Successions of Daisy Lee Morris, wife of/and Levi Morris ( 2023 )

STATE OF LOUISIANA
COURT OF APPEAL
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FIRST CIRCUIT
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2023 CA 0575
and--
2023 CW 0312
SUCCESSIONS OF DAISY LEE MORRIS,
WIFE OF/ AND LEVI MORRIS
JUDGMENT RENDERED: NOV 2 8 2023
Appealed from the Twenty -Second Judicial District Court
Parish of St. Tammany • State of Louisiana
Docket Number 2005- 30245 - Division D
The Honorable John A. Keller, Presiding Judge
Shannon K. Lowry COUNSEL FOR APPELLANTS/ RELATORS
Vincent F. Wynne, Jr. IN'FFRVENORs— Levi Timothy Morris,
R. Gary Higgins, Jr. Daisy Morris Carter, Learinza Morris,
Covington, Louisiana and Virginia Morris Briggs
Raymond B. Landry COUNSEL FOR APPELLEE/ RESPONDENT
John F. Lee ExLc« ToR--- Evangelo Morris
Metairie, Louisiana
BEFORE: WELCH, HOLDRIDGE, AND WOLFE, JJ.
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WELCH, I
Levi Timothy Morris (" Levi"), Daisy Morris Carter (" Daisy"), Learinza
Morris (" Learinza"), and Virginia Morris Briggs (" Virginia") ( collectively " the
opposing heirs") appeal a judgment denying their motion to remove the
administrator of their parents' successions and denying their petition seeking
rescission of the sale of immovable property of belonging to the estate of their
parents.
The opposing heirs also filed a supervisory writ application seeking review
of the trial court' s ruling with regard to the denial of their motion to remove the
administrator, which was referred to this panel for resolution. For reasons that
follow, we dismiss the appeal and deny the supervisory writ application.
BACKGROUND
Levi Morris died intestate on December 6, 1988, and his wife, Daisy Lee
Morris, died intestate on May 30, 1990 ( collectively " decedents"). Of their
marriage, fifteen children were born: 1) Mary Perry (" Mary"); 2) Sammie Morris
Sammie"); 3) Leander Morris (" Leander"), who died in 2002 and is survived by
his three children, Leander Morris, Jr. (" Leander, Jr."), Lee Morris (" Lee"), and
DeShawna Morris (" DeShawna" ); 4) Learinza; 5) Leon Morris (" Leon"); 6) Sarah
Morris Stormer (" Sarah"); 7) Daisy; 8) Arquillia Morris (" Arquillia"); 9) Evangelo
Morris (" Vann"); 10) Mitchell Morris (" Mitchell"); 11) Virginia; 12) Martin L.
Morris (" Martin"), who died at age seven; 13) David Morris (" David"); 14) Levi;
and 15) Jemina Morris Ferguson (" Jemina").
Vann opened his parents' successions and was appointed administrator on
April 1, 2005. According to the detailed descriptive list filed by Vann at the time
the succession was opened, the succession' s assets consisted of a four -acre tract of
land with buildings and improvements and another four -acre tract of land ( for a total
of eight acres) in Folsom, Louisiana (collectively " the property"), which had a total
combined value of $34, 000.00. This value was based on an appraisal of the property
2
dated March 1, 2005. There was also a trailer located on the property,' the value of
which was specifically excluded from the March 1, 2005 appraisal because it
had] wheels, axles, tongue, and hitch still intact (not a permanent foundation)" and
was "
in poor condition with rotted sills, major structural damage, rotted siding, and
a poor roof."
On April 1, 2021, Virginia filed a motion seeking to remove Vann as the
administrator of the succession (" the first motion to remove"), claiming that: he
resided outside the state and failed to appoint a resident agent for service of process
in Louisiana; he failed to deposit money he collected for the succession into a bank
account; he paid debts of the succession without authorization; he failed to file an
annual account; he failed to post an adequate bond; he failed to preserve, repair,
maintain, and protect the property of the succession; and he failed to close the
succession as soon as possible. Virginia also sought to be appointed administratrix
of the succession.
Just prior to hearing on the first motion to remove that was scheduled for June
23, 2021, Vann obtained an updated appraisal of the property, which was dated May
20, 2021, that valued the property at $ 64, 000. 00. Again, the trailer was given no
value for the same reasons set forth in the March 1, 2005 appraisal. Following the
May 20, 2021 appraisal, Vann entered into a purchase agreement with Mary on June
15, 2021, whereby Mary agreed to purchase the property from the succession for
64,000. 00.
On June 18, 2021, pursuant to La. C. C. P. arts. 3281- 3284, Vann filed a
petition seeking authority from the trial court to sell the property to Mary at private
sale for the sum of $64, 000. 00 (" the petition seeking authority")
On June 23, 2021, an evidentiary hearing was held on the first motion to
remove. However, prior to taking evidence, Vann' s petition seeking authority was
It is undisputed that the trailer was purchased and placed on the property by the decedents for the
purpose of providing Sarah and her children with a place to reside after she was estranged from
her husband.
3
discussed at length in open court, where both Virginia and Learinza were present in
open court with counsel. After the presentation of Virginia' s evidence on the first
motion to remove, which consisted of the testimony of Learinza and Virginia, Vann
moved for an involuntary dismissal, which the trial court granted, thereby denying
Virginia' s first motion to remove. In doing so, the trial court stated:
This is an unfortunate situation where I think it has become
decisive with the family of 15 kids, and the [ c] ourt does have discretion
in a matter like this as to whether or not to remove the administrator.
1 do feel as though this succession should have been closed
already; however, it' s now in a posture to be closed, and so the [ c] ourt
still feels as though it would be a disservice at this time to the family to
remove [ Vann] as the administrator.
The [ c] ourt notes that even though testimony was given, there' s
really no testimony that [ Vann] absconded with any succession funds
or really that he didn' t use a greater portion of his own money to pay
the debt and the taxes than the money he received.
But this succession does need to be closed.....
I am going to grant the involuntary dismissal, and I' m going
to deny the [ first] motion to remove [ Vann] as the administrator.
However, if this succession is not closed within the next six
months, then the [ c] ourt would entertain another motion to have [ Vann]
removed. Again, there are some technical violations, but my feeling is
that the best thing is to go forward and let the succession be closed.
A judgment in accordance with the trial court' s ruling was signed in open
court on June 23, 2021.
On August 11, 2021 and on September 1, 2021, Vann published a notice of
the petition seeking authority in the St. Tammany Farmer (the local newspaper in St.
Tammany Parish), and he filed proof of that publication in the record on September
14, 2021. On October 12, 2021, the Clerk of Court filed a certificate of publication
and of no opposition. Thereafter, the trial court authorized Vann to sell the property
for the sum of $64,000. 00 pursuant to a judgment signed on October 15, 2021 (" the
judgment authorizing the sale").
On March 3, 2022, Vann filed a petition to file a descriptive list ( final and
amended) and proposed tableau of distribution, asserting that the sole asset of the
4
succession -- the property had been sold and liquidated on November 9, 2021, and
that he sought to pay all administrative expenses and to distribute the net proceeds
of the sale in the appropriate amounts to all the heirs. Attached to that petition were
waivers and receipt of legacy acknowledgements signed by himself (Vann), Mary,
Sammie, Leander, DeShawna, Leon, Sarah, Arquillia.,Mitchell, and David, wherein
they acknowledged receipt and approval of the amended and final descriptive list
and proposed tableau of distribution.
