Succession of Carle Laine Carpenter

SUCCESSION OF NO. 22-CA-192
CARLE LAINE CARPENTER
FIFTH CIRCUIT

COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-NINTH JUDICIAL DISTRICT COURT
PARISH OF ST. CHARLES, STATE OF LOUISIANA
NO. 12,590, DIVISION "D"
HONORABLE M. LAUREN LEMMON, JUDGE PRESIDING

February 01, 2023

SUSAN M. CHEHARDY
CHIEF JUDGE

Panel composed of Judges Susan M. Chehardy,
Marc E. Johnson, and Stephen J. Windhorst

AFFIRMED IN PART,
REVERSED IN PART,
EXCEPTION OF PRESCRIPTION GRANTED,
PETITION FOR ABSOLUTE NULLITY DISMISSED
SMC
MEJ
SJW

COUNSEL FOR PLAINTIFF/APPELLANT,
CARLA LACOUR, GRACE LACOUR, AND KEVIN LACOUR
Brad P. Scott
Kameron P. Whitmeyer
Kayla Martynenko

COUNSEL FOR DEFENDANT/APPELLEE,
MARCUS CARPENTER
Steven M. Mauterer

CHEHARDY, C.J.

In this succession matter, the appellants, Carla, Grace, and Kevin LaCour,

who are the daughter, granddaughter, and son-in-law of the decedent, respectively,

appeal the ruling of the trial court granting the appellee’s exceptions of res judicata

and no right of action and dismissing the appellants’ petitions to probate the lost

will of the decedent, Carle Laine Carpenter, and overruling a peremptory exception

of prescription. For the reasons that follow, we affirm in part and reverse in part.

Background and Procedural History

Carle Laine Carpenter (“decedent”) died in St. Charles Parish on June 6,

2019. He had been married twice – first to Carolyn Sue Avent Carpenter, who died

in 1963, and later to Fabaria Ann Dunnamvet Carpenter, who died on January 6,

2018. Marcus Lane Carpenter is the only child born of decedent’s first marriage,

and Carla Frances Carpenter LaCour is the only child from decedent’s second

marriage. At the time of decedent’s death, his granddaughter Grace was 19 years

old.

On August 19, 2019, Marcus filed a Petition for Request for Notice of

Application for Appointment of Administrator, For Notice of Trial, and for Signing

of Any Final Judgment and/or the Rendition of Any Interlocutory Judgment.

Almost six months later, Marcus filed a Petition for Appointment as Administrator

of decedent’s estate. The Petition represented that although Marcus held a copy of

a March 28, 2003 Last Will and Testament executed by decedent, he was not

presenting that will for probate because the decedent allegedly had revoked it, and

decedent died intestate. The trial court appointed Marcus as Administrator on

March 3, 2020.

On March 20, 2020, Carla, through her attorney Michael Zerlin, filed a

Petition to Probate Will and Remove and Replace Administrator. Carla’s Petition

claimed that the decedent had placed the original 2003 Last Will and Testament in

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her custody and that the original will was attached to the Petition. Carla’s Petition

alleges that Marcus is not an heir and that the will names Carla as Executrix. The

copy of the 2003 Last Will and Testament indicated that in the event Carle’s

second wife (Fabaria) predeceased him, his entire estate should go to his

granddaughter, Grace LaCour, to be held in trust until she turned 25 years old, with

Grace’s mother, Carla, to serve as Trustee. If Carla was not able to serve as

Trustee, then Grace’s father, Kevin LaCour, was to serve as Trustee.

Carla’s Petition to Probate Will (and remove Marcus as Administrator) was

set for contradictory hearing on June 30, 2020. At the hearing, the parties discussed

the fact that the will attached to Carla’s Petition was a copy, not the original.

