John Brandt Baxter, in His Capacity as the Independent Administrator of the Succession of August C. Baxter v. Robert C. Lewis

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

18-72

JOHN BRANDT BAXTER, IN HIS CAPACITY
AS THE INDEPENDENT ADMINISTRATOR
OF THE SUCCESSION
OF AUGUST C. BAXTER

VERSUS

ROBERT C. LEWIS

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APPEAL FROM THE
TENTH JUDICIAL DISTRICT COURT
PARISH OF NATCHITOCHES, NO. C-89324
HONORABLE LALA B. SYLVESTER, DISTRICT JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of John D. Saunders, Billy Howard Ezell, and Shannon J.
Gremillion, Judges.

AFFIRMED.

Richard E. Anderson
Attorney at Law
2901 Ridgelake Drive, Suite 105
Metairie, LA 70002
(504) 833-0051
COUNSEL FOR PLAINTIFF/APPELLANT:
John B. Baxter, Independant Administrator of the
Succession of August C. Baxter

J. Chris Guillet
Corkern, Crews, Guillet & Johnson, LLC
P. O. Box 1036
Natchitoches, LA 71458-1036
(318) 352-2302
COUNSEL FOR DEFENDANT/APPELLEE:
Robert C. Lewis

GREMILLION, Judge.

The independent administrator of a succession (the succession) appeals the

trial court’s judgment sustaining an exception of prescription and dismissing its

petition. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The deceased, August C. Baxter (August) died in 2005 at the age of 83.

August was married three times. Of his first marriage, two daughters were born:

Barbara Eve Schack and Debra A. Mulder. Of his second marriage, two sons were

born, the succession administrator, John Brandt Baxter (John), and Eric Baxter

(Eric). Named as a defendant is August’s step-son, Robert C. Lewis (Robert), who

is the child of Luella M. Lewis, August’s third wife. August and Luella married in

1978 and established a separate property matrimonial regime.

August suffered two strokes in 1997. Luella obtained a power of attorney to

handle his affairs and August created a will in 1999 designating Barbara Schack

executrix in the event that Luella predeceased him. In 2002, Luella died. Robert,

one day prior to the death of his mother, obtained a power of attorney over the affairs

of August. Two days after Luella’s funeral, August executed a second codicil to his

will. The codicils contain provisions relating to August’s wishes during his life as

to who will care for him and what nursing home he wished to be placed in. In

September 2004, Robert filed a petition to have August interdicted. John and Eric

contested the interdiction. Following a hearing in October 2004, August was fully

interdicted with Robert named curator and Schack undercurator.

In April 2005, Schack, a California resident, was named executrix of August’s

will and Schack began administering the estate. On April 13, 2006, John and Eric

filed a Petition to Annul Statutory Testament of August Constantine Baxter arguing

that August did not have testamentary capacity at the time he executed the will and

codicils. Schack, Mulder, and Robert were named as defendants. In November

2007, the defendants filed a motion for summary judgment, and the matter was tried

in June 2009. In February 2010, the trial court rendered a judgment declaring the

will and codicils null, finding that August lacked testamentary capacity to execute

them. Schack ceased being the executor, although she did not resign. John was

appointed independent administrator of August’s succession on April 14, 2014.

In April 2017, the succession filed a petition against Robert for damages for

breach of fiduciary duty. The petition alleged that Robert breached his fiduciary

duties to August by self-dealing, fraud, breaching the duty of loyalty, and breach of

trust. The 110-page petition sets forth detailed allegations of fraud and self-dealing.

The succession urged that the prescriptive period applicable to the claims was that

of ten years as found in La.Civ. Code art. 3499. It further argued that contra non

valentem applied to suspend prescription and that its claims would not prescribe until

April 5, 2020.

Robert filed an exception of prescription, which the trial court took under

advisement. In November 2017, the trial court sustained Robert’s exception of

prescription and dismissed the succession’s claims. The succession now appeals.

