Successions of Joyce Faye Millet a/k/a Joyce Leblanc Millet, wife of/and Leonce Joseph Millet, Jr.

STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
r
U
2022 CA 0863
SUCCESSIONS OF JOYCE FAYE MILLET A/ K/ A
JOYCE LEBLANC MILLET, WIFE OF/ AND
LEONCE JOSEPH MILLET, JR.
consolidated with
2022 CA 0864
JILL MILLET
VERSUS
ECONOMY BRICK SALES, INC.
Judgment Rendered: JUL 0 5 2023
On Appeal from the Twenty -Third Judicial District Court
In and for the Parish of Ascension
State of Louisiana
Docket No. 18543 c/ w 126239
Honorable Jason Verdigets, Judge Presiding
Barbara Irwin Counsel for Plaintiff/ Appellant
Timothy E. Pujol Jill Millet
Ashley D. Tadda
Gonzales, Louisiana
Courtney C. Miller Counsel for Defendants/ Appellees
Robin B. Cheatham Dean J. Millet, Michelle Millet DePierri and
Richard B. Eason, II Economy Brick Sales, Inc.
New Orleans, Louisiana
BEFORE: McCLENDON, WELCH, CHUTZ, HESTER, AND GREENE, 33.
McCLENDON, 3.
In this succession proceeding and consolidated suit for breach of a lease
agreement, the plaintiff, one of the decedents' daughters, appeals the trial court's
judgment that granted summary judgment in favor of the defendants, denied her cross
motion for summary judgment, and dismissed her claims with prejudice. For the reasons
that follow, we reverse, render, and remand.
FACTS AND PROCEDURAL HISTORY
The pertinent facts in this matter are largely undisputed. On January 2, 2004,
Leonce J. Millet, Jr. and his wife, Joyce LeBlanc Millet, entered into a Lease Agreement,
as lessors, with Economy Brick Sales, Inc. ( Economy Brick), as the lessee, regarding
certain immovable property ( the immovable property) located in Ascension Parish,
Louisiana. The Lease Agreement was signed by both lessors and by Dean Millet and
Michelle Millet DePierri in their capacities as President and Secretary -Treasurer,
respectively, of Economy Brick. Leonce and Joyce were the original owners of Economy
Brick, but before the execution of the lease, they had donated all of the shares of the
capital stock in Economy Brick to two of their children, Dean and Michelle. The rental
payments from Economy Brick were designed to be retirement benefits for Leonce and
Joyce. The lease, recorded in the conveyance records of Ascension Parish, set forth a
monthly rental payment of $7, 000. 00 for a term of fifty years. The Lease Agreement also
provided that the term of the lease was to " be reduced to the remainder of twenty ( 20)
years commencing upon the deaths of both Lessors" at which time the monthly rental
was to be paid, as follows:
Upon the occurrence of the death of both Lessors, the monthly rental will
be reduced to 1. 30% of the monthly sales not to exceed a maximum
monthly Installment of $4,000. 00 payable in equal monthly installments to
Ronda] Millet Matthews, Aleta Millet Morgan, Jill Millet and Paula Millet
LeBlanc on the first day of each month.
Joyce died testate on February 27, 2013. In her January 27, 2009 Last Will and
Testament, Joyce bequeathed to Leonce, inter alia, all of her right, title and interest in
and to the immovable property. After Joyce' s death, Leonce executed his Last Will and
Testament on August 22, 2013. Therein, various bequests were made to their children,
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Dean J. Millet, Michelle Millet DePierri, Ronda Millet Matthews, Aleta Millet, Jill Millet, and
Paula Millet LeBlanc.