Accordingly, the parties, each represented by counsel, entered into an “Interim

Consent Judgment” that continued the contradictory hearing to July 22, 2020, to

give Carla time produce the original will. According to the Interim Consent

Judgment, as stated by counsel for Marcus, if Carla could not produce the original

will, her Petition to Probate would be dismissed with prejudice:

If Mr. Zerlin and his client are unable to locate the original
of the last will and testament of the decedent, then, in that
event, Mr. Zerlin and his client will execute a consent
judgment acknowledging the fact that there is no will, that
it has been revoked. They will withdraw their plea to
probate the copy and have my client removed and Mr.
Zerlin’s client appointed [as executrix]. That will become
moot.

Both Carla and Marcus were sworn in and stated on the record that this was

their agreement. Counsel for Marcus questioned Carla:

Q: Ms. Lacour, you’ve heard what I dictated into the
record a few minutes ago?
A: Yes.
Q: And your counsel, Mr. Zerlin, was present in the
room?
A: Yes.
Q: And do you agree with the terms of that interim
consent judgment?
A: Yes.
Q: You will abide by it?

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A: Yes.
Q: And you have done that with advice of counsel?
A: Yes.

The trial court asked counsel to prepare a judgment indicating that the matter was

continued to July 22, 2020, and told the parties to notify the court immediately if

the matter became moot. The trial court signed a written Interim Consent Judgment

that memorialized the parties’ agreement on July 13, 2020.

On July 22, 2020, Mr. Zerlin, counsel for Carla, sent a letter to the trial court

indicating that no original will could be found and that the Petition could be

dismissed with prejudice. At the hearing that had been scheduled for that day,

counsel for Marcus introduced the July 22, 2020 letter from Mr. Zerlin as evidence

in the record. On August 7, 2020, the trial court entered a Consent Judgment,

which stated:

This matter came before the Court on July 22, 2020, on
Carla LaCour’s Petition to Probate Will And Remove
And Replace Administrator.

PRESENT: Marcus Lane Carpenter and his attorney,
Robert L. Raymond

ABSENT: Carla Lane LaCour and her attorney,
Michael Zerlin

UPON THE CONSENT OF THE PARTIES:

Based on the fact that Carla LaCour failed to produce for
probate in open court on July 22, 2020, after due notice the
original of the Last Will and Testament of Carle Laine
Carpenter,

IT IS ORDERED, ADJUDGED AND DECREED that the
Petition to Probate Will and Remove and Replace
Administrator filed by Carla LaCour is hereby dismissed
with prejudice at her cost.

Notices of Judgment in the record indicate that copies of the Consent

Judgment were mailed to counsel for Marcus and counsel for Carla on August 10,

2020. Carla did not object to this Consent Judgment or seek appellate review.

22-CA-192 3

Nine months later, on May 12, 2021, after retaining new counsel and filing a

preliminary sworn description list, Marcus filed a Petition for Absolute Nullity,

alleging that decedent’s second wife, Fabaria, allegedly used community funds in

October 1993 to purchase property at 505 and 505-1/2 Westbank Expressway in

her name only. The Petition for Nullity alleges that Fabaria took her husband Carle

to attorney Michael Zerlin on February 26, 2003, to have him sign a quitclaim deed

purportedly transferring Carle’s interest in the Westbank Expressway property to

Fabaria for $10.00 and other valuable consideration. The Petition for Absolute

Nullity alleges that it was “well known that Carle could not read and write” and

thus he did not understand the nature of the quitclaim deed. A month later, on

March 28, 2003, Fabaria and Carle executed separate Last Wills and Testaments

before Mr. Zerlin. According to the Petition for Nullity, Fabaria’s Last Will and

Testament bequeathed her interest in the property at 505 and 505-1/2 Westbank

Expressway to her granddaughter, Grace LaCour, with usufruct for life to Carle,

including but not limited to rents received on the property.

Fabaria died on January 6, 2018, and a Judgment of Possession was entered

in her succession that left everything to Carle except for the Westbank Expressway

property, which allegedly was left to Grace.

In his Petition for Absolute Nullity, Marcus contends that one of the

witnesses to the quitclaim deed cannot remember executing it and cannot

remember Carle. Marcus also contends that it was highly unlikely that this witness

actually witnessed Carle sign the quitclaim deed or, a month later, his Last Will

and Testament, because in February and March of 2003, the witness was attending

the University of Tennessee-Knoxville, approximately 650 miles away from Mr.

