STACEY LAINE SMITH BENOIT INDEPENDENT ADMINISTRATRIX OF SUCCESSION OF ALVIN SMITH JR v. BRET ROBERT SMITH (2025)

In this case involving an annuity, the plaintiff/appellant, Stacey Laine Smith Benoit, independent administratrix of the succession of Alvin K. P. Smith, Jr., appeals the Nineteenth Judicial District Court's judgment that dismissed her claims with prejudice. For the reasons that follow, we affirm the judgment.

FACTS AND PROCEDURAL HISTORY

Alvin K. P. Smith, Jr. died on July 5, 2019, at the Louisiana State Penitentiary at Angola, Louisiana, where he had been incarcerated since 1985. Alvin was serving a life sentence for the second-degree murder of his estranged wife, Janet Smith. Alvin apparently died intestate, as no will and testament has been located.

The Smiths were the parents of three children: Bret Robert Smith, Stacey Laine Smith Benoit, and Dory Smith King. On October 16, 2003, Bret was granted a Power of Attorney by his father. The Power of Attorney gave Bret the power “to act for PRINCIPAL in any and all matters, without reservation of any kind and to the fullest extent allowed by law[.]”

Thereafter, in August of 2006, Bret acquired a certain annuity contract in the amount of $280,000.00 with Jackson National Life Insurance Company (Jackson).¹ Alvin was listed as the owner, and Bret was listed as the beneficiary. The application was signed by Bret and by Alvin's financial advisor, John Stewart. Subsequently, by application dated November 24, 2014, Bret, on behalf of his father, acquired an annuity from Nationwide Life Insurance Company (Nationwide), which replaced the Jackson annuity. The Nationwide annuity application named Alvin as the owner, Bret as the beneficiary, and Bret's spouse, Janet S. Smith, as contingent beneficiary.² The application was signed by Bret and by Mr. Stewart, and the exchange amount was estimated to be approximately $450,000.00. Alvin remained the owner of the Nationwide annuity until his death in 2019.

After Alvin's death, his succession was opened in the Twentieth Judicial District Court for the Parish of West Feliciana.³ On September 11, 2019, as the duly confirmed independent administratrix of the succession of Alvin K. P. Smith, Stacey filed a “Petition to Recover Money Asset of this Succession; Writ of Sequestration; Order” in the Nineteenth Judicial District Court for the Parish of East Baton Rouge.⁴ In her petition, Stacey alleged that Bret was liable to the succession, asserting that Alvin's Power of Attorney neither gave Bret the authority to make donations to himself, nor the authority to name himself or his wife as beneficiaries of the annuity. Stacey contended that the annuity was liquidated, that Bret received the liquidated amount of $571,434.31, and that the money from the annuity was an asset of her father's succession. Stacey requested the return of the annuity proceeds to the succession. The trial court signed the writ of sequestration on September 12, 2019.

In response, Bret filed an “Answer, Reconventional Demand, and Third Party Demand.” In his answer, Bret averred that the Nationwide annuity was acquired in part by a “1035” tax-neutral exchange of the previous annuity with Jackson, which was done at the direction of and with the approval of Alvin. Bret also stated that the annuity was valued at approximately $571,434.31; that the annuity was not “liquidated,” but was simply transferred in his name into an account with a five-year delayed distribution option; that he had not taken any distributions from the account; that the annuity was not the property of his father's succession; and that no demand was ever made upon him to return the funds prior to suit being filed and served upon him.

Bret's reconventional demand against Stacey, individually and as independent administratrix of their father's succession, sought to set aside the writ of sequestration. Additionally, in his third-party demand against Dory and her husband, John W. King, as sureties under the judicial bond, Bret alleged that Dory and John were liable in solido for all damages, losses, costs, and attorney fees he sustained arising from the issuance of the writ of sequestration and execution thereof.⁵

Thereafter, Stacey filed a motion for summary judgment, which the trial court denied on March 31, 2023. On September 19, 2023, the trial court held a bench trial on the merits.

At the trial, Stacey offered her testimony, the testimony of Dory, and the testimony of Bret on cross-examination.⁶ On direct examination, Stacey confirmed her task as the administratrix of her father's succession to gather the assets of his estate. On cross-examination, Stacey acknowledged that she had no contact with her father during his thirty-five years of incarceration.