On March 17, 2022, a motion to remove Vann as the administrator of the
succession was filed by the opposing heirs (" the second motion to remove"). In the
second motion to remove, the opposing heirs noted and urged the same grounds set
forth in the first motion to remove ( filed by Virginia), and further noted that it had
been more than six months since the hearing on that motion, that the succession had
still not been closed, and that the trial court stated at the previous hearing it would
entertain another motion to remove Vann as administrator if the succession was not
closed within six months. The opposing heirs claimed that Vann had neither
provided them with notice of the petition seeking authority nor afforded them the
opportunity to oppose it. While the opposing heirs acknowledged that Vann
requested and published the petition seeking authority in the local newspaper, the St.
Tammany Farmer, they argued that that publication did not constitute notice to the
heirs since several of them resided outside of St. Tammany Parish. The opposing
heirs also claimed that the petition seeking authority was not served on any of the
heirs of the succession, that Vann refused to entertain Learinza' s offer to purchase
the property, and that he disregarded Learinza' s and Daisy' s opposition to the sale.
The opposing heirs further claimed that Vann failed to preserve and protect the
property by failing to secure insurance on the decedents' house, which apparently
burned during Vann' s administration of the succession, and thus, he deprived the
heirs of this inheritance. Therefore, the opposing heirs sought to have Vann removed
as administrator, to grant a new trial as to the petition seeking authority and the
5
judgment authorizing the sale, to place the property of the succession into the
registry of the court, and to have Virginia appointed as administratix of the
successions.
On April 6, 2022, Vann filed a motion seeking to have his request to have the
proposed tableau of distribution approved and to disburse the funds to the heirs set
for hearing, as well as the second motion to remove him as administrator set for
hearing. Vann also maintained that, despite the allegations of the opposing heirs, he
strictly complied with all of the statutory formalities required to sell the succession' s
interest in the property. Vann also maintained that he took several additional and
extraordinary steps outside of the statutory requirements to communicate with his
siblings and to provide them all a reasonable opportunity to cooperate with the sale,
to object to the sale, or to provide reasonable alternatives to the sale, but that no
sibling except for Mary stepped forward to purchase the property, which allowed the
estate to be liquidated and settled. Vann also filed an opposition to the second
motion to remove, claiming that the sale of the property of the estate occurred in
strict adherence to Louisiana law, and that Learinza only complained about the sale
and the valuation of the property in March 2022, several months after the sale had
been concluded. Vann also pointed out that the notice of proposed sale was
published twice, that no opposition was filed by any heir, and therefore, he sold the
property pursuant to the judgment authorizing the sale. Vann also argued that
Louisiana law did not require service of the petition for authority, that he
communicated with the other heirs before he sold the property, and that the sale of
the property was discussed at length at the June 23, 2021 hearing.
On May 25, 2022, the opposing heirs filed a motion to traverse the sworn
detailed descriptive list ( both the original and amended) on the basis that it did not
include either the house in which the decedents resided or the trailer, which were ( or
had been) located on the property. On that same date, the opposing heirs also filed
an opposition to the tableau of distribution and an application for accounting by the
6
administrator, questioning the difference between the net proceeds of the sale from
the gross proceeds of the sale, as well as whether the decedents' house and the trailer
would remain in the administrator' s possession for distribution or whether any value
would be received, and demanding that those assets be accounted for. They also
claimed that there was no necessity for an administration of the estate and opposed
the administrative expenses and attorney fees listed by Vann. They requested that
his proposed tableau of distribution be denied.
Although not contained in the record of this succession proceeding, the
opposing heirs allege in their writ application and appellate brief that on April 26,
2022, they commenced a new, separate proceeding in district court seeking the
rescission of the sale of the estate' s immovable property for lesion beyond moiety
and for damages, naming as defendants, Vann, in his capacity as the administrator
of the succession, and Mary, and bearing docket number 2022- 11799 (" the petition
seeking rescission based on lesion" or " the lesion proceedings"). According to the
opposing heirs, but again, not contained in the record of this succession proceeding,
this new lesion proceeding was " transferred" to the same trial court division
presiding over this succession proceeding by order dated June 27, 2022. However,
the opposing heirs admit that the two cases— the succession proceeding and the
lesion proceeding— were never formally consolidated and that answers to the
petition seeking rescission based on lesion were not filed by either Vann or Mary.'
A hearing was scheduled in the succession matters on September 9, 2022. On
that date, prior to the start of the hearing, the trial court noted that the matters before
it were the second motion to remove, Vann' s motion to approve the tableau of
2 In the opposing heirs' appellate brief to this Court, they acknowledge that the petition seeking
rescission based on lesion was not contained in the record of this succession proceeding and that
the lesion proceeding was never consolidated with the succession proceeding. The opposing heirs
claim that they filed a motion for leave to submit the petition seeking rescission based on lesion to
this Court for review in conjunction with this appeal. However, this Court' s records do not contain
or reveal that any such motion was filed. Furthermore, because the opposing heirs admit that the
lesion proceeding was never consolidated into the succession proceeding, it would be inappropriate
to order the supplementation of the record of the succession proceeding with a pleading that is not
part of its record or consolidated with it.
7
distribution of funds to the heirs, and the opposing heirs' motion to traverse the
sworn detailed descriptive list. The trial court also noted that there were two new
actions—" one for lesion" and " one to have the sale declared as null and void for lack
of service on two of the absentee heirs." 3 Thereafter, the trial court stated that before
it could take up the lesion proceeding and the action to have the sale declared null
for lack of proper service, it " need[ ed] an agreement by the parties to go forward
today because [ those matters were] not properly noticed for [the] hearing." The trial
court was then advised that both sides were prepared to go forward and that Vann
and Mary waived service.
At the hearing, following the presentation of the opposing heirs' evidence,
Vann moved for an involuntary dismissal on the second motion to remove, which
the trial court granted, thereby denying the second motion to remove. Vann also
sought to dismiss the petition seeking rescission based on lesion for its failure to
state a cause of action, but the trial court declined to rule on the issue at that time.'
The trial court ordered briefs and took the issue of whether the sale should be
annulled based on the lack of service of the petition seeking authority under
advisement.'
The trial court received additional evidence on the petition seeking
rescission based on lesion, and at the conclusion of the evidence, found that the
opposing heirs failed to meet their burden of proof and dismissed the claim. The
3 Neither the record before us nor the briefs submitted to this Court contain any information about
a purported suit " to have the sale declared as null and void for lack of proper service." It is unclear
whether such suit was another new action ( separate from succession proceeding and the lesion
proceeding) or whether it was part of the petition seeking rescission based on lesion (and thus part
of the lesion proceeding).
