the trial court signed a Motion for Amended and Corrected Final Judgment of Possession

to correct a clerical error in the Final Judgment of Possession. The Final Judgment of

Possession had mistakenly omitted Cecile Ourso Caballero from that portion of the

judgment that listed that she was to receive a 9. 9364044 percent interest in BR & R.

On January 31, 2023, approximately three years later, Cecile Ourso Caballero. 5

Marie Tassin McDonald, Claire Tassin Combs, and Carol Mury Higginbotham ( the

plaintiffs) filed a Petition to Reopen Succession. Therein, they asserted that the

9. 9364044 percent interest they received in BR & R was not equal in value to the cash

payment of $ 1, 004, 181. 82 that the four legatees received. Therefore, they argued that

the Judgment of Possession was not in compliance with Ms. Barbier' s Testament.

Particularly, the plaintiffs contend that the P& N valuation report applied only a two

percent discount for lack of liquidity, which was not appropriate for measuring each

minority interest bequest in BR & R. Rather, they argued, the Dienes report, which

applied a twenty to twenty-five percent discount for lack of control and lack of

marketability, to be more appropriate in valuing the plaintiffs' minority membership

interest.

The plaintiffs also asserted a claim that Mr. Roberts breached his fiduciary duty to

the legatees of Ms. Barbier' s succession ( the Succession), as he had clear conflicts of

interest in serving as the independent executor. They averred that Mr. Roberts had

served as manager of BR & R since its inception in 1996, as well as manager of the

4 On December 13, 2019, the trial court signed a Partial Judgment of Possession, recognizing Floyd J.
Roberts, Jr., Randall J. Roberts, Regina R. Roberts, and Rebecca A. Roberts as particular legatees and the
owners of one fourth of Ms. Barbier's forty -percent interest, being a ten -percent undivided interest each,
in the Grand Isle camp. The Grand Isle camp is not at issue in this appeal.

5 We note that the petition to reopen Ms. Barbier' s succession misspelled Mrs. Caballero' s first name. We
will continue to refer to Mrs. Caballero as " Cecile Ourso Caballero."

11

Foundation. Therefore, according to the plaintiffs, the lower the discounts used by Mr.

Roberts to value the membership interests in BR & R, the greater the value that would

go to the Foundation, which he controlled as manager.

Additionally, the plaintiffs alleged that because Mr. Roberts was agent for Ms.

Barbier pursuant to a power of attorney, he wore three " hats," namely, that he controlled

BR & R, was the independent executor of the Succession, and was the manager of the

Foundation, and that these obvious conflicts damaged the plaintiffs' legatees.

Considering their allegations, the plaintiffs prayed for judgment that the Succession be

reopened; that a new executor be appointed by the court to represent the Succession;

that the court order an expert be appointed to value the correct percentage BR & R should

have transferred to the seven legatees equal to $ 1, 004, 181. 82; and that the court find

that Mr. Roberts violated his fiduciary duties owed to the Succession in his capacity as

independent executor and was liable for all damages to the legatees.

In response to the plaintiffs' claims to reopen the Succession, Mr. Roberts filed

Peremptory Exceptions of Compromise and/ or Acceptance of Legacy, No Cause of Action,

and Nonjoinder of Party Needed for Just Adjudication; and Dilatory Exception of

Vagueness. Mr. Roberts asserted that no interested party opposed or objected to any of

the actions taken by him pursuant to his role as independent executor; that the petition

was devoid of any factual allegations suggesting that the plaintiffs were unable to traverse

the detailed descriptive list, object to the Petition for Possession, or appeal the Judgment

of Possession; and that the plaintiffs unconditionally accepted their legacies without

objection. Mr. Roberts averred that since taking their respective legacies three years

prior, they had exercised rights indicative of acceptance and ownership of the estate

assets, thereby legally precluding them from the relief they sought.6 Further, Mr. Roberts

contended that the plaintiffs failed to identify a proper cause to reopen the Succession;

that they failed to sufficiently articulate the factual predicate for their claim that he

breached his duty; and that the plaintiffs' petition failed to state a cause of action.

