Interdiction of Theodule Pierre Noel, Sr.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-6

INTERDICTION OF THEODULE
PIERRE NOEL, SR.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF VERMILION, NO. 93963-J
HONORABLE KRISTIAN EARLES, DISTRICT JUDGE

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OSWALD A. DECUIR
JUDGE

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Court composed of Oswald A. Decuir, Jimmie C. Peters, and J. David Painter,
Judges.

AFFIRMED.

R. Chadwick Edwards, Jr.
Edwards & Bellaire, L.L.C.
P. O. Box 217
Abbeville, LA 70511-0217
(337) 893-2884
COUNSEL FOR APPELLEE:
Theodule Pierre Noel, Sr.

Thomas J. Gayle
Gayle Law Firm, LLC
713 Kirby Street
Lake Charles, LA 70601
(337) 494-1220
COUNSEL FOR APPELLANTS:
Theodule P. Noel, Jr.
Christine Noel Devenport
Catherine A. Noel

DECUIR, Judge.

Siblings Theodule P. Noel, Jr., Christine Noel Devenport, and Catherine

A. Noel filed a petition seeking the full interdiction of their father, 83-year-old

Theodule P. Noel, Sr. (Mr. Noel). Summary judgment was rendered in favor of

Mr. Noel, and his children have appealed the dismissal of their claim. Mr. Noel

answered the appeal, seeking attorney fees and sanctions. For the following

reasons, we affirm.

Mr. Noel and his wife, Joyce, had four children: the three petitioners and

another son, Samuel Noel. The petitioners originally sought the interdiction of

their mother, as well as their father, but their mother died during the pendency

of these proceedings. According to the facts alleged in the record, Mr. Noel had

open heart surgery several years ago, and, during the course of a difficult

recovery, he suffered a stroke in 2002. After extensive therapy and

hospitalizations, he recovered and was once again able to conduct his farming

operations, drive a car, socialize with friends, and the like. Mrs. Noel then

suffered a stroke in 2005. She did not recover as well and required full-time

assistance until her death in 2012.

At the time of their mother’s stroke, all four Noel children were involved

in their parents’ lives. Three live in Abbeville near their parents and one lives

in Houston. In 2005, all four of the children were designated as agents, to make

unanimous decisions, in a medical power of attorney granted by Mr. Noel.

There is no indication of family tension preceding the decline of Mrs. Noel’s

health in 2005. From that time forward, however, the petitioners allege that Mr.

Noel began to act differently towards them. Mr. Noel began to rely on Samuel

to the exclusion of the other siblings. He showed some personality changes.

He granted an exclusive general power of attorney to Samuel. He decided to

sell some of his properties to a friend and to Samuel. He acquiesced in Mrs.

Noel’s sale of her separate property to Samuel and his wife. The essence of the

petitioners’ claim is stated in the following sentence from the petition: “If the

savings and resources of [Mr. Noel] have been diminished so that the sale of

property is necessary, it has to be the result of mismanagement and incapacity,

psychological manipulation and financial exploitation.”

Mr. Noel answered the petition and moved for summary judgment. In

support thereof, he filed eight affidavits from friends and physicians, all of

whom attested to his mental capacity and lack of dementia. Mr. Noel asserts

that he simply changed his mind in recent years as to how he wanted to dispose

of his property, and three of his children disagree with those decisions. He also

has become “disappointed, frustrated, and angry” with those three children. Mr.

Noel contends summary judgment is appropriate at this early stage in the

proceedings because the petitioners will not be able to meet their four-fold

burden of proof for a successful interdiction proceeding: infirmity, inability to

care for one’s person, inability to care for one’s property, and necessity.

La.Civ.Code art. 389. He seeks attorney fees under La.Code Civ.P. art. 4550,

which may be awarded “as the court may consider fair.”

The petitioners asked for a continuance of the summary judgment hearing

in order to conduct discovery. The motion was denied.

The petitioners’ cause of action is based on the following Civil Code

provision:

Art. 389. Full interdiction

A court may order the full interdiction of a natural person of
the age of majority, or an emancipated minor, who due to an
infirmity, is unable consistently to make reasoned decisions
regarding the care of his person and property, or to communicate

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those decisions, and whose interests cannot be protected by less
restrictive means.

