Opinion
No. 2007 CA 0883.
June 8, 2007.
ON APPEAL FROM THE SEVENTEENTH JUDICIAL DISTRICT COURT (NUMBER 101047 DIV. "C"), PARISH OF LAFOURCHE STATE OF LOUISIANA, HONORABLE WALTER I. LANIER, III, JUDGE.
AFFIRMED.
Walter Antin, Jr., Hammond, Louisiana, Jacques F. Bezou, Covington, Louisiana, Counsel for Plaintiffs/Appellants, Teresa Mae Badeaux Fernandez, and Charles Raymond Fernandez.
Henry P. Julien, Jr., New Orleans, Louisiana, William W. Edelman, Metairie, Louisiana, Counsel for Defendant/Appellee, Thomas L. Badeaux.
Richard F. Zimmerman, Jr., Baton Rouge, Louisiana, Counsel for Defendants/Appellees, J. Alvin Badeaux, Jr., Anthony Carroll Badeaux, Mary Claire Badeaux Elmore, Manuel J. and Lorraine Landeche Rodrigue.
John R. Walker, Metairie, Louisiana, Counsel for Defendant/Appellee, American National Insurance.
Richard G. Duplantier, New Orleans, Louisiana, Counsel for Defendant/Appellee, Charles C. Theriot, CPA.
Frederick R. Bott, New Orleans, Louisiana, Counsel for Defendants/Appellees, Camile A. Morvant, II and, Morvant Cavell.
William E. Wright, Jr., New Orleans, Louisiana, Counsel for Defendants/Appellees, Terry J. Bonvillian and Terry J., Bonvillian, APLC.
Before: KUHN, GAIDRY, AND WELCH, JJ.
Plaintiff-appellant, Charles Raymond Fernandez, appeals the trial court's grant of summary judgment in favor of defendants, Camille Morvant and the law firm of Morvant Cavell, dismissing the claims against Morvant, an attorney of Morvant Cavell, which aver that he fraudulently conspired to and altered a power of attorney he had prepared for his client, Viola Mary Tabor Badeaux (decedent), in favor of her nephew, Thomas Badeaux, thereby allowing for the sale of decedent's assets and the subsequent purchase of an annuity; and against Morvant Cavell, under a theory of respondeat superior liability for Morvant's acts. We affirm.
Although this lawsuit was instituted by Teresa Mae Badeaux Fernandez, after her death Charles Raymond Fernandez, the duly-appointed testamentary executor of her succession, was substituted as plaintiff.
The gist of Fernandez's appellate contention is that whether Morvant participated in altering the power of attorney is an outstanding issue of material fact which precludes summary judgment. But as explained in our earlier opinions, see Fernandez v. Hebert , 06-1558 (La.App. 1st Cir. 5/4/07), — So.2d — ; Fernandez v. Hebert , 06-1416 (La.App. 1st Cir. 5/4/07) (unpublished opinion); and Fernandez v. Hebert , 06-2401 (La.App. 1st Cir. 5/4/07) (unpublished opinion), the acts of donation by Thomas Badeaux to himself, his siblings, and the Rodrigues, all in conformity with the decedent's will, were valid without reliance on the power of attorney. And the decedent ratified Thomas Badeaux's acts of selling the Hibernia stock and purchasing the ANICO annuity when, at a request by ANICO representatives, she personally applied for and purchased the annuity, initially signing five different documents and later an ANICO customer service form, which specifically designated her beneficiaries. Additionally, Fernandez stipulated that he had no evidence that Morvant directly participated in or advised about the sale of decedent's assets and the purchase of the annuity by Thomas Badeaux.
Our affirmance of the judgment in Fernandez , 06-1416 (unpublished opinion), noted the Rodrigues had established that any declaration of the nullity of the donations to them by Thomas Badeaux would have resulted in restoration of the stock to the decedent's patrimony which, under the will would have then be distributed back to them and, therefore, there were no outstanding issues of material fact precluding summary judgment since Fernandez failed to establish that he had suffered any damages because of the transfer.
As noted in the earlier appeals, defendants established that decedent had capacity at the time that she gave authority to her nephew to donate her corporate stock to the Badeauxs, Fernandez , 06-1558 at pp. 9-11, ___ So.2d at ___, as well as when she applied for and purchased the annuity and designated her beneficiaries, see Fernandez , 06-2401 at pp. 6-7 (unpublished opinion), a showing Fernandez failed to rebut. Thus, whether the power of attorney had been altered was not a material fact that precluded a summary judgment concluding the transactions were valid.
Accordingly, the trial court correctly granted summary judgment and dismissed Fernandez's claims against Morvant and Morvant Cavell. In compliance with La. URCA Rule 2-16.1B, the trial court's judgment is affirmed. Appeal costs are assessed against Charles Raymond Fernandez.