Dory testified that, as a minor, she visited her father at Angola when brought there by guardians and other adults. She stated that her father assisted in the cost of her college education, but she acknowledged, that within a year of her graduation, she did not see her father again for the nineteen years before his death.

On cross-examination, Bret testified that the Power of Attorney granted to him by Alvin gave him the authority to spend Alvin's money according to Alvin's wishes and that he had “full authority to spend the money in any manner [he] need[ed] to.” Bret also testified that he liquidated or sold some of his father's investments to generate the cash for the Jackson annuity. Further, Bret stated that neither the Jackson nor the Nationwide annuity provided for payments and that both annuities had the highest death value, as Alvin did not need much money since he was incarcerated. Additionally, Bret acknowledged that he hired Mr. Stewart on behalf of Alvin and that Mr. Stewart never had any communication with Alvin.

However, during the cross-examination of Bret and as part of her case, Stacey introduced into evidence several letters, without objection, from Alvin to Bret. In the letters, which were dated from 2014 to 2019, Alvin requested Bret to send money to him. In one letter, dated July 1, 2018, Alvin stated, “it has been a month s[in]ce I wrote to y[o]u about sending some money. I've tried to be pa[t]ient and not bother you but this is not working. What is happening to house rent mone[y]? What is happening to stock dividen[d]s? Talk to me. Come and see me.”

In an email from Bret to Alvin, dated July 2, 2018, Bret responded to Alvin's previous requests, stating:

Yes, you have been patient․ You ask about the house, it's not been rented since a good while before the flood we had in 2016․ The insurance and the taxes that have to be paid are not cheap․ At this time it's not in a condition for rental. So there's no income on the house at this time, too many repairs needed.

Our house did flood and so that's where all of my concerns and time have gone over the past two years․

․

I have not been ignoring your requests. In fact I do like you sending me emails and hearing from you․

․

As far as stock and bonds, it's not an easy task trying to obtain money․ I pretty much send you money whenever you ask․ I'm not trying to hold out on you․

․

I will do my best to try to come and see you soon․

․

I'm sending $300. Sending $300 a day isn't very feasible at this moment.

In another letter dated October 4, 2018, Alvin wrote:

Well, [ ]it's time[ ]to send me some money again. You[ ]know I thought I had income from the house. Boy, think, multiply all these months times the rent. That is a lot of mone[y] lost. [A]lso what about the quarterly dividen[d]s. [W]here is that? You mentioned “scrambling around to find mone[y”.] If you have noticed, I tr[ied] to notiffy] you on the first,[ ]fourth, seventh, and tenth months.

In a letter dated April 22, 2019, Alvin wrote, “I see here that I have received no money that I asked for. It[‘]s my money that I ask for. What is the problem?”

In his case, Bret presented his testimony and that of his wife. Bret testified that after his father's incarceration, he visited his father in Angola five or six times a year, sometimes on his own, and sometimes with his wife and children. He also corresponded with Alvin regularly. Bret explained his procurement of the Power of Attorney in 2003, following the death of the attorney who was the previous agent for his father. Bret stated that he hired a new attorney, David Adams, to work with his father to develop the Power of Attorney and that they finalized the Power of Attorney without involvement or input from Bret. Bret testified that he assumed the Power of Attorney at Alvin's request, as shown by Alvin's May 28, 2003 letter to Bret. Therein, Alvin stated: “you ge[t] Power of atto[r]ney and take care of the money.”

Stacey objected to the introduction into evidence of the typewritten, unsigned letter, based on a lack of authentication and hearsay. The trial court took the objection under advisement.

Bret also testified that he received a letter from his father, dated July 12, 2006 that provided, in part: “I got your letter. You have Power of at[t]orney. So you can move money around. If it[‘]s an investment that needs a beneficiary then put you on it. You are the only person I ever hear from.” Stacey also objected to the introduction into evidence of the July 12, 2006 letter, based on a lack of authentication and foundation as it was another typewritten, unsigned letter.⁷ The trial court took this objection under advisement as well.

