Succession of Nita Hill Stark

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

06-190

SUCCESSION OF NITA HILL STARK

************

APPEAL FROM THE
THIRTY-EIGHTH JUDICIAL DISTRICT COURT
PARISH OF CAMERON, NO. 300-0585
HONORABLE H. WARD FONTENOT, DISTRICT JUDGE

************

JAMES T. GENOVESE
JUDGE

************

Court composed of John D. Saunders, Elizabeth A. Pickett, and James T. Genovese,
Judges.

AFFIRMED AND REMANDED.

L. Clayton Burgess
G. Shelly Maturin, II
605 West Congress Street
Post Office Drawer 5250
Lafayette, Louisiana 70502-5250
(337) 234-7573
COUNSEL FOR APPELLANTS:
Ida Marie Stark, individually, and as
Independent Executrix of the Estate of William H. Stark, II,
Randall Hill Stark, William H. Stark, III, and Lynn Stark Barras

Russell J. Stutes, Jr.
P. Jody Lavergne
Joel M. Lutz
Stutes, Fontenot, Lavergne & Lutz
Post Office Box 1644
Lake Charles, Louisiana 70602
(337) 433-0022
COUNSEL FOR APPELLEE:
The Nelda C. and H. J. Lutcher Stark Foundation, represented by
Walter Riedel III, President and Chief Executive Officer

Allen L. Smith, Jr.
Plauche, Smith & Nieset
1123 Pithon Street
Post Office Box 1705
Lake Charles, Louisiana 70602
(337) 436-0522
COUNSEL FOR APPELLEE:
The Nelda C. and H. J. Lutcher Stark Foundation, represented by
Walter Riedel III, President and Chief Executive Officer

Homer Stark
In Proper Person
c/o Jerry Kacal
Dunn, Kacal, Adams, Pappas
One Riverway, Suite 1200
Houston, Texas 77056

Rebecca Stark Nugent
In Proper Person
5008 Fairfield Court
Bryan, Texas 77802

GENOVESE, Judge.

In this ancillary succession proceeding, the heirs of Nita Hill Stark (heirs)

appeal the trial court’s judgment denying their motions for continuance and

sustaining the exception of prescription filed on behalf of the Nelda C. and H. J.

Lutcher Stark Foundation (Foundation). For the following reasons, we affirm.

FACTS

The historical backdrop of the instant matter spans two states, three prior

lawsuits, and more than sixty-four years. The following is an abbreviated discourse

of the facts relevant to the issues presented for this court’s consideration.

H. J. Lutcher Stark (Lutcher), a domiciliary of Orange, Texas, died in 1965.

He had two sons, William “Bill” H. Stark, II and Homer Stark (Bill and Homer), both

adopted with his first wife, Nita Hill Stark (Nita), who died in 1939. Lutcher had no

children by his second wife, who also predeceased him. Lutcher then married Nelda

C. Stark (Nelda) in 1945 and had no children with her. According to his 1961 will

and the estate proceedings in Texas, Lutcher left one million dollars to each of his

two sons, Bill and Homer. He left his personal property to Nelda and named her the

universal legatee of one-half of his remaining estate. The other half was left to the

Nelda C. and H. J. Lutcher Stark Foundation. The bulk of Lutcher Stark’s sizeable

estate involved property located in Texas, and his will was probated there in the years

following his death. Bill and Homer received their bequests in 1969 and signed

releases acknowledging payment and relinquishing any further claims to their father’s

estate.

There being immovable property in Calcasieu Parish, Louisiana, in 1972, Nelda

filed ancillary succession proceedings in Calcasieu Parish. She asserted ownership

by Lutcher’s estate of forty-two acres of land in Calcasieu Parish and numerous

1

mineral interests in Calcasieu and Caddo parishes. The Louisiana property was

valued at $40,950.00. Nelda alleged that the portion of the Louisiana property

required to go to Bill and Homer, as forced heirs, was more than fully satisfied by the

million-dollar bequests disbursed to them in 1969. She also offered proof of the

Foundation’s waiver of its right to claim the Louisiana property. Consequently,

Nelda alone was put into possession of all of the Louisiana property owned by

Lutcher at the time of his death. In 1982, Nelda filed a petition to amend the detailed

descriptive list and judgment of possession in the ancillary succession, having

discovered an additional mineral interest owned by Lutcher’s estate in Caddo Parish.

The judgment of possession was amended thereby naming Nelda as owner of the

newly discovered mineral interest in Caddo Parish.

