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SELENA SCIFO                                                                   *   NO. 2010-CA-1219
FORNERETTE,
INDIVIDUALLY AND AS                                                            *
EXECUTRIX OF THE                                                                   COURT OF APPEAL
SUCCESSION OF                                                                  *
MARGUERITE SCIFO GRAFF,                                                            FOURTH CIRCUIT
AND RANDY SCIFO                                                                *
STATE OF LOUISIANA
VERSUS                                                                         *
KENNETH V. WARD AND
ROSEMARY E. WARD
APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2007-15311, DIVISION “L-6”
Honorable Kern A. Reese, Judge
Judge Terri F. Love
(Court composed of Judge Dennis R. Bagneris, Sr., Judge Terri F. Love, Judge
Max N. Tobias, Jr.)
Robert H. Matthews
Pauline M. Warriner
MATTHEWS & WARRINER, L.L.C.
830 Union Street
4th Floor
New Orleans, LA 70112
COUNSEL FOR SELENA SCIFO FORNERETTE,
INDIVIDUALLY AND AS EXECUTRIX OF THE SUCCESSION OF
MARGUERITE SCIFO GRAFF, & RANDY SCIFO
Vallerie Oxner
3500 North Hullen Street
Suite 17-A
Metairie, LA 70002
COUNSEL FOR KENNETH V. WARD & ROSEMARY E. WARD
AFFIRMED
May 11, 2011




This appeal arises from a dispute regarding the actions of an executrix and
an attorney for the executrix of a succession.    The trial court found that the
attorney  for  the  succession  charged                                                $24,500  in  excessive  fees  and  ordered
repayment.   The trial court also dismissed a reconventional demand filed by the
executrix seeking her commission.   We find that the trial court did not err in
finding  that  the  attorney  charged  excessive  fees  after  weighing  conflicting
testimony and affirm.   We also find that the trial court correctly dismissed the
executrix’s reconventional demand due to its finding that the executrix  “acted
imprudently regarding certain succession property” and affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Marguerite  Scifo  Graff                                                               (“Decedent”)  died  on  August               27,   2006.    The
Decedent’s last will and testament appointed Kenneth Ward as the attorney for the
Succession  and  the  executrix,  and  appointed  his  wife,  Rosemary  E.  Ward
(collectively referred to as the “Wards”), as the executrix of the Succession.   Mr.
Ward filed pleadings to open the Succession in the Twenty-Fourth Judicial District
for the Parish of Jefferson  (“24th JDC”).    The sworn descriptive list  (“List”)
documented $309,632.13 in cash assets, but failed to include immovable property
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the Decedent co-owned with one of her grand-nephews and thirty-five bags of
jewelry in Mrs. Ward’s possession.   Mr. Ward took no action to pay the mortgage
on the immovable property and it was foreclosed upon.
Mr. Ward filed a judgment of possession, which awarded $126,946 to each
of the residuary legatees, Selena Scifo Fornerette and Randy Scifo (collectively
referred to as the                                                                                                       “Residuary Legatees”).    However, Mr. Ward later filed an
amended judgment of possession, which sought to withhold the money from the
Residuary  Legatees,  and  alleged  that  the  Succession  may  become  liable  to
Countrywide Home Loans, Inc. in the foreclosure proceedings.   Then, Mrs. Ward,
as the executrix of the Succession, petitioned for permission to pay Mr. Ward an
additional $37,000 in attorney’s fees1 for over 150 hours of alleged work on the
Succession.  After Mr. Ward was awarded payment, the Residuary Legatees filed a
motion to remove executrix and for accounting.2   Mrs. Ward was removed3 and
Ms. Fornerette was appointed as the new executrix, whereupon she fired Mr.
Ward.