ASSIGNMENTS OF ERROR

1. The Trial Court erred by sustaining the Prescription Exception
and dismissing the Baxter Petition.

2. The Trial Court erred by failing to apply Contra Non Valentem
to suspend the prescriptive period for asserting the Breach of
Fiduciary Duty Claims.

3. The Trial Court erred by not granting the Plaintiff a reasonable
opportunity to amend the Baxter petition.

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PRESCRIPTION

Prescription

In the trial court’s November 2017 order, it granted Robert’s exception of

prescription and dismissed the succession’s claim finding:

the allegations concern alleged acts of Defendant occurring more than
ten (10) years ago, thus, albeit a prescriptive period of one or ten years,
the cause of action has prescribed as a matter of law. The alleged acts
of malfeasance were known to Plaintiff at the time of decedent’s death
in 2005. Plaintiff defends with the judicially-created exception to
statutory prescription, contra non valentem agree nulla currit
praescriptio. However, Plaintiff at all time had standing to remove the
former executrix under La.Code Civ.P. art. 3137 or traverse the
proposed detailed descriptive list pursuant La.Code Civ. P. art. 3182.
Further, standing for Plaintiff to contest the subject power of attorney
and the interdiction always existed prior to decedent’s passing.
Awaiting appointment as Independent Administrator of the decedent’s
estate did not toll prescription for Plaintiff’s claims for other avenues
for relief were available in the interim. Therefore, Plaintiff’s petition
must be dismissed.

The peremptory exception of prescription is provided for in La.Code Civ.P.

art. 927. In Pence v. Austin, 15-1371, pp. 4-5 (La.App. 1 Cir. 2/26/16), 191 So.3d

608, 612, the court succinctly set forth the law regarding prescription:

A party pleading prescription has the burden of proving facts to
support the exception unless the petition is prescribed on its face.
Cichirillo v. Avondale Industries, Inc., 2004–2894, p. 5 (La.11/29/05),
917 So.2d 424, 428. When the face of the petition reveals that plaintiffs
claim has prescribed, the burden shifts to the plaintiff to demonstrate
that prescription was suspended or interrupted. Kirby v. Field, 2004–
1898, p. 6 (La.App. 1 Cir. 9/23/05), 923 So.2d 131, 135, writ denied,
2005–2467 (La.3/24/06), 925 So.2d 1230. Evidence may be introduced
to support or controvert any objection pleaded, but in the absence of
evidence, an objection of prescription must be decided upon facts
alleged in the petition with all allegations accepted as true. La.Code
Civ. P. art. 931; Cichirillo, 2004–2894 at 5, 917 So.2d at 428.
Moreover, La.Code Civ. P. art. 934 states that “[w]hen 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.” The
article further provides, however, that if the grounds of the objection
cannot be removed by amendment, the action shall be dismissed.
Ramey v. DeCaire, 2003–1299, p. 9 (La.3/19/04), 869 So.2d 114, 119.

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Although John concedes that on the face of the petition, any claims appear to

be prescribed according to the ten-year liberative prescriptive period applicable to

personal actions, he argues that his petition sets forth facts that the ten-year

prescriptive period was suspended by contra non valentem, therefore shifting the

burden to Lewis.

The claims asserted are breaches of fiduciary duty which involve not mere

negligence, but breach of the duty of loyalty and trust. Therefore, the 10-year

prescriptive period applies. See La.Civ.Code art. 3499 and dela Vergne v. dela

Vergne, 99-364 (La.App. 1 Cir. 11/17/99), 745 So.2d 1271. We recently

summarized the law pertaining to the fiduciary duty one owes to a person over whom

control has been taken of his personal affairs. In Succession of McKinley, 16-503,

pp.12-13 (La.App. 3 Cir. 12/7/16), 206 So.3d 959, 966-67, writ denied, 17-0368 (La.

4/13/17), 218 So.3d 120, we stated:

Generally, whether a fiduciary duty exists, and the extent of that
duty, depends upon the facts and circumstances of the case and the
relationship of the parties. As a basic proposition, for a fiduciary duty
to exist, there must be a fiduciary relationship between the parties...