In 1988, in the same ancillary succession proceeding filed by Nelda in

Calcasieu Parish back in 1972, the heirs claimed that Nelda failed to disclose to the

Louisiana court thousands of acres of land owned by Lutcher at the time of his death,

as well as numerous mineral leases and other income-producing property located in

Louisiana. The heirs prayed for the appointment of Randy Stark (Lutcher’s grandson)

as executor of Lutcher’s estate, a detailed descriptive list and final accounting of

Louisiana assets from a representative of the Estate of Nelda Stark, possession of all

property concealed by Nelda, and collation of any assets advanced to Nelda during

Lutcher’s lifetime. The heirs then filed an amended petition seeking to nullify the

original and amended judgments of possession. The succession, through its universal

legatee, the Nelda C. and H.J. Lutcher Stark Foundation, and the succession’s co-

executors, Eunice R. Benckenstein, Walter Riedel III, and Roy Wingate, filed

exceptions to the petition based on res judicata, prescription, no cause of action, and

no right of action. The trial court maintained the exceptions of prescription and no

2

cause or right of action and dismissed the heirs’ suit. This court, in Ancillary

Succession of H. J. Lutcher Stark, an unpublished opinion bearing docket number 04-

323 (La.App. 3 Cir. 9/29/04), 885 So.2d 59, writ denied, 04-2700 (La. 1/7/05), 891

So.2d 680, affirmed the trial court’s ruling dismissing the heirs’ suit.

Bill Stark died in 1979. His heirs and his brother, Homer, filed suit in Texas

in 1988, seeking additional money from the Lutcher estate and from the Foundation.

They alleged fraud and mismanagement in the handling of Luther’s estate, as well as

in the handling of Nita’s estate, and the embezzlement and concealment of assets

belonging to the succession. Their claims were ultimately settled in 1991, with Bill’s

family and Homer each receiving $2,500,000.00 from the estate and the Foundation.

The settlement documents described the compromise as a full and final settlement of

any and all claims of fraud, mismanagement, heirship, inheritance rights, and forced

heirship against the estate and the executrix.

In 1999, Nelda died. In a Texas suit filed shortly thereafter, Homer and Bill’s

heirs contended that following her death, certain employees of the Foundation or

Foundation-owned enterprises, such as the Stark Art Museum, approached family

members and told them that Nelda had hidden property from them and had instructed

them to burn documents evidencing certain assets. Summary judgment was rendered

in that lawsuit in favor of Nelda’s estate and the Foundation, with the court upholding

the validity of the 1991 settlement and release of any further claims.

On January 24, 2003, Appellants, Ida Marie Stark, individually, and as

Independent Executrix of the Estate of William “Bill” H. Stark, II, Randall Hill Stark,

William H. Stark, III, and Lynn Stark Barras, filed the instant litigation asserting that

“H. J. Lutcher Stark concealed and/or omitted substantial Louisiana assets of the

Decedent, Nita Hill Stark, from the rightful heirs. . . .” Appellants further alleged that

3

the legitime of Bill and Homer Stark had not been satisfied in accordance with

Louisiana law. In response, Appellee, the Nelda C. and H. J. Lutcher Stark

Foundation, represented by Walter Riedel, III, its Chairman of the Board, filed

exceptions of res judicata, prescription and no right of action.

The Foundation’s exceptions were originally set for hearing on April 11, 2005,

but were continued and re-fixed for May 23, 2005 at the request of Appellants’

counsel. Appellants also filed a motion for continuance and a motion for contempt

which were set for hearing on the same date.1 The trial court: (1) denied Appellants’

motions for continuance; (2) denied Appellants’ motion for contempt; (3) granted

Appellee’s exception of prescription; (4) denied Appellee’s exception of no right of

action; and (5) found the exception of res judicata to be moot.

Appellants appeal the denial of the motions for continuance and the granting

of the exception of prescription. For the following reasons, we affirm.

ISSUES

The issues presented for our review are:

(1) whether the trial court erred in denying the motions for
continuance; and

(2) whether the trial court erred in granting the exception of
prescription on the “claims for reduction” against the
Foundation.

LAW AND ARGUMENT

Motions For Continuance

As noted above, prior to the date of the hearing, Appellants filed a written

motion for continuance asserting that, due to illness, Ida Marie Stark could not attend

1
Although this motion for continuance and motion for contempt were not located in the
record, the trial court orally rendered judgment on these issues on May 23, 2005, and included same
in the written judgment of July 8, 2005. Additionally, the appellate briefs of the parties reference
these motions.

4

the scheduled hearing date. Additionally, at the beginning of the hearing on May 23,

2005, Appellants orally moved for a continuance asserting the inability of Ida Marie

Stark, co-executrix of the Succession of Nita Hill Stark, to appear and testify at the

hearing due to her hospitalization. The parties stipulated that she was hospitalized

and physically unable to attend the hearing.

Appellants assert on appeal that the trial court erred in not granting the motions

for continuance due to the inability of Ida Marie Stark to appear at the hearing. In

support of their assertion, Appellants cite La.Code Civ. P. art. 1601 and, alternatively,

La.Code Civ. P. art. 1602.