Janet testified that she opened the July 12, 2006 letter from Alvin to Bret, as she always opened all of their mail, and discussed the letter with Bret. Janet testified that Alvin's letters often contained misspelled words and that some were handwritten and some were typed. She also stated that Alvin worked on and repaired typewriters in prison. Bret and Janet both testified that during a visit to Angola, Alvin gave Bret the authority to purchase in Alvin's name an annuity for $280,000.00 and designate Bret as the beneficiary.

At the conclusion of the trial, the trial court took the matter under advisement. On October 10, 2023, the trial court signed a judgment, denying all claims asserted by Stacey, as administrator of Alvin's succession, against Bret and dismissing the petition and all claims with prejudice at Stacey's cost. The trial court adopted the Findings of Fact and Conclusions of Law proposed by Bret. Further, the two letters offered into evidence by Bret and objected to by Stacey were admitted into evidence and relied upon by the trial court in its reasons for judgment.

In its Findings of Fact, the trial court found that spelling errors in Alvin's correspondence to Bret were consistent with spelling errors found in other letters sent by Alvin to Bret. The trial court also found that the envelope in which the May 28, 2003 letter was delivered had markings thereon that were consistent with envelopes submitted with other correspondence, including envelopes submitted and admitted into evidence by Stacey. Further, although the envelope for the July 12, 2006 letter was lost, the trial court found that the evidence established that this envelope would have contained markings similar to those on other envelopes sent by Alvin.⁸ Therefore, the trial court determined that Bret acquired the necessary authority from the Power of Attorney, the oral authority and instructions from Alvin, and the July 12, 2006 letter from Alvin to designate himself as a beneficiary of the annuity. As a result, the trial court dismissed Stacey's claims against Bret.

Stacey appealed the judgment of the trial court, assigning as error the trial court's finding that Bret successfully bore the burden of proving at trial that he had been authorized to execute an annuity contract, using exclusively Alvin's funds, under terms that would inure solely to Bret's benefit.

DISCUSSION

In her appeal, Stacey contends that because the Power of Attorney granted by Alvin to Bret did not contain any language authorizing Bret to contract with himself or to otherwise engage in self-dealing regarding the property belonging to his father, the annuity proceeds belong to Alvin's estate. Conversely, Bret asserts that the trial court was correct in dismissing Stacey's claims because the annuity was not part of Alvin's succession, Alvin as owner of the annuity never changed the beneficiary, Bret was provided a very broad Power of Attorney, and Bret established his father's intent. Bret maintains that the October 10, 2023 judgment of the trial court was based on findings of fact amply supported by the evidence.

A court of appeal may not set aside a trial court's finding of fact in the absence of manifest error or unless it is clearly wrong. Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La. 1993). Even though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder's, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Id. The reviewing court must always keep in mind that if the trial court's findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Id. at 882-883.

The October 16, 2003 Power of Attorney was signed by Alvin before a notary public, two witnesses and by Bret, as agent, “to be PRINCIPAL'S agent and attorney-in-fact, granting to the said AGENT full authority to act for PRINCIPAL in the conduct of all PRINCIPAL'S affairs.” The mandate then set forth a non-exclusive list of full authority, including the full authority to:

(1) Open and answer all correspondence;

(2) Deposit in and withdraw from any banks or financial institutions any and all funds, notes, certificates and financial instruments for account of PRINCIPAL;

(3) Make and endorse promissory notes and other evidence of indebtedness in PRINCIPAL'S name, and to draw, endorse and accept checks and bills of exchange;

(4) Borrow money on the notes or other obligations of PRINCIPAL, such to be executed on PRINCIPAL'S behalf by AGENT;

(5) Buy, accept, or receive by donation, any type of property or rights of PRINCIPAL;

(6) Sell, quitclaim, donate, partition, exchange, compromise, mortgage, assign, lease, pledge and/or subordinate or release any or all property, interests or rights of any kind owned or to be acquired by PRINCIPAL, including rights in corporeal and incorporeal property, movables and immovables (specifically including all real estate interests owned by PRINCIPAL, (wherever located), and to receive and receipt for any sums or rights received thereby;

(7) Execute, in connection with the sale, quitclaim, donation, partition, exchange, compromise, mortgage, subordination, assignment, lease and/or pledge of property on behalf of PRINCIPAL, any documents or agreements necessary to accomplish the foregoing, containing such terms as AGENT in AGENT'S sole discretion deems advisable, including security clauses and confession of judgment;

(8) Act for PRINCIPAL at any creditors’ meetings held under the provisions of Title 11 of the United States Code;

(9) Employ, on PRINCIPAL'S behalf, any legal, financial, accounting, geological or other assistance to reasonably protect PRINCIPAL'S interests and rights[.]