Alternatively, Mr. Roberts asserted that the plaintiffs failed to join all necessary parties

6 Mr. Roberts asserted that Carole Mury Higginbotham received an extraordinary cash distribution of
400, 000. 00 and that Marie Tassin McDonald was elected a manager of BR & R, as reflected in resolutions
of the managers of BR & R dated March 12 and 15, 2020, respectively.

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for just adjudication of the matter and that the petition to reopen the Succession was

insufficiently vague. The plaintiffs opposed the exceptions, and Mr. Roberts filed a reply

to the opposition.

On June 13, 2023, the trial court held a hearing on the exceptions.? Marie Tassin

McDonald, Carol Mary Higginbotham, and Mrs. Caballero testified at the hearing. The

legatees testified that they accepted their legacies, and counsel for the plaintiffs

stipulated to the fact that the plaintiffs all accepted their legacies. Mr. Caballero also

testified. At the conclusion of the hearing, the trial court found that the plaintiffs accepted

their legacies and acquiesced in the Judgment of Possession. The trial court stated:

Somebody had to make a decision how to divide the property and what the
discounts will be.... [ T] he person who makes the decision is only charged
with making a reasonable determination, and there has been no objection
to that timely in the Court' s opinion to overturn what Randall Roberts did in
this matter.... And I just don' t think anything —taking this to three different
CPA firms and them hackling ( sic) over what is a proper discount rate and
so forth. I think that you have a choice to select any of them and any of
them would be reasonable within the framework of what was done.

Consequently, the trial court sustained his peremptory exceptions raising the objection of

the acceptance of the legacy and of no cause of action. As a result, the trial court denied

Mr. Roberts' peremptory exception objecting to the nonjoinder of parties. The trial court

also denied the dilatory exception raising the objection of vagueness. On August 9, 2023,

the trial court signed a judgment and dismissed with prejudice all claims and causes of

action asserted by the plaintiffs.

Thereafter, Mrs. Caballero appealed. 8 In her appeal, Mrs. Caballero contends that

the trial court erred in 1) granting the acceptance of legacy exception, finding that Mrs.

Caballero acquiesced in the judgment; 2) granting the exception raising the objection of

no cause of action regarding the claim for breach of fiduciary duties against Mr. Roberts

as independent executor; 3) granting the exception raising the objection of no cause of

action regarding the claim to reopen the Succession, finding that Mrs. Caballero

7 We note that no evidence may be introduced at any time to support or controvert the objection that the
petition fails to state a cause of action. LSA- C. C. P. art. 931. In this matter, the trial court first heard
argument on the peremptory exception raising the objection of no cause of action and then took evidence
on the other exceptions.

8
By the time of the hearing on the exceptions, Marie Tassin McDonald, Claire Tassin Combs, and Carol
Mury Higginbotham requested that they be removed from the suit, and they did not appeal the August 9,
2023 judgment. Only Mrs. Caballero filed a Motion and Order for Devolutive Appeal.

R

acquiesced in the judgment; and 4) granting the exception raising the objection of no

cause of action without specifically addressing the allegations contained in the petition.

DISCUSSION

Pertinent to this appeal are the peremptory exceptions raising the objections of no

cause of action and acceptance of legacy as asserted by Mr. Roberts.9 The peremptory

exception raising the objection of no cause of action is used to test the legal sufficiency

of the petition by determining whether the law affords a remedy on the facts alleged in

the petition. Benoist v. Jackson National Life Insurance Company, 2022- 0878

La. App. 1 Cir. 4/ 14/ 23), 364 So. 3d 1162, 1165. The purpose of the exception of no

cause of action is not to determine whether the plaintiff will ultimately prevail at trial, but

to only ascertain if a cause of action exists. Benoist, 364 So. 3d at 1165- 66. No evidence

may be introduced to support or controvert the exception of no cause of action. LSA-

C. C. P. art. 931. The exception is triable on the face of the pleadings, and, for purposes

of resolving the issues raised by the exception, the well -pled facts in the petition must be

accepted as true. The issue at the trial of the exception is whether, on the face of the

petition, the plaintiff is legally entitled to the relief sought. Benoist, 364 So. 3d at 1166.