The Residuary Legatees then filed a petition for damages in Orleans Parish
against the Wards alleging that Mr. Ward’s actions fell below the standard of care
of attorneys practicing in the community.  The petition also alleged that Mrs. Ward
paid excessive legal fees to the Succession attorney and breached her duty to the
heirs and legatees to the Decedent’s estate.    The Wards filed an exception of
1 Mr. Ward previously received $2,500 in attorney’s fees.
2 The motion to remove executrix and for accounting alleged that Mrs. Ward “failed to account for assets of the
estate,” “failed to include assets in the Descriptive List,” took “possession of and exercised control over succession
properties prior to the conclusion of the administration of” the succession, “failed to preserve and manage assets of
the succession,”  “obtained a judgment of possession improperly,”  “paid her husband excessive legal fees as her
attorney out of funds which were withheld in a judgment and an amended judgment of possession,” and “otherwise
breached her fiduciary duties to the heirs and legatees in the above respects, all independently and in contravention
of the provisions of LSA-C.C.P. Art. 3182.”   Further, the motion alleged that Mrs. Ward, through Mr. Ward was
“unresponsive to repeated requests for information concerning the decedent’s accounts and other properties” and
“stated to certain heirs and legatees on more than one occasion that they will use the remaining succession assets if
anyone attempts to challenge their actions or seek to remove her as executrix and her husband at [sic] attorney for
the succession.”
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prematurity because no action for a deficiency judgment was filed.   The Wards
filed an answer, which included a reconventional demand by Mrs. Ward seeking
the payment of an executrix commission.   Following a trial, the trial court awarded
the Residuary Legatees a judgment of  $24,500, plus interest from the date of
judicial demand.   The trial court also found that Mrs. Ward “acted imprudently
regarding certain succession property” and dismissed her reconventional demand
with prejudice.  The Wards filed a timely motion for a suspensive appeal.
The Wards assert that the trial court erred in not finding that the Residuary
Legatees’ petition was an impermissible collateral attack, by finding that Mr. Ward
charged an excessive amount of attorney’s fees, and by dismissing Mrs. Ward’s
reconventional demand.
STANDARD OF REVIEW
This Court may not set aside findings of fact of the trial court unless we find
that  the  findings  were  manifestly  erroneous  or  clearly  wrong.    Allerton  v.
Broussard, 10-2071, p. 3 (La. 12/10/10), 50 So. 3d 145, 147.   As the appellate
court, we “must review the record in its entirety and (1) find that a reasonable
factual basis does not exist for the finding, and (2) further determine that the record
establishes that the fact finder is clearly wrong or manifestly erroneous” in order to
reverse the trial court.  Id.  If the trial court’s findings were reasonable, no manifest
error exists.   Stobart v. State, through Dep’t of Transp. and Dev., 617 So. 2d 880,
882 (La. 1993).   “[R]easonable evaluations of credibility and reasonable inferences
of fact should not be disturbed upon review where conflict exists in the testimony.”
Id.
3  The  judgment  removing Mrs.  Ward  as  executrix is  not  contained  in the  record,  but  her  formal  removal  is
undisputed.
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“However, where one or more trial court legal errors interdict the fact-
finding process, the manifest error standard is no longer applicable.”   Evans v.
Lungrin, 97-0541, 97-0577 (La. 2/6/98), 708 So. 2d 731, 735.                                                          “[I]f the record is
otherwise complete, the appellate court should make its own independent de novo
review of the record and determine a preponderance of the evidence.”  Id.   “A legal
error occurs when a trial court applies incorrect principles of law and such errors
are prejudicial.”   Hamp’s Constr., L.L.C. v. Hous. Auth. of New Orleans, 10-0816,
p. 3 (La. App. 12/1/10), 52 So. 3d 970, 973.                                                                          “Legal errors are prejudicial when
they materially affect the outcome and deprive a party of substantial rights.”   South
East Auto Dealers Rental Ass’n, Inc. v. EZ Rent To Own, Inc., 07-0599, p. 5 (La.
App. 4 Cir. 2/27/08), 980 So. 2d 89, 93.
Legal questions are reviewed utilizing the  de novo standard of review.
Cherry v. Audubon Ins. Co., 09-1646, p. 4 (La. App. 4 Cir. 10/20/10), 51 So. 3d
109, 113.
COLLATERAL ATTACK
The  Wards  assert  that  the  petition  filed  by  the  Residuary  Legatees
constituted an impermissible collateral attack on the order in the 24th JDC, which
awarded Mr. Ward’s attorney’s fees.4                                                                                  “A collateral attack is defined as an attempt
to impeach a decree in a proceeding not instituted for the express purpose of
annulling it.”   Lowman v. Merrick, 06-0921, p. 10 (La. App. 1 Cir. 3/23/07), 960
So. 2d 84, 90.