Leonce died on June 11, 2018. Among his bequests in his Last Will and Testament,
Leonce bequeathed to Dean and Michelle all of his right, title, and interest in and to the
immovable property. Article II of the testament also acknowledged that the immovable
property was subject to the Lease Agreement and provided, in pertinent part:
I further transfer, convey, and assign to [ Dean and Michelle] all of my rights
and obligations in, to, and under said Lease, including but not limited to the
power to amend or terminate said Lease on behalf of the Lessor. It is my
desire and I hereby instruct [ Dean and Michelle] to consider termination of
said Lease upon my death.
Subsequent to the death of Leonce, Dean and Michelle filed a Petition to Open
Successions, Probate Wills and for Appointment of Independent Co -Executors and were
appointed co- executors for the Successions of Joyce Faye Millet a/ k/ a Joyce LeBlanc
Millet, wife of/ and Leonce Joseph Millet, Jr., Docket No. 18543, in the 23rd Judicial District
Court for the Parish of Ascension ( the succession proceeding). On October 16, 2018, Jill
made a formal proof of claim in the succession proceeding, directed to the co- executors,
contending that lease payments were owed to her under the Lease Agreement.' The co-
executors rejected Jill' s claim.
On July 25, 2019, Jill filed a Petition for Judicial Enforcement of Claim in the
succession proceeding, seeking to enforce the terms of the Lease Agreement and to
obtain lease payments owed to her. Shortly thereafter, on July 29, 2019, Jill filed a
Petition of Breach of Contract and Damages in a separate lawsuit against Economy Brick
and Dean. Subsequently, the second suit was consolidated with the succession
proceeding.
Meanwhile, on June 26, 2019, the trial court signed a Judgment of Partial
Possession in the succession proceeding, and Dean and Michelle were placed in
possession and recognized as the owners of the immovable property. Thereafter, on
August 9, 2019, Dean and Michelle, as the lessor, and Economy Brick, represented by
Dean, as the lessee, agreed to terminate the lease and executed an Act of Cancellation
I Louisiana Civil Code article 1981 provides, in pertinent part, that the " stipulation gives the third party
beneficiary the right to demand performance from the promisor."
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of Lease Agreement. The parties to the Act of Cancellation stated that the effective date
of the cancellation was June 12, 2018, and that, as of the effective date, " the Lease and
any and all underlying rights, duties, and obligations under the Lease have been
terminated, and shall no longer have any force and effect" and that the " Lessor and
Lessee further waive, renounce, relinquish and release any and all rights and privileges
under the Lease or any other underlying lease agreements as of the Effective Date.' n
On March 23, 2020, Dean and Michelle, in their capacity as defendant co- executors
in the succession proceeding, and Economy Brick and Dean, as defendants in the breach
of contract suit, filed a motion for summary judgment, seeking to dismiss all of Jill' s claims
against them. After a hearing, the trial court granted the motion for summary judgment
and dismissed all of Jill' s claims in both the succession proceeding and the suit for breach
of contract. Jill appealed that decision to this Court. Another panel of this Court
determined that the trial court erred in considering documents attached to the
defendants' reply memorandum. As a result, and after considering only the valid
summary judgment evidence submitted by the defendants, this Court found the summary
judgment improper, reversed the trial court's judgment, and remanded the matter for
further proceedings. See Successions of Millet, 2021- 0355 ( La. App. 1 Cir. 12/ 22/ 21),
340 So. 3d 252.
Thereafter, on February 7, 2022, Dean and Michelle, in their capacity as co-
executors in the succession proceeding, as well as Economy Brick and Dean, filed another
motion for summary judgment, seeking dismissal of all of Jill' s claims in both lawsuits.
According to the defendants, Leonce expressed his clear intent in his Last Will and
Testament that upon his death the immovable property would be transferred to Dean
and Michelle and the lease would be terminated. Further, the defendants argued that
the expressed intent by Leonce in his Last Will and Testament to terminate the lease and
the subsequent termination of the lease on August 9, 2019, extinguished any rights that
Jill had as a third -party beneficiary. According to the defendants, the rights of any third -
party beneficiary were revoked in accordance with LSA-C. C. art. 1979, when Leonce
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Any corporate resolutions of Economy Brick for the Act of Cancellation, which may or may not exist, have
not been made a part of the record on the motions for summary judgment.