Zerlin’s office. As such, Marcus contends that the quitclaim deed must be rendered

absolutely null. According to Marcus, if the quitclaim deed is declared an absolute

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nullity, the property would have transferred to Carle upon Fabaria’s death. Then

upon Carle’s death, the property would transfer to his heirs, Marcus and Carla.

On June 30, 2021, having obtained new counsel, Carla filed a Petition for

Probate of Lost Notarial Will. Carla alleged that the original Last Will and

Testament “was in existence and under her control and custody as of the date of

death of the Decedent and was lost thereafter after being delivered to her prior

legal counsel [Mr. Zerlin].”1 Carla contends that because the decedent did not have

the original will in his possession before his death, the presumption that he

destroyed the will before his death is rebutted.

On July 16, 2021, decedent’s granddaughter, Grace, also filed a Petition for

Probate of Lost Notarial Will, claiming that she was the sole legatee in decedent’s

2003 Last Will and Testament. On July 19, 2021, Carla filed a Motion to Withdraw

and Dismiss the Petition for Probate of Lost Notarial Will that she had filed on

June 30, 2021. On July 23, 2021, Marcus filed an Opposition to Carla’s Motion to

Withdraw and Dismiss her Petition for Probate of Lost Notarial Will, requesting a

contradictory hearing and asking that if the trial court decides to dismiss Carla’s

Petition to Probate, that it be done with prejudice.

On July 29, 2021, Grace filed a First Amended Petition for Probate of Lost

Notarial Will, to include as an additional party plaintiff her father, Kevin LaCour,

who is named in the copy of decedent’s 2003 Last Will and Testament as an

alternate trustee in the event that Carla cannot serve as trustee. According to the

Amended Petition, Carla “has declined her appointment as trustee.” As such,

Kevin “has accepted his appointment as trustee in the event the last will and

testament is accepted for probate by the Court.” Affidavits from Carla and from

1
Mr. Zerlin is the same attorney who notified the trial court nine months earlier that the original
will could not be located, and that Carla’s Petition to Probate Will and Remove and Replace
Administrator could be dismissed with prejudice.

22-CA-192 5

Kevin were attached in which Carla declined to serve as trustee, and Kevin agreed

to serve as trustee.

On August 4, 2021, Carla filed a motion to remove the Administrator, to

turn over estate assets, and to compel an accounting. That motion states: “In the

event this Court accepts and probates the March 28th, 2003 last will and testament

of Decedent, … it will be necessary to transfer the administration of the estate”

from Marcus to Carla.

On August 9, 2021, in response to the Petitions and Amended Petition for

Probate of Lost Notarial Will (filed by Carla, Grace, and Kevin), and the motion to

remove him as Administrator (filed by Carla), Marcus filed Exceptions of No

Right of Action and Res Judicata. Marcus argued that Grace has no right of action

because she is not a legatee under the decedent’s 2003 will; she was only 19 years

old when her grandfather died, she is now 22 years old, and if the 2003 will were

probated, she would be the beneficiary of a trust. Until she is 25 years old, the

trustee, not the trust’s beneficiary, is the proper party plaintiff to an action to

enforce the rights of the trust under La. C.C.P. art. 699.

Further, Marcus contended that because Carla bound the office of trustee

through the 2020 final consent judgment dismissing with prejudice her Petition to

Probate Will and Remove Administrator, she compromised any future right to

probate the 2003 Last Will and Testament as a “lost will.”

In response to the Petition for Absolute Nullity (of the 2003 quitclaim deed)

that Marcus filed, Carla and Grace filed a Peremptory Exception of Prescription.

They argue that there is no claim for absolute nullity, only potential allegations of

relative nullity, but that the relative nullity claims prescribed five years after the

quitclaim deed was executed. On the other hand, Marcus argues that his claim for

absolute nullity is valid; that the absolute nullity claim never prescribes; and that

even if he asserted claims for relative nullity only, those claims have not prescribed

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under the doctrine of contra non valentem, because he had no knowledge of the

quitclaim deed until his father’s death.

