text:
    IN RE: Richard Collins DALTON
    NO. 2017-B-0857
    Supreme Court of Louisiana.
    06/16/2017
   ATTORNEY DISCIPLINARY PROCEEDING

PER CURIAM

hThe Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent mishandled his client trust account by commingling client funds with his personal funds. Prior to the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline in which respondent admitted that his conduct violated Rule 1.15 of the Rules of Professional Conduct. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Richard Collins Dalton, Louisiana Bar Roll number 23017, be suspended from the practice of law for a period of six months. This suspension shall be deferred in its entirety, subject to respondent’s successful completion of a two-year period of probation governed by the conditions set forth in the petition for consent discipline. The probationary period shall commence from the date respondent and the ODC execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.


source: Caselaw Access Project

author: CRICHTON, J.,

license: Public Domain

text:
    STATE of Louisiana v. Troy TAYLOR
    No. 2017KP-0684
    Supreme Court of Louisiana.
    06/16/2017

      HUGHS, J,, would grant and docket.
    CRICHTON, J., would grant and docket and assigns reasons.
   CRICHTON, J.,

would grant, order briefing, and docket for oral argument.

hThe State contends the court of appeal erred on collateral review in setting aside defendant’s 2011 conviction for a forcible rape he committed in 1994. The court of appeal set aside the conviction because it found trial counsel erred in failing to file a motion .to quash the charge, which , was instituted in accordance with...a statutory limitations period that was. enlarged by legislative.amendment after the time had already run out, citing Stogner v. California, 539 U.S. 607, 123 S.Ct. 2446, 156 L.Ed.2d 544 (2003). Indeed, after relator was convicted, this Court found in State ex rel. Nicholson v. State, 13-0072, (La. 5/5/15), 169 So.3d 344:

Although art. 572(B)(1) now provides an exception to the prescriptive period for prosecution of sex offenses in which the offender’s identity is established through DNA testing, and notwithstanding the express’ wording of La.C.Cr.P. art. 572(B)(4), which states that the provision shall apply retroactively, the offenses in question had already prescribed roughly three years before the legislature enacted that provision in 2003. The state has conceded as much in this Court. Consequently, retroactive application of the DNA exception set forth in art. 572(B)(1) to revive the prescribed charges in relator’s case violates the Ex Post Facto Clauses of the federal and state constitutions. See Stogner v. California, 539 U.S. 607, 123 S.Ct. 2446, 156 L.Ed.2d 544 (2003).

State ex rel. Nicholson v. State, 13-0072, p. 3, 169 So.3d at 347.

While the law under Nicholson is clear, the facts and procedural posture of this case are quite different, particularly given the repeated, nature of this defendant’s convictions. I would grant the State’s application, order briefing, and docket this matter for a full review.


text:
    STATE of Louisiana v. Christopher DURNING
    No. 2017-KK-0690
    Supreme Court of Louisiana.
    06/16/2017
   CRICHTON, J.,

would grant and assigns reasons:.

hi would' grant the State’s writ application. The defendant is charged with committing the crime of cyberstalking. The State filed a Notice, of Res Gestae, seeking to introduce two consent judgments that (i) enjoin defendant from harassing, stalking, following, or threatening the victim, and (ii) terminate the- defendant’s parental authority over his child with the victim. But res gestae evidence- does not typically require notice and, in any event, I question the .accuracy of using that legal: term. Instead, I would treat .the State’s Notice-of Res Gestae as a motion in limine regarding admissibility; and, in my view, the consent judgments are clearly admissible in this bench trial as either a party admission or a judicial declaration.


author: GENOVESE, J,,

text:
    STATE of Louisiana v. Billy FRESHLEY, Derrick Jermaine Rush, Anthony Singleton, Jr.
    2017-KK-0598
    Supreme Court of Louisiana.
    06/16/2017
    GENOVESE, J., would grant and docket and assigns reasons.
   GENOVESE, J,,

would grant and docket and assigns reasons.

hi would grant in light of Rodriguez v. United States, — U.S. -, 135 S.Ct. 1609, 191 L.Ed.2d 492 (2015).


author: PER CURIAM:

text:
    STATE EX REL. Clarence MAYS v. STATE of Louisiana
    No. 2016-KH-0828
    Supreme Court of Louisiana.
    06/16/2017
   PER CURIAM:

| denied. Relator does not identify an illegal term in' his sentence, and therefore, his filing is properly construed as an application for post-conviction relief. See State v. Parker, 98-0256 (La. 5/8/98), 711 So.2d 694. As such, it is subject-to the time limitation set forth in La.C.Cr.P. art. 930.8. Relator’s application was not timely filed in the district court, and he fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189. In addition, relator’s claim is not cognizable on collateral review. La. C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La. 1/12/96), 665 So.2d 1172; State v. Cotton, 09-2397 (La. 10/15/10), 45 So.3d 1030.

Relator has now fully litigated four applications for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period, as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against | ¡.successive filings mandatory. Relator’s claims have now been fully litigated in accord with La. C.Cr.P. art. 930.6, and this, denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Leroy DAVIS v. STATE of Louisiana
    No. 2016-KH-0543
    Supreme Court of Louisiana.
    06/16/2017
   PER CURIAM:

_JjDenied. Relator’s motion is properly construed as an application for post-conviction relief. See State v. Parker, 98-0256 (La. 5/8/98), 711 So.2d 694; see also State v. Tran, 00-2471 (La. 6/1/01), 793 So.2d 172. As such, it is subject to the time limitation set forth in La.C.Cr.P. art. 930.8. Relator’s application was not timely filed in the district court, and he fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in accord with La. C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive ^application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.

GENOVESE, J., recused.


text:
    STATE of Louisiana v. Reynaldo SANTANA
    No. 2016-KP-0990
    Supreme Court of Louisiana.
    06/16/2017
   PER CURIAM:

| , Denied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189.

Relator has exhausted his right to obtain post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator has filed an application for post-conviction relief in the district court, and the district court’s ruling denying relief is now final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    IN RE: CONFIDENTIAL PARTY
    NO. 2017-B-0512
    Supreme Court of Louisiana.
    06/16/2017
   ORDER

11 Considering the Joint Petition for Consent Discipline filed by respondent and the Office of Disciplinary Counsel,

IT IS ORDERED that the Joint Petition for Consent Discipline be and hereby is rejected pursuant to Supreme Court Rule XIX, § 20.

IT IS FURTHER ORDERED that this matter be remanded for the institution of formal charges.

Hughes, J., accepts the joint petition for consent discipline.


author: PER CURIAM CRICHTON, J.,

text:
    IN RE: Preston G. SUTHERLAND
    NO. 2017-B-0782
    Supreme Court of Louisiana.
    06/16/2017
   ATTORNEY DISCIPLINARY PROCEEDING

PER CURIAM

hln December 2013, respondent was arrested for driving while intoxicated; he later pleaded guilty to first offense DWI. Following the filing of formal charges, respondent and the Office of Disciplinary Counsel submitted a joint petition for consent discipline. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Preston G. Sutherland, Louisiana Bar Roll number 12590, be and he hereby is suspended from the practice of law for a period of one year and one day. It is further ordered that this suspension shall be deferred in its entirety and that respondent shall be placed on probation for a period to coincide with the term of his recovery agreement with the Judges and Lawyers Assistance Program. Any failure of respondent to comply with the terms of the agreement may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

CRICHTON, J., additionally concurs and assigns reasons.

CRICHTON, J.,

additionally concurs and assigns reasons:

hi accept' the consent discipline, as the respondent has agreed to it. However, for a first offense, driving while intoxicated conviction, the respondent completed a ninety-day inpatient treatment program and does not appear to have alcohol dependence. Under these circumstances, in my view, a five-year JLAP sanction is too harsh.


author: PER CURIAM JOHNSON, C.J., GUIDRY, J., CRICHTON, J., CLARK, J.,

text:
    Wilbert JONES v. Darrel VANNOY, Warden
    No. 2017-KP-0101
    Supreme Court of Louisiana.
    06/16/2017
   PER CURIAM

‘ 11 Writ granted. The Brad/y claim presented by relator merits remand to the district court for a full evidentiary hearing. We find no basis to disturb the district court’s factual determination that the Brady claim predicated on newly-discovered information surrounding tjie October 29, 1971 rape and the alleged perpetrator of that rape was not procedurally barred. See La. C.Cr.P. art. 930.8. However, we find relator has made a sufficient showing to warrant an evidentiary hearing on whether the State withheld material exculpatory evidence such that relator was denied a fair trial. Accordingly, the matter is remanded to the district court to conduct a hearing as soon as practical in view of relator’s failing health and to determine whether the State was obligated under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), to disclose the information to relator’s trial counsel.