Article 4548 of the Louisiana Code of Civil Procedure states that “[t]he

petitioner in an interdiction proceeding bears the burden of proof by clear and

convincing evidence.” In the procedurally similar case of In re Clement, 45,454

(La.App. 2 Cir. 8/11/10), 46 So.3d 804, 808-809, the second circuit reiterated

Louisiana’s well-established summary judgment rules and reached the

conclusion that the interdiction sought was not factually supported; therefore,

the petitioner would not be able to meet her “clear and convincing” burden of

proof at trial, and summary judgment was appropriate:

Appellate review of the granting of a motion for summary
judgment is de novo, using the identical criteria that govern the
trial court’s consideration of whether summary judgment is
appropriate. King v. Illinois National Insurance Company, 2008-
1491 (La.4/3/09), 9 So.3d 780. A motion for summary judgment
is a procedural device used when there is no genuine issue of
material fact. King v. Illinois National Insurance Company, supra.
The summary judgment procedure is designed to secure the just,
speedy and inexpensive determination of every action allowed by
law. La. C.C.P. art. 966(A)(2). A motion for summary judgment
shall be granted if the pleadings, depositions, answers to
interrogatories and admissions on file, together with any affidavits,
show that there is no genuine issue of material fact and that the
mover is entitled to judgment as a matter of law. La. C.C.P. art.
966(B).

On the motion for summary judgment, the burden of proof is
on the mover. La. C.C.P. art. 966. However, if the mover will not
bear the burden of proof at trial on the matter that is before the
court on the motion for summary judgment, then the mover may
merely point out to the court the absence of factual support for one
or more elements essential to plaintiff’s claim. The burden then
shifts to the plaintiff to present evidence demonstrating that
genuine issues of material facts remain. La. C.C.P. art. 966(C)(2);
Fletcher v. Wendelta, Inc., 43,866 (La.App.2d Cir.1/14/09), 999
So.2d 1223, writ denied, 2009-0387 (La.4/13/09), 5 So.3d 164. If
the plaintiff fails to meet this burden, there is no genuine issue of
material fact and the mover is entitled to summary judgment. La.
C.C.P. art. 966(C)(2); Fletcher, supra.

....

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In his motion for summary judgment, Mr. Clement sought
dismissal of his daughter’s petition to interdict him. In support of
his motion, among other evidence, he submitted the affidavits of
two board-certified psychiatrists who opined that he was able to
consistently make reasoned decisions regarding the care of his
person and property. At this point, Mr. Clement had shown a lack
of factual support for the interdiction and demonstrated that Ms.
Brown would be unable to satisfy her evidentiary burden of proof
at trial. Pursuant to the interdiction law of this state, she was
obliged to prove by clear and convincing evidence that Mr.
Clement was unable to care for his person or property. Nothing in
the affidavits submitted by Ms. Brown contradicted the medical
evidence given by Dr. Blanche and Dr. Gullapalli, both of whom
unequivocally stated that, based upon their recent examinations of
Mr. Clement, he did not require interdiction. In particular, Dr.
Blanche described how most of Mr. Clement’s symptoms were
resolved by the administration of the proper medications after his
condition was reevaluated.

Like the trial court, we are compelled to conclude that
summary judgment is appropriate in the instant case. Accordingly,
we affirm the granting of summary judgment in favor of Mr.
Clement and the dismissal of Ms. Brown’s interdiction petition
with prejudice. [Footnotes omitted.]

In deciding the motion for summary judgment in the instant case, the trial

court noted the petitioners’ concerns and recognized that Mr. Noel’s actions

raised red flags. Nevertheless, the court found no “concrete facts” to support

the interdiction and was “very influenced by the affidavits from the treating

physicians.” The court suggested the petitioners have other legal remedies to

address the allegations raised herein.

We find no error in the conclusions reached by the trial court. The

petitioners have other options through which they can reopen the lines of

communication with their father and brother. Without the need for formal

discovery, the petitioners have access to the public records and to neighbors and

friends who may be able to shed some light on the activities of their father.

Under La.Code Civ.P. art. 4545, the petitioners could have sought the

appointment of an examiner, but they chose not to do so. Upon de novo review,

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we find the petitioners have not put forth evidence sufficient to demonstrate the

existence of a genuine issue of material fact as to whether the restrictions

inherent in a full interdiction are necessary. They have made allegations but

have presented no evidence of Mr. Noel’s infirmity or inability to care for

himself or his property.

The petitioners contend in this appeal that had the trial court granted a

continuance for purposes of discovery, they could have produced evidence

sufficient to defeat summary judgment. The trial court disagreed, pointing the

petitioners toward “other legal remedies.” We find no abuse of discretion in the

denial of a continuance. The petitioners have not shown “good cause” for a

continuance as articulated in La.Code Civ.P. art. 966(B).

However, the trial court did find that the petitioners had genuine concerns

regarding the apparent self-dealing and “unusual things” going on. Therefore,

Mr. Noel’s request for costs and attorney fees was denied. We find no manifest

error in this conclusion.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.

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