The petition must set forth material facts upon which the cause of action is based.

LSA- C. C. P. art. 891( A); Christian Schools, Inc. v. Louisiana High School Athletic

Association, 2020- 0762 ( La. App. 1 Cir. 5/ 18/ 22), 342 So. 3d 1068, 1074, writ denied,

2022- 01015 ( La. 10/ 12/ 22), 348 So. 3d 78. Additionally, the correctness of conclusions

of law is not conceded for the purposes of a ruling on an exception of no cause of action. 10

Christian Schools, Inc., 342 So. 3d at 1075.

In this matter, Mrs. Caballero asserts that the sole basis for seeking to reopen the

Succession is that her 9. 9364044 percent membership interest in BR & R did not equal a

9 Louisiana Code of Civil Procedure article 927 provides a non -exhaustive list of permissible objections
raised by peremptory exception. While the objection of acceptance of legacy is not included in the list,
LSA- C. C. P. art. 927 states that permissible peremptory exceptions are not limited to the listed examples.
See Reyer v. Milton Homes, LLC, 2018- 0580 ( La. App. 1 Cir. 2/ 25/ 19), 272 So. 3d 604, 607. However,
based on our findings herein, we do not address whether the objection of acceptance of legacy is a valid
peremptory exception.

10 Further, when the grounds of the objection pleaded by the peremptory exception may be removed by
amendment of the petition, the judgment sustaining the exception shall order such amendment within the
delay allowed by the court. If the grounds of the objection raised through the exception cannot be so
removed, or if the plaintiff fails to comply with the order to amend, the action, claim, demand, issue, or
theory shall be dismissed. LSA- C. C. P. art. 934; Christian Schools, Inc., 342 So. 3d at 1075.

7

cash value of $ 1, 004, 181. 82 at the time of Ms. Barbier' s death. Louisiana Code of Civil

Procedure article 3393( 6) provides:

After formal or informal acceptance by the heirs or legatees or
rendition of a judgment of possession by a court of competent jurisdiction,
if other property is discovered, or for any other proper cause, upon the
petition of any interested person, the court, without notice or upon such
notice as it may direct, may order that the succession be opened or
reopened, as the case may be, regardless of whether or not, theretofore,
any succession proceedings had been flied in court. The court may appoint
or reappoint the succession representative, if any, or may appoint another,
or new, succession representative. The procedure provided by this Code,
for an original administration, shall apply to the administration of
successions formally or informally accepted by heirs or legatees and in
successions where a judgment of possession has been rendered, in so far
as same is applicable.

Emphasis added). Thus, a trial court may reopen a succession under LSA- C. C. P. art.

3393 for only two reasons, that is, if other property is discovered or for any other proper

cause. Succession of McCarthy, 583 So. 2d 140, 141 ( La. App. 1 Cir. 1991). As no

other estate property has been discovered, the question before us is whether " other

proper cause" exists to allow reopening of the succession.

The basic purpose of LSA- C. C. P. art. 3393 is to provide a means for dealing with

overlooked succession assets. Succession of Villarrubia, 95- 2610 ( La. 9/ 5/ 96), 680

So. 2d 1147, 1150. See also Katherine Shaw Spaht, Developments in the Law 1985- 1986

Part I: A Faculty Symposium, 47 La. L. Rev. 471, 484 n. 47. In Villarrubia, the supreme

court stated that courts have found " other proper cause" under LSA- C. C. P. art. 3393 to

exist under extremely limited circumstances, such as where a valid will is discovered after

the administration of an intestate succession, citing Succession of McLendon, 383

So. 2d 55 ( La. App. 2 Cir. 1980). Villarrubia, 680 So. 2d at 1150. Successions are not

reopened to allow for collation, for the assertion of forced heirship rights, or for error of
law." Villarrubia, 680 So. 2d at 1150.