JOHNSON, C.J., concurs and assigns reasons.

WEIMER, J., would deny the writ.

GUIDRY, J., concurs and assigns reasons,

CLARK, J., dissents and would deny the writ.

HUGHES, J., would deny the writ.

CRICHTON, J., additionally concurs and assigns reasons.

JOHNSON, C.J.,

concurring

I agree that relator’s Brady claim regarding the October 29,1971 rape requires further evidentiary development and a ruling on the merits from the district court. I am also gravely concerned about the apparently premature destruction of evidence that might have, otherwise, been tested 'for DNA and the potential that some evidence remains and could be tested but has been misplaced.

Through the pioneering work of the Innocence Project, DNA testing has led to numerous exonerations of the wrongly convicted. In this rape case from over 40 years ago, in which relator has steadfastly maintained his innocence, DNA testing could very likely determine if relator was in fact wrongly convicted. It is not apparent to me from the materials presently before the court what evidence was destroyed, why it was destroyed, what evidence has been lost, and whether any might remain to be found and tested. Given the pivotal role such evidence could play in determining whether relator was wrongfully convicted, and in light of relator’s declining health, I urge the district court to expeditiously take all necessary steps to account for the evidence and determine whether any can be found and tested.

GUIDRY, J.,

concurs and assigns reasons.

hi concur in the majority’s determination that relator has made a sufficient showing to warrant a full evidentiary hearing on whether, in the absence of the material exculpatory evidence within the possession of the State, relator received a fair trial resulting in a verdict worthy of confidence. See State v. Marshall, 94-0461, pp. 12-17 (La. 9/5/95), 660 So.2d 819, 825-27. Relator has identified too many similarities between the instant victim’s description of the man who raped her and another man who allegedly committed at least one similar rape in the same vicinity and during roughly the same time frame to determine without an evidentiary hearing whether there is a substantial likelihood relator was misidentified by the victim. Although the State asserts relator’s trial counsel was aware of the allegedly exculpatory information regarding this viable alternative suspect, this fact, if true, does not resolve the question of whether relator received a fair trial because such an assertion would suggest that trial counsel, who also represented the other man, may have labored under an actual conflict of interest. In any case, even if trial counsel had some knowledge of the other rapes, the State remained under the obligation set forth in Brady to disclose any and all exculpatory evidence to the defense. Accordingly, I agree that a prompt and full evidentiary hearing on these issues is merited.

CRICHTON, J.,

additionally concurs and assigns reasons.

Li agree that relator has made a sufficient showing to warrant a narrowly focused evidentiary hearing and a ruling on the merits on the limited question of whether the State withheld material and exculpatory information regarding the October 29,1971 rape of the unnamed victim, which crime was never prosecuted but may bear some similarities to the crime for which relator was convicted. I also note that this alleged misconduct, which occurred under Assistant District Attorney Ralph Roy, may be consistent with Mr. Roy’s record of reversed convictions. See, e.g., State v. Vaughn, 431 So.2d 358 (La. 1982); State v. Day, 400 So.2d 622 (La. 1981); State v. Woodruff, 281 So.2d 95 (1973). In my view, the remand of relator’s case is appropriate and necessary under the highly unusual circumstances presented here.

WEIMER, J.

hi would deny the writ.

CLARK, J.,

dissenting.

hi would deny.


author: PER CURIAM

text:
    STATE of Louisiana v. Troy MILLER
    No. 2017-KP-0072
    Supreme Court of Louisiana.
    06/29/2017
   PER CURIAM

I,Writ denied. See La.C.Cr.P. art. 878.1(D) (added by 2017 La. Acts 277, eff. August 1, 2017).


text:
    William Artmer LUCKY, IV v. Lindsay Diane WAY
    NO. 2017-CJ-0798
    Supreme Court of Louisiana.
    May 24, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Bossier, 26th Judicial District Court Div. F, No. 126,336; to the Court of Appeal, Second Circuit, No. 51,-671-CW;

11 Denied.


text:
    IN RE: COMMITTEE ON BAR ADMISSIONS CFN-987050
    NO. 2017-BA-0829
    Supreme Court of Louisiana.
    May 24, 2017
   Applying For Petition for Expedited Leave of Court to Sit for July 2017 Bar Examination and Request for Expedited Leave to Pay Bar Appication Fee May 15, 2917 Deadline

|! Denied. See Supreme Court Rule XVII, § 4(C).


text:
    ST. BERNARD PORT, HARBOR & TERMINAL DISTRICT v. VIOLET DOCK PORT, INC., LLC St. Bernard Port, Harbor & Terminal District v. Violet Dock Port, Inc., LLC St. Bernard Port, Harbor & Terminal District v. Violet Dock Port, Inc., LLC
    NO. 2017-C-0434
    Supreme Court of Louisiana.
    May 26, 2017
   Applying For Writ of Certiorari and/or Review, Parish of St. Bernard, 34th Judicial District Court Div. E, No. 116-860; to the Court of Appeal, Fourth Circuit, No. 2016-CA-0096 C/W 2016-CA-0262 C/W 2016-CA-0331

| granted.


text:
    Gustave J. LABARRE, Jr., et al. v. OCCIDENTAL CHEMICAL COMPANY and Texas Brine Company, LLC
    NO. 2017-CC-0551
    Supreme Court of Louisiana.
    May 26, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Assumption, 23rd Judicial District Court Div. A, No. 33,796; to the Court of Appeal, First Circuit, No. 2016 CW 1633;

11 Granted. The judgment of the court of appeal is reversed. The judgment of the district court granting partial summary judgment in favor of relators and dismissing the special negligence claims under La. Civ. Code arts. 660 and 2322 is reinstated.


text:
    STATE of Louisiana v. Alfred T. EVERETTE
    NO. 2016-KO-1005
    Supreme Court of Louisiana.
    May 26, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. B, No. 518-221; to the Court of Appeal, Fourth Circuit, No. 2015-KA-0805

|! Denied.


text:
    STATE of Louisiana v. Larry Joseph MCKITHERN aka Larry J. McKithern aka Larry McKithern
    NO. 2016-KO-1107
    Supreme Court of Louisiana.
    May 26, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. B, No. 25391-09; to the Court of Appeal, Third Circuit, No. 15-930;

| rDenied.


text:
    STATE of Louisiana v. Lorenzo Carthal HAMPTON
    NO. 2016-KO-1181
    Supreme Court of Louisiana.
    May 26, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Ouachita, 4th Judicial District Court Div. A, No. 14-F-0257; to the Court of Appeal, Second Circuit, No. 50,561-KA

|, Denied.

JOHNSON, C.J., would grant.


text:
    STATE of Louisiana v. Arty James MARCEL
    NO. 2016-KO-1196
    Supreme Court of Louisiana.
    May 26, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Terrebonne, 32nd Judicial District Court Div. E, No. 686,293; to the Court of Appeal, First Circuit, No. 2015 KA 1805;

h Denied.

WEIMER, J,, recused.


text:
    STATE of Louisiana v. Curtis W. HAWTHORNE, Jr.
    NO. 2016-KO-1676
    Supreme Court of Louisiana.
    May 26, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. L, No. XXX-XXX; to the Court of Appeal, Fourth Circuit, No. 2015-KA-0675

| TPenied.


text:
    Dwayne G. ALEXANDER v. LA. STATE BOARD OF PRIVATE INVESTIGATOR EXAMINERS, et al. Dwayne G. Alexander v. La. State Board of Private Investigator Examiners, et al.
    NO. 2017-C-0571
    Supreme Court of Louisiana.
    May 26, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. F, No. 2013-362; to the Court of Appeal, Fourth Circuit, No. 2015-CA-0537 C/W 2015-CA-0708

I, Denied.


text:
    BRUNO PROPERTIES, LLC v. 1026 CONTI CONDOMINIUMS, LLC, Robert O’Brien, Carl Little, and Active Title, LLC
    NO. 2017-CC-0581
    Supreme Court of Louisiana.
    May 26, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. M, No. 2016—2056; to the Court of Appeal, Fourth Circuit, No. 2017-C-0139;

| , Denied.


text:
    Dwight MINTON, et ux. v. GEICO CASUALTY COMPANY, et al.
    NO. 2017-C-0603
    Supreme Court of Louisiana.
    May 26, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District’ Court Div. D, No. 2013-2622; to the Court of Appeal, Third Circuit, No. 16-592 C/W 16-917;

Denied.