Ruling from the bench, the trial court granted the exceptions of res judicata

and no right of action and denied the peremptory exception of prescription.

Appellants Carla, Grace, and Kevin LaCour now appeal the trial court’s rulings.2

Res Judicata

Appellants contend that the trial court erred in granting the exception of res

judicata and dismissing the LaCours’ Petitions to Probate Lost Will. We review the

exception of res judicata under a de novo standard of review. Woodlands

Development, L.L.C. v. Regions Bank, 16-324 (La. App. 5 Cir. 12/21/16), 209

So.3d 335, 340. To succeed in an exception of res judicata under La. R.S. 13:4231,

the party urging the exception must prove that the first judgment is (1) valid, (2)

final, and (3) entered among the same parties to the second suit; (4) that the cause

of action asserted in the second suit existed at the time of final judgment in the first

litigation; and (5) that the cause of action asserted in the second suit arose out of

the transaction or occurrence that was the subject of the first litigation. Chevron

U.S.A., Inc. v. State, 08-2469 (La. 9/8/08), 993 So.2d 187, 194.

Appellees do not dispute that the Consent Judgment was valid and final.

They argue instead that the trial court erred in granting the exception of res

judicata because the subject matter of the petition to probate the lost notarial will is

not the same as the subject matter of the consent judgment, in which Carla

conceded that the notarial will could not be found. Further, appellants contend that

the parties are not the same between the first and second action, because the first

2
Appellants’ single assignment of error states that they also seek review of the trial court’s
ruling granting the exception of no right of action that Marcus filed. However, appellants have
provided no briefing on this issue. As such, we find this issue is abandoned on appeal. See
Uniform Rules – Courts of Appeal, Rule 2-12.4 B(4) (“All assignments of error and issues for
review shall be briefed. The court may deem as abandoned any assignment of error or issue for
review which has not been briefed.”); Boutall v. Christakis, P.M., Co. LLC, 17-402 (La. App. 5
Cir. 12/27/17), 236 So.3d 1268, 1272.

22-CA-192 7

action involved Carla only, but the 2021 petitions to probate the lost notarial will

include Carla’s daughter and husband, Grace and Kevin. Third, appellants contend

that this situation constitutes the kind of “exceptional circumstances” that warrant

relief from the application of res judicata under La. R.S. 13:4232.

The chief inquiry on an exception of res judicata is whether the second

action asserts a cause of action that arises out of the transaction or occurrence that

was the subject matter of the first action. Lozier v. Estate of Elmer, 08-225 (La.

App. 5 Cir. 9/30/08), 996 So.2d 511, 513. A cause of action that could not have

been asserted before the final judgment was entered would not be precluded by res

judicata under La. R.S. 13:4231.

We find no merit in appellants’ argument that the 2021 petitions to probate

the lost notarial will did not arise from the same circumstances surrounding the

2020 consent judgment. Mr. Zerlin, counsel for Carla, sent a letter to the trial court

specifically stating that the 2003 will could not be found and that Carla’s petition

could be dismissed with prejudice. “When a will cannot be found at the testator’s

death, there arises a presumption that the testator has destroyed the will with the

intent of revoking it.” Succession of Talbot, 530 So.2d 1132, 1134-35 (La. 1988).

This presumption may be rebutted by: (1) clear proof that the testator made a valid

will, (2) proof of the contents or substance of the will, and (3) a showing that the

will was never revoked by the testator. Succession of Claiborne, 99-2415 (La. App.

1 Cir. 11/3/00), 769 So.2d 1267, 1268, writs denied, 00-3283, 00-3310 (La.

2/16/01), 786 So.2d 98, 99. The record before us suggests that all parties—and

counsel—must have agreed at that time that decedent had revoked the 2003 will,

leading to the consent judgment dismissing with prejudice the petition to probate

the will. That appellants obtained new counsel after Carla consented to the

dismissal does not lend credence to their argument that a petition to probate a lost

notarial will had not yet arisen. A dismissal with prejudice has the same effect as a

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final judgment of dismissal after trial, and extinguishes all causes of action existing

at the time of the final judgment that arise from the same transaction or occurrence.