11 In Villarrubia, a legatee had agreed to accept his legacy and have his uncles put in possession of the
remainder of the estate. However, the law under which he concluded that he had no further rights as a
forced heir was subsequently declared unconstitutional. The legatee then sought to reopen the succession
to assert those forced heirship rights that had existed prior to the enactment of the unconstitutional statute.
Villarrubia, 680 So. 2d at 1149. The supreme court rejected this attempt because the asserted other
proper cause was based an error of law. The supreme court stated that it realized the ruling was " harsh,
but if the law allowed judgments of possession to be overturned because of error of law or change in the
law, the sanctity of such judgments would be seriously impaired." Villarrubia, 680 So. 2d at 1152.

N.

In Succession of McCarthy, 583 So. 2d 140 ( La. App. 1 Cir. 1991), this court was

tasked with determining whether the trial court correctly maintained an exception of no

cause of action. The judgment of possession at issue in McCarthy granted a surviving

spouse a usufruct for life, even though the testament only confirmed a legal usufruct

without any express grant for life, which, under the law at that time, terminated upon

remarriage. When the surviving spouse remarried, the decedent' s children attempted to

reopen the succession to correct the judgment to reflect that the usufruct terminated at
i

remarriage. This court, in applying LSA- C. C. P. art. 3393( 8), and in the absence of

discovered property inadvertently omitted, confirmed that the only available reason for

reopening the succession was " proper cause." McCarthy, 583 So. 2d at 142. This court

affirmed the trial court's finding of no " proper cause" to reopen the succession, given the

trial court's discretion to reopen a succession and considering that the children had

unconditionally accepted a lifetime usufruct. Id. Therefore, we concluded that there

was no error by the trial court in maintaining the peremptory exception raising the

objection of no cause of action where the children had unconditionally accepted the

succession and no proper cause to reopen the succession was found. Id.

Jurisprudence from other circuits also reflects the limited circumstances wherein

proper cause existed to reopen a succession. In In re Succession of Williams, 99-

245 ( La. App. 5 Cir. 7/ 27/ 99), 738 So. 2d 1185, 1187, writ denied, 99- 2568 ( La. 11/ 19/ 99).

749 So. 2d 679, the two daughters of the decedent participated in the succession as

petitioners, recited that their forced heirship rights had been satisfied, and filed affidavits

of death and heirship representing that their mother had left the will at issue. The fifth

circuit recognized that because there was no newly discovered property, the only other

ground upon which the succession may have been reopened was for " any other proper

cause," and therefore, the issue to be decided was whether the daughters' allegations

that the statutory will was improperly executed constituted " proper cause." Id. The fifth

circuit found that the daughters acquiesced in the distribution of their mother's assets to

their stepfather pursuant to the will. The court concluded that under these

circumstances, and considering the interpretation of the " any other proper cause"

4

language of LSA- C. C. P. art. 3395( 8), the trial court abused its discretion in reopening the

succession based on the grounds urged by the daughters. Id.

In In re Succession of Chatellain, 2000- 1267 ( La. App. 4 Cir. 5/ 16/ 01), 788

So. 2d 620, 622, the mother's testament called for her two sons, Nelson and Farrell, to be

coexecutors. Unable to obtain cooperation from Farrell after many attempts to

communicate, Nelson opened his mother' s succession and obtained a judgment of

possession. Farrell accepted his share of his mother's estate and negotiated several

checks that disbursed estate proceeds in accordance with the judgment of possession.