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drafted his Last Will and Testament on August 22, 2013, five years before Jill attempted
to manifest her intention to avail herself of the benefit.3
On March 21, 2022, Jill filed a cross motion for summary judgment, seeking
enforcement of the Lease Agreement. Jill asserted that no authority existed for the
termination of the lease and specifically alleged that Leonce' s Last Will and Testament
did not terminate the Lease Agreement. Therefore, Jill argued, pursuant to the specific
and unequivocal terms of the Lease Agreement, as of July 1, 2018, she was entitled to
receive, as a third -party beneficiary, certain rental payments from Economy Brick for a
term of twenty years.
After a hearing on May 2, 2022, the trial court granted the motion for summary
judgment filed by Dean and Michelle, in their capacity as co- executors in the succession
proceeding, and by Economy Brick and Dean in the breach of contract suit. Additionally,
the trial court denied Jill' s cross motion for summary judgment. The trial court signed a
judgment on May 17, 2022, in accordance with its ruling and dismissed all of Jill' s claims
with prejudice. Jill appealed, assigning as error the granting of the summary judgment
that dismissed her claims and the denial of her cross motion for summary judgment.4
DISCUSSION
A motion for summary judgment is a procedural device used to avoid a full- scale
trial when there is no genuine issue of material fact. Georgia- Pacific Consumer
Operations, LLC v. City of Baton Rouge, 2017- 1553 ( La. App. 1 Cir. 7/ 18/ 18), 255
So. 3d 16, 21, writ denied, 2018- 1397 ( La. 12/ 3/ 18), 257 So. 3d 194. It is reviewed on
appeal de novo, with the appellate court using the same criteria that govern the trial
court's determination of whether summary judgment is appropriate; i. e., whether there
is any genuine issue of material fact, and whether the movant is entitled to judgment as
3 Louisiana Code of Civil Procedure article 1979 provides, in pertinent part, that a " stipulation may be
revoked only by the stipulator and only before the third party has manifested his intention of availing
himself of the benefit."
4 The denial of a motion for summary judgment is an interlocutory judgment and is appealable oniy when
expressly provided by law. Where there are cross motions for summary judgment raising the same issues,
however, this Court can review the denial of a summary judgment in addressing the appeal of the grant of
the cross motion for summary judgment. Huggins v. Amtrust Insurance Company of Kansas, Inc.,
2020- 0516 ( I_a. App. 1 Cir. 12/ 30/ 20), 319 So. 3d 362, 365. Thus, we review the denial of Jill' s cross motion
for summary judgment in conjunction with her appeal of the grant of the defendants' motion for summary
judgment.
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a matter of law. Maggio v. Parker, 2017- 1112 ( La. 6/ 27/ 18), 250 So. 3d 874, 878. In
ruling on a motion for summary judgment, the trial court's role is not to evaluate the
weight of the evidence or to determine the truth of the matter, but instead to determine
whether there is a genuine issue of triable fact. Id.The Code of Civil Procedure places the burden of proof on the party filing a motion
for summary judgment. See LSA- C. C. P. art. 966( D)( 1). The mover can meet his burden
by filing supporting documentary evidence consisting of pleadings, memoranda,
affidavits, depositions, answers to interrogatories, certified medical records, written
stipulations, and admissions with his motion for summary judgment. See LSA- C. C. P. art.
966( A)( 4).
