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August 11, 2005
The Heritage Case: INTERNATIONAL CASE REVIEW
This is a very interesting case, touching on tortuous issues and conflict of laws. The notary was clearly negligent and
in breach of his duties as a notary. He also admitted to his mistake and should be held liable for it. The insurance
company should act in good faith rather than instituting claims that are false and deceptive.
DEFAMATION
Ms. Marie Campus has a tortious claim against MMA for defamation of character. The claim that Ms. Campus signed
as the Director of Texas Riding Line Co. is false. The elements of defamation are:
i) Defamatory Language concerning the plaintiff;
ii) Falsity of the defamatory language
iii) Fault on the part of the defendant
iv) Publication thereof by defendant to a third person
v) Damage to plaintiff’s reputation
The allegation by MMA consists of the elements and has defamed Ms. Campus. Libel is the written or publication of
defamatory language. Plaintiff does not need to prove special damages and general damages are presumed.
NEGLIGENCE
Mr. Duchan was negligent because he failed to verify the nationality of the witnesses as per Article 980 of the French
Civil code and also did not read out the contents of the Will. Elements of negligence are:
i) A duty of care is owed to all foreseeable plaintiffs. Texas Riding Company and all the subsidiaries are
foreseeable because Mr. Duchan would have known that his actions or inactions would adversely affect the company.
ii) Breach of the duty is clearly established because Mr. Duchan admitted to being negligent.
iii) The breach is the actual and proximate cause of the millions lost by Texas Riding Company and the
subsidiaries
iv) Texas Riding Company and the subsidiaries have to be compensated for all the damages (past, present and
prospective). There can also be punitive damage because MMA’s claim is wanton and willful.
The Heritage Case: INTERNATIONAL CASE REVIEW
This is a very interesting case, touching on tortuous issues and conflict of laws. The notary was clearly negligent and
in breach of his duties as a notary. He also admitted to his mistake and should be held liable for it. The insurance
company should act in good faith rather than instituting claims that are false and deceptive.
DEFAMATION
Ms. Marie Campus has a tortious claim against MMA for defamation of character. The claim that Ms. Campus signed
as the Director of Texas Riding Line Co. is false. The elements of defamation are:
i) Defamatory Language concerning the plaintiff;
ii) Falsity of the defamatory language
iii) Fault on the part of the defendant
iv) Publication thereof by defendant to a third person
v) Damage to plaintiff’s reputation
The allegation by MMA consists of the elements and has defamed Ms. Campus. Libel is the written or publication of
defamatory language. Plaintiff does not need to prove special damages and general damages are presumed.
NEGLIGENCE
Mr. Duchan was negligent because he failed to verify the nationality of the witnesses as per Article 980 of the French
Civil code and also did not read out the contents of the Will. Elements of negligence are:
i) A duty of care is owed to all foreseeable plaintiffs. Texas Riding Company and all the subsidiaries are
foreseeable because Mr. Duchan would have known that his actions or inactions would adversely affect the company.
ii) Breach of the duty is clearly established because Mr. Duchan admitted to being negligent.
iii) The breach is the actual and proximate cause of the millions lost by Texas Riding Company and the
subsidiaries
iv) Texas Riding Company and the subsidiaries have to be compensated for all the damages (past, present and
prospective). There can also be punitive damage because MMA’s claim is wanton and willful.
February 21, 2007
The Heritage Case: Legal note on the Intentional Certification (Apostille) and Ultimate Registration of an Invalidly
Executed Will
At first glance at the case between Texas Riding Line Co. (“TRL Co.”) and Mr. Duchan (“Notaire”), the old issue
appears again of the limitations of public international law to provide adequate remedies FOR
VIOLATIONS OF THE LAW. The apostille process promulgated under the 1961 Hague Convention Abolishing the
Requirement of Legalization for Foreign Public Documents, gives the advantage of bridging the divide between
common and civil law countries. It eliminates the tedious and, usually costly, process of legalizing a foreign document
intended for use in another nation state. Since the Hague convention is international “public” law and
therefore an agreement between sovereign nations only, it requires ratification by the various signatories, and
implementation of appropriate policies, before it can apply to a nation’s citizenry. In this case, both France and
USA have ratified the convention, therefore its applicability to TRL Co. and Notaire is not in question. At
issue, however, are questions of the appropriate action against Notaire and ACAM and the applicable choice of law,
French or US law. Various causes of action exist and the applicable choice of law will decide how these laws are
construed to achieve just results for TRL Co.
It is important to briefly note before discussing the implications of the wrongfully registered apostille that as long as
federal diversity jurisdiction and personal jurisdiction are established, removal to a United States forum is possible.
With regard to the intentional certification (Apostille) and ultimate registration of an invalidly executed
will, the following legal issues arise: (1) negligence, (2) malpractice and third party liability, and (3) fraudulent
misrepresentation.
Negligence arises because as a legal professional, the French notaire has a duty to certify the accuracy and truth
of the facts contained in the will and to ensure that the will is validly executed according to the applicable laws and
required legal formalities. The notaire’s failure to verify the nationality of the attesting witnesses constitutes a breach
of duty that is the proximate cause of the harm to TRL; namely, economic loss due to the nullification of the will.
When the notaire placed his seal and secured an apostille he affixed a high presumption of authenticity
and correctness to the document that he knew was false since he had not adhered to the required
formalities in performing his duties in this case. Moreover, his advice to TRL “not to show the title of heir” and
that “the will would be valid in the USA,” is further evidence of his substandard execution of his duties.