Once the distributions ceased, Farrell filed a petition to reopen the succession. After

reviewing the facts presented and the applicable jurisprudence, the fourth circuit found

that there was no " proper cause" to allow the reopening of the succession, and the trial

court did not abuse its discretion in refusing to do so. See also Succession of

Yancovich, 289 So. 2d 855, 858- 59 ( La. App. 4 Cir. 1974) ( where it was held that the

alleged discovery of facts, seven years after the closing of the succession, showing that

the succession inventory may have incorrectly adjudicated property to an alleged non-

existent community of acquets and gains was not sufficient " other proper cause" under

Article 3393 to open the succession).

In Succession of Lasseigne, 488 So. 2d 1303 ( La. App. 3 Cir.), writ denied, 494

So. 2d 327 ( La. 1986), the heirs disputed the division of property after all heirs had

accepted the succession unconditionally and consented to the judgment of possession.

One heir sought to reopen the succession to assert his forced heirship right ten years

later. The third circuit found no proper cause to reopen the succession because no

creditor was demanding payment of a debt, no overlooked assets sought to be recovered

for distribution among the heirs had been found, and " all of the heirs had purely, simply

and unconditionally accepted this succession." Lasseigne, 488 So. 2d at 1306.

Mrs. Caballero cites this court's decision in In re Succession of Coon, 2016- 0240

La. App. 1 Cir. 10/ 31/ 16), 207 So. 3d 419, 424, for her argument that reopening the

Succession was necessary to give effect to the testament as written. However, we find

the Coon case to be distinguishable, as the succession in that matter was reopened

lul

where the decedent, alleged to have died intestate, actually left a valid testament, which

finding clearly established " proper cause" to reopen the succession.

In In re Succession of DiLeo, 2011- 1256 ( La. App. 4 Cir. 3/ 21/ 12), 90 So. 3d

488, 494, writ denied, 2012- 1025 ( La. 6/ 22/ 12), 91 So. 3d 976, also cited by Mrs.

Caballero, the trial court amended the judgment of possession to reflect specific language

of the testament regarding a usufruct. Therefore, there was no substantive change to

the judgment of possession, and the trial court did not decide the issue of whether to

reopen the succession under LSA- C. C. P. art. 3393( 8).

In this appeal, Mrs. Caballero argues that the trial court erred in finding that

acceptance of the legacy alone prohibits the opening of the Succession. She contends

that if her petition states a cause of action for either her claim to reopen the Succession

based on other proper cause or for breach of fiduciary duty, the trial court erred in

granting the peremptory exception raising the objection of no cause of action. Mrs.

Caballero maintains that she clearly stated " other proper cause" to open the Succession

and a claim for breach of fiduciary duty.

To the contrary, Mr. Roberts contends that through the Final Judgment of

Possession, as well as the amended and corrected judgment of possession, Mrs. Caballero

participated in the distribution of Ms. Barbier' s estate and accepted the distribution of

membership interest to her without objection, precluding Mrs. Caballero from any

reevaluation.
Particularly, Mr. Roberts points out that upon taking possession of her

legacy, Mrs. Caballero became a member of BR & R and that she subsequently transferred

all of her membership interest in BR & R to another limited liability company that she

owned with her husband, Dennis Caballero, for estate planning purposes. 12 Therefore,

according to Mr. Roberts, based on all of her actions and not just the acceptance of the

legacy, Mrs. Caballero cannot now object to the terms of the Final Judgment of Possession

by reopening the Succession under LSA- C. C. P. art. 3393( 8), as there was no " other

proper cause" to do so.

12 At some point, Mr. Caballero also became a manager of BR & R.

11

We agree with Mrs. Caballero that acquiescence alone is not a complete bar to the

reopening of a succession, but it is a factor to consider in determining whether proper

cause exists. As previously stated, the issue to be determined is whether proper cause

exists to reopen Ms. Barbier' s Succession.