4 In regard to the objection of no cause of action, Vann maintained that, pursuant to La. C. C. art.
2589, the rescission of a sale of immovable property based on lesion could only be claimed by the
seller and only in sales of immovable property— not in sales made by order of the court, which has
been interpreted to include the sale of succession property authorized by the court. See Succession
of Chambers v. Chambers, 98- 937 ( La. App. 3rd Cir, 1219198), 729 So. 2d 608, 611. Vann further
maintained that since the opposing heirs were not the seller and since the sale of the succession
property was authorized by the trial court, the opposing heirs had not stated a cause of action_
Because we find, for reasons detailed herein, that all issues relating to the lesion proceeding are
not appropriately before us and further, because we are unable to review the petition seeking
rescission based on lesion because it is not in the record before us to determine whether it states a
cause of action, we need not address the issue.
5 See footnote 3
8
remaining issues relative to the proposed tableau of distribution and detailed
descriptive list were continued without date.
On January 17, 2023, the trial court issued written reasons for judgment
finding that the opposing heirs had actual notice of the petition for authority; that
under La. C.C.P. arts. 3 26 1, 3281, and 3282, the opposing heirs were not required to
be formally served with that pleading or the judgment authorizing the sale; and that
Vann strictly followed the procedures mandated by law.'
On January 17, 2023, the trial court signed a judgment denying the second
motion to remove and denying, with prejudice, the petition seeking rescission based
on lesion. The opposing heirs filed an application for supervisory writs, seeking
review of the trial court' s ruling with respect to the denial of the second motion to
remove; they also appealed the January 17, 2023 judgment, likewise challenging the
trial court' s ruling with respect to the second motion to remove, as well as the trial
court' s ruling on their petition seeking rescission based on lesion. The supervisory
writ application was referred to this panel for resolution. See Successions of Daisy
Lee Morris, wife of/and Levi Morris, 2023- 0312 ( La. App. I' Cir. 6/ 26/ 23)
unpublished writ action).
6 We note that the trial court stated at the hearing that it was taking the issue of whether the sale
should be annulled for lack of service of the petition seeking authority under advisement. While
the trial court' s written reasons for judgment find that service was not necessary, they contain no
express ruling on the annulment of the sale. However, the denial of the relief sought is implied.
Furthermore, the January 1. 7, 2023 judgment subsequently signed by the trial court is silent with
respect to the annulment of the sale based on lack of service. Therefore, the relief sought is deemed
denied. See Schoolhouse, Inc. v. Fanguy, 2010- 2238 ( La. App. Pt Cir. 6110111), 69 So. 3d 658,
664 ( providing that generally, silence in a judgment of the trial court as to any issue, claim, or
demand placed before the court is deemed a rejection of the claim and the relief sought is presumed
to be denied).
As detailed in footnote 3, while the record is not clear as to exactly how the issue of annulling
the sale based on lack of service was before the trial court, the opposing heirs contend that the trial
court' s determination that service was not necessary was erroneous in both their challenge to the
trial court' s ruling on the second motion to remove and its ruling on the petition seeking rescission
based on lesion. While we find, for reasons set forth herein, that all issues relating to the petition
seeking rescission based on lesion are not properly before us, because the Iesion proceeding is not
properly before us, we find the trial court' s ruling and written reasons for judgment regarding
whether service was necessary pertinent to issues raised herein with regard to the second motion
to remove.
7
JURISDICTION
Appellate courts have the duty to determine sua sponte whether their subject
matter jurisdiction exists, even when the parties do not raise the issue. Advanced
Leveling & Concrete Solutions v. Lathan Company, Inc., 2017- 1250 ( La. App.
1st Cir. 12/ 20/ 18), 268 So. 3d 1044, 1046 ( en bane). This court' s appellate
jurisdiction extends to final judgments and to interlocutory judgments when
expressly allowed by law. See La. C. C. P. art. 2083( A) and ( C). A final judgment
is one that determines the merits of a controversy in whole or in part; in contrast, an
interlocutory judgment does not determine the merits, but only preliminary matters
in the course of an action. La. C. C.P. art. 1541. In addition, La. Const. art. V, §
10( A) provides that a court of appeal has " supervisory jurisdiction over cases which
arise within its circuit."
The January 17, 2023 judgment on appeal herein determines, in part, a
preliminary matter in the succession proceeding, i.e., the denial of the second motion
to remove. As such, that portion of the judgment is interlocutory. The judgment
also determines the merits of the petition seeking rescission based on lesion.
Therefore, that portion of the January 17, 2023 judgment is final pursuant to La.
C. C.P. art. 1841. Accordingly, we will separately address each portion of the
January 17, 2023 judgment as it relates to jurisdiction and this appeal.
Second Motion to Remove
Subject to certain exceptions, appeals from orders or judgments rendered in
succession proceedings are governed
by the rules applicable to ordinary
proceedings. La. C. C. P. art. 2974. The Louisiana Code of Civil Procedure grants
the right to an immediate appeal of certain judgments rendered in succession
proceedings. Succession of Saucier, 2021- 1466 ( La. App. 1st Cir. 6129122), 344
So. 3d 108, 113. Included therein are judgments confirming, appointing, or removing
a succession representative. See La. C. C. P. arts. 2122 and 2974; Succession of
LeBoeuf, 2013- 0209 ( La. App. 1st Cir. 919114), 153 So. 3d 527, 533; Succession of
10
Jaga, 2016- 1291 ( La. App. 1 " Cir. 9115117), 227 So. 3d 325, 327- 328. However, the
judgment on appeal herein denies a motion to remove an administrator; it does not
remove, appoint, or confirm a succession administrator. Therefore, the appeal of
this interlocutory judgment is not specifically authorized by law. Accordingly, this
Court lacks appellate jurisdiction over the portion of the judgment denying the
second motion to remove and that portion of the appeal must be dismissed.'
However, review of an interlocutory judgment by this Court for which an
appeal is not expressly authorized may be obtained through an application for
supervisory writs filed within thirty days of the interlocutory judgment. See La.
Const. art. V, § 10( A); La. C. C.P. art. 2201; Matter of Succession of Blahut, 2021-
1221 ( La. App. 1st Cir. 418122), 342 So. 3d 98, 101 n.3; Uniform Rules -- Courts of
Appeal, Rule 4- 3. In this case, the judgment was filed and signed on January 17,
2023, and the notice of judgment was mailed on January 19, 2023. The opposing
heirs timely filed a notice of intent to file an application for supervisory writ on
February 22, 2023, a return date was set for March 30, 2023, and the application for
supervisory writ timely was filed on March 30, 2023. 8 The opposing heirs'
supervisory writ application was referred to this panel for resolution; therefore, we
will review the merits of the interlocutory portion of the January 17, 2023 judgment
under our supervisory jurisdiction.
We recognize that when an unrestricted appeal is taken from a final judgment, the appellant is
entitled to seek review of all adverse interlocutory rulings prejudicial to him, in addition to the
review of the final judgment. Bourg v. Safeway Insurance Company of Louisiana, 2019- 0270
La. App. 1st Cir. 315120), 300 So. 3d 881, 887. However, because we find, for reasons detailed
hereinbelow, that an unrestricted appeal of a final judgment is not properly before us, the opposing
heirs are not entitled to seek review of this interlocutory ruling on appeal.
8
Thirty days after the January 19, 2023 mailing of notice ofjudgment was Saturday, February 18,
2023. In computing a period of time, the last day of the period is to be included, unless it is a legal
holiday, in which event the period runs until the end of the next day which is not a legal holiday.