Conversely, the Residuary Legatees contend that the claim of excessive
attorney’s fees must be included in the petition for damages due to the doctrine of
res judicata.                                                                                                         “A party shall assert all causes of action arising out of the transaction
4 The Wards did not file a declinatory exception asserting that the matter was not properly before the trial court.
Mrs. Ward did file a reconventional demand.
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or occurrence that is the subject matter of the litigation.”  La. C.C.P. art. 425.
Except as otherwise provided by law, a valid and final
judgment is conclusive between the same parties, except
on appeal or other direct review, to the following extent:
(1) If the judgment is in favor of the plaintiff, all causes
of action existing at the time of final judgment arising out
of the transaction or occurrence that is the subject matter
of  the  litigation  are  extinguished  and  merged  in  the
judgment.
(2) If the judgment is in favor of the defendant, all causes
of action existing at the time of final judgment arising out
of the transaction or occurrence that is the subject matter
of the litigation are extinguished and the judgment bars a
subsequent action on those causes of action.
(3) A judgment in favor of either the plaintiff or the
defendant  is  conclusive,  in  any  subsequent  action
between them, with respect to any issue actually litigated
and determined if its determination was essential to that
judgment.
La. R.S. 13:4231.
The Residuary Legatees allege in their petition that Mr. Ward committed
legal malpractice while handling the Succession, that he did not earn $39,500 in
attorney’s fees, that he “failed to preserve and manage assets of the succession and
obtained  a  judgment  of  possession  improperly.”    Succinctly,  the  Residuary
Legatees asserted that Mr. Ward fell “below the standard of care for attorneys
practicing in this community” and sought damages accordingly.   Their petition
does not seek to invalidate or nullify the judgment of the 24th JDC.
We find that the Residuary Legatees had to include the claim for excessive
attorney’s fees along with their claims for damages and assertion of conflicts of
interest or the final judgment in the case sub judice would have barred the claim.
Once a final judgment was rendered based upon the petition for damages, all of the
possible claims by the Residuary Legatees would be extinguished.   Further, the
trial court did not attempt to invalidate the judgment from the 24th JDC and stated:
I  am  not  going  to  take  up  certainly  Judge  Regan’s
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judgment.   What I would think would be relevant herein
is Ms. Cook’s opinion as to the billing practice itself, not
to the end result.    That’s for the Court to determine
whether it was reasonable or not, if I decide to take that
up.   And not to be in contravention of Judge Regan’s
judgment, because I agree, it’s already been ruled on.
But I will entertain a process opinion.
Accordingly, we do not find that the Residuary Legatees’ suit was a collateral
attack.
EXCESSIVE ATTORNEY’S FEES
The Wards contend that the Residuary Legatees did not prove that Mr.
Ward’s attorney’s fees were excessive and that the trial court did not specify the
amount of hours or which hours were needlessly charged.
Mr. Ward testified that he practiced law for over fifty-six years, but was
retired from the practice of law when he served as the attorney for the executrix
and the Succession.   He prepared the Decedent’s last will and testament, which
named Mrs. Ward as the executrix.    Mr. Ward stated that the Decedent was
essentially debt free except for the mortgage on the co-owned immovable property.
He testified that he knew of the mortgage.    However, he did not include the
mortgaged property on the List because: 1) he did not want to spend $600 on an
appraisal, 2) the foreclosure process had begun, and 3) the Decedent no longer
wanted to pay the mortgage prior to her death.   Mr. Ward also testified that he
omitted the thirty-five bags of jewelry from the List to avoid the appraisal fee.
Mr. Ward testified that he worked approximately fifteen hours arranging the
funeral and burial, prior to opening the Succession.   He stated that he spent at least
seven  hours  opening  a  checking  account  and  disagreed  that  the  previously
mentioned functions were responsibilities of the executrix.   Further, Mr. Ward
testified that he spent at least twenty hours on two complaints filed by George
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Scifo, Jr. to the Louisiana Disciplinary Board.   In regards to the deposition of Mrs.
Ward, required by Mr. Scifo, Jr., Mr. Ward billed six hours for conferencing with
David Browne, Mrs. Ward’s attorney, prior to the deposition, and eight hours for
attending the deposition.5   Mr. Ward billed twenty-five hours for preparing the
documents for the probate of the will, travel, filing, and waiting for the judge to
sign the pleadings.   Mr. Ward’s notes also reflect that he charged six hours for
preparing three checks and attending one meeting with some of the Decedent’s
relatives.