Bailey v. Exxon Mobil Corp., 15-313 (La. App. 5 Cir. 12/23/15), 184 So.3d 200,

206-7.

Second, appellants’ contention that there was no identity of parties for res

judicata purposes also lacks merit. The preclusive effect of res judicata applies to a

nonparty who is a successor in interest of a party. Forum for Equality PAC v.

McKeithen, 04-2551 (La. 1/19/05), 893 So.2d 738, 745. Identity of parties is

satisfied when a privy of one of the parties is involved. Burguieres v. Pollingue,

02-1385 (La. 2/25/03), 843 So.2d 1049, 1052 n.3. In its broadest sense, “privity” is

the mutual or successive relationship to the same right of property, or such an

identification in interest of one person with another as to represent the same legal

right. Five N Co., L.L.C. v. Stewart, 02-181 (La. App. 1 Cir. 7/2/03), 850 So.2d 51,

61. “There exists an identity of parties whenever the same parties, their successors,

or others appear so long as they share the same ‘quality’ as parties.” Welch v.

Crown Zellerbach Corp., 359 So.2d 154, 156 (La. 1978). See also Black v. Exxon

Mobil Corp., 14-524 (La. App. 5 Cir. 11/25/14), 165 So.3d 1013, 1016 (“The

jurisprudence does not demand that the parties in the two lawsuits be physically

identical.”).

In Forum for Equality, supra, the Louisiana Supreme Court found no error

in the trial court’s ruling granting an exception of res judicata where the interests

of the parties who were named in a second lawsuit, but not named as parties in the

first lawsuit, were so closely aligned with the parties in the first lawsuit that they

were adequately represented in the first suit. 893 So.2d at 745. Similarly, we find

that Grace’s interest in decedent’s succession was adequately represented by Carla,

as their interests were closely aligned and shared the same “quality as parties,”

where Carla was named as trustee and executrix, and the testamentary trust named

22-CA-192 9

Grace as the exclusive beneficiary. Moreover, Kevin, named as a successor-in-

interest trustee to Carla, is bound by the consent judgment to which Carla agreed.

Forum for Equality, 893 So.2d at 745.

Here, Carla’s participation in and agreement to the 2020 consent judgment

also bound Grace and Kevin. A compromise is a contract whereby the parties,

through concessions made by one or more of them, settle a dispute or an

uncertainty concerning an obligation or other legal relationship. La. C.C. art. 3071.

A valid compromise can form the basis of a plea of res judicata because a

compromise has the legal efficacy of a judgment. Brown v. Drillers, 93-1019 (La.

1/14/94), 630 So.2d 741, 747; Hamsa v. Hamsa, 05-219 (La. App. 5 Cir.

12/27/05), 919 So.2d 776, 778.

Third, we do not find that this case presents the type of “exceptional

circumstances” that would justify re-opening an issue that had become final,

through the parties’ consent. “The ‘exceptional circumstances’ exception generally

applies to complex procedural situations in which litigants are deprived of the

opportunity to present their claims due to unanticipated quirks in the system,

factual situations that could not be anticipated by the parties, or decisions that are

totally beyond the control of the parties.” Oleszkowicz v. Exxon Mobil Oil Corp.,

14-256 (La. 12/9/14), 156 So.3d 645, 648. No such exceptional circumstances exist

here.

Finding no merit to appellants’ argument that the trial court erred in

sustaining the exception of res judicata, we affirm that portion of the trial court’s

judgment.

Exception of Prescription and Allegations of Nullity

Appellants further argue that the trial court erred in denying their exception

of prescription filed in response to Marcus’s Petition for Absolute Nullity of the

22-CA-192 10

2003 quitclaim deed that transferred any interest that decedent held in the property

to his wife, Fabaria.

Ordinarily, the exceptor bears the burden of proof on the peremptory

exception of prescription. Woods v. Cousins, 12-100 (La. App. 5 Cir. 10/16/12),

102 So.3d 977, 979.3 If prescription is evident on the face of the pleadings,

however, the burden shifts to the plaintiff to show that the action has not

prescribed. Id. (citing Campo v. Correa, 01-2707 (La. 6/21/02), 828 So.2d 502).