See La. C. C. P. art. 5059( A). The following Monday was Monday, February 20, 2023, which was
President' s Day and a legal holiday. The next day was Tuesday, February 21, 2023, which was
Mardi Gras and a legal holiday. See La. R. S. 1: 55( A)( 1). The next day, which was not a legal
holiday, was Wednesday, February 22, 2023, and the notice of intent to file supervisory writ was
filed thereon. Thus, the notice of intent to file supervisory writ was timely filed, and the writ was
timely filed within the return date set by the trial court. See Spangler v. Chiasson, 95- 2113 ( La.
App. 1st Cir. 4122196), 681 So. 2d 956, 957 n.2 ( noting that it the notice of intent to seek supervisory
writ was filed within thirty days of the ruling at issue, this Court has interpreted a return date set
outside of the thirty -day period as an implicit extension of the return date by the trial court).
11
Petition Seeking Rescission Based On Lesion
A valid, appealable final judgment must be precise, definite, and certain. It
must contain appropriate decretal language, and it must name the party in favor of
whom the ruling is ordered, the party against whom the ruling is ordered, and the
relief that is granted or denied. Advanced Leveling & Concrete Solutions, 268
So. 3d at 1046. These determinations should be evident from the language of the
judgment without reference to other documents in the record. Id. In the absence of
appropriate decretal language, the judgment is defective and cannot be considered a
final judgment for purposes of appeal. See Advanced Leveling & Concrete
Solutions, 268 So. 3d at 1046- 1047.
In this case, with respect to the petition seeking rescission based on lesion, the
January 17, 2023 judgment provides " IT IS HEREBY FURTHER ORDERED,
ADJUDGED, AND DECREED that the Opposing Heirs' Petition for Rescission
of Sale of Estate Immovable Property for Lesion beyond Moiety and Damages is
denied with prejudice." Thus, while it is evident that the petition seeking rescission
based on lesion was denied, the judgment does not contain appropriate decretal
language dismissing that petition. The absence of decretal language dismissing the
petition renders the judgment defective, and thus, cannot be considered a final
judgment for purposes of appeal. See Sauce v. Burke, 2022- 0541 ( La. App. I" Cir,
1117122), 356 So. 3d 439, 445.
Generally, when a judgment is defective because it does not contain
appropriate decretal language, this Court must remand the matter for the limited
purpose of instructing the trial court to sign an amended judgment that is precise,
definite, and certain and contains appropriate decretal language. Id.; see La. C. C. P.
arts. 1918( A), 1951, and 2088( A)( 12); Hill v. International, Inc. v. JTS Realty
Corp., 2021- 0157 ( La. App. 1st Cir. 12130121), 342 So. 3d 322, 327- 328.
However, in this case, we find remand is not necessary because neither the
petition seeking rescission based on lesion nor the lesion proceeding itself is properly
12
before us. The motion for appeal in this matter was filed and granted in the
succession proceeding, and the record lodged with this court is the trial court record
from the succession proceeding. Although the record reveals that all of the purported
parties in the lesion proceeding— the opposing heirs and Vann and Mary— agreed to
hear the petition seeking rescission based on lesion in conjunction with the second
motion to remove ( and the other matters that were pending in the succession
proceeding), the opposing heirs have admitted and it is undisputed that the petition
seeking rescission based on lesion was filed in a separate suit from the succession
proceeding and that that suit ( the lesion proceeding) was not consolidated with the
succession proceeding.' Therefore, because the lesion proceeding was not
consolidated with the succession proceeding, we find that any issues on appeal
relative to the petition seeking rescission based on lesion are not properly before us
and that portion of the appeal must be dismissed.' o
REMOVAL OF ADMINISTRATOR
A party seeking removal of a succession representative must prove by
convincing evidence that the representative either breached his fiduciary duty to the
succession under La. C. C. P. art. 319111 or the existence of one of the grounds for
removal enumerated in La. C. C. P. art. 3182. Succession of Dean, 2017- 0155 ( La.
App. 1st Cir. 3129118), 247 So. 3d 746, 762, writ denied, 2015- 00679 ( La. 9114/ 18),
252 So. 3d 479. The grounds set forth in La. C.C.P. art. 3182 include
disqualification, incapability of discharging the duties of office, mismanagement of
9 We note that the opposing heirs allege, but the record does not reveal, that the lesion proceeding
was transferred to the same division of the trial court that presided over the succession proceeding.
Nonetheless, even if the lesion proceeding was transferred, it was never consolidated. Therefore,
it is not properly before this Court in this appeal from the succession proceeding. See La. C. C. P.
arts. 253. 2 and 1561.
10
Nothing precludes the opposing heirs from obtaining a final judgment, with appropriate decretal
language, in the lesion proceeding and appealing that judgment in the manner provided by law,
11 Louisiana Code of Civil Procedure article 3191( A) provides that "[ a] succession representative
is a fiduciary with respect to the succession, and shall have the duty of collecting, preserving, and
managing the property of the succession in accordance with law. He shall act at all times as a
prudent administrator, and shall be personally responsible for all damages resulting from his failure
so to act."
13
the estate, failure to perform any duty imposed by law or court order, ceasing to be
a domiciliary of the state without appointing an agent, or failing to give notice of his
application for appointment when required by law.
A trial court is authorized to remove a succession representative only atter
such a showing is made. Dean, 247 So. 3d at 763. At that point, the trial court is
vested with discretion in determining whether removal of a succession representative
is appropriate under the particular facts. Absent an abuse of discretion, the trial
court' s decision regarding whether a succession representative should be removed
will not be disturbed on review. See Id.
As previously set forth, in the second motion to remove, the opposing heirs
pointed to the grounds set forth in the first motion to remove, i.e. failing to preserve,
maintain, and protect succession property; failing to close the succession as soon as
possible; failing to appoint a resident agent while he lived out of state; failing to
deposit money he collected for the successions into a bank account; failing to file an
annual account; and failing to post an adequate bond. They also claimed that Vann
should be removed as administrator because the succession was still not closed, even
though it had been more than six months since the hearing on the first motion to
remove; Vann neither provided them with notice of his petition seeking authority
nor afforded them the opportunity to oppose it, arguing that publication in the St.
Tammany Farmer did not constitute notice to the heirs because several of the heirs
reside outside of St. Tammany; and the heirs were not served with the petition
seeking authority or provided notice. The opposing heirs also claimed that they
obtained an appraisal of the property on July 8, 2 02 1, that Vann refused to entertain
Learinza' s offer to purchase the property and disregarded Learinza' s and Daisy' s
opposition to the sale, and that Vann failed to preserve and protect the property and
to secure insurance on the decedents' house, which burned during Vann' s
administration of the succession and deprived the heirs of their inheritance.
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Also, as previously set forth, at the hearing in this matter, the trial court
granted Vann' s motion for involuntary dismissal and denied the second motion to
remove."
In doing so, the trial court provided the following oral reasons:
One, could Vann have communicated a little better with the rest
of the family? From what I' m hearing, he probably could have and he
should have, but once lawyers get involved, by no fault of the lawyers,
there are certain rules that apply with respect to communication, and
whether or not Vann was legally prohibited from communicating with
the two people that actually brought suit against him or not, he felt like
he could not communicate.