Louisiana Code of Civil Procedure Article 1602 sets out the peremptory

grounds for a continuance, providing as follows:

A continuance shall be granted if at the time a case is to be tried,
the party applying for the continuance shows that he has been unable,
with the exercise of due diligence, to obtain evidence material to his
case; or that a material witness has absented himself without the
contrivance of the party applying for the continuance.

If the requisite showing is made, the granting of a continuance is mandatory.

However, each of the elements must be established before a continuance must be

granted, including the “[m]ateriality of missing evidence. . . .” Herb’s Machine Shop,

Inc. v. John Mecom Co., 426 So.2d 762, 765 (La.App. 3 Cir.), writ denied, 430 So.2d

98 (La.1983) (citing Gallin v. Travelers Ins. Co., 323 So.2d 908 (La.App. 4 Cir.

1975), writ denied, 329 So.2d 452 (La.1976)). Additionally, the burden is on the

Appellants to prove that the motion for continuance comes within the parameters of

the peremptory grounds set forth in La.Code Civ.P. art. 1602. Roberson v. Cities

Service Co., 478 So.2d 211 (La.App. 3 Cir. 1985).

Appellants contend that Ida Marie Stark was a material witness since she is a

co-executrix of the estate. They conclude that her absence, therefore, mandated a

5

continuance of the hearing date pursuant to La.Code Civ. P. art. 1602. We disagree.

Appellants assert that Ida Marie Stark’s testimony was required to establish

that the estate had never been involved in prior litigation and that she, as co-executrix

of the estate, had not executed any receipt and release documents and had not been

a part of a final judgment. However, the substantive nature of the testimony of Ida

Marie Stark sought to be introduced was not pertinent to the exception of

prescription. “Evidence is material if the proposition it tends to prove or disprove is

a matter in issue.” Matte v. La. Farm Bureau Cas. Ins. Co., 95-1308, p. 4 (La.App.

3 Cir. 6/12/96), 676 So.2d 713, 715 (quoting State v. Rogers, 553 So.2d 453, 455

(La.1989)). In other words, “[n]o factual showing was made that [her] presence was

necessary to resolve this controversy.” Armstrong v. State Farm Fire & Cas. Co., 423

So.2d 79, 81 (La.App. 1 Cir. 1982). Therefore, we find that Appellants failed to

establish the requirements for a continuance under La.Code Civ. P. art. 1602.

Additionally, a trial court may grant a motion for continuance on discretionary

grounds as set forth in La.Code Civ.P. art. 1601, which provides that “[a] continuance

may be granted in any case if there is good ground therefor.” Appellants assert in

their appellate brief “that an exception, by definition, is a defense,” and that “Ida

Marie Stark, as co-executrix, should have the opportunity to respond to the ‘defenses’

that were raised by the Foundation.” They conclude that this constituted “good

ground[s]” under La.Code Civ. P. art. 1601. We disagree.

Appellants acknowledge in their appellate brief that the other co-executrix,

Rebecca Stark Nugent, was questioned on the “defenses” raised by the Foundation.

However, we find that neither the testimony of co-executrix Rebecca Stark Nugent,

nor the proffered testimony of co-executrix Ida Marie Stark, was relevant to the

granting or denial of the exception of prescription. We, therefore, conclude that

6

Appellants likewise failed to establish the requisite “good ground” for a continuance

pursuant to La.Code Civ. P. art. 1601.

During the course of the hearing, counsel for Appellants re-urged his motion

for continuance due to the absence of Ida Marie Stark. This motion for continuance

was based upon Appellants’ inability to introduce evidence that Ida Marie Stark had

hired a land man to investigate whether or not certain assets were included in the

estate. After the trial court’s denial of a continuance on this issue, counsel for

Appellants offered a proffer of what Ida Marie Stark would have testified to had she

been present at the hearing. The proffer began with counsel stating that Ida Marie

Stark “could testify about how she hired [a land man] and looked into whether or not

there were potential assets or mineral interests that could be owed the succession.”

We find that the proffered testimony of Ida Marie Stark would be hearsay

testimony and, therefore, inadmissable even if the witness had testified at the hearing.

We further note that Appellants failed to call the land man as a witness to testify

about his findings, if any, which they could have done. We, therefore, find

Appellants argument on this issue to be without merit.