WEIMER, J., would grant.


text:
    STATE of Louisiana v. Larry LEFLORE
    NO. 2017-KK-0602
    Supreme Court of Louisiana.
    May 26, 2017
   IN RE: Larry Leflore; —Defendant; Applying For Supervisory and/or Remedíal Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. G, No. 10-13-0504; to the Court of Appeal, First Circuit, Nos. 2017 KW 0094, 2017 KW 0095, 2017 KW 0096

| tDenied.

HUGHES, J., would grant in part.


text:
    Jane DOE v. LOUISIANA HEALTH SERVICE & INDEMNITY COMPANY d/b/a Blue Cross/Blue Shield of Louisiana
    NO. 2017-C-0606
    Supreme Court of Louisiana.
    May 26, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. C, No. 09-164; to the Court of Appeal, Fourth Circuit, No. 2016-CA-0552;

11 Denied.


text:
    Phyllis Marie MATTHEWS v. UNITED FIRE & CASUALTY INSURANCE COMPANY, Doctor Pipe, Inc. and Danny Anthony Robert
    NO. 2017-CC-0594
    Supreme Court of Louisiana.
    May 26, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. E, No. 2014-6251; to the Court of Appeal, Fourth Circuit, No. 2016-C-0389

11 Denied.

GUIDRY, J., would grant.


text:
    Dwayne G. ALEXANDER v. LA. STATE BOARD OF PRIVATE INVESTIGATOR EXAMINERS, et al. Dwayne G. Alexander v. LA. State Board of Private Investigator Examiners, et al.
    NO. 2017-C-0607
    Supreme Court of Louisiana.
    May 26, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. F, No. 2013-362; to the Court of Appeal, Fourth Circuit, No. 2015-CA-0537 C/W 2015-CA-0708

|, Denied.


text:
    STUART CONSULTING GROUP, INC. v. PLAQUEMINES PARISH GOVERNMENT
    NO. 2017-CC-0620
    Supreme Court of Louisiana.
    May 26, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Plaquemines, 25th Judicial District Court Div. B, No. 60-296; to the Court of Appeal, Fourth Circuit, No. 2016-C-1268;

| tDenied.


text:
    STATE of Louisiana v. Willal BROWN
    NO. 2017-KK-0797
    Supreme Court of Louisiana.
    May 26, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. E, No. 531-652; to the Court of Appeal, Fourth Circuit, No. 2017-K-0368;

Denied,

HUGHES, J., would grant. GENOVESE, J., would grant.


text:
    STATE of Louisiana v. Skylar FRANK
    NO. 2016-K-1160
    Supreme Court of Louisiana.
    May 26, 2017
   Applying For Writ, of Certiorari and/or Review, Parish .of Allen, 33rd Judicial District Court Div. B, No, CR-2014-3482;- to the Court of Appeal, Third Circuit, No. 15-

| iGranted.


text:
    SUCCESSION OF Anthony SYLVESTER, Sr.
    No. 2017-C-0265
    Supreme Court of Louisiana.
    May 26, 2017
   IN RE: Sharon Sylvester; —Plaintiff; Applying for Reconsideration of this Court’s action dated April 13, 2017; Parish of Jefferson, 24th Judicial District Court Div. H, No. 616-471; to the Court of Appeal, Fifth Circuit, No. 16-CA-372;

hNot considered. See Louisiana Supreme Court Rule IX, § 6.


text:
    IN RE: Appeal of the Decision of the DISCIPLINARY BOARD NO. 16-PDB-098
    NO. 2017-OB-0437
    Supreme Court of Louisiana.
    May 26, 2017
   Applying For Appeal of the Decision of the Disciplinary Board Office of Disciplinary Counsel, No. 16-PDB-Ó98

11 Leave to appeal denied.


text:
    IN RE: Appeal of the DECISION OF the DISCIPLINARY BOARD NO. 16-PDB-092
    NO. 2017-OB-0285
    Supreme Court of Louisiana.
    May 26, 2017
   Applying for Reconsideration of this Court’s action dated April 13, 2017; Disciplinary Board Office of Disciplinary Counsel, No. 16-PDB-092;

|, Reconsideration denied


text:
    STATE of Louisiana v. Jon Wray BAUMBERGER
    NO. 2016-K-1251
    Supreme Court of Louisiana.
    May 26, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. G, No. 2519-11; to the Court of Appeal, Third Circuit, No. 15-1056

Denied.

HUGHES, J., would grant in part.


text:
    STATE of Louisiana v. Michael CURTIS
    NO. 2016-KP-0658
    Supreme Court of Louisiana.
    May 26, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. H, No. 489-816; to the Court of Appeal, Fourth Circuit, No. 2015-K-1334; ' . '

hDenied.


text:
    Chris E. LOUDERMILK v. NATIONAL GENERAL ASSURANCE COMPANY, State Farm Mutual Automobile Insurance Company, GEICO General Insurance Company, Austin A. Jesmore and Kelli A. Smith
    NO. 2017-CC-0605
    Supreme Court of Louisiana.
    May 26, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Pointe Coupee, 18th Judicial District Court Div. A, No. 45266; to the Court of Appeal, First Circuit, No. 2016 CW 1631

|, Denied.

WEIMER, J., would grant.


text:
    Laurie Anne and John CASSIDY v. LOUISIANA STATE EMPLOYEES RETIREMENT SYSTEM (LASERS), the State of Louisiana d/b/a Lasers and Angelo Menner
    NO. 2017-CC-0599
    Supreme Court of Louisiana.
    May 26, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. D, No. 651,307; to the Court of Appeal, First Circuit, No. 2016 CW 1609;

| tDenied.

HUGHES, J., would grant.


text:
    David DUCOTE, Avery Interests, L.L.C., Jebaco, Inc. and Iberville Designs, Inc. v. WHITNEY NATIONAL BANK and Michelle Freytag
    NO. 2017-C-0522
    Supreme Court of Louisiana.
    May 26, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. C, No. 740-688; to the Court of Appeal, Fifth Circuit, No. 16-CA-574

| ^Denied.

HUGHES, J., would grant in part.

GENOVESE, J., would grant in part.


text:
    CALCASIEU PARISH POLICE JURY v. LOUISIANA DIAGNOSTIC AND IMAGING, LLC, et al.
    NO. 2017-CC-0623
    Supreme Court of Louisiana.
    May 26, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. D, No. 2016-2602; to the Court of Appeal, Third Circuit, No. CW 16-01048

| denied.


text:
    Theresa RICHARD and Mitchel Richard v. ACADIA PARISH CLERK OF COURT, Deputy Smith, Individually and in His Official Capacity as an Acadia Parish Sheriff's Deputy, and the Acadia Parish Sheriff's Office
    NO. 2017-CD-047 4
    Supreme Court of Louisiana.
    May 26, 2017
   Applying For Supervisoiy and/or Remedial Writs, Parish of Acadia, 15th Judicial District Court Div. G, No. 2016-10111

| ^ Stay denied. Writ denied.


text:
    STATE of Louisiana v. Brian GALATHE
    NO. 2017-KK-0645
    Supreme Court of Louisiana.
    June 6, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. B, No. 518-669; to the Court of Appeal, Fourth Circuit, No. 2016-K-1269; June 6, 2017

| denied.

WEIMER, J., would grant.

HUGHES, J., would grant.


author: SAUNDERS, Judge.

text:
    SUCCESSION OF John Patrick THERIOT, Jr., et al.
    16-639
    16-961
    Court of Appeal of Louisiana, Third Circuit.
    05-17-2017

      Alan K. Breaud, Timothy W. Basden, Breaud & Meyers, P. O. Drawer 3448, Lafayette, LA 70502, (337) 266-2200, COUNSEL FOR OTHER APPELLANT: Kathryn H. Theriot
    Paul Philip Breaux, Jr., Breaux & Horn-stein, LLC, P. O. Box 116, St. Gabriel, LA-70776, (225) 642-5532, COUNSEL FOR OTHER APPELLEE: Lynn Jordan
    Porteus R. Burke, Joseph Burke Burke, & Cestia, P. O. Box 10337, New Iberia, LA 70562-0337, (337) 365-6628, COUNSEL FOR OTHER APPELLEE: Pat Theriot Trust

      Allan L. Durand, In Proper Person, 235 Rue France, Lafayette, LA 70508, (337) 237-8501, COUNSEL FOR OTHER APPELLANT: Allan Durand, Executor
    Edmond L. Guidry, Jr., Attorney at Law, 324 S. Main Street, St. Martinville, LA 70582, COUNSEL FOR OTHER APPELLANT: Allan Durand, Executor
    Mark N. Mallery, Jacob C. Credeur, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., 701 Poydras St., Ste 3500, New Orleans, LA 70139, (504) 648-3840, COUNSEL FOR OTHER APPELLANT: State Farm Mutual Auto Ins. Co.
    Court composed of John D. Saunders, Phyllis M. Keaty, and John E. Conery, Judges.
   SAUNDERS, Judge.

|; These appeals arise from a dispute over the correct recipient of a decedent’s initial termination and extended termination payments from his employment as an insurance agent. The trial court found that the corporate agent was the correct recipient of the initial termination payments while no party had shown it was eligible for the extended termination payments. The executor of the estate, the insurance agency, and the decedent’s wife have all appealed.