When neither party introduces evidence on the exception of prescription, the

exception must be decided on the facts alleged, which are accepted as true. Woods,

102 So.3d at 978-79. But this principle applies only to properly pled material

allegations of fact, as opposed to allegations deficient in material detail, conclusory

factual allegations, or allegations of law. Id. at 979 (citing Kirby v. Field, 04-1898

(La. App. 1 Cir 9/23/05), 923 So.2d 131, 135, writ denied, 05-2467 (La. 3/24/06),

925 So.2d 1230 (finding that the allegations in the petition revealed significant

deficiencies in factual particularity, especially as to allegations of facts purportedly

constituting fraud). When no evidence is introduced, appellate courts review

judgments on an exception of prescription de novo. In re Singleton, 19-578 (La.

App. 5 Cir. 9/2/20), 303 So.3d 362.

Marcus contends that the quitclaim deed is “absolutely null” because one of

the witnesses to the transfer “does not remember” signing it, and it was “highly

unlikely” that she signed it because she was attending school in Tennessee at the

time. Marcus also alleges that his father was illiterate, that he was not of sound

mind, and that his wife coerced him to transfer his interest in the property to her in

2003.

3
In Woods, this Court found that the claim was prescribed on the face of the petition, and the
non-mover failed to offer evidence proving that prescription was suspended or interrupted.
Accordingly, the trial court properly sustained the exception of prescription. Id. at 979.

22-CA-192 11

A contract is absolutely null when it violates a rule of public order, as when

the object of the contract is illicit or immoral. La. C.C. art. 2030. Actions for

absolute nullity never prescribe. La. C.C. art. 2032. A contract is relatively null

when it violates a rule intended for the protection of private parties, as when a

party lacked capacity or did not give free consent at the time the contract was

made. La. C.C. art. 2031. Relative nullity may be invoked only by those persons

for whose interest the ground for nullity was established, and may not be declared

by the court on its own initiative. Id. An action to annul a relatively null contract

must be brought within five years from the time that the ground for nullity either

ceased, as in the case of incapacity or duress, or was discovered, as in the case of

error or fraud. La. C.C. art 2032.

All persons have capacity to contract, except unemancipated minors,

interdicts, and persons deprived of reason at the time of contracting. La. C.C. art.

1918. A contract made by a noninterdicted person deprived of reason at the time of

contracting may be attacked after his death, on the ground of incapacity, only when

the contract is gratuitous, or it evidences lack of understanding, or was made

within thirty days of his death, or when application for interdiction was filed before

his death. La. C.C. art. 1926.

On the face of the petition, accepting all well-pleaded facts as true, we must

first determine whether the allegations sufficiently state a claim for absolute

nullity, which is imprescriptible, or whether those allegations constitute the basis

for relative nullity only. Again, an absolute nullity results when the object of the

contract is illicit or immoral, or where it violates a rule of public order. La. C.C.

art. 2030. The facts as pled in the petition for nullity assert that one of the

witnesses cannot remember decedent, cannot remember witnessing decedent’s

signature to the quitclaim deed, and that she purportedly attended school out of

state at the time the quitclaim deed was executed. The contention that these facts

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(accepted as true for purposes of evaluating prescription) render the quitclaim deed

an absolute nullity is a conclusion of law, not a well-pled fact.

We find that the allegations regarding the execution of the quitclaim deed

constitute allegations of relative nullity, not absolute nullity. The Petition for

Nullity contains no allegations that the witness’s signature was forged or that the

witness did not sign the document; it alleges only that the witness could not have

signed it because she was attending school 650 miles away. Yet there is no

affidavit from this witness, no testimony from any other party to indicate that the

quitclaim deed lacks authenticity, and no copy of the quitclaim deed at issue.