A claim of fraudulent misrepresentation also exists because the notaire misrepresented the will as valid and
authentic. Such misrepresentation is actionable since he was under a duty to ascertain the truth of this representation
in his capacity as a civil law notaire. In failing to perform his duties he chose not to observe the formalities material to
the proper execution of the will. This material omission demonstrates reckless disregard for the truth or falsity of the
will and is the basis of the false misrepresentation to TRL Co. that the will was valid when in fact it was not. The
notaire made statements to and communication with TRL Co. with the intention that such statements and
communications would be relied upon. A French notaire is a highly respected expert in property and certain contract-
related matters, therefore, it was reasonable and justified that TRL relied on these statements and the reliance was to
its detriment.
Malpractice and third party liability issues are also present in this case as a result of the notaire’s professional
relationship and obligation to Mrs. Irene Maquard that ran to any beneficiaries under the will. In this instance, where
the notaire has no direct arrangement with TRL Co., a third party beneficiary of the will, but in the performance of his
duties, has damaged the beneficiary, US court’s have generally held that such beneficiary has a cause of action
against the attorney or notaire, in this case. The cause of action arises from the notaire’s failure to properly execute
the will and the beneficiary may recover damages for this malpractice.
In addition to the remedy for the beneficiary, the notaire may also face disciplinary action for negligent performance of
his duties on behalf of the client. Such discipline, depending on the extent of the notaire’s wrongful actions can range
from a warning to suspension or revocation of the professional license. Willful, intentional or reckless actions
usually carry with them punitive damage judgments as a means of deterring such behavior in the future.
If the choice of law applied to the case is French law and there is a provision for determining punitive
damages, it is likely that the Notaire’s actions meet the requirements for such punitive judgments.
The above discussion is a short note on some of the issues relevant to the Heritage case and is not an exhaustive
discussion of all appropriate legal theories. There are various other claims which can be made as the action
by the Notary opened up a real Pandora’s box.
The Heritage Case: Legal note on the Intentional Certification (Apostille) and Ultimate Registration of an Invalidly
Executed Will
At first glance at the case between Texas Riding Line Co. (“TRL Co.”) and Mr. Duchan (“Notaire”), the old issue
appears again of the limitations of public international law to provide adequate remedies FOR
VIOLATIONS OF THE LAW. The apostille process promulgated under the 1961 Hague Convention Abolishing the
Requirement of Legalization for Foreign Public Documents, gives the advantage of bridging the divide between
common and civil law countries. It eliminates the tedious and, usually costly, process of legalizing a foreign document
intended for use in another nation state. Since the Hague convention is international “public” law and
therefore an agreement between sovereign nations only, it requires ratification by the various signatories, and
implementation of appropriate policies, before it can apply to a nation’s citizenry. In this case, both France and
USA have ratified the convention, therefore its applicability to TRL Co. and Notaire is not in question. At
issue, however, are questions of the appropriate action against Notaire and ACAM and the applicable choice of law,
French or US law. Various causes of action exist and the applicable choice of law will decide how these laws are
construed to achieve just results for TRL Co.
It is important to briefly note before discussing the implications of the wrongfully registered apostille that as long as
federal diversity jurisdiction and personal jurisdiction are established, removal to a United States forum is possible.
With regard to the intentional certification (Apostille) and ultimate registration of an invalidly executed
will, the following legal issues arise: (1) negligence, (2) malpractice and third party liability, and (3) fraudulent
misrepresentation.
Negligence arises because as a legal professional, the French notaire has a duty to certify the accuracy and truth
of the facts contained in the will and to ensure that the will is validly executed according to the applicable laws and
required legal formalities. The notaire’s failure to verify the nationality of the attesting witnesses constitutes a breach
of duty that is the proximate cause of the harm to TRL; namely, economic loss due to the nullification of the will.
When the notaire placed his seal and secured an apostille he affixed a high presumption of authenticity
and correctness to the document that he knew was false since he had not adhered to the required
formalities in performing his duties in this case. Moreover, his advice to TRL “not to show the title of heir” and
that “the will would be valid in the USA,” is further evidence of his substandard execution of his duties.
A claim of fraudulent misrepresentation also exists because the notaire misrepresented the will as valid and
authentic. Such misrepresentation is actionable since he was under a duty to ascertain the truth of this representation
in his capacity as a civil law notaire. In failing to perform his duties he chose not to observe the formalities material to
the proper execution of the will. This material omission demonstrates reckless disregard for the truth or falsity of the
will and is the basis of the false misrepresentation to TRL Co. that the will was valid when in fact it was not. The
notaire made statements to and communication with TRL Co. with the intention that such statements and
communications would be relied upon. A French notaire is a highly respected expert in property and certain contract-
related matters, therefore, it was reasonable and justified that TRL relied on these statements and the reliance was to
its detriment.
Malpractice and third party liability issues are also present in this case as a result of the notaire’s professional
relationship and obligation to Mrs. Irene Maquard that ran to any beneficiaries under the will. In this instance, where
the notaire has no direct arrangement with TRL Co., a third party beneficiary of the will, but in the performance of his
duties, has damaged the beneficiary, US court’s have generally held that such beneficiary has a cause of action
against the attorney or notaire, in this case. The cause of action arises from the notaire’s failure to properly execute
the will and the beneficiary may recover damages for this malpractice.
In addition to the remedy for the beneficiary, the notaire may also face disciplinary action for negligent performance of
his duties on behalf of the client. Such discipline, depending on the extent of the notaire’s wrongful actions can range
from a warning to suspension or revocation of the professional license. Willful, intentional or reckless actions
usually carry with them punitive damage judgments as a means of deterring such behavior in the future.
If the choice of law applied to the case is French law and there is a provision for determining punitive
damages, it is likely that the Notaire’s actions meet the requirements for such punitive judgments.
The above discussion is a short note on some of the issues relevant to the Heritage case and is not an exhaustive
discussion of all appropriate legal theories. There are various other claims which can be made as the action
by the Notary opened up a real Pandora’s box.