But I think that everybody who testified came across as credible,
but I thought Vann came across as very credible. He testified that he
did his best to advise everybody. He had a text string which included
everybody but the two of y' all, so even though he could have
communicated better, I don' t think what he did rose to the level that he
should be removed as the administrator.
At the time, one thing I was really looking at to see here today is
when Vann would have received the July 8, 2021 appraisal, because he
agreed to sell the property for $64, 000.[ 00]. That appraisal was done
July S, 2021.
Had [ Vann] received [ the July 8, 2021 appraisal] before he went
forward with the sale, then I would have some serious questions as to
whether or not he should be removed, and my opinion may be different.
But there was no testimony that he actually received or that his attorney
received that appraisal before the sale was completed.
also] there' s been no definitive, there was no testimony or any
evidence of any definitive communication from any of the opposing
heirs to Vann of their willingness to purchase the property after June of
2021
Now, I know that [Learinza] testified that he was trying to do his
workup and diligence in order to buy the property, and again, I wish
there was more communication because maybe that would have
changed things, but I didn' t see where
anybody had actually
communicated to Vann that they were willing to pay a certain price for
that property before he actually sold it.
Louisiana Code of Civil Procedure article 1672( B) provides that in an action tried by the court
without a jury, any party, without waiving his right to offer evidence in the event the motion is not
granted, may move for involuntary dismissal at the close of the plaintiff' s case on the ground that
upon the facts and law, the plaintiff has shown no right to relief. In deciding whether to grant a
motion for involuntary dismissal, the trial court must weigh and evaluate the evidence up to that
point and ascertain whether the plaintiff has presented sufficient evidence in his case in chief to
establish his claim by a preponderance of the evidence. See Taylor v. Tommie' s Gaming, 2004-
2254 ( La. 5124105), 902 So. 2d 380, 384; Jackson v. Capitol City Family Health Center, 2004-
2671 ( La. App. I' Cir. 12/ 22/ 05), 928 So. 2d 129, 131. A trial court' s decision with regard to a
motion for involuntary dismissal pursuant to La. C. C.P. art. 1672( B) should not be reversed unless
it is manifestly erroneous or clearly wrong. 7d.
15
So based on all of those reasons, 1 don' t think that there was
enough evidence ... to justify removing [ Vann] as the administrator. I
don' t think there was enough evidence to show that he breached a
fiduciary duty to the heirs in the succession.
Additionally, in the trial court' s written reasons for judgment, relevant to the
issue of providing the heirs with notice of the petition seeking authority, the trial
court stated as follows:
Based on the testimony given by the [ o] pposing [ h] eirs at the
September 9, 2022, hearing, the [ c] ourt finds that they had actual notice
of the ongoing proceedings either through personal conversations,
emails between counsel representing the parties, and a private family
Facebook page. However, the [ o] pposing [ h] eirs contend that because
formal service of process of the ... petition for authority ... filed by
Vann and the judgment [ authorizing the sale] was not made, they were
deprived of the opportunity to formally oppose the sale.
Based on the above chronology and the evidence in the record,
Vann strictly followed the procedures mandate by the [Louisiana] Code
of Civil Procedure]. Except for La. C. C.P. art. 3293, dealing with an
exchange of succession property, no requirement exists that formal
service be made on all heirs for a private sale to tape place provided
such sale has been approved by the court, as it was in this case.
In the opposing heirs' writ application, they seek the reversal of the trial
court' s ruling on the second motion to remove. In addition to their arguments as to
Vann' s failure to notify them of the petition seeking authority and his alleged
mismanagement and failure to preserve and/or protect the property, they also assert
that Vann failed to close the succession as soon as possible, failed to open a
succession account for funds and failed to deposit funds collected from other heirs,
failed to provide an annual account of receipts and disbursements, and failed to post
adequate security. an the other hand, Vann asserts that the trial court did not abuse
its discretion in denying the motion to remove because he strictly followed the
procedures mandated by the Louisiana Code of Civil Procedure and the remaining
heirs had actual notice of the sale and the trial court properly rejected the remaining
grounds for removal.
Therefore, we must determine: ( 1) whether the trial court was clearly wrong
in concluding that under the facts and law, the opposing heirs failed to show that
Vann either breached his fiduciary duty to the succession or the existence of one of
the grounds for removal as administrator, i.e., disqualification, incapability of
discharging the duties of office, mismanagement of the estate, failure to perform any
duty imposed by law or court order, has ceased to be a domiciliary of the state
without appointing an agent, or has failed to give notice of his application for
appointment when required by law; and ( 2) whether the trial court abused its
discretion in denying the second motion to remove. See La. C. C. P. arts. 3182 and
3191; Succession of Dean, 247 So. 3d at 762- 763.
Failure to Per arm a DuU Required by Law: Failure to Serve the Petition to Sell
A succession representative may sell succession property in order to pay debts
and legacies, or for any other purpose, when authorized by the court as provided by
law. La. C. C. P. art. 3261. Louisiana Code of Civil Procedure article 3281 provides:
A. A succession representative who desires to sell succession property
at private sale shall file a petition setting forth a description of the
property, the price and conditions of and the reasons for the proposed
sale. If an agreement to sell has been executed in accordance with
Paragraph B of this Article, a copy of such agreement shall be annexed
to the petition.
B. A succession representative may execute, without prior court
authority, an agreement to sell succession property at private sale,
subject to the suspensive condition that the court approve the proposed
sale.
C. The succession representative shall be obligated to file a petition in
accordance with Paragraph A of this Article within thirty (30) days of
the date of execution of such an agreement to sell.
Additionally, La. C. C. P. art. 3282 sets forth the publication requirements for
a private sale as follows:
Notice of the application for authority to sell succession property at
private sale shall be published ... at least twice for immovable property,
in the manner provided by law. A court order shall not be required for
the publication of the notice.
The notice shall be published in the parish in which the succession
proceeding is pending. When immovable property situated in another
parish is to be sold, the notice shall also be published in the parish in
which the property is situated.
The notice shall state that any opposition to the proposed sale must be
filed within seven days from the date of the last publication.
17
An opposition to a proposed private sale of succession property may be filed
only by an heir, legatee, or creditor. La. C. C. P. art. 3283. An opposition shall be
tried as a summary proceeding. La. C. C.P. art. 3284( C). If no opposition has been
timely filed and the court considers the sale to be in the best interest of the
succession, the court shall render an order authorizing the sale and shall fix the
minimum price to be accepted. La. C.C. P. art. 3284( A). The approval of an
application to sell succession property at private sale rests within the sound
discretion of the trial court. In re Succession of Cannata, 2014- 1546 ( La. App.
1st
Cir. 7110115), 180 So. 3d 355, 372, writ denied, 2015- 1686 ( La. 10130115), 180 So. 3d
303.
Herein, Vann executed a purchase agreement with Mary on June 15, 2021,
whereby Mary agreed to purchase the property from the succession for $64, 000. 00.