After an opportunity for adequate discovery, a motion for summary judgment shall
be granted if the motion, memorandum, and supporting documents show there is no
genuine issue as to material fact and that the mover is entitled to judgment as a matter
of law. LSA- C. C. P. art. 966( A)( 3). A fact is material if it potentially ensures or precludes
recovery, affects a litigant's ultimate success, or determines the outcome of the legal
dispute. A genuine issue is one as to which reasonable persons could disagree; if
reasonable persons could reach only one conclusion, there is no need for a trial on that
issue and summary judgment is appropriate. Maggio, 250 So. 3d at 878. Where the
facts are undisputed and the matter presents a purely legal question, summary judgment
is appropriate. Leisure Recreation & Entertainment, Inc. v. First Guaranty Bank,
2021- 00838 ( La. 3/ 25/ 22), 339 So. 3d 508, 517.
In support of their motion for summary judgment, the defendants submitted a
copy of the Lease Agreement; Dean' s affidavit, with exhibits; Michelle' s affidavit, with
exhibits; the affidavit of Robin Cheatham, with exhibits; the Last Will and Testament of
Leonce; the Petition for Partial Possession; the Judgment of Partial Possession; the Act
of Cancellation of the Lease Agreement; Jill' s affidavit; and excerpts from Jill' s deposition.
In support of her cross motion for summary judgment and in opposition to the
defendant's motion for summary judgment, Jill offered her affidavit, with exhibits;
excerpts from her deposition; excerpts from Dean' s deposition, with exhibits; and
excerpts from Michelle' s deposition. In granting summary judgment in favor of the
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defendants and in denying Jill' s cross motion for summary judgment, the trial court did
not give any oral or written reasons for its ruling.
On appeal, Jill maintains that neither the terms of the Lease Agreement, nor any
statutory law, provided any authority for Dean and Michelle to unilaterally terminate the
lease and that the trial court legally erred in finding that Dean and Michelle had such
authority. Jill further suggests that the trial court erred in finding that Leonce' s Last Will
and Testament gave Dean and Michelle the right to unilaterally and without cause
terminate the lease. She avers that the plain reading of the Last Will and Testament does
not terminate the Lease Agreement, that Leonce himself did not have the right to
terminate the lease under Louisiana law, and, therefore, Leonce was unable and did not
transfer any right to terminate the Lease Agreement upon his death. Jill argues that
whether Leonce " intended" to terminate the lease is of no moment in light of the language
of his Last Will and Testament.
The intent of the testator is the paramount consideration in interpreting the
provisions of a will. See LSA-C. C. art. 1611( A). The function of the court is to determine
and carry out the intention of the testator if it can be ascertained from the language of
the will. In re Succession of Templet, 2007- 0067 ( La.App. 1 Cir. 11/ 2/ 07), 977 So. 2d
983, 986, writ denied. 2007- 2329 ( Ira. 2/ 1/ 08), 976 So. 2d 720. Interpretation of a will is
a question of law that this Court reviews on appeal to determine whether the trial court
was legally correct. Matter of Succession of Panaro, 2017- 1647 ( La. App. 1 Cir.
8/ 9/ 18), 2018 WL 3826152, * 2 ( unpublished).
Precatory expressions are words requesting or praying that a thing be done. The
law is clear that a testator's mere wishes and requests are viewed as precatory
suggestions, which are not binding in law. Succession of Achee, 2016- 0716 ( La. App.
1 Cir. 8/ 16/ 17), 229 So. 3d 5, 9. However, the determination of testamentary intent does
not rest solely on the testator's choice to use the words " would like," " want to," or
wish." There is no fixed rule that the use of particular words should be interpreted as
precatory suggestions rather than as dispositions of property. See In re Succession of
White, 2006- 1002 ( La.App. 1 Cir. 5/ 4/ 07), 961 So. 2d 439, 442. Rather, the entire
document must be read as a whole to determine whether the expression was intended
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to be merely precatory or was intended by the testator to actually dispose of the
property. Succession of Achee, 229 So. 3d at 9.
In this matter, in his last Will and Testament, Leonce transferred, conveyed, and
assigned to Dean and Michelle all of his " rights and obligations in, to, and under said
Lease, including but not limited to the power to amend or terminate said Lease on behalf
of the Lessor." Leonce further provided that it was his " desire" and he instructed Dean
and Michelle to " consider" termination of the Lease upon his death.