The Power of Attorney also provided:

It is the intent of PRINCIPAL in executing this mandate that said AGENT shall be empowered to act for PRINCIPAL in any and all matters, without reservation of any kind and to the fullest extent allowed by law, as completely as if PRINCIPAL were acting for [him]self and that said AGENT shall have full power of substitution herein and power of revocation of said substitution.

Interpretation of a contract is the determination of the common intent of the parties. La. C.C. art. 2045. When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. La. C.C. art. 2046; see Sims v. Mulhearn Funeral Home, Inc., 2007-0054 (La. 5/22/07), 956 So.2d 583, 589. Courts lack the authority to alter the terms of contracts under the guise of contractual interpretation when the contract's provisions are couched in unambiguous terms. Id. at 589. A cardinal rule of contract construction is that a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole. Clovelly Oil Co., LLC v. Midstates Petroleum Co., LLC, 2012-2055 (La. 3/19/13), 112 So.3d 187, 195.

In the Power of Attorney before us, the contract identifies a series of specific authorities granted to the agent, but it also contains a broad provision at the end, granting the agent the authority to act on behalf of the principal “in any and all matters, without reservation of any kind and to the fullest extent allowed by law, as completely as if [principal] were acting for [him]self.” We find no ambiguity in this provision, and Bret was authorized by Alvin to act on his behalf in any matter, as though Alvin were acting for himself. Bret was therefore authorized by Alvin to acquire the annuities, and we find no language in the Power of Attorney that restricts Bret from naming himself as the beneficiary.

Furthermore, Alvin's intent is evidenced by his writings to Bret. In the letter dated May 28, 2003, Alvin stated to Bret, “[Y]ou ge[t] Power of atto[r]ney and take care of the money.” In the letter dated July 12, 2006, Alvin told Bret, “You have Power of at[t]torney. So you can move money around. If it[‘]s an investment that needs a beneficiary then put you on it. You are the only person I ever hear from.” Although the typed letters by Alvin are difficult to read due to their unusual spacing and typing errors, it is not unreasonable for the trial court to find that the letters were written by Alvin. The letters also express Alvin's intent: he granted to Bret the authority to open the annuity with himself as the beneficiary, since Bret was maintaining contact with him while the other children did not.

Stacey introduced letters sent by Alvin to Bret where Alvin asked Bret why he had not been receiving any money, why Bret was not communicating with him, and what was happening with the rental house and stocks that he owned. However, Bret responded by detailing his own financial difficulties, the need for repairs to the rental house, and his intent to visit Alvin as soon as he was able. The trial court could reasonably interpret this exchange between Alvin and Bret not as Bret's attempt at being secretive with Alvin's assets, but as Bret's good-faith effort to carry out Alvin's wishes, despite his own financial difficulties.

Stacey has relied on Standard Insurance Company v. Spottsville, 2016-0020 (La. App. 1 Cir. 9/16/16), 204 So.3d 253 to argue that the Power of Attorney did not grant to Bret the authority to self-deal. In Spottsville, this court held that the “catch all phrase” appearing at the end of a power of attorney was insufficient to bestow the specific authority for the mandatary to change the beneficiary on the principal's insurance policy as expressly required under the terms of the policy. The applicable language in the power of attorney allowed the mandatary to act in “any and all matters; without reservation of any kind and to the fullest extent allowed by law.” Id. at 259. This court found that such general authority did not equate to an express grant of authority to change a beneficiary designation as required by the terms of the insurance policy. Therefore, this court held that, although express authority was given in the power of attorney to perform sixteen enumerated acts, the catch all phrase was insufficient to bestow change-of-beneficiary authority upon the mandatary as required by the terms of the insurance policy. Id. at 258-259.