FACTS AND PROCEDURAL HISTORY:

Pat Theriot (the decedent) worked as an insurance agent for State Farm Mutual Automobile Insurance Company (State Farm) since 1981. In 1994, the decedent formed a corporation named Pat Theriot Insurance Agency, Inc. (the corporation). The decedent was the sole shareholder and served as President while the corporation was referred to as the agent of State Farm. The 1994 Agreement provided for sixty monthly termination payments to start when it was terminated. These are known as the initial termination payments. Extended termination payments would begin on the 61st month after termination of the 1994 Agreement and would continue until the month of the decedent’s death. A joint and survivor option could replace the applicable terms for entitlement to these extended termination payments by amendment prior to the decedent’s death.

The decedent had been married three times prior to meeting his wife at the time of his death, Kathryn Hempel Theriot (Ms. Theriot). The decedent had several children from his previous marriages, all of whom are adults at the time of these suits. The decedent and Ms. Theriot were married on October 10, 2012. In the summer of 2013, the decedent’s failing health was evident, and he was given three months to live. The decedent passed away on September 6, 2013.

laPrior to his death, the decedent met with his attorney, Allan Durand, whom he named as executor of his estate (the Executor). The decedent named Mr. Durand the Executor in his last will and testament. The decedent revised his previously prepared testament to include provisions for Ms. Theriot.

In the decedent’s Last Will and Testament and codicil that were executed on August 2, 2013, and September 3, 2013, respectively, the following provision at the heart of this dispute states, “3.2(B) Any termination payment due to me or my estate from State Farm shall go to my wife, Kathy.” The residuary estate, except for a bequest to the decedent’s sister not relevant to these proceedings, was to be left in trust for the decedent’s children. This trust was also made the beneficiary of the decedent’s life insurance proceeds.

The decedent also contacted State Farm to sign additional paperwork in order for both the initial and extended termination payments would go to Ms. Theriot. Jarrod Landry, a representative of State Farm’s from the Dallas regional office, brought documents for the decedent to sign to ensure Ms. Theriot would receive the termination payments.

The decedent signed all of the documents provided to him during this meeting on August 28 (the August 28th Documents). The decedent entered into the early notification program, under which a State Farm Agent may give advance notice of retirement and be immediately eligible to assign the termination payments. These documents provided that the decedent would retire no later than August 31, 2014, qualified the decedent for the extended termination payments, qualified the decedent to receive a reduced extended termination payment for the rest of his life in exchange for the reduced extended termination payments to continue for the rest of Ms. Theriot’s life, and assigned all of the corporation’s rights to the extended termination payments to the decedent. State Farm asked the |sdecedent to delay his retirement date. The decedent passed away the following week on September 6, 2018.

On November 22, 2013, the executor filed a petition for partial possession and/or interim allowance seeking to recognize Ms. Theriot as the recipient of the termination payments. The trust responded that, as residual legatee and owner of the corporation, it was entitled to the termination payments because they were owed to the corporation. •

After learning there was a dispute between Ms. Theriot and the trust, State Farm filed a concursus petition as an in-tervenor. The executor had previously filed a separate petition against State Farm. The trust and Ms. Theriot both answered the concursus asserting claims to the initial termination payments. Ms. Theriot additionally filed a petition for intervention into the succession proceeding seeking to be recognized as the proper recipient- of the termination payments. State Farm’s concursus petition was eventually denied and dismissed after a trial was held determining the proper party to receive the termination payments.

The executor filed a petition for reformation of contracts seeking to reform the August 28th documents to refléct the joint intent of the parties and also praying for relief on the alternative ground that the decedent relied on Jarrod Landry’s assurance to the decedent that the August 28th documents would successfully transfer the termination payments to Ms. Theriot. A supplemental and amended petition for reformation of contracts was subsequently filed.

The trust filed a motion for summary judgment seeking to be declared the . owner of the termination'payments. This motion was opposed by Ms. Theriot and the executor. The trial court denied this motion.

|4Ms. Theriot filed a motion for summary judgment seeking to have the trial court find that she was entitled to the termination payments. Her motion was denied as well.

Prior to trial, the trust filed a motion in limine to exclude all parol evidence from trial, which was opposed by Ms. Theriot and the' executor. The motion in limine was granted, and the trial court ordered the exclusion of all evidence concerning the circumstances surrounding the drafting of the decedent’s last will and testament and the execution of the August 28th documents. A motion for reconsideration was also filed and denied.

The case went to trial. On May 5, 2015, the trial court dismissed the executor’s petition for reformation, denied relief for detrimental reliance, ruled that under the decedent’s will, the initial termination payments should go to the trust via its ownership of the , corporation. Further, the trial court ruled that, the extended termination payments were not owed to anyone because the extended, termination payments were not owed to the decedent at the time of his death and were not payable under the August 28th documents since the decedent passed away before the retirement date specified in the early notification program enrollment document.

The, executor filed a timely motion for new trial which was denied. The trial court signed an order granting State Farm’s suspensive appeal. The trial court then signed an order granting the executor’s devolutive .appeal. Ms. Theriot was also granted a devolutive appeal by the trial court.

Next, the trial court signed an order granting State Farm’s devolutive appeal of the separate judgment denying and dismissing its petition-in-intervention for con-cursus. Thereafter, the trial court signed an.order consolidating the appeals filed by the executor, Ms, Theriot, and both appeals filed by State Farm. This Rcourt then issued an order stating that the trial court erred in consolidating appeals and ordered separate appeals. Those separate appeals were then consolidated by this court.

KATHRYN THERIOT’S ASSIGNMENTS OF ERROR:

1. The trial court erred as a matter of law in refusing to consider “all competent evidence” in the interpretation of the Last Will and Testament of Pat Theriot.
2. The trial court erred as a matter of law in its refusal to admit parol evidence, or. any evidence at all, on the Petition to Reform Contracts..
3. The trial court erred as a matter of law in its -ruling, that tjie State Farm initial terminationpayments were payable to the Pat Theriot Trust under the language of the Last Will and Testament of Pat Theriot.
4. The trial court erred as a matter of law in its ruling that State Farm had no obligation to pay extended termination payments to Kathy Theriot, as Pat Theriot’s surviving spouse and designated beneficiary.
5. If the State Farm contract documents signed -on August 28, 2018 were insufficient to assign all termination payments to Kathy Theriot, the trial court erred in failing to reform the contract documents to accomplish the stated intent of the parties at the time the documents were executed.
6. The trial court erred in failing to place -Kathy Theriot in possession of both Pat Theriot’s initial and extended termination benefits from State Farm.

EXECUTOR’S ASSIGNMENTS OF ERROR:

1.- The District Court was in error in failing to follow the clear language of Pat’s will by ruling.that Pat Theriot’s .bequest that “any termination payment dye to me or my estate from State Farm shall go to my wife, Kathy” had no effect whatsoever.
2. The District Court was in error in ruling that it was Pat’s intent that the termination .payments were to be inherited by the Trust, and not by Pat’s wife, Kathy.
3. The District Court was in error in refusing to admit parol evidence offered by the Executor on-the, issue of Pat’s intent in using the phrase “.... due to me, or my. estate,..”, after, having admitted parol evidence offered by other parties as to Pat’s-intent.
lfi4. If the District Court was not. in error in failing to give any effect to Pat’s bequest of the Termination Payments to his wife, then the District Court was in error in refusing to treat the Will as an “assignment.”
5. The District Court was in error in ruling that the “August 28 documents” did not result in the assignment of the Extended Termination Payments to Kathy, and in not interpreting the documents in the method most favorable to the non-drafter.
6. The District Court was in error in not reforming the August 28 contracts to reflect the intent of .the parties, i.e., to assign both the Initial Termination Payments and the Extended Termination Payments to Kathy.
7. The District Court was in error in failing to allow parol evidence in support of the Petition to Reform the Contracts, and in failing to reform the contracts to reflect the intent of the parties.
8. The District Court was in error in refusing to allow parol evidence in support of the claim of detrimental reliance, and in denying the claim of detrimental reliance by Pat upon the representations of State Farm. ■
9. The District Court was in- error in ruling that the Termination Payments should not go to Kathy, for the reason that Pat relied to his detriment on the representations of State Farm.
10. The District Court was in error in failing to admit the parol evidence that State farm accepted Pat’s will as a valid transfer of the termination payments to Kathy.