This purchase agreement was executed prior to Vann filing the petition seeking
authority or otherwise receiving authority to sell the property. However, as set forth
in La. C. C. P. art. 3281( B), a succession representative may execute, without prior
court authority, an agreement to sell succession property. Thereafter, on June 18,
2021, and in accordance with time period set forth in La. C. C. P. art. 3281( C), Vann
filed the petition seeking authority to sell the property to Mary at a private sale for
the sum of $64, 000.00, with a copy of the purchase agreement attached. The heirs
were not formally served with the petition seeking authority; however, in accordance
with La. C. C.P. art. 3282, notice of the petition seeking authority was published
twice— on August 11, 2021 and on September 1, 2021— in the St. Tammany Farmer,
the newspaper for the parish in which the succession was pending and the property
was located. Pursuant to La. C. C. P. art, 3282, the notice provided that any
opposition to the proposed sale had to be filed within seven days of the date of the
last publication notice. No objection was filed within seven days of the date of the
last publication of the notice of petition seeking authority, and the trial court
approved the sale on October 15, 2021 in accordance with La. C. C. P. art. 3284.
18
Thus, we Vann complied with the requirements set forth in La. C. C.P. arts. 3281-
3284 for selling immovable property of the succession by private sale.
Nonetheless, the opposing heirs maintain that they should have been formally
served with the petition seeking authority and that the notice by publication was
insufficient because they were non-residents. Thus, the opposing heirs claim they
were not afforded the opportunity to object to the sale. In support of their contention
regarding service, the opposing heirs rely on Succession of Doll, 197 So. 2d 342 (La.
App. 2na Cir. 1967) and Succession of Chisholm, 53, 771 ( La. App. 2nd Cir. 313121),
314 So. 3d 1056.
In Succession of Doll, 197 So. 2d at 343, the plaintiff, who was an heir of the
decedent, filed a petition to annul the private sale of immovable property of the
succession, and the trial court dismissed that action based on a peremptory exception
raising the objections of no cause of action and no right of action. Among other
things, the basis of the plaintiffs petition was that neither the petition for the
authority to sell the property nor the court order authorizing the sale set forth, with
any degree of certainty, a price for which the property might be sold; notice of the
petition for authority to sell the property had not been published; and the plaintiff,
as an heir, had no actual notice or knowledge and was not afforded the opportunity
to oppose the private sale. Id. The court of appeal reversed, finding that the plaintiff
had stated a cause of action to annul the sale because he did not receive either actual
notice of the petition for authority to sell or notice by publication. Additionally, the
court of appeal found that the plaintiff, as an heir, had the right to oppose the private
sale, and thus, had a right of action to annul it. Id. at 343- 344.
In Succession of Chisholm, 314 So. 3d at 1058, the decedent died intestate,
leaving one minor child from a previous marriage as his heir, and the decedents'
father was appointed as administrator of the succession. To protect the minor child' s
interest in assets of the succession, the minor child' s mother filed a notice of
appearance and an answer. The decedent died leaving a 51% membership interest
19
in a limited liability company (" LLC"). The administrator sought and obtained
authority from the trial court to sell the decedent' s membership interest in the LLC
pursuant to La. C. C. P. art. 3285, which permits a succession representative to sell
bonds and shares of stock at private sale at rates prevailing in the open market
pursuant to a court order based upon a petition, without the necessity of advertising.
The minor child' s mother was not served with the petition. Thereafter, the
administrator filed a petition for homologation of the final account, and the trial court
rendered and signed a judgment approving and homologating the final account,
discharging the administrator, and placing the remaining monies of the estate into a
bank account for the child. Again, the child' s mother was not served with a copy of
the petition for homologation of the final account or the judgment approving and
homologating the final account. The child' s mother filed a motion for new trial
regarding the judgment approving the sale. The motion for new trial was denied,
and the child' s mother appealed. The child' s mother also filed a petition seeking to
nullify the sale of the decedent' s membership interest in the LLC and for damages,
which was still pending at the time of the appeal.
On appeal, the appellate court determined that the trial court erred in
authorizing the sale of the LLC membership interest pursuant to La. C. C.P. art. 3285,
because the membership interest was neither a stock or bond nor did it have a value
in the open market. Id. at 1059- 1060. Thus, the appellate court determined that the
provisions set forth in La. C. C.P. art. 3281 and 3282 were applicable, including the
requirements of publication of the notice of sale, the opportunity for an heir to
oppose the sale, and the opportunity for the court to provide judicial oversight to
ensure that the sale was for a fair price. Id. at 1060. In addition, the appellate court
noted that the child' s mother was not served with a copy of the petition for
homologation of the final account or the judgment approving and homologating the
final account, contrary to the express provisions of La. C. C. P. art. 3335. Id. at 1061-
20
1062. Thus, the appellate court concluded that the trial court erred in denying the
mother' s motion for new trial. Id. at 1062.
We find that both Succession of Doll and Succession of Chisholm are
distinguishable from the present case and do not support the opposing heirs'
argument that formal service of a petition seeking authority to sell immovable
property of the succession by private sale was required. Indeed, neither case
specifically addressed that issue. Rather, the appellate court in Succession of Doll
determined that the plaintiff had stated a cause of action to annul the sale because he
did not receive either actual notice of the petition for authority to sell or notice by
publication, whereas in this case, the trial court found the opposing heirs received
actual notice ofthe petition seeking authority (as discussed hereinafter) and they also
received notice by publication. In Succession of Chisholm, the appellate court
determined that a new trial was warranted because neither the administrator nor the
trial court complied with any of the requirements set forth in La. C. C.P. arts. 3181-
3184 for selling the property of the succession at private sale, whereas in this case,
it was determined that Vann did comply with those requirements.
In finding that Vann did comply with the requirements set forth in La. C.C.P.
1st
arts. 3181- 3184, we find Succession of Garside, 2021- 1208 ( La. App. Cir.
4111/ 22), 2022 WL 1074606, writ denied, 2022- 00777 ( La. 9120122), 346 So. 3d 282instructive. Therein, the decedent died intestate leaving her three children as heirs.
One of the heirs was appointed administrator of the succession, and thereafter, filed
an application with the court to sell immovable property of the succession at a private
sale. The application was advertised twice, as required by La. C. C.P. art. 3282, the
administrator filed a petition for homologation ofthe application for authority to sell,
and the trial court signed a judgment homologating the administrator' s application.
Id. at* 1.
One of the other heirs filed an action to annul the judgment, arguing that
neither she nor her counsel received notice of the application for authority to sell.
21
The trial court denied the relief sought. Id. In affirming the judgment of the trial
court, this Court noted that the record contained evidence of notice to the heir and
her counsel, as the application for authority to sell the immovable property included
a certificate of service stating that a copy of the pleading "[ h] ad been mailed,
emailed, and/ or faxed to all counsel of record." Id. at * 2. Although the heir argued
and submitted evidence that neither she nor her attorney had received a copy of the
notice by mail, email, or fax, this Court further noted that, " even though they may
not have received the notice by mail, the heir and her attorney had the same notice
everyone else had when the sale was advertised twice." Id.
After finding no manifest error in the trial court' s determination that the heir
received notice of the petition for authority based on a certificate of service and by
publication, and that the administrator complied with the requirements of law, this
Court concluded that the heir was not entitled to annul the judgment authorizing the
sale. Id. at * 3.
