Williams v. Succession of Williams , 1988 La. App. LEXIS 1524 ( 1988 )

WATKINS, Judge.

This is an appeal brought by the Succession of George Williams, plaintiff-in-recon-vention, from a judgment rendered on motion for summary judgment filed by the said succession. The summary judgment orders Leroy Williams, agent (mandatary) of the late George Williams, to render an accounting of his management, but only for the period beginning ten years before the death of George Williams on March 28, 1982. On appeal, the succession contends that the judgment rendered should require an accounting from the inception of the principal-agency relationship until its termination. Leroy Williams answered the appeal, but his counsel admits the answer to appeal was filed too late. We amend and affirm the judgment of the trial court as amended.

The sole issue on this appeal is whether the trial court erred in limiting the accounting by the agent to the period beginning ten years prior to the death of the principal.

The duty of an agent to account is governed by LSA-C.C. art. 3004, which reads as follows:

He is obliged to render an account of his management, unless this obligation has been expressly dispensed with in his favor.

Annexed to the motion for summary judgment is a copy of the power of attorney dated July 18, 1968, executed by George Williams, Clora Williams Grace, Leon Williams, and Leroy Williams. This instrument is in authentic form, names and appoints Leroy Williams as the agent of George Williams and does not dispense with the obligation of the agent to account.

Thus, under the express provisions of the codal article, Leroy Williams, the agent, is required to render an accounting. However, in the reasons for judgment the trial court found that under the provisions of LSA-C.C. art. 3499 the duty to render an accounting is in effect prescribed as to matters occurring more than ten years before the death of George Williams, presumably the date of the termination of the principal-agency contract. In the reasons for judgment the trial court noted that the agent did not file a pleading raising the objection of prescription. Under the provisions of LSA-C.C.P. art. 927 the court cannot supply the objection of prescription, consequently the court erred in placing a ten year limit on the period for which the agent is ordered to account.

Accordingly, the judgment of the trial court is amended to require Leroy Williams to account to the Succession of George Williams for the administration of the mandate formerly held by Leroy Williams during its entire existence, without limit as to time and, as thus amended, affirmed. All costs of this appeal to be paid by Leroy Williams.

AMENDED AND, AS AMENDED, AFFIRMED.