STATE FARM’S ASSIGNMENTS OF ERROR:

1.The District Court erred when it determined that the record was supported by sufficient evidence to indicate State Farm owed Termination Payments - under Section IV of the 1994 State Farm Agent’s Agreement signed by John Patrick Theriot to the Testamentary Trust of John Patrick Theriot, Jr.
2. The District Court erred, when it refused to allow State Farm to introduce evidence in support of its Concursus Petition at the May 5, 2015, trial, thereby improperly increasing State Farm’s risk of double recovery in this proceeding (hence, leaving State Farm no choice but to suspensively áppeal the July, 20,2015, ‘Judgment).
3. The District Court erred when it concluded contractual Section IV Termination Payments, any entitlement to which was not triggered until Pat Theri-ot’s death but which have also been held by this Honorable Court to be contingent contractual payments that do not |7and cannot become payable until other conditions are satisfied after termination of the contract, ever became part of Pat Theriot’s estate.
4. The District Court erred when it placed on State Farm the burden of proving the absence of contractual conditions precedent to receipt of Termination Payments.
5. The District Court erred when it held State Farm’s Concursus Petition could be relied upon-as a “judicial confession” even though the District Court denied and dismissed that same Concur-sus Petition and even though State farm never earned the benefit of or any relief from that same Concursus Petition.
6. There .was no evidence presented at trial that the post-termination contractual prerequisites to receipt of Section IV Termination Payments were satisfied, and the District Court erred in finding these conditions were met.
7. The District Court erred when it failed to allow State Farm to present evidence on its Petition-in-Intervention for Concursus at the May 5, 2015, trial.
8. The District Court also erred when it denied and dismissed State Farm’s Petition-in-Intervention for Concursus in light of the fact that there are distinctly competing claims to termination payments allegedly owed by State Farm to multiple parties in the Succession of John Patrick Theriot.
9. The District Court failed to properly recognize that State Farm, as the party responsible for making the termination payments allegedly owed, was or has been exposed to multiple claims and suits from Concursus Defendants, who have asserted an interest to all or a portion of the termination payments.
10. The District Court also erred in failing to grant all of the relief prayed for in State Farm’s Petition-in-Intervention for Concursus, including dismissal of State Farm and precluding other parties from bringing claims against State Farm.

DISCUSSION OF THE MERITS:

All of the assigned errors above can be combined into core contested issues. They are: (1) whether the trial court properly excluded parol evidence concerning the decedent’s will; (2) whether the trial court properly awarded the initial termination payments to the trust via its ownership of the corporation under the terms of the decedent’s will; (3) whether the trial court properly found that State |sFarm did not potentially owe any extended termination benefits; and (4) whether the trial court properly denied and dismissed State Farm’s petition-in-intervention for concur-sus. As such, rather than specifically address the multitude of repetitive assigned errors, we will adjudicate the pertinent issues in this matter.

Did the trial court properly exclude par-ol evidence concerning the will?

Ms. Theriot asserts that the trial court erred by refusing to consider all competent evidence under La.Civ.Code art. 1611(A) in the interpretation of the decedent’s will. Likewise, the executor contends that the trial court erred by refusing to admit parol evidence on the issue of the decedent’s intent in using the phrase “... due to me or my estate...” in the will after having admitted parol evidence offered by other parties as to the decedent’s intent.

Louisiana Civil Code Article 1611(A)(emphasis added) states:

The intent of the testator controls the interpretation of his testament. If the language of the testament is clear, its letter is not to be disregarded under the pretext of pursuing its spirit. The following rules for interpretation apply only when the testator’s intent cannot be ascertained from the language of the testament. In applying these rules, the court may be aided by any competent evidence.

Thus, in order for the proffered parol evidence to be considered by this court, the language of the relevant provision of the will must fail to clearly express the decedent’s intent, i.e., it must be ambiguous. The determination of whether language is ambiguous is a question of law. Louisiana Ins. Guar. Ass’n v. Interstate Fire & Cas. Co., 93-911 (La. 1/4/94), 630 So.2d 759. Questions of law are reviewed by appellate courts via a de novo review as to whether the determination was legally correct. Citgo Petroleum Corp. v. Frantz, 03-88 (La.App. 3 Cir. 6/4/03), 847 So.2d 734, writ denied, 03-1911 (La. 10/31/03), 857 So.2d 484. “Language is ambiguous when it can be reasonably interpreted to mean |3different things.” Adams v. Willis, 00-589 p. 5 (La.App. 3 Cir. 11/2/00), 777 So.2d 5, 9, writ denied, 00-3289 (La. 2/2/01), 784 So.2d 7.

The language relevant here is the first sentence of provision 3.2(B) in the decedent’s will. It reads, “Any termination payment due to me or my estate from State Farm shall go to my wife, Kathy.” Ms. Theriot and the executor contend that the language indicated the decedent’s clear intent to convey to Ms. Theriot both types of termination payments. Contrarily, the trust contends that the language, specifically where the will states “to me or my estate,” indicates that the decedent’s intent was to convey the termination payments to the trust because the decedent knew that the termination payments are payable to the corporation and that the trust inherited the corporation via its status as the universal legatee.

It is clear from the arguments above that the language in the provision can reasonably be interpreted to mean different things. As such, we find that the trial court improperly excluded “any competent evidence,” under La.Civ.Code art. 1611(A), to aid in finding the intent of the testator when having his will drafted. Accordingly, we find that the trial court committed legal error.

“[W]hen a provision in a will is subject to more than one equally reasonable interpretation, then the court may consider all circumstances existing at the time of the execution of the will (and not just the language of the will) which may aid in determining the intent of the testator.” Succession of Williams, 608 So.2d 973, 975 (La.1992). Therefore, we will look to the record, proffered competent evidence, and “any and all circumstances existing at the time of the execution of the will” in order to determine the decedent’s intent in the first sentence of provision 3.2(B). Id. Because the language of provision 3.2(B) can reasonably be interpreted to mean different thing, i.e., it was ambiguous, we found that the trial court improperly excluded “any competent evidence” under La.Civ.Code art. 1611(A). As such, we | inwill consider the record and any improperly excluded evidence in order to ascertain the decedent’s intent with respect to the initial termination benefits.

Did the trial court properly award the Initial Termination Payments to the trust?

Ms. Theriot contends that the trial court erred as a matter of law in its ruling that the initial termination payments were payable to the trust under the decedent’s will. The executor asserts that the trial court was in error in ruling that it was the decedent’s intent that the initial termination payments were to be inherited by the trust and not Ms. Theriot. We find that these arguments have merit.

“[T]he first and natural impression conveyed to the mind on reading the will as a whole is entitled to great weight. The testator is not supposed to be propounding riddles, but rather to be conveying his ideas to the best of his ability so as to be correctly understood at first view.” Carter v. Succession of Carter, 332 So.2d 439, 442 (La.1976). When the language of a will is unclear, acts done by the testator after the will’s execution may be taken into consideration in ascertaining his intent. Succession of Ehrenberg, 21 La.Ann. 280 (La. 1869); Clark v. Preston, 2 La.Ann. 580 (La. 1847). “A disposition should be interpreted in a sense in which it can have effect, rather than in one in which it can have none.” La.Civ.Code art. 1612. “It is a cardinal rule of testamentary construction that each and every part of the will shall be given effect; no word, phrase or clause shall be declared surplusage if it can be afforded a reasonable and legal interpretation.” Succession of Lambert, 210 La. 636, 657, 28 So.2d 1, 8 (1946).

In the case before us, the decedent used the language, “[a]ny termination payment due to me or my estate from State Farm shall go to my wife, Kathy.” This is a positive expression of the decedent’s seeming intent that his wife get any termination payments. As such, this court’s first and natural impression is that the decedent intended for Ms. Theriot to get any termination payments.