Furthermore, mere allegations that the act is null because of a defect in form—

because one of the witnesses allegedly did not witness decedent’s signature—is

insufficient to invalidate the deed. “An act that fails to be authentic because of the

lack of competence or capacity of the notary public, or because of a defect in form,

may still be valid as an act under private signature.” La. C.C. art. 1834. “A transfer

of immovable property must be made by authentic act or by act under private

signature.” La. C.C. art. 1839. See also New Era Dev. Corp. v. Robert, 12-304 (La.

App. 5 Cir. 11/13/12), 105 So.3d 889, 891. In short, the factual allegations in the

Petition for Nullity fail to support a legal conclusion that the quitclaim deed could

be rendered absolutely null.

The additional claims alleged in the Petition for Nullity—that Carle

executed the quitclaim deed under coercion, that he lacked capacity, and that he

was illiterate, so he did not know what he was signing—constitute potential bases

for relative nullity. Claims of fraud or coercion are grounds for relative nullity.

Whitten v. Moorman, 42,704 (La. App. 2 Cir. 12/5/07), 973 So.2d 159, 162.

Accepting these allegations as true for purposes of evaluating the prescription

exception, we must determine next whether the claim that the quitclaim deed is a

22-CA-192 13

relative nullity has prescribed under the five-year prescription period found in La.

C.C. art 2032.

Executed in 2003, the quitclaim deed allegedly transferred any interest in the

immovable property that decedent may have held to his wife, in exchange “for

$10.00 and other valuable consideration.” Marcus contends that because he did not

discover that the quitclaim deed transferred his father’s interest in the immovable

property to Fabaria until his stepmother’s death in 2018, the discovery rule under

the doctrine of contra non valentem interrupted or suspended prescription. We

disagree.

In Whitten, supra, the decedent’s grandchildren filed an action in 2006

against their father’s siblings seeking to nullify a 1972 cash deed and 1985

quitclaim on the basis that the siblings committed fraud and engaged in

misrepresentation to coerce their father to sign over his ownership rights. The

siblings filed an exception of prescription, which the trial court granted. The

Second Circuit affirmed, determining that contra non valentem did not interrupt

prescription and noting that the plaintiffs offered no evidence—only argument—

that their father’s signature was coerced or obtained by fraud, and stating that “the

jurisprudence applies the prescriptive period to bar nullity actions based on

precisely these kinds of claims.” 973 So.2d at 163. We find the allegations in the

present case similar to the facts in Whitten and therefore decline to apply contra

non valentem to interrupt prescription in this matter.4

In sum, the Petition for Nullity fails to allege sufficient facts to constitute a

well-pled claim for absolute nullity. The allegations contained therein state facts

that could support a claim that the quitclaim deed is a relative nullity only.

4
We also note that a contract made by a noninterdicted person deprived of reason at the time of
contracting may be attacked after his death, on the ground of incapacity, only when the contract
is gratuitous, or it evidences lack of understanding, or was made within thirty days of his death,
or when application for interdiction was filed before his death. La. C.C. art. 1926. None of those
grounds may be found in this case.

22-CA-192 14

However, these allegations should have been asserted within five years of the

execution of the deed. If an heir were permitted to attack a decades-old quitclaim

deed based on unsubstantiated allegations, property claims would never cease and

title could rarely be quieted.

Conclusion

The trial court’s judgment sustaining the exception of res judicata is

affirmed. The judgment denying the exception of prescription is reversed. The

exception of prescription is granted, and the Petition for Absolute Nullity is

dismissed.

AFFIRMED IN PART,
REVERSED IN PART,
EXCEPTION OF PRESCRIPTION GRANTED,
PETITION FOR ABSOLUTE NULLITY DISMISSED

22-CA-192 15

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
INTERIM CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
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NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
FEBRUARY 1, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

22-CA-192
E-NOTIFIED
29TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE M. LAUREN LEMMON (DISTRICT JUDGE)
ASHLEY U. SCHMIDT (APPELLANT) KAMERON P. WHITMEYER (APPELLANT) STEVEN M. MAUTERER (APPELLEE)

MAILED
MICHAEL S. ZERLIN (APPELLANT) BRAD P. SCOTT (APPELLANT)
ATTORNEY AT LAW KAYLA MARTYNENKO (APPELLANT)
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