While LSA- C. C. art. 1611 provides that the intent of the testator controls the
interpretation of his testament, it also provides that "[ i] f the language of the testament
is clear, its letter is not to be disregarded under the pretext of pursuing its spirit," Leonce
could have specifically stated in his Last Will and Testament that the lease would
terminate upon his death, but he did not do so. He could have also instructed Dean and
Michelle to terminate the lease when he died, but he did not do so. Rather, it was his
desire" to instruct Dean and Michelle to ` consider" terminating the lease. Merriam -
Webster' s Dictionary and Thesaurus ( 2006) defines " desire" to mean " to long or hope
for" or " request." Additionally, " consider" is defined to mean " to reflect on; think about
with a degree of care or caution." Further, pursuant to the Last Will and Testament,
Dean and Michelle were given the authority to amend the Lease Agreement, terminate
it, or do nothing at all. The words used created uncertain situations and a variety of
possibilities. Thus, we find that the words used by Leonce created precatory suggestions
and are not binding. As such, based on our reading of the testament as a whole, we find
that the trial court was legally incorrect in determining that the testament terminated the
Lease Agreement. Instead, to give meaning to the words chosen by Leonce in his Last
Will and Testament, we find that the Lease Agreement was not terminated.
Nevertheless, after the Judgment of Partial Possession, Dean and Michelle
executed the Act of Cancellation in August of 2019. Jill argues that neither Leonce, nor
Dean and Michelle, had the right to terminate the Lease Agreement as it is for a fixed,
determinable term, and neither party reserved the right to terminate in the Lease
Agreement.
Louisiana Civil Code article 2678 provides that a lease shall be for a term and that
its duration may be agreed to by the parties or supplied by law. Article 2678 further
provides that "[ t] he term may be fixed or indeterminate. It is fixed when the parties
agree that the lease will terminate at a designated date or upon the occurrence of a
designated event. It is indeterminate in all other cases." A lease with a fixed term
terminates upon the expiration of that term, without need of notice, unless the lease is
reconducted or extended. LSA- C. C. art. 2720. A lease does not terminate by the death
of the lessor or the lessee or by the cessation of existence of a juridical person that is
party to the lease. LSA- C. C. art. 2717. Moreover, a lease in which one or both parties
have reserved the right to terminate the lease before the end of the term may be so
terminated by giving the notice specified in the lease contract or the notice provided in
Articles 2727 through 2729, whichever period is longer. The right to receive this notice
may not be renounced in advance. LSA- C. C. art. 2718. Further, contracts have the effect
of law for the parties and may be dissolved only through the consent of the parties or on
grounds provided by law. LSA -GC. art. 1983.
In this matter, the Lease Agreement contains a fixed term and provides for
termination only at the expiration of the term or upon default by the Lessee. The Lease
Agreement does not contain a reservation of the right to terminate the lease before the
end of the term. Nevertheless, Dean and Michelle, as lessors, and Economy Brick, as
lessee, could certainly terminate the lease by the mutual consent of all parties. This right,
however, was subject to any third -party beneficiary rights of ] ill. Therefore, we must
address whether the language of Leonce' s Last Will and Testament, although insufficient
to terminate the Lease Agreement, was sufficient to demonstrate a revocation of the
third -party benefit.
Louisiana Civil Code article 1978 provides that a " contracting party may stipulate
a benefit for a third person called a third -party beneficiary. Once the third party has
manifested his intention to avail himself of the benefit, the parties may not dissolve the
contract by mutual consent without the beneficiary' s agreement." Further, the
stipulation may be revoked only by the stipulator and only before the third parry has
manifested his intention of availing himself of the benefit." LSA- C. C. art. 1979.