JjjThe trust points out that the decedent’s use of the language “due to me or my estate” is indicative that he wanted the trust to get the initial termination payments because the decedent knew that he, personally, was not due any initial termination payments. Rather, as found by the trial court and argued by the trust, the decedent knew that the corporation was due the initial termination payments and used this language to purposefully leave the initial termination payments to the trust because he knew that the trust would obtain ownership of the corporation via its status as universal legatee.

We find no merit to the trust’s argument and find error by the trial court in reaching this conclusion regarding the decedent’s intent. The trial court’s finding necessitates the decedent leaving a riddle by using superfluous language specifically naming Ms. Theriot in order to allow the trust to inherit the initial termination payments through its ownership of the corporation via its designation as the universal legatee. Had the decedent truly intended to leave the initial termination payments to the trust, he could have directly granted them to the trust via a specific legacy or by not mentioning termination payments.

Moreover, the testimony of Mr. Jarrod Landry, an agency sales leader for State Farm, certainly tends to indicate that the decedent’s intent was for Ms. Theriot to receive both types of termination benefits. Mr. Landry testified to the following regarding the- decedent’s state of mind in August of 2013, the month the decedent’s will was written:

Q Okay, You met with Pat, [the decedent,] at his home about August 28th of [2018]; is that correct?
A As I recall.
Q All right. Did Pat ask you—tell yoü he wanted something and asked you to bring the paperwork or did some other person at State Farm tell you to go to Pat’s house and what to bring with you? How did that happen, how did that meeting happen?
|12A Pat’s intention from the beginning was for his retirement funds, his retirement, his agency retirement to go to Kathy Theriot, and so he requested that I do whatever it took to make sure that took place.
Q All right. He made that request directly to you?
A He did.
Q All right. He told you he wanted his retirement to - go to his wife, Kathy?
A Correct.
Q All right. And did he ask you if he needed to sign anything to accomplish that?
A He asked me to do whatever it took to do that, and that is what I did. I did what I had to do within my responsibility to make sure that what he wanted took place.
Q Okay. Pat told you he wanted to assign the retirement benefits to Kathy; am I correct?
A Correct.
Q And you passed that on to agency ASR [corporate State Farm]?
A Correct.
Q And they sent you these forms and said, “Go-have him sign these”.
A Correct.
Q You were given the understanding this would accomplish what Pat wanted.
A That was my understanding.
Q All right. Am I correct' that it was your understanding that’the documents Pat signed on August 28th which are in front of you and part of Exhibit 1—Was it your understanding that those documents were going to- be sufficient to transfer to his wife,' Kathy, both his termination payments?
|]SA Pat’s intention was for his retirement termination payments, his extended termination payments to go to Kathy.
Q Both of them.
A Both of them.
Q The termination payments and the extended termination payments.
A Gorrect.
Q And when you met with Pat did you tell him that, “These documents are what you need to sign to transfer your termination payments and your extended termination payments to Kathy”?
A Yes. My understanding was that these documents were sufficient and that is what I explained to him when we completed and signed the documents.

This testimony evidences' Mr. Landry’s understanding of the decedent’s intent. This testimony as to the , decedent’s intent for Ms. Theriot to receive both types of termination payments is bolstered by the actions of the decedent during the same month he signed his will. He contacted State Farm in an attempt to achieve , the result of Ms. Theriot receiving both types of termination payments. Then, he actually signed the paperwork he thought necessary to do so. Thus, in executing the August 28th documents, we find that the decedent made his intent clear. .

Accordingly, we find that the trial court was legally incorrect in finding that- the decedent intended to- leave the initial termination payments to the trust. It is clear from the record and the decedent’s actions during the relevant time frame that he intended to leave the initial termination payments to Ms. Theriot.

However, the analysis of who is entitled to the initial termination payments does not end with finding the decedent’s intent. The trust argues that.the decedent-could not leave the initial termination payments to Ms. Theriot because they were the property of the corporation.

■|uAn officer of a private corporation may legally be clothed with the powers and authority of a general manager. He may be entrusted with the entire management of the business and affairs of the corporation and, when such is done, his acts are virtually the -acts of the ■ corporation itself. Fletcher on Corporations, vol. 3, p. 3202; 19 C.J.S. Corporations § 756 p. 99; Southern Hide Co. v. Best, 174 La. 748, 141 So. 449 (1932). Also, see Russ v. United Farm, 230 La. 889, 89 So.2d 380; City Savings Bank and Trust Co. v. Shreveport Brick Co., Inc., 172 La. 471, 134 So. 397.

Medallion Tower, Inc. v. Fort Lauderdale Technical College, Inc., 323 F.Supp. 180 (E.D. La.1970).

Here,-the, decedent was the sole shareholder, sole officer, and sole board member of the corporation. .As stated above, his actions regarding any property or potential receivables due the corporation were binding on the corporation. Accordingly, his statement that “[a]ny termination payment due to me or my estate from State Farm shall go to my. wife, Kathy” includes any termination payments due the. corporation.

Therefore, we find that the initial termination payments are to be paid to Ms. Theriot, as the decedent intended.

Did the trial court properly find that State Farm had no duty to pay any Extended Termination Payments?

Both Ms. Theriot and the executor assert that the trial court erred when it failed to find that the August 28th documents executed by the decedent and State Farm warranted Ms. Theriot be awarded the extended termination benefits. We find merit to these assertions.

Where factual findings are pertinent to the interpretation of a contract, those factual findings are not to be disturbed unless manifest error is shown. However, when appellate review is not premised upon any factual findings made at the trial level, but is, instead, based upon an independent review and examination of the contract on its face, the manifest error rule does not apply. In such cases, appellate review of questions of law is simply whether the trial court was legally correct or legally incorrect, (citations omitted).

| Evangeline Parish Sch. Bd. v. Energy Contracting Services, Inc., 617 So.2d 1259, 1265 (La.App. 3 Cir.), writ denied, 624 So.2d 1228 (La.1993) (quoting Borden, Inc. v. Gulf States Utils. Co., 543 So.2d 924, 928 (La.App. 1 Cir.), writ denied, 545 So.2d 1041 (La.1989)).

“When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent.” La.Civ.Code art. 2046. “Language is ambiguous when it can be reasonably interpreted to mean different things.” Adams, 777 So.2d at 9. Where an ambiguity remains even after methods of contractual interpretation are employed, “the ambiguous provision is to be construed against the drafter and in favor of the insured.” Reynolds v. Select Props., Ltd., 93-1480 (La. 4/11/94), 634 So.2d 1180, 1183.

In the case before us, when dealing with extended termination payments, Section V of the 1994 agreement between the corporation and State Farm states that State Farm “will pay the Agent monthly payments beginning on the last day of the 61st month following termination and continuing until the last day of the month in which the death of the President occurs. ...” The decedent, personally and on behalf of the corporation, and State Farm signed five documents on August 28, 2013. Those five documents were an Early Notification of Program Enrollment, a Termination Payment Amendment, an Extended Termination Payment Amendment, an Irrevocable Assignment of Extended Termination Payments, and an Election to Receive Extended Termination Payments Under the Joint and 66 2/3% to Survivor Option.

The parties stipulated that the decedent met the requirements to receive extended termination payments. However, the trial court found that no extended termination benefits were due to the decedent or Ms. Theriot because the decedent lachóse a date of termination of the agreement as either September 30, 2013, or August 31, 2014, and he died on September 6, 2013. We find error by the trial court in reaching this conclusion.

All parties and the trial court agree that the 1994 Agreement terminated on the date of decedent’s death, September 6, 2013. The disagreement is whether there was still a requirement that the decedent terminate the 1994 Agency Agreement pri- or to his death in order to have the August 28th documents have any effect on the extended termination payments. We find that the August 28th documents mandate that Ms. Theriot is to receive the extended termination benefits should she be living when they become due.

The Early Notification Program Enrollment document was signed by the decedent and received by State Farm on August 26, 2013. It notified State Farm of the decedent’s date of retirement with a date of August 31, 2014. Todd Romig, the assistant manager for agency sales resources at State Farm, testified to the following:

Q ... Does a retirement date recorded by anybody with State Farm make any difference whatsoever as long as he signed it, this early notification program enrollment, before his death?
A No, it does not.
Q The face that [the decedent] signed Exhibit 1 allows him to sign these other documents, particularly the Election to Receive Extended Termination Payments Under the Joint and 66-2/3 to Survivor Option?
A Correct.