We recognize, as pointed out in Succession of Garside, that La. C. C. P. art.
2971 provides, in part that "[ e] xcept as otherwise provided by law, the rules of
pleading and service of process applicable in ordinary proceedings shall apply to
succession proceedings" 13 and that "[ a] certified copy of the petition, opposition,
contradictory motion, or rule initiating a contradictory succession proceeding shall
be served on the adverse party." ( Emphasis added). However, at the time Vann
filed the petition seeking authority, neither the opposing heirs nor any of the other
heirs were " parties" or " adverse parties" to either the succession proceeding or to
Vann' s petition seeking authority. Furthermore, the petition seeking authority was
not a pleading that initiated a contradictory succession proceeding ( at that time).
Thus, while the service of the petition for authority on the heirs was not made,
the provisions of La. C.C.P. arts. 3281- 3284 relative to requests by an administrator
13 The rules of service of process in ordinary proceedings require service of pleadings on " the
adverse party." See La. C. C. P. art. 1312; see also La. C. C. P. arts. 1313- 1314.
22
to sell succession property at private sale do not reference or require service of
process; rather, all that is required is notice by publication and the opportunity to file
an opposition within seven days of the date of the last publication. La. C. C. P. art.
3282. But c. f.La. C. C. P. art. 3293 ( providing that when a succession representative
seeks authority to exchange succession property, a certified copy of the petition for
authority " shall be served, as provided in [ La. C. C. P. art.] 1314, on all heirs and
legatees of the deceased who have not joined in [the] petition"). In this case, Vann' s
petition seeking authority was published twice, no opposition was filed within the
appropriate time delay, and the trial court approved the sale. Thus, the requirements
by law for a private sale of succession property were met and Vann' s failure to serve
the petition seeking authority does do not provide a basis for his removal as
administrator.
As to whether notice by publication was sufficient due process to afford the
heirs the opportunity to file an opposition to the petition seeking authority and/ or
whether the heirs were entitled to some other form of notice to ensure due process
because some of the heirs, including the opposing heirs, were not residents of this
state, the opposing heirs rely on La. C. C. P. art. 3171 and Robinson v. Nuniy, 46, 053
La. App. 2" d Cir. 6/ 10/ 11), 69 So. 3d 631, writs denied, 2011- 1513 and 2011- 1516
La. 10/ 7/ 11), 71 So.3d 317 and 72 So. 3d 348.
Louisiana Code of Civil Procedure article 3171 provides that "[ i] f it appears
from the record, ... that an heir of an intestate ... is an absentee, and there is a
necessityfor such appointment, the court shall appoint an attorney at law to represent
the absent heir ...." ( Emphasis added). An "[ a] bsentee" includes " a person who is
a nonresident of this state, ... and who has not appointed an agent for the service
of process in this state ...." La. C. C. P. art. 5251( 1). It is undisputed that the
opposing heirs ( as well as some of the other heirs), reside outside of Louisiana and
have not appointed agents for service of process in Louisiana.
23
In Robinson, 69 So. 3d at 634, the absentee heirs of a succession brought an
action to annul the private sale of the succession' s sole asseta 250 acre tract of
land in Bienville Parish. The administratrix had filed a petition for authority to sell
the tract of land; the petition did not name the purchaser, but set forth the price for
the sale. Notice of the sale was published in the Bienville Detnocrat— a local
newspaper in Arcadia Parish, where the tract of land was located, and the court
subsequently approved the sale. Id. The absentee heirs sought to annul the private
sale on the basis that they had no notice of it and no attorney ( or curator) was
appointed to represent them; an administration and sale of the succession' s sole asset
was not necessary and deprived the absentee heirs of due process; and any effort to
sell the property should have been handled contradictorily by partition by licitation.
Id. at 635. However, the absentee heirs' action was dismissed pursuant to a
peremptory exception raising the objection of no cause of action. Id.
On appeal, the appellate court pointed out that the administratrix and her
agents spoke to and were informed by the absentee heirs that they did not want the
property sold, but nonetheless, she opened the succession, obtained appointment as
administratrix, and conducted the private sale of the succession property without
informing the absentee heirs. Id. at 636. The appellate court also pointed out that
the administratrix and her attorney knew that: two of the absentee heirs did not want
their interest in the property sold; those two heirs lived out of state; their contact
information was in the public records; those heirs had been contacted before the sale;
and the only notice afforded of the private sale of the land was the two
advertisements in the Bienville Democrat. Id. at 639. The appellate court further
pointed out that no effort was made to contact the out of state heirs or to appoint an
attorney to represent their interests until after the sale was concluded. Id. Thus, the
appellate court held that the appointment of an attorney to represent the absentee
heirs was a necessity, and the absentee heirs had stated a cause of action to nullify
the private sale. Id,
24
In reaching its decision, the Robinson court relied on Middle Tennessee
Council, Inc., Boy Scouts of America v. Ford, 274 So.2d 173 ( La. 1973). In that
case, the plaintiffs, who were three out-of-state organizations and residuary legatees
in a decedent' s will, sought to annul the private sale of the succession' s one- third
interest in a tract of land. The executor of the estate petitioned the court for authority
sell the succession' s one-third interest to the other co- owners of the land, the petition
for authority was advertised, no opposition was filed, and the sale was subsequently
authorized by the court. Id. at 174. The plaintiffs' action to annul was based, in
part, on their claim that they had no notice of the sale and no attorney or curator had
been appointed to represent them. Id. at 175. The Louisiana Supreme Court
concluded that, where legatees of a succession were absentees and the entirety of the
succession property in Louisiana was being sold at private sale, " a necessity for the
appointment" of an attorney existed and was inherent in the circumstances presented.
Id. at 176. Thus, the court held that the residuary legatees, who were to be the sole
beneficiaries of the sale proceeds, were entitled to notice of, and an opportunity to
oppose such sale. Id.
We find both Robinson and Middle Tennessee Council, Inc., Boy Scouts of
America to be distinguishable. Unlike the plaintiffs in those cases, there is no
contention that the opposing heirs were unaware of the proposed sale and not
contacted beforehand. In fact, at the hearing on the second motion to remove, both
Learinza and Virginia testified that they were present at the June 23, 2021 hearing
on the first motion to remove, and Learinza admitted that the petition seeking
authority and the purchase agreement with Mary were topics of discussion at that
hearing. Additionally, at the June 23, 2021 hearing on the first motion to remove,
the trial court stated that oppositions to the petition seeking authority would needed
to be filed if there were any; however, none of the opposing heirs did so. Although
the testimony at the hearing on the second motion to remove reflects that Daisy and
Levi were not present at the June 23, 2021 hearing on the first motion to remove,
25
Vann specifically testified that after the June 23, 2021 hearing, he told " everyone"
that he was going to sell the property ( noting his communications with Daisy and
Levi directly), and that if they wanted to buy the property, they needed to let him
know something and they would go from there. Moreover, the evidence from the
hearing on the second motion to remove reflects that Vann maintained a
webpage/ website for the family relating to the estate, and he testified that everything
was put on the website, including the petition seeking authority and the publications
thereof. Notably, the trial court in its oral reasons for granting the involuntary
dismissal of the second motion to remove, found Vann to be very credible with
regard to his testimony about communications with the family/other heirs,"
The evidence from the hearing on the second motion to remove regarding the
personal communications by Vann; the correspondence, emails, and text messages
between the heirs, Vann, and each party' s respective counsel; and the family
webpage/website, reflects that after the June 23, 2021 hearing, each of the opposing
heirs was aware of the possibility of the sale of the property to Mary and that they
needed to communicate their opposition to the sale or their willingness to purchase
the property to Vann and/or his counsel prior to a sale. However, as the trial court
found, there was no testimony or evidence of any definitive communication in this
regard. Thus, although the petition seeking authority was not served on the opposing
heirs and no attorney was appointed to represent them, the opposing heirs had actual
notice of the proposed sale and the need to file an opposition if they had one. Thus,
there was no " necessity" for the appointment of an attorney to represent the opposing
heirs. See La. C. C. P. art. 3171.