Mrs. Caballero asserted in her petition that the sole basis of seeking to reopen the

Succession was because her 9. 9364044 percent interest in BR & R was not equal in value

to a cash payment of $ 1, 004, 181. 82 at the time of Ms. Barbier' s death. Therefore, she

contended that the Judgment of Possession, as originally filed and as amended, was not

in compliance with Ms. Barbier's testament. Mrs. Caballero also set forth the underlying

facts in this matter, which are essentially undisputed, including the allegations that Mr.

Roberts relied on the valuation report of P& N to value Ms. Barbier's membership interest

in BR & R as of the date of her death and that Dienes issued its own valuation report

regarding the Foundation' s minority ownership interest in BR & R. It is also undisputed

that Mrs. Caballero did not appeal the Final Judgment of Possession, as amended, seek

a new trial, or bring an action for nullity. Furthermore, Mrs. Caballero waited three years

before filing her petition to reopen the Succession. Considering all of the allegations of

Mrs. Caballero' s petition, and accepting them as true, we find that Mrs. Caballero' s claim

of improper valuation combined with her acquiescence failed to establish proper cause to

reopen the Succession. Accordingly, she has failed to state a cause of action as to this

R

Likewise, accepting as true all of the allegations in the petition, we find that Mrs.

Caballero has failed to state a cause of action on her claims for breach of the fiduciary

duties of Mr. Roberts. The essence of the fiduciary duty lies in the special relationship

between the parties. Beckstrom v. Parnell, 97- 1200 ( La. App. 1 Cir. 11/ 6/ 98) 730 So. 2d

942, 947. A cause of action for breach of fiduciary duty requires proof of fraud, breach

of trust, or an action outside the limits of the fiduciary' s authority. Destiny Services,,

L. L.C. v. Cost Containment Services, L. L. C., 2010- 1895 ( La. App. 1 Cir. 9/ 20/ 11),

2011 WL 4375318, * 3 ( unpublished).

A thorough review of Mrs. Caballero' s allegations show that she has failed to allege

specific facts sufficient to constitute a breach of any fiduciary duty. Mrs. Caballero has

12

alleged only supposed conflicts of interest in that Mr. Roberts wears three " hats" that

prevent him from acting solely in the best interests of the Succession. A mere conflict of

interest between the succession representative and the heirs is not a sufficient ground

for the removal of the succession representative, Succession of Dunham, 408 So. 2d

888, 898 ( La. 1981), and allegations of conflict of interest are not sufficient to reopen a

succession, see In re Succession of Delegal, 2001- 1581 ( La. App. 3 Cir. 4/ 3/ 02), 813

So. 2d 1202, 1204- 05. See also LSA- C. C. P. art. 3191( A).

Whether a succession will be reopened is in the sound discretion of the trial court.

Villarrubia, 680 So. 2d at 1150. Considering the allegations of Mrs. Caballero' s petition

to reopen the Succession, and the particular facts as alleged, as well as applicable

jurisprudence under LSA- C. C. P. art. 3393, we find no error by the trial court in refusing
to reopen the Succession, as Mrs. Caballero has failed to establish " other proper cause"

pursuant to LSA- C. C. P. art. 3393. Furthermore, Mrs. Caballero has failed to state a cause

of action for breach of fiduciary duty. Accordingly, we find that the trial court did not err

in sustaining the defendant's peremptory exception raising the objection of no cause of

action and in dismissing Mrs. Caballero' s claims with prejudice. 13

CONCLUSION

For the reasons stated herein, the August 9, 2023 judgment of the trial court is

affirmed. All costs of this appeal are assessed to the appellant, Cecile Ourso Caballero.

uu

13 When asked if the plaintiffs would be given the opportunity to amend the lawsuit, the trial court explained
that it could not " come up with a theory by which they can amend" and dismissed the suit with prejudice.
On appeal, Mrs. Caballero did not assign this as error and has not requested the opportunity to amend her
petition.

Additionally, having found that the trial court properly sustained the peremptory exception raising the
objection of no cause of action, we pretermit discussion regarding Mr. Robert's peremptory exception
raising the objection of acceptance of legacy.

13