“It is a well-established rule that the trial judge has wide discretion in acting

upon a motion for continuance. His ruling will not be disturbed on appeal in the

absence of clear showing of abuse of that discretion.” Sauce v. Bussell, 298 So.2d

832, 834 (La.1974); Jackson v. Royal Ins. Co., 97-723 (La.App. 3 Cir. 12/17/97), 704

So.2d 424; Taylor v. Sauls, 99-1436 (La.App. 3 Cir. 9/6/00), 772 So.2d 686, writs

denied, 00-2802, 00-2805 (La. 12/8/00), 776 So.2d 461. Considering the record in

its entirety, we find no abuse of discretion in the trial court's denial of Appellants’

motions for continuance of the May 23, 2005 hearing.

7

Exception of Prescription

Appellants contend that the trial court erred in granting Appellee’s exception

of prescription. We disagree.

Appellants asserted in the trial court, and again in their appellate brief, that the

Foundation cannot raise the defense of prescription since the Foundation was not

made a party to the lawsuit. We find this argument to be without merit.

Appellants’ petition is entitled “Petition for Appointment of Dative

Testamentary Co-Executors and for Recovery of Legitime.” Notably, paragraph

seven of the petition alleges that “[t]he legacy received by Homer Stark and William

[“Bill”] H. Stark, II did not satisfy their legitime under Louisiana law.” Additionally,

paragraph ten of the petition alleges, “that the legitime of William [“Bill”] H. Stark,

II and Homer Stark has not been satisfied in accordance with Louisiana law.”

It is unrefuted that upon the death of H. J. Luther Stark, and in accordance with

his testament, the universal legatees of his succession were Nelda, his widow, and the

Foundation. Nelda died on December 13, 1999 and, pursuant to her testament, the

Foundation was named the universal legatee of her succession. Consequently, the

Foundation is the universal successor of Lutcher’s estate and, therefore, it is the only

entity from which a reduction may be claimed. Appellee has the legal right to have

that justiciable issue resolved. In succession proceedings, heirs, legatees, and

creditors often resolve justiciable issues between them by use of motions, exceptions,

and rules to show cause without any formal naming of defendants, all under the

umbrella of a succession proceeding. Such is the case here. All parties to the

justiciable issue were duly notified and given an opportunity to be heard. Procedural

due process was satisfied and a decision rendered. Formal naming of a defendant was

not necessary considering the facts and circumstances of this case.

On the substantive merits of the exception of prescription, Appellants put forth

8

no argument supporting their contention that their claim has not prescribed. The

record reveals that Nita Hill Stark died October 11, 1939. Her will was first filed for

probate in Louisiana on December 12, 1941. The prescriptive period applicable to

a suit to reduce a donation mortis causa begins to run from the date the will is filed

for probate. In Re Andrus, 221 La. 966, 60 So.2d 899 (La.1952); Kilpatrick v.

Kilpatrick, 625 So.2d 222 (La. App. 2 Cir. 1993), writ denied, 631 So.2d 445

(La.1994).

Louisiana Civil Code Article 3497 sets forth the relevant prescriptive period

as follows:

Art. 3497. Actions subject to a five year prescription

The following actions are subject to a liberative prescription of five
years:
An action for annulment of a testament;
An action for the reduction of an excessive donation; and
An action for the rescission of a partition and warranty of portions.
This prescription is suspended in favor of minors, during minority.

(Emphasis added).

Appellants filed the present claim for reduction on January 24, 2003. The

prescriptive period began to run from December 12, 1941, the date Nita Hill Stark’s

will was filed for probate. Therefore, the present claim was not filed within the five

year prescriptive period set forth in La.Civ. Code art. 3497.

A trial court’s findings of fact regarding an exception of prescription may not

be reversed absent manifest error. Dauterive Contractors, Inc. v. Landry & Watkins,

01-1112 (La.App. 3 Cir. 3/13/02), 811 So.2d 1242. For the foregoing reasons, we

find no manifest error in the trial court’s judgment granting Appellee’s exception of

prescription and dismissing Appellants’ claim for reduction.

This court also notes, as did the trial court in its oral reasons for judgment, that

the granting of Appellee’s exception of prescription relates solely to Appellants’

9

claim for reduction. It does not relate to any other claims which Appellants may have

in connection with the estate of Nita Hill Stark. Therefore, this matter is remanded

to the trial court for further proceedings.

DECREE

For the reasons set forth above, we affirm the judgment of the trial court

denying Appellants’ motions for continuance. Further, we affirm the judgment of the

trial court granting Appellee’s exception of prescription and its dismissal of the claim

for reduction brought by Ida Marie Stark, individually, and as Independent Executrix

of the Estate of William “Bill” H. Stark, II, Randall Hill Stark, William H. Stark, III,

and Lynn Stark Barras. We remand this matter to the trial court for further

proceedings consistent herewith.

Costs of this appeal are assessed against Ida Marie Stark, individually, and as

Independent Executrix of the Estate of William H. Stark, II, Randall Hill Stark,

William H. Stark, III, and Lynn Stark Barras.

AFFIRMED AND REMANDED.

10