The remainder of Mr. Ward’s notations chronicles the procedure by which
he calculated his charge for a total of 151 hours.    Mr. Ward charged an hourly rate
of $261.60.     He charged for an entire hour even if he only worked forty-five
minutes of the hour.   Mr. Ward was unsure whether he totaled the bill of $37,000
first or the hourly rate.6   Mr. Ward testified that his initial plan was to charge five
percent of the assets of the Succession, which he valued at approximately $15,000.
Byron Ann Cook, an attorney and the Residuary Legatees legal expert in
probate and taxation,7 testified that her opinion was that “Mr. Ward’s conduct was
below the standard of care in” the community.   Ms. Cook stated that Mr. Ward
failed to include all of the Decedent’s assets in the List, petitioned for the judgment
of possession without discussing it with the legatees or the relatives, and that he
petitioned the court for the amended judgment of possession in March 13, 2007,
without  a  hearing.    She  further  stated  that  the  judgment  of  possession  was
improperly amended.
5 The deposition was in relation to pre-death transfers and not regarding Mrs. Ward’s capacity as executrix.
6 The handwritten notes on the typed sheets entered into evidence show that the total number of hours Mr. Ward
alleged worked, 151, was divided into $39,500, which created the $261.60 hourly rate.   However, the handwritten
hourly notes document that Mr. Ward multiplied 151 hours by $262, which equaled $39,562.00.   Thus, it is unclear
from the evidence if Mr. Ward calculated his hourly rate prior to the lump sum amount of attorney’s fees.
7 Ms. Cook is board certified in estate planning and administration and board certified in taxation.
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Upon reviewing Mr. Ward’s bill, Ms. Cook concluded that “a number of
items . . . were inappropriately billed to the estate.”   That included billing fifteen
hours for the funeral arrangements, which were not legal services.   Ms. Cook also
testified that she would have billed less than twenty-five hours for the preparation
of the petition for probate and the affidavits of death and heirship.   As for opening
a checking account for the Succession, Ms. Cook stated that the work should have
been performed in about an hour by the executrix in accordance with La. C.C.P.
art. 3222.   Ms. Cook would not have included Mrs. Ward’s personal defense as a
debt of the Succession.    Additionally, Ms. Cook would not have charged the
Succession  for  items  occurring  pre-death/succession,  for  the  time  required  to
defend the disciplinary complaints, or for the petition to annul the Decedent’s pre-
death transfers.   Ms. Cook also testified that the checks are typically prepared by
the executrix, but that the check preparation should  have taken about fifteen
minutes.   Ms. Cook stated that Mrs. Ward’s deposition was not an expense of the
Succession because she was not sued in her capacity as executrix, but in her
capacity as a mandate of the Decedent.8
Ms. Fornerette testified that the Decedent prearranged her burial and made
all arrangements. Ms. Fornerette also stated that Mr. Ward sought to disburse
$100,000 to each of the Residuary Legatees instead of $126,946 each because he
did  not  know if the  Succession  would  be liable for additional  funds  on  the
mortgaged property.
When determining the reasonableness of an attorney’s fee, we may evaluate:
(1)  The  time  and  labor  required,  the  novelty  and
8 On November 9, 2005, the Decedent appointed Mrs. Ward as her agent to perform the following: 1) “[t]o open all
correspondence addressed to me,” 2) “[t]o prepare checks and draw needed money from any bank bank [sic] account
to pay my bills only,”  3)  “[t]o deposit any dividends or funds received to my bank account,”  4)  “[t]o perform
whatever acts that may be necessary for my general well-being and to preserve my assets,” and 5) “[t]o reinvest my
certificates of deposit when they mature.”
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difficulty of the questions involved, and the skill requisite
to perform the legal service properly; (2) The likelihood,
if  apparent  to  the  client,  that  the  acceptance  of  the
particular employment will preclude other employment
by the lawyer;  (3) The fee customarily charged in the
locality  for  similar  legal  services;                                               (4)  The  amount
involved  and  the  results  obtained;                                                 (5)  The  time
limitations imposed by the client or by the circumstances;
(6) The nature and length of the professional relationship
with the client; (7) The experience, reputation, and ability
of the lawyer or lawyers performing the services; and (8)
Whether the fee is fixed or contingent.