Thus, it is clear that the decedent was able to execute the August 28th documents immediately after enrolling in the early termination program. As such, we will look to these documents to determine what effect, if any, they had on the extended termination payments.

|17The Extended Termination Payment Amendment states:

WHEREAS, there exists a State Farm Agent’s Agreement ... (“Agreement”) between the corporation known as PAT THERIOT INSURANCE AGENCY, INC. of Saint Martinville, LA (“Agent”), and the undersigned State Farm Insurance Companies (“Companies”);
WHEREAS, Section V of the Agreement provides for extended termination payments under certain conditions in the event the Agreement is terminated;
AND WHEREAS, Agent has met the requirements of the Early Notification Program;
NOW THEREFORE, the Companies and Agent agree:
1. If, as of the date the Agreement is terminated; the President of Agent is 55 years of age or older and:
(a) has met all but the age requirement for the receipt of extended termination payments, or
(b) has a combination of age and length of Agency Service equal to or greater than 80 years and has met all but the age and length of service requirement for the receipt of extended termination payments,
Agent shall be eligible for extended termination payments calculated in accordance with the formulas set forth in Section V. of the Agreement.
3. If Agent assigns its rights to extended termination payments to the President of Agent, the Joint and Survivor Option will be available to President of Agent.

The Extended Termination Payment Amendment was signed by both State Farm and the decedent, individually, and on behalf of the corporation on August 28, 2013. Our reading of the Extended Termination Payment Amendment is State Farm and the decedent agreed that when the 1994 Agreement is terminated, if certain listed criteria were met (which all parties stipulated the decedent met), then the decedent “shall be eligible for extended termination payments.” Thereafter, the Extended Termination Payment Agreement states that if the corporation assigns its heights to the extended termination payments to the decedent, then the decedent can choose the joint survivor option.

On that same date, the decedent then signed the Irrevocable Assignment of Extended Termination Payments. It states, “Agent [Pat Theriot, Inc.] does hereby irrevocably transfer, assign, and. set over all right, title and interest to and in the payments provided for under the terms of Section V of the Agent’s Agreement to its President, absolutely.” Therefore, the document purported to give the decedent, individually, the right to direct who would receive the Extended Termination Payments. State Farm signed this document on February 20,2014.

Thereafter, the decedent signed the Election to Receive Extended Termination Payments Under the Joint and 66 2/3% to Survivor Option. It designates Ms. Theriot as a joint beneficiary of those extended termination payments stating, “I further understand that in the event of my death or the death of my joint beneficiary, the survivor will receive 66-2/3% of the amount payable prior to the death of the first to die for his or her lifetime.” This document was signed by State Farm on February 20,2014.

The executor and Ms. Theriot argue that the August 28th documents amended the 1994 original agreement. As such, they point out .that these August 28th documents neglected to include the requirement that the decedent terminate -the 1994 agreement via retirement prior to becoming eligible for -extended termination payments. The trial court disagreed finding that the decedent was required to terminate the agreement via retirement under the 1994 agreement’s terms prior to the August 28th documents having any effect. As .such, the trial court found that the decedent never became eligible for extended termination payments because he died prior to his designated date of retirement, i.e., when the 1994 agreement would have been terminated.

113The August 28th documents are clear. State Farm allows for participation in the program in order to reduce the amount it will have to pay to its former agents in extended termination payments in exchange for the agents selecting to add his or her spouse as a beneficiary. There is no requirement in the August 28th documents that the termination of the relationship between State Farm and Pat Theriot must come from retirement.

State Farm argues that it is significant that the decedent died prior to some of the August 28th documents being signed by it. The basis of State Farm’s argument is that the August 28th documents were offers by the decedent and were not accepted by State Farm until after the decedent’s death. Given that an offer dies with the party making the offer, see La.Civ.Code art. 1932, State Farm argues that these contracts were not valid. This argument lacks merit.

These contracts were prepared by State Farm to accomplish the decedent’s specific goal of having Ms. Theriot receive his extended termination payments.

It has long been held by our courts that a party who prepares the contract and presents it to the other party for their signature may not later claim he is Pot bound by the contract because his signature is lacking. Auto-Lec Stores, Inc. v. Ouachita Valley Camp, No. 10, W.O.W., 185 La. 876, 883, 171 So. 62, 64 (1936); Finishers Drywall, Inc. v. B & G Realty, Inc., 516 So.2d 420, 422 (La. Ct.App. 1 Cir.1987).

Rainey v. Entergy Gulf States, Inc., 09-572, p. 18 (La. 3/16/10), 35 So.3d 215, 227.

In the cases cited by Rainey and in Rainey, itself, the courts enforced the contracts even though they were not.signed by the preparer of the contract. Here, the contracts were, in fact, signed by State Farm, just not until a date after the decedent’s death. Accordingly, we find no merit to this argument.

The decedent chose to exercise his right to participate in State Farm’s early notification program. In doing so, the options that he chose, altering the requirements for eligibility for the extended termination payments, assigning the | ^extended termination benefits to himself, and adding his wife as a beneficiary under the joint survivor option, immediately became effective once he signed the documents. Thereafter, when State Farm signed the documents, it only served to reinforce its assent to the terms of the contracts it prepared to reach the decedent’s goals. The decedent chose to exercise those options,; and, under the clear language of the August 28th documents, chose to have the extended termination payments go to Ms. Theriot.

Moreover, we note that it is clear from the record that both the decedent and State Farm believed that once these August 28th documents were executed, Ms. Theriot would receive the extended termination benefits when they became due.

Did the trial court properly adjudicate State Farm’s Petition-in-Intervention for Concursus?

State Farm asks this court , to reverse the trial court’s ruling and order denying its petition-in-intervention for concursus. State Farm also asks that we order that it be granted the opportunity to deposit any funds that may be determined to be owed in this matter into the court’s registry, that it be dismissed from these proceedings entirely, and that it be granted an injunction from any further prosecution of any claims by any party in this matter.

The trial court denied State Farm’s con-cursus request as not. timely or proper given that it had already determined that the corporation was entitled to the initial termination benefits. We find that this matter is moot. Allowing State Farm to deposit funds into the registry and to be dismissed is of no consequence because we have determined that Ms. Theriot is the proper recipient of all the termination benefits.

[^DISPOSITION:

Kathryn Hempel Theriot, Executor Allan Durand, and State Farm Mutual Automobile Insurance Company all assigned errors in this case. We find that the trial court improperly excluded parol evidence in ascertaining Pat Theriot’s intent in making his will. We find merit to those assignments contending that the trial court erred in awarding the trust, via ownership of Pat Theriot Insurance Agency, Inc., initial termination payments.' We render judgment declaring that the proper recipient of those initial termination payments is Kathryn Hempel Theriot. Further, we find merit to those assignments of error asserting that the trial court erred in denying that State Farm Mutual Automobile Insurance Company potentially owes anyone extended termination payments. We render judgment holding that those extended termination payments are owed to Kathryn Hempel Theriot. Finally, we affirm the trial court’s denial of State Farm Mutual Automobile Insurance Company’s petition-in-intervention for concursus. All costs of these proceedings are assessed to Pat Theriot Insurance Agency, Inc.

AFFIRMED, IN PART, REVERSED AND RENDERED, IN PART.


author: Judge Roland L. Belsome LOVE, J., DYSART, J.,

text:
    Kevion DILLON and Sean Stokes v. TOYS R US-DELAWARE CORPORATION, Chantrell Poree, Cherelle Pierson, Shawanda McGee & Salina Johnson
    NO. 2016-CA-0983
    Court of Appeal of Louisiana, Fourth Circuit.
    MAY 31, 2017

      Kenneth C. Bordes, ATTORNEY AT LAW, 2725 Lapeyrouse Street, New Orleans, LA 70119, Kara Anne Larson, Equal Access Legal, 1225 Aline Street, New Orleans, LA 70115 COUNSEL FOR PLAINTIFF/APPELLANT
    Ryan E. Griffitts, LITTLER MEN-DELSON, 2001 Ross Avenue, Suite 1500, Dallas, TX 75201 COUNSEL FOR DEFENDANT/APPELLEE/TOYS R US, INC.
    (Court composed of Judge Terri F. Love, Judge Roland L. Belsome, Judge Daniel L. Dysart, Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins)
   Judge Roland L. Belsome

hKevion Dillon appeals the trial court’s sustaining of an exception of no cause of action in favor of Toys R Us, Inc. For the following reasons, we reverse and remand the matter for further proceedings.