We find Spottsville to be distinguishable from the instant case. The terms of the policy in Spottville required that the power of attorney must clearly grant specific authority for the beneficiary to be changed. Id. at 258. Spottsville therefore does not state that a catch all phrase is categorically unable to confer an authority upon the mandatary that has not been expressly enumerated by the power of attorney, but rather that when a contract requires specific authority in the power of attorney document, the catch all phrase is insufficient. In the instant case, the Power of Attorney does not contain specific language that prohibits or limits Bret's authority to name himself as the sole beneficiary of the annuity. Furthermore, the trial court found that Alvin expressly gave Bret the authority to do so.

We find that the trial court, in its review of the evidence, was not manifestly erroneous in concluding that Alvin had given Bret the authority under the Power of Attorney and Alvin's direct instructions to acquire an annuity, and for Bret to make himself the beneficiary. We therefore cannot say that the trial court was manifestly erroneous or clearly wrong in finding in Bret's favor and dismissing Stacey's claims with prejudice.

DECREE

The October 10, 2023 judgment of the Nineteenth Judicial District Court, dismissing the suit of the appellant, Stacey Laine Smith Benoit, with prejudice, is affirmed. All costs of this appeal are assessed to the appellant.

AFFIRMED.

I disagree with the majority's decision affirming the trial court's judgment dismissing Stacey Benoit's claims with prejudice.

The authority of a representative to represent another in legal relations may be conferred by law, by a contract such as mandate, or by the unilateral juridical act of procuration. LSA-C.C. arts. 2985 and 2986. A procuration is a unilateral juridical act by which a person, the principal, confers authority on another person, the representative, to represent the principal in legal matters. LSA-C.C. art. 2987. The civil law term procuration refers to the same contractual relationship that is known as a power of attorney. See Matter of Succession of Frazier, 54,751 (La.App. 2 Cir. 9/21/22), 349 So.3d 634, 636. A power of attorney is subject to the rules of mandate to the extent those rules are compatible with the nature of the representation. LSA-C.C. art. 2988.

A mandate is a contract by which a person, the principal, confers authority on another person, the mandatary, to transact one or more affairs for the principal. LSA-C.C. art. 2989. The contract of mandate may serve the exclusive or the common interest of the principal, the mandatary, or a third person. LSA-C.C. art. 2991. Louisiana Civil Code article 2993 also provides that “[t]he contract of mandate is not required to be in any particular form. Nevertheless, when the law prescribes a certain form for an act, a mandate authorizing the act must be in that form.” The principal may confer on the mandatary general authority to do whatever is appropriate under the circumstances. LSA-C.C. art. 2994.

Under the rules of mandate, the authority to alienate, acquire, encumber, or lease a thing must be given expressly. LSA-C.C. art. 2996; see also LSA-C.C. art. 2997.¹ Further, self-dealing also requires express authority pursuant to LSA-C.C. art. 2998, which provides: “A mandatary who represents the principal as the other contracting party may not contract with himself unless he is authorized by the principal, or, in making such contract, he is merely fulfilling a duty to the principal.” See Frazier, 349 So.3d at 636. Moreover, powers of attorney are construed strictly and no special authority is implied by the general terms of a procuration except ordinary powers of administration. Noel v. Noel, 2016-734 (La.App. 3 Cir. 8/2/17), 225 So.3d 1114, 1121, writs denied, 2017-1817, 2017-1830, 2017-1839 (La. 1/9/18), 231 So.3d 651, 654.

In this matter, the principals to the annuity contracts were Alvin and the annuity companies, and not Bret. However, Bret named himself as the third-party beneficiary of the conditional obligations in the Jackson and Nationwide annuity contracts to be paid benefits upon Alvin's death. Stacey argued that the power of attorney did not expressly grant to Bret the right to self-deal, that is, grant Bret the specific authority to be named as beneficiary of the Nationwide annuity.

As noted by the majority, the power of attorney herein contained a non-exclusive list of full authority, as well as a broad provision granting the agent the authority to act on behalf of the principal “in any and all matters, without reservation matters, without reservation of any kind and to the fullest extent allowed by law, as completely as if [the principal] were acting for [him]self.” However, the language of the power of attorney did not grant Bret, as the agent, specific authority to name himself beneficiary of the annuity. Therefore, the question becomes whether the broader provision in the power of attorney allowed Bret to enrich himself by becoming the designated beneficiary in his father's annuity.