A fiduciary relationship has been described as “one that exists
‘when confidence is reposed on one side and there is resulting
superiority and influence on the other.’” Plaquemines Parish
Commission Council v. Delta Development Company, Inc., 502 So.2d
1034, 1040 (La.1987), quoting Toombs v. Daniels, 361 N.W.2d 801,
809 (Minn.1985).

The word “fiduciary,” as a noun, means one who
holds a thing in trust for another, a trustee; a person
holding the character of a trustee, or a character analogous
to that of a trustee, with respect to the trust and confidence
involved in it and the scrupulous good faith and candor
which it requires; a person having the duty, created by his
undertaking, to act primarily for another's benefit in
matters connected with such undertaking.

State v. Hagerty, 251 La. 477, 492, 205 So.2d 369, 374 (1967), quoting
36A C.J.S. Fiduciary, p. 381. One is said to act in a fiduciary capacity
“when the business which he transacts, or the money or property which
he handles, is not his own or for his own benefit, but for the benefit of
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another person, as to whom he stands in a relation implying and
necessitating great confidence and trust on the one part and a high
degree of good faith on the other.” Hagerty, 251 La. at 493, 205 So.2d
at 374–375, quoting BLACK'S LAW DICTIONARY (4th ed.1951).

The term “fiduciary” is defined in the Uniform Fiduciaries Law, LSA–
R.S. 9:3801(2), as follows:

“Fiduciary” includes a trustee under any trust, expressed,
implied, resulting or constructive, executor, administrator,
guardian, conservator, curator, receiver, trustee in
bankruptcy, assignee for the benefit of creditors, partner,
agent, officer of a corporation, public or private, public
officer, or any other persons acting in a fiduciary capacity
for any person, trust or estate.

The Uniform Fiduciaries Law appears in the Civil
Law Ancillaries under Code Title XV–Of Mandate. By
definition, a mandate is “a contract by which a person, the
principal, confers authority on another person, the
mandatary, to transact one or more affairs for the
principal.” LSA–C.C. art. 2989. The defining
characteristic of a fiduciary relationship, therefore, is the
special relationship of confidence or trust imposed by one
in another who undertakes to act primarily for the benefit
of the principal in a particular endeavor. Plaquemines
Parish Commission Council, 502 So.2d at 1040; Hagerty,
251 La. at 493, 205 So.2d at 374–375.

Scheffler v. Adams and Reese LLP, 06–1774, p. 6–7 (La. 2/22/07), 950
So.2d 641, 647–648. Further, “The mandatary is bound to fulfill with
prudence and diligence the mandate he has accepted. He is responsible
to the principal for the loss that the principal sustains as a result of the
mandatary's failure to perform.” La.Civ.Code art. 3001. In order to
prove breach of a fiduciary duty, the claimant must show that the party
acted fraudulently, breached the trust bestowed upon him, or took
actions that exceeded those granted to him. Sampson v. DCI of
Alexandria, 07–671 (La.App. 3 Cir. 10/31/07), 970 So.2d 55.

Contra non valentem is a jurisprudential doctrine which operates to suspend

prescription when a party is unable to bring suit. In Carter v. Haygood, 04-0646,

pp.10-11 (La. 1/19/05), 892 So.2d 1261, 1268, the supreme court stated:

At the outset, we observe that prescriptive statutes are strictly
construed against prescription and in favor of the obligation sought to
be extinguished; thus, of two possible constructions, that which favors
maintaining, as opposed to barring, an action should be adopted. Foster
v. Breaux, 263 La. 1112, 270 So.2d 526, 529 (1972); Knecht v. Board
of Trustees for Colleges and Universities, 525 So.2d 250, 251 (La.App.
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1st Cir.), writ denied, 530 So.2d 87 (La.1988). To soften the occasional
harshness of prescriptive statutes, our courts have recognized a
jurisprudential exception to prescription: contra non valentem non
currit praescriptio, which means that prescription does not run against
a person who could not bring his suit. Harvey v. Dixie Graphics, Inc.,
593 So.2d 351, 354 (La.1992); see also, Plaquemines Parish Com’n
Council v. Delta Development Co., Inc., 502 So.2d 1034, 1054
(La.1987); Cartwright v. Chrysler Corp., 255 La. 597, 232 So.2d 285,
287 (1970); R.O.M., Note, Gover v. Bridges: Prescription—
Applicability of Contra Non Valentem Doctrine to Medical Malpractice
Actions, 61 Tul.L.Rev. 1541, 1541 n. 1 (1986–1987).