Ms. Dillon was an employee of Babies R Us, which is owned by Toys R Us, Inc. She maintains that she was caused to resign due to acts of harassment and discrimination against her. Following her resignation, Ms. Dillon filed a lawsuit alleging multiple violations of the Louisiana Employment Discrimination Law as provided for in La. R.S. 23:301 et seq. In addition to those claims, she also alleges acts of defamation, battery, intentional infliction of emotional distress, and failure to timely pay her final wages in violation of the Louisiana Wage Payment Act.

Ms. Dillon filed a Rule to Show Cause as to her claims for penalty wages, interest, attorney’s fees and costs relating to Toys R Us’s violation of the Louisiana Wage Payment Act, La. R.S. 23:631 and 632. In response to the Rule to Show Cause, Toys R Us filed an exception of no cause of action. The trial court |2sustained the exception of no cause of action and dismissed Ms. Dillon’s claims under the Louisiana Wage Payment Act with prejudice. This appeal followed.

On appeal, Ms. Dillon argues that her petition for damages properly asserts a valid cause of action under La. R.S. 23:631 et seq.

In Industrial Companies, Inc. v. Durbin, the Louisiana Supreme Court succinctly outlined the review of a lower court’s sustaining of an exception of no cause of action. Durbin states:

The function of the peremptory exception of no cause of action is to question whether the law extends a remedy against the defendant to anyone under the factual allegations of the petition. The peremptory exception of no cause of action is designed to test the legal sufficiency of the petition by determining whether the particular plaintiff is afforded a remedy in law based on the facts alleged in the pleading. The exception is triable on the face of the petition and, for the purpose of determining the issues raised by the exception, the well-pleaded facts in the petition must be accepted as true. In reviewing a trial court’s ruling sustaining an exception of no cause of action, the appellate court and this court should conduct a de novo review because the exception raises a question of law and the trial court’s decision is based only on the sufficiency of the petition. Simply stated, a petition should not be dismissed for failure to state a cause of action unless it appears beyond doubt that the plaintiff can prove no set of facts in support of any claim which would entitle , him to relief. Every .reasonable interpretation must be accorded the language of the petition in favor of maintaining its sufficiency and affording the plaintiff the opportunity of presenting evidence at trial.

In this case, the exception of no cause of action concerns only the wage claims under La. R.S. 23:631 et seq. The substance of Appellee’s exception of no cause of action is that La. R.S. 23:631 expressly states that the employee must be | ¡¡“discharged” or “resign” in order for the statute to apply. Appellee further maintains that Ms. Dillon’s petition fails to plead either of those actions occurred. Rather, the petition states that due to the alleged harassment, Ms, Dillon could not return to her job at Babies R Us and that constituted a “constructive discharge.” Ap-pellee contends that “constructive discharge” is not covered under the statute and therefore Ms. Dillon has failed to state a cause of action under the statutes.

In reviewing the correctness of the trial court’s ruling, the focus is on whether the law provides a remedy against the particular defendant in this case. In Ms. Dillon’s petition, she asserts a cause of action for “Failure to Make Timely Payment of Wages.” La. R.S. 23:631dictates the manner in which employers must pay an employee owed wages upon the termination of their employment. The statute reads in pertinent part:

A. (l)(a) Upon the discharge of any laborer or other employee of any kind whatever, it shall be the duty of the person employing such laborer or other employee to pay the amount then due under the terms of employment, .whether the employment is by the hour, day, week, or month, on or before the next regular payday or no later than fifteen days following the date of discharge, ' whichever occurs first.
(b) Upon the resignation of any laborer or other employee of any kind whatever, it shall be the duty of the person employing such laborer or other employee to pay the amount then due under the terms of employment, whether the employment is by the hour, day, week, or month, on or before the next regular payday for the pay cycle during which the employee was working at the time of separation or no later than fifteen days following the date of resignation, which- ■ ever occurs first.

Additionally, La. R.S. 23:632 imposes penalties on employers for failure to comply with La. R.S. 23:631. The penalty statute reads:

|4A. Except as provided for in Subsection B of this Section, any employer who fails or refuses to comply with the provisions of R.S. 23:631 shall be liable to the employee either for‘ninety days wages at the employee’s daily rate of pay, or else for full wages from the time the employee’s demand for payment is made until the employer shall pay or tender the amount of unpaid wages due to such employee, whichever is the lesser amount of penalty wages.
B. When the court finds that an employer’s dispute over the amount of wages due was in good faith, but the employer is subsequently found by the court to owe the amount in dispute, the employer shall be liable only for the amount of wages in dispute plus judicial interest incurred from the date that the suit is filed. If the court determines that the employer’s failure or refusal to pay the amount of wages owed was not in good faith, then the employer shall be subject to the penalty provided for in Subsection A of this Section.
C. Reasonable attorney fees shall be allowed the laborer or employee by the court which shall be taxed as costs to be paid by the employer, in the event a well-founded suit for any unpaid wages whatsoever be filed by the laborer or employee after three days shall have elapsed from time of making the first demand following discharge or resignation.

So, in order for Ms. Dillon to state a wage claim against Toys R Us, she must allege i) that Toys R Us was her employer, ii) that the employee/employer relationship ceased to exist, iii) that at the time that the employee/employer relationship ended she was owed wages, and iv) that Toys R Us failed to submit the owed wages within the statutorily mandated 15 days.

On reviewing only the four corners of her petition, Ms. Dillon has pled the following facts regarding. Toys R Us’s failure to timely pay wages:

Ms. Dillon was constructively discharged and her last day at work was March 21, 2015, Although Ms. Dillon made several written requests for her final wages— again were all ignored in bad faith by Toys R Us. An April 14, 2015 letter requesting final was sent, making Toys R Us specifically aware of statutory penalties for non-payment, but Toys R Us refused' to send final wages. Another request was made June 12, 2015 and denied. A follow-up letter to the June 12, 2015 request was sent on June 18, 2015. Toys R Us chose not to remit Ms. Dillon’s final wages until early July of 2015, and more than ninety days after her discharge, despite numerous requests ;..

|RWe find that those facts, taken as true, are sufficient to establish a wage claim against Toys R Us. We do not find, as the trial court did, that failing to use the word “discharged” or “resigned” is fatal to stating a claim under La. R.S. 23:631and 632. Toys R Us can challenge the validity of the allegations at the Rule to Show Cause, but its exception of no cause of action should havé been denied.

For the.reasons.discussed, the judgment of the trial court sustaining the exception of no cause of action and dismissing Kev-ion Dillon’s claims under the Louisiana Wage Payment Act with prejudice is reversed. The matter is remanded for further proceedings.

REVERSED AND REMANDED

JENKINS, J., CONCURS IN THE RESULT

LOVE, J., DISSENTS AND ASSIGNS REASONS

DYSART, J., DISSENTS WITH REASONS

JENKINS, J., CONCURS IN THE RESULT

LOVE, J.,

DISSENTS AND ASSIGNS REASONS

I respectfully dissent for the reasons assigned by Judge Dysart.

DYSART, J.,

DISSENTS, WITH REASONS.

As I believe the trial court correctly interpreted La. R.S. 23:631, et seq., I respectfully dissent.

La. R.S. 23:631 is punitive in nature. Thus, it must be strictly construed, should not be extended beyond the plain wording of the statute, and must yield in interpretation and application to equitable defenses. Smith v. Coffman, 46,793, p. 25 (La. App. 2 Cir. 2/8/12), 87 So.3d 137, 152.

Accordingly, I find that the plaintiff has not stated a cause of action as she has not alleged that she was discharged or resigned from Toys R Us. Rather, she alleges that she stopped working on March 21, 2015, not that she was fired or that she formally resigned from her job. As such, her allegations do not allege sufficient facts for application of La. R.S. 23:631. I would affirm the trial court’s judgment.

      . Indus. Companies, Inc. v. Durbin, 02-0665, pp. 6-7 (La. 1/28/03), 837 So.2d 1207, 1213 (citations omitted).

      . This Court recognizes that a partial exception of no cause of action is not favored in Louisiana. See Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1236 (La.1993). However, a wage claim, such as the one asserted here, is subject to summary proceeding. See La. R.S. 23:631(B), Thus, an employee can proceed on the merits of his/her wage claim by asserting a rule to show cause on that s.ole issue. This procedure, in this case, leaves intact the remainder of the petition for damages. Therefore, wé do'not find this to be a partial exception of no cause of action in violation of Everything on Wheels.

      . La. R.S. 23:631 (emphasis added).

      . La. R.S. 23:632.