In Standard Insurance Company v. Spottsville, 2016-0020 (La.App. 1 Cir. 9/16/16), 204 So.3d 253, this court held that the “catch all phrase” appearing at the end of a power of attorney was insufficient to bestow the specific authority for the mandatary to change the beneficiary on the principal's life insurance policy. That language allowed the mandatary to act in “any and all matters; without reservation of any kind and to the fullest extent allowed by law.” This court found that such general authority did not equate to an express grant of authority to change a beneficiary on a life insurance policy. Therefore, this court held that, although express authority was given in the power of attorney to perform sixteen enumerated acts, the catch all phrase was insufficient to bestow change-of-beneficiary authority upon the mandatary.² Spottsville, 204 So.3d at 258-59.

Additionally, in the Noel case, the son of the decedent argued that he was authorized by a power of attorney from his mother to self-deal. Noel, 225 So.3d at 1118. Citing this court's decision in Spottsville, the third circuit found that although the son was authorized to sell his mother's immovable property, he was not authorized to sell that property to himself as there was no specific authorization in the power of attorney allowing him to self-deal concerning the immovable property of his mother. Therefore, the third circuit rescinded the sale of the real estate. Noel, 225 So.3d at 1122.

In the case sub judice, the language of the power of attorney, when considered as a whole, demonstrated the authority of the agent to act in the interest of the principal. The power of attorney did not grant the agent specific authority to be named as a beneficiary in an annuity, and the language of the power of attorney cannot be reasonably construed to authorize such self-dealing by the agent. Thus, the power of attorney did not expressly authorize Bret to be named as a beneficiary in an annuity, for his own benefit. The trial court legally erred in concluding that Bret was authorized to self-deal based on the language of the power of attorney, which was more akin to the general authority granted by LSA-C.C. art. 2994. See Spottsville, 204 So.3d at 259; Noel, 225 So.3d at 1121-22.

Nevertheless, Bret contended that even if the authority to self-deal required authorization, it did not have to be in writing and may be oral. Bret asserted that LSA-C.C. art. 2993 does not require that the contract of mandate be in any particular form and that he sufficiently established his father orally expressed his intent that Bret could name himself a beneficiary.

A contract not reduced to writing, for a price or value above $500.00, must be proved by at least one witness and other corroborating circumstances. LSA-C.C. art. 1846; Suire v. Lafayette City-Parish Consolidated Government, 2004-1459 (La. 4/12/05), 907 So.2d 37, 58. To meet this burden, a party may serve as his or her own witness and the “other corroborating circumstances” may be general and need not prove every detail sought to be proven. See Hodson v. Daron Cavaness Builder, Inc., 2017-1235 (La.App. 1 Cir. 2/27/18), 243 So.3d 597, 599-600. However, the corroborating evidence must come from a source other than the party trying to prove the oral contract. Hodson, 243 So.3d at 600. Whether there were corroborating circumstances sufficient to establish an oral contract is a question of fact, and a review of the factual conclusions is limited to a review of the entire record to determine if those conclusions are clearly wrong. Id.

In its reasons for judgment, the trial court accepted Bret's testimony as to his conversations with his father. However, I would have found that the trial court manifestly erred in determining that Bret and Janet's testimony was sufficient corroborating evidence that Alvin had expressly orally agreed to authorize Bret to self-deal. There is simply no corroborating evidence from a source other than Janet and Bret, who would be receiving over a half of a million dollars from the annuities, that Alvin even knew about the annuities. In Alvin's letters to Bret requesting money, Alvin asked about the rental money from his house and about stock dividends. Further, Bret acknowledged that Alvin did not know that his house had not been rented since 2014. Additionally, Alvin's questions to Bret about the stock dividends suggest that he did not know that his stocks had been cashed in by Bret to purchase the Jackson annuity. It is also clear that despite Bret's testimony that his father did not need money because he was incarcerated, Alvin was requesting that some of his funds be disbursed to him during his incarceration.