Contra non valentem is a Louisiana jurisprudential doctrine
under which prescription may be suspended. See Frank L. Maraist and
Thomas C. Galligan, Louisiana Tort Law § 10–4(b), 222 (1996); see
also, R.O.M., supra. Moreover, it is an equitable doctrine of Roman
origin, with roots in both civil and common law, and is notably at odds
with the public policy favoring certainty underlying the doctrine of
prescription. See Plaquemines Parish Com’n Council, 502 So.2d at
1055; see also, R.O.M., supra.

In Plaquemines Parish Com’n Council v. Delta Development
Co., Inc., 502 So.2d 1034, 1054–55 (La.1987), we recognized the four
instances where contra non valentem is applied to prevent the running
of prescription: (1) where there was some legal cause which prevented
the courts or their officers from taking cognizance of or acting on the
plaintiff’s action; (2) where there was some condition coupled with the
contract or connected with the proceedings which prevented the
creditor from suing or acting; (3) where the debtor himself has done
some act effectually to prevent the creditor from availing himself of his
cause of action; and (4) where the cause of action is not known or
reasonably knowable by the plaintiff, even though this ignorance is not
induced by the defendant. These categories thus allow “the courts to
weigh the ‘equitable nature of the circumstances in each individual
case’ to determine whether prescription will be tolled.” R.O.M., supra
at 1545.

According to John’s petition, Robert’s breaches of his fiduciary duty in

handling August’s affairs began on June 13, 2002, the day he was appointed

August’s agent under the power of attorney agreement. However, in his petition,

John argues that under contra non valentem,

[T]he earliest this suit could have been brought by an
administrator of [August’s] succession was the day after Ms. Schack
could have been replaced as executrix. Since the Court rendered the
Will Annulment Judgment on February 26, 2010, it was executable
after the expiration of the time for a motion for new trial and suspensive
appeal elapsed-or about April 5, 2010. Thus, the latest this lawsuit
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could be filed by the administrator of [August’s] succession-[John
Baxter]-for purposes of the ten-year prescriptive period is on or about
April 5, 2020. Therefore, this lawsuit is timely filed and the claims
stated herein have not prescribed.

We disagree. August died in 2005, and John was well aware of the claims

existing at that time of his death when Robert’s control over August’s affairs ceased

as evidenced by the fact that the codicils executed under Robert’s power of attorney

were subsequently invalidated due to lack of testamentary capacity. Whether he had

been appointed succession administrator is of no moment. John had recourse against

Robert for his claims that Robert breached his fiduciary duties under the power of

attorney agreement or for breach of his duties as a curator. The fiduciary relationship

existed in both instances. As a legal heir, John had standing to contest the power of

attorney granted in Robert’s favor. See La.Civ.Code art. 1926 and Noel v. Noel, 15-

37 (La.App. 3 Cir. 5/27/15), 165 So.3d 401, writ denied, 15-1121 (La. 9/18/15), 178

So.3d 147. Further, La.R.S. 9:1025 provides that a “relative of an interdict . . . may

petition a court of competent jurisdiction for the removal of a curator” for breach of

his fiduciary duties. Accordingly, John’s April 2017 claims for breach of fiduciary

duty against Robert prescribed in April 2015.

CONCLUSION

The judgment of the trial court granting the defendant-appellee’s peremptory

exception of prescription is affirmed. All costs of this appeal are assessed to the

Succession of August C. Baxter.

AFFIRMED.

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