In Louisiana, such a contract for the benefit of a third -party is called a " stipulation
pour autrui." Maggio, 250 So. 3d at 880. A stipulation pour autrui is never
presumed. Id. The party claiming the benefit of a stipulation pour autrui bears the
burden of proof. See Joseph v. Hospital Service District No. 2 of Parish of St.
Mary, 2005- 2364 ( La. 10/ 15/ 06), 939 So. 2d 1206, 1212. The Louisiana Civil Code
recognizes that a third -party beneficiary contract can exist, but provides few governing
rules. See LSA- C. C. arts. 1978- 1982; Joseph, 939 So. 2d at 1211. The code provides no
analytic framework for determining whether a third -party beneficiary contract exists.
Thus, the code has left to the jurisprudence the obligation to develop the analysis to
determine when a third -party beneficiary contract exists on a case by case basis. Each
contract must be evaluated on its own terms and conditions in order to determine if the
contract stipulates a benefit for a third person. Joseph, 939 So. 2d at 1211- 12.
The criteria for determining whether contracting parties have provided a benefit
for a third -party are: 1) the stipulation is manifestly clear; 2) there is certainty as to the
benefit provided to the third -party; and 3) the benefit is not a mere incident of the
contract between the promisor and the promisee. Maggio, 250 So. 3d at 880. In short,
the most basic requirement of a stipulation pour autrui is that the contract manifest a
clear intention to benefit the third -party; absent such a clear manifestation, a party
claiming to be a third -party beneficiary cannot meet his burden of proof. Id.In this matter, it is clear that the language of the Lease Agreement created a
stipulation pour autrui in favor of Jill. However, we must determine whether Leonce
revoked the stipulation in favor of Jill during his lifetime. See LSA- C. C. art. 1979 (" The
stipulation may be revoked only by the stipulator.'. The only summary judgment
evidence in the record that could possibly demonstrate a revocation of the stipulation
before Leonce' s death is his Last Will and Testament, dated August 22, 2013. If the
language in the Last Will and Testament was sufficient to revoke the stipulation pour
autrui, Jill' s manifestation of her intent to avail herself of the stipulated benefits must
have occurred prior to Leonce' s execution of his testament. Further, because the right
to revoke the third -party stipulation was a right personal to Leonce, there can be no
revocation after his death. See LSA- C. C. art. 1979. Therefore, if Leone's Last Will and
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Testament was insufficient to evince a revocation of the stipulation, Jill' s formal proof of
claim on October 16, 2018, prior to the termination of the lease, clearly manifested her
intention to avail herself of the stipulated benefits.
As previously stated, Article II of Leonce' s Last Will and Testament provided that
he transferred, conveyed, and assigned to Dean and Michelle all of his rights and
obligations in, to, and under the Lease Agreement, including but not limited to the power
to amend or terminate the lease on behalf of the lessor. The Last Will and Testament
then stated: " It is my desire and I hereby instruct [ Dean and Michelle] to consider
termination of said Lease upon my death." The defendants maintain that this language
revoked the third -party rights of Jill on August 22, 2013, when Leonce executed the Last
Will and Testament, five years before Jill asserted her alleged rights to rental payments
after Leonce' s death on June 11, 2018.
To the contrary, Jill asserts that this language is insufficient to establish a
revocation. We agree. Leonce acknowledged that the immovable property was subject
to the Lease Agreement; however, the Last Will and Testament does not refer to the
third -party stipulation set forth in the Lease Agreement. Leonce could have specifically
revoked or stated that he wished to revoke the third -party stipulation. Further, he could
have stated that the lease would terminate at his death. Rather, he chose not to mention
the third -party stipulation at all or to state that the lease was terminated. Because
Leonce' s Last Will and Testament did not terminate the Lease Agreement, and because
the words used by Leonce did not show a clear intent to revoke the benefit, we are unable
to say that the language used in Leonce' s Last Will and Testament provided for a
revocation of the stipulation pourautri. Therefore, we find that the language of Leonce' s
Last Will and Testament was not only insufficient to terminate the Lease Agreement, but
also insufficient to revoke the third -party stipulation in the Lease Agreement.