State, Dep’t of Transp. and Dev. v. Williamson, 597 So. 2d 439, 442, n. 9 (La.
1992),  quoting  Rule                                                                  1.5(a)  of  the  Rules  of  Professional  Conduct.     When
considering the above factors, we do not find that the trial court erred in ordering
Mr. Ward to disgorge $24,500 of his attorney’s fees.   First, the trial court was
presented with conflicting testimony regarding the difficulty of the work and the
amount of time required to perform the services.   Further, the Residuary Legatees’
expert stated that Mr. Ward charged the Succession for some of Mrs. Ward’s
responsibilities as the executrix of the Succession.   Second, the Succession work
did not preclude Mr. Ward from undertaking any other legal work, as he was
retired.  Further, the trial court found:
[t]he Courts finds, considering the evidence, the hours
accumulated by Mr. Ward to be excessive.   Mr. Ward
claimed that he spent  151 hours on the Succession of
Mrs. Marguerite Graff at  $261.00 an hour.    Many of
these hours, however, were unnecessary to probate Mrs.
Graff’s will.  Some of Mr. Ward’s time entries should not
have  been  charged  to  the  succession.    These  entries
include Mr. Ward’s answers to complaints lodged with
the Louisiana State Bar Association by George Scifo Jr.,
as well as Mrs. Ward’s deposition that was taken in
preparation of this matter.   The Court does not find the
hourly  rate  to  be  outrageous  given  Mr.  Ward’s
experience.   Considering the foregoing, the Court finds a
reasonable amount of fees earned by Mr. Ward to be
$15,000.00.   Mr. Ward is ordered to disgorge $24,500.00
in  collected  fees  related  to  the  Succession  of  Mrs.
Marguerite Scifo.
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Given the conflicting testimony presented to the trial court, we do not find that the
trial court manifestly erred by ordering the disgorgement of $24,500 of Mr. Ward’s
attorney’s fees.9
COMMISSION OF EXECUTRIX
Lastly,  Mrs.  Ward  contends  that  the  trial  court  erred  by  denying  her
reconventional demand for an executrix commission pursuant to La. C.C.P. art.
3351.
The  statute  provides  that  when  the  testament  fails  to  provide  for
compensation, “the administrator or executor shall be allowed a sum equal to two
and one-half percent of the amount of the inventory as compensation for his
services in administering the succession.”   La. C.C.P. art. 3351.   The usage of the
word “shall” connotes “must” in Louisiana’s legislative enactments.   However, this
Court  held  that                                                                                                              “[a]  succession  representative  has  no  absolute  right  to  the
executor’s fee provided for in La. C.C.P. art. 3351 until he has completed the
administration of the succession and has filed his final account.”   Succession of
Vazquez, 07-0816, p. 7 (La. App. 4 Cir. 1/16/08), 976 So. 2d 209, 215.   This Court
further affirmed the trial court’s holding that an executor who failed to perform his
duties and violated his position was not entitled to a commission.   Id.   We stated
that the trial court’s determination was a factual one.  Id.
The  trial  court  in  the  case  sub  judice  found  that  Mrs.  Ward                                                         “acted
imprudently regarding certain succession property.”   Further, the trial court found
that the “weight of the evidence clearly establishe[d] a conflict of interest” between
Mr. and Mrs. Ward.  Finally, the trial court found “Mrs. Ward liable for conflict of
9  The  Wards  assert  that  it  was  “unclear”  how  the  trial  court  calculated  the  disgorgement  figure  of  $24,500.
However, as stated above, $39,500 minus $24,500 equals $15,000, approximately five percent of the assets of the
Succession.
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interest as executrix of the Succession of Maguerite Scifo Graff by approving
excessive attorney’s fees.”
Mrs. Ward did not complete the Succession, as discussed in Vazquez.   In
fact, she was removed as the executrix.   We do not find that the trial court erred in
its factual findings that Mrs. Ward acted imprudently and had a conflict of interest.
Therefore, we affirm the dismissal of Mrs. Ward’s reconventional demand.
DECREE
For the above mentioned reasons, we find that the trial court did not err and
affirm the disgorgement of attorney’s fees and the dismissal of Mrs. Ward’s
reconventional demand seeking an executrix commission.
AFFIRMED
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