Succession of Joseph Cogliandro ( 2022 )

Rodd Naquin
Cierk of Court
Docket Number: 2021 - CA - 1165
Succession of Joseph Cogliandro
versus
To: RobertA. Contreras
3329 Florida Ave.
Kenner, LA 70065
Peter David Carollo
2228 2nd St.
Slidell, LA 70458
Office Of The Clerk
Court of Appeal, First Circuit
State of Louisiana
www.la-feca.org Post Office Box 4408
Baton Rouge, LA
70821-4408
Notice of Judgment and Disposition (225) 382-3000
June 03, 2022
Thomas H. Gray
113 Doubloon Drive
Slidell, LA 70461
Hon. Raymond S. Childress
P. O. Box 608
Franklinton, LA 70438
In accordance with Local Rule 6 of the Court of Appeal, First Circuit, I hereby certify that this notice of judgment and
disposition and the attached disposition were transmitted this date to the trial judge or equivalent, all counsel of record,
and all parties not represented by counsel. On .
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KO Owe S : VA 4
RODD NAQUIN
CLERK OF COURT
STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
NO. 2021 CA 1165
JEW
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iit Z hy Mit ie Judgment Rendered: "UN 03 9007
te ate ata ote ale ofa ale af
SUCCESSION OF JOSEPH COGLIANDRO
Appealed from the
22nd Judicial District Court
In and for the Parish of St. Tammany
State of Louisiana
Case No. 1997-30320, Division A
The Honorable Raymond S. Childress, Judge Presiding
P. David Carollo Counsel for Appellant
Slidell, Louisiana Peyton Polk
Thomas H. Gray Counsel for Appellee
Slidell, Louisiana Joan Wooldridge Cogliandro
wwe ER KR ee
BEFORE: McCLENDON, WELCH, AND THERIOT, JJ.
THERIOT, J.
In this succession proceeding, an adult child of the decedent appeals a trial
court judgment sustaining an exception of prescription raised as to her petition to
reopen the succession and set aside the judgment of possession. For the reasons set
forth herein, we affirm.
FACTS AND PROCEDURAL HISTORY
Decedent, Joseph Cogliandro, died testate on January 2, 1997. His surviving
spouse, Joan W. Cogliandro (“Joan”), filed a petition for probate of testament on
June 6, 1997. Decedent’s testament, dated December 7, 1983, bequeathed the
disposable portion of his property to his wife Joan and the forced portion of his
property to his two daughters, Joan Carmela Cogliandro (“Peyton”)! and Candice
Ann Cogliandro, subject to a usufruct for life in favor of his wife Joan over the
forced portion. Decedent’s will was probated on June 10, 1997.
Joan was appointed testamentary executrix. On December 4, 2003, she filed
a motion to homologate the tableau of distribution, stating that she had filed the
tableau of distribution and final accounting on May 7, 2001, advertised the notice
of filing of the tableau of distribution and final accounting on September 20, 2001,
that no creditor of the estate had objected to the tableau or final accounting, that all
ancillary litigation had been concluded, that all property to be sold had been sold,
and that more than three months had passed since the decedent’s death. The trial
court signed a judgment on December 4, 2003, ordering that the tableau of
distribution be approved and homologated and that distribution of funds in the
hands of the succession representative be made to creditors as scheduled therein.
On December 9, 2003, Joan filed a petition to conclude administration and
be placed in possession. The petition stated that the decedent bequeathed the
disposable portion of his property to Joan, and since neither of his children were
' In later pleadings filed in this suit, Joan Carmela Cogliandro stated that she has changed her name to Peyton
Carmela Cogliandro or Peyton Polk.
forced heirs because they were over the age of twenty four at the time of his death,
the disposable portion of his estate was the entire estate. The trial court signed the
judgment of possession on December 9, 2003, recognizing Joan as decedent’s
surviving spouse in community. Joan was recognized as the owner and placed in
possession of her undivided one-half interest in the community of acquets and
gains. She was also recognized as the sole legatee and owner and placed in
possession of decedent’s undivided one-half interest in the community of acquets
and gains.
On May 7, 2020, almost seventeen years after the judgment of possession
was signed, Peyton filed a Petition to Reopen Succession and to Set Aside the
Judgment of Possession. In this petition, Peyton challenges the allegation in the
December 9, 2003 petition to conclude administration and be placed in possession
that the decedent’s entire estate was the disposable portion since Peyton and
Candice were not forced heirs. According to Peyton’s May 7, 2020 petition, the
trial court should have considered the decedent’s intent in drafting the will. Peyton
suggests that the decedent’s intent was “most probably” to leave his daughters
“something” and that he may not have understood that the use of the terms “forced
portion” and “disposable portion” in the will would result in his daughters not
receiving anything if they were not forced heirs at the time of his death.