Consequently, if Jill manifested her intent to avail herself of the stipulated benefits
in the Lease Agreement, pursuant to LSA- C. C. arts. 1978, the defendants may not
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dissolve said contract without her consent.' 5ee New Orleans Opera Association,
Inc. v. Southern Regional Opera Endowment Fund, 2007- 1373 ( La.App. 4 Cir.
8/ 27/ 08), 993 So. 2d 791, 798, writ denied, 2008- 2352 ( La. 11/ 21/ 08), 996 So. 2d 1114.
Jill presented evidence that she had conversations with her father about the Lease
Agreement, but could not remember specific dates. 15 However, we need not consider
these conversations, or the timing of same, having found that Leonce' s Last Will and
Testament did not revoke the stipulation and that Jill manifested her intent prior to the
cancellation of the lease.?
Therefore, because Leonce's Last Will and Testament neither terminated the Lease
Agreement, nor demonstrated a revocation of the third -party beneficiary stipulation, and
because Jill manifested her intention to avail herself of the third -party stipulation before
the cancellation of the lease, we find that the Lease Agreement contains a valid stipulation
pour aufri, entitling Jill to its third -party benefits. Given that we have found Jill to be a
third -party beneficiary, and given that the Lease Agreement cannot be dissolved without
her consent as beneficiary, we find that the trial court erred in granting summary
judgment in favor of the defendants and in in denying Jill' s motion for summary
judgment.$ Accordingly, we grant summary judgment in favor of Jill and remand the
matter to the trial court for a determination of the amount of the third -party benefits that
are due and owing to Jill.
5 See also the Revision Comments - 1984, Comment ( b), to LSA-C. C. art. 1979, which provides:
Under revised C. C. Art. 1978 ( Rev. 1984), ...
the parties may not dissolve the contract after
the third party has made known his intention to avail himself of the stipulation in his favor
which it contains. Under this Article, that stipulation itself also may not be revoked once
the beneficiary has manifested his intention to avail himself of it, even if the contract could
survive without it.
6 .]
ill maintains that she manifested her intention directly to Leonce before his death, after his death, and
well before the termination of the lease. Jill refers to her interrogatory responses in which she stated that
she " had conversations with [ Leonce] prior to his death wherein he indicated that the lease agreement
would pay out to her after his death. The exact date( s) of these conversations is not known." In her
deposition, Jill testified that her father told her that she would receive payments from Economy Brick. When
asked when that conversation occurred, Jill could not remember other than it was a "[ I] ong time ago."
The Revision Comments -1984, Comment ( b) to Article 1978 state that " the beneficiary's intention to
accept the benefit may be made known in any manner, even implied. The filing of suit is sufficient
expression of such an intention." The filing of the Petition for Enforcement of Claim on July 15, 2019, in
the succession proceeding, and the filing of the Petition for Breach of Contract in the separate lawsuit on
July 29, 2019, also manifested Jill' s intent to avail herself of the stipulated benefits.
s However, we recognize that pursuant to LSA- C.C. art. 1982 "[ t] he promisor may raise against the
beneficiary such defenses based on the contract as he may have raised against the stipulator."
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CONCLUSION
For the above reasons, we reverse the trial court's judgment that granted summary
judgment in favor of the defendants, Dean J. Millet, Michelle Millet DePierri, and Economy
Brick, and denied the motion for summary judgment filed by Jill Millet. We render
summary judgment in favor of Jill Millet, finding her to be a third -party beneficiary of the
Lease Agreement, and remand the matter for proceedings consistent with this opinion.
Costs of this appeal are assessed equally between the defendants, Dean J. Millet and
Michelle Millet DePierri, in their capacity as co- executors in the succession proceeding,
and the defendant, Economy Brick, in the breach of contract suit.
REVERSED, RENDERED, AND REMANDED.
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