While the trial court is allowed to make credibility determinations when evaluating the evidence needed to establish the existence of an oral contract, the trial court's evaluation of Bret and Janet's testimony was not reasonable in this instance. Although the value of Alvin's investments increased when they were managed by Bret, a good investment does not equate to an oral agreement to self-deal.³ Accordingly, I would have found that Bret failed to prove the existence of an oral contract by a preponderance of corroborating evidence.⁴

In conclusion, considering the evidence admitted into the record, I would have found that Bret failed to sufficiently establish that the power of attorney given to him by Alvin authorized Bret to self-deal, or that Bret established that he and Alvin expressly orally agreed that Bret could make himself the beneficiary of Alvin's annuities.⁵ Therefore, I respectfully dissent.

FOOTNOTES

1.   The annuity application was for a non-tax qualified annuity, provided for the highest anniversary death benefit, and contained no options for payments or withdrawals.

2.   This annuity application was for a non-qualified annuity, provided that it replaced the existing annuity, contained no options for payment, and provided for a “Combination Enhanced Benefit II - Greater of One Year/5% Interest (Annuitant/Co-Annuitant, age 75 or younger).”

3.   Although not part of this record, both parties agree that the succession has been opened as Probate No. 2835 in West Feliciana Parish.

4.   This is the matter currently before us.

5.   A Motion to Test Bond and Dissolve Sequestration was subsequently filed by Bret, and was set for hearing. On December 9, 2020, the trial court signed a judgment finding the judicial bond posted by Stacey insufficient and invalid and ordering the sequestration order previously issued to be set aside, dissolved, and dismissed.

6.   After Bret rested his case, Stacey called Dory on rebuttal.

7.   Stacey also objected to the introduction of the letter on the basis that it included language that could be interpreted to mean that Alvin disinherited his daughters. The trial court sustained Stacey's objection as to any questioning regarding this language.

8.   Janet testified that the envelope for the July 12, 2006 letter was missing, explaining that she lost some of the papers from Alvin as her home flooded in 2016, and the box with the correspondence from Alvin was on the floor under a desk in one of the bedrooms. She testified that the letter came from the Louisiana State Penitentiary at Angola.

1.   Louisiana Civil Code article 2997 provides that authority must be given expressly to:(1) Make an inter vivos donation, either outright or to a new or existing trust or other custodial arrangement, and, when also expressly so provided, to impose such conditions on the donation, including, without limitation, the power to revoke, that are not contrary to the other express terms of the mandate.(2) Accept or renounce a succession.(3) Contract a loan, acknowledge or make remission of a debt, or become a surety.(4) Draw or endorse promissory notes and negotiable instruments.(5) Enter into a compromise or refer a matter to arbitration.(6) Make health care decisions, such as surgery, medical expenses, nursing home residency, and medication.(7) Prevent or limit reasonable communication, visitation, or interaction between the principal and a relative by blood, adoption, or affinity within the third degree, or another individual who has a relationship based on or productive of strong affection.

2.   I disagree with the majority's interpretation of the holding in the Spottsville case. Although the life insurance policy in Spottsville provided that the insured give specific authority to make or change a beneficiary designation and thus, may be factually distinguishable on that basis, this court also held in said case that general authority under Louisiana mandate law does not equate to an express grant of authority to change a beneficiary on a life insurance policy. In Spottsville, pursuant to the beneficiary change form, the decedent was required to expressly give this power “by terms of the document or applicable law.” This court specifically found that the “applicable law,” was the law of mandate in LSA-C.C. art. 2989, et seq., which does not expressly give such power to a mandate. Further, although LSA-C.C. art. 2994 allows a principal to confer “general authority to do whatever is appropriate under the circumstances” to his mandatary, such general authority is not the same as an express authority to change a beneficiary. Spottsville, 204 So.3d at 258.

3.   Of note, there is no indication that Alvin ever benefited from the investments.

4.   I also would have found that the letters submitted by Bret did not constitute independent corroborating evidence. The only testimony regarding the typed and unsigned letters, and particularly the May 28, 2003 and July 12, 2006 letters, was from Bret and Janet.

5.   Moreover, the record is devoid of evidence that Alvin wished to exclude his daughters from his investments. Considering the facts surrounding the death of their mother, Stacey and Dory did not wish to speak to their father, but the letters introduced into evidence showed that Alvin continued to love his daughters and wished that they would visit him.

LANIER, J.