Joan filed a peremptory exception raising the objection of prescription. Joan
argued that Peyton’s claim was essentially an attack on a judgment of possession to
assert the legitime, which was subject to a five-year prescriptive period under La.
C.C. art. 3497. Peyton opposed the exception, admitting the validity of the will,
but arguing that her claim that the will was improperly interpreted and applied was
subject to the thirty-year prescriptive period set forth in La. C.C. art. 3502 for the
recognition of a right of inheritance.
Go
The trial court sustained the exception of prescription and dismissed
Peyton’s suit with prejudice, and this appeal followed.
DISCUSSION
On appeal, Peyton argues that the trial court erred in sustaining the
exception because “the judge failed to take into account all of the facts in the case,
and in particular as to when the will was written and time elements that ensued
since then.” Peyton argues that the applicable prescriptive period is provided by
La. C.C. art. 3502, which states that “[a]n action for the recognition of a right of
inheritance and recovery of the whole or a part of a succession is subject to a
liberative prescription of thirty years . . . from the day of the opening of the
succession.”
The rules of prescription are designed to prevent old and stale claims from
being prosecuted. Wells v. Zadeck, 11-1232, p. 7 (La. 3/30/12), 89 So.3d 1145,
1149. Although evidence may be introduced to Support or controvert the exception,
where, as here, no evidence is introduced, an exception of prescription must be
decided upon the facts alleged in the petition with all allegations accepted as true.
La. C.C.P. art. 931; Wells, 11-1232 at p. 7, 89 So.3d at 1149-50.
A judgment sustaining an exception of prescription is generally reviewed de
novo because the exception raises a legal question. Quatrevingt v. State through
Landry, 17-0884, p. 6 (La.App. 1 Cir. 2/8/18), 242 So.3d 625, 631.
Louisiana Civil Code article 1503 provides that a donation mortis causa that
impinges upon the legitime of a forced heir is not null, but rather is merely
reducible to the extent necessary to eliminate the impingement. When a testator
disposes of his entire estate to the prejudice of a forced heir, the donation mortis
? The January 27, 2021 judgment signed by the trial court, from which this appeal was taken, was deficient in that it
did not comply with the requirements of La. C.C.P. art. 1918(A) that a judgment contain a paragraph with decretal
language identifying the name of the party in whose favor relief is awarded and the name of the party against whom
the relief is awarded. This court issued an Interim Order on March 9, 2022, remanding this matter to the trial court
for the limited purpose of instructing the trial court to sign an amended judgment pursuant to La. C.C.P. art. 1951
that corrects the deficiencies. An amended judgment containing proper decretal language was signed by the trial
court on March 28, 2022.
causa is subject to an action by the forced heir for reduction of the donation and for
recovery of the legitime. In re Succession of Scurlock, 13-960, p. 6 (La.App. 5 Cir.
4/23/14), 140 So.3d 318, 321-22; Kilpatrick v. Kilpatrick, 625 So.2d 222, 225
(La.App. 2 Cir. 9/22/93), writ denied, 631 So.2d 445 (La. 1994). Where the
plaintiff makes no attack on the validity of the will and seeks only to recover his
legitime, such an action can only be construed as one for reduction of an excessive
donation. Scurlock, 13-960 at pp. 6-7, 140 So.3d at 322; Kilpatrick, 625 So.2d at
225.
In this matter, Peyton makes no attack on the validity of the will. She also
does not allege that she is a forced heir entitled to a legitime. Rather, she seeks to
reduce the donation mortis causa made to Joan, based on her belief that her father
intended to leave her the forced portion even if she was not a forced heir at the
time of his death. No matter how styled, her petition is one for reduction of an
excessive donation. See Scurlock, 13-960 at pp. 6-7, 140 So.3d at 322; Kilpatrick,
625 So.2d at 225; see also Armstrong v. ARCCO Company Services, Inc., 21-0131,
p. 9 (La.App. 1 Cir. 10/18/21), 331 So.3d 939, 945 (“The caption of a pleading
does not control. Rather, courts are obligated to look through the caption of
pleadings in order to ascertain their substance.”)
Louisiana Civil Code article 3497 provides that an action for the reduction
of an excessive donation is subject to a liberative prescription of five years. A
cause of action to reduce an excessive donation arises when the will is probated,
and the five-year prescriptive period begins to run at that time. Scurlock, 13-960 at
p. 7, 140 So.3d at 322. In this matter, the will was probated on June 10, 1997.
Peyton did not file her petition to reopen the succession, seeking reduction of an
excessive donation, until almost twenty-three years later, on May 7, 2020. Clearly,
the five-year prescriptive period expired, and the trial court did not err in
dismissing Peyton’s petition.
CONCLUSION
The March 28, 2022 amended judgment sustaining the peremptory exception
of prescription and dismissing Peyton Polk’s petition with prejudice is affirmed.
All costs of this appeal are assessed to Peyton Polk.
AFFIRMED.