Furthermore, even if Vann was required by law to serve the petition seeking
authority and/ or to appoint an attorney for any absentee heirs and thus failed to
14 Where a trial court' s factual findings are based on determinations regarding the credibility of
witnesses, the trier of facts' findings demand great deference and are virtually never manifestly
erroneous or clearly wrong. Rosell v. ESCO, 549 So. 2d 840, 844 ( La. 1989). No documents or
objective evidence controvert Vann' s testimony, and his testimony is not otherwise implausible.
26
perform a duty imposed by law, the trial court was not required to remove Vann as
administrator, but rather, was vested with discretion in determining whether removal
was warranted under the facts of the case. See Cucchero, 845 So. 2d at 452- 453.
Herein, the trial court found that based on all of the evidence presented, the removal
of Vann as administrator was not warranted. Considering the factual findings made
by the trial court, which are not manifestly erroneous, and the trial court' s vast
discretion in such matters, we cannot say that the trial court abused its discretion in
denying the second motion to remove on this basis. 'I
Failure To Preserve, Repair, Maintain, and Protect the Property
Louisiana Code of Civil Procedure article 3221 states that "[ a] succession
representative shall preserve, repair, maintain, and protect property of the
succession."
A succession representative' s failure to perform his duty to preserve
and manage property may subject him to removal by the court. See La. C. C. P. art.
3182; Succession of Lawless, 415 So.2d 1008, 1009 ( La. App. 4``' Cir. 1982).
In the opposing heirs' second motion to remove, they also claimed that when
the decedents died and their successions were opened, the estate included not only
the property, but also a house and a trailer, which are both depicted in the March 1,
2005 appraisal obtained by Vann. The opposing heirs maintain that Vann failed to
repair,
preserve, maintain,
and protect these assets and the property of the
succession. They further point out that Vann failed to obtain insurance on the house,
which burned during Vann' s administration of the estate. The opposing heirs
maintain that Vann' s failure to preserve, repair, maintain, and protect the property
warrants Vann' s removal as administrator and deprived the heirs of their full
inheritance.
As to the insuring the house, we recognize that it is the duty of the succession
representative to make necessary expenditures for the preservation of succession
In making this determination, we express no opinion as to whether the failure to serve the petition
or the failure to appoint an attorney would entitle the opposing heirs to any other relief, such as
annulment or rescission of the sale, as those issues are not appropriately before us herein.
27
property, including repairs, insurance, and taxes. See La. C. C. P. art. 3221, Official
Revision Comments -- 1960 ( a). However, no provision of law requires the
succession representative to insure succession property. To require insurance in
every case would be unwise and impractical since it would mean the insuring of
every single succession effect, even one of very little or of no value. See La. C. C. P.
art. 3221, Official Revision Comments - 1960 ( b). On the other hand, the duty to
insure falls squarely within the implied duties of a prudent administrator. Id.Although the exact date is not clear from the evidence or otherwise from the
record, it is undisputed that the decedents' house that was located on the property
burned during the early years of Vann' s administration. In Succession of Futch, 22
So. 2d 125, 126 ( La. 1945), the Louisiana Supreme Court declined to find the
executor at fault for failing to have certain buildings insured, when in part, there was
no satisfactory evidence of the value of the buildings or evidence as to whether the
executor could have obtained insurance on the buildings at any time after he became
executor.
The court noted that it was very doubtful that any insurance company
would have taken the risk, because the buildings had been unoccupied for some time
at the time of the fire and were remote from any town. Id. Similarly in this case,
Vann asserted that the house had been vacant and dilapidated long before 2005.
Further, Virginia testified to an email that she sent on March 7, 2005, which was just
prior to Vann opening the succession, in which she stated that "[ t]he pictures of the
house made me very nausea [ sic]." She further testified that " the house was not
cared for," which made her " nauseous." As in Succession of Futch, there is no
evidence of the value of the decedents' house before it burned and no evidence that
Vann could have obtained insurance on the house after he became administrator.
As to the trailer, the evidence reflects that sometime in the 1980s, the
decedents purchased a trailer and placed it on the property for Sarah and her children
to reside in after she became estranged from her husband and that Sarah continued
to live in that trailer after her parents death. As to the condition of the trailer, both
28
the March 1, 2005 appraisal and the May 20, 2021 appraisal reference a trailer that
was " in poor condition [ with] wheels, axles, tongue, and hitch still intact ( not a
permanent foundation)" and was " in poor condition with rotted sills, major structural
damage, rotted siding, and a poor roof" Notably, however, these conditions existed
prior to Vann' s administration of the estate. Furthermore, Virginia disagreed with
those statements in the appraisals and testified that the trailer was in " very good
condition," that the flooring and roof been replaced, and rooms had been added on.
As to the property itself, according to all the appraisals of the property that
were introduced into evidence, there were no adverse environmental conditions
present on the property. Nor do the appraisals reference or demonstrate that the
property was not preserved, maintained, repaired, or protected, or that any condition
on the property impacted the property' s value. While the July 8, 2021 appraisal
obtained by the opposing heirs notes that there was " dump material" on the property,
this is represented by a photograph of a single tire in brush/weeds. However, we
cannot say that a single tire on the property demonstrates a breach of Vann' s duty to
preserve, repair, maintain, and/or protect the property of the succession.
Lastly, there is no evidence that Vann failed to pay the property taxes and
Vann testified that all annual property taxes were faithfully paid. In this regard, the
evidence admitted at the hearing on the second motion to remove demonstrates that
property taxes were due on the property from 2012- 2021, and that the full amount
of the property taxes were paid each year by Vann or the other heirs.
Therefore, based on our review of the evidence from the second motion to
remove, we find no testimony or evidence reflecting a breach of Vann' s duty to
preserve, repair, maintain, and/ or protect the property. Thus, we cannot say that the
trial court abused its discretion in denying the second motion to remove on this basis.
Failure to Close the Succession and Other Grounds
As previously noted, the opposing heirs also asserted in the second motion to
remove the grounds that were set forth in the first motion to remove, which were
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previously denied by the trial court. These grounds were Vann' s failure to close the
succession as soon as possible; his failure to deposit money he collected for the
succession into a bank account; his failure to file an annual account; payment of
debts of the succession without authorization; and his failure to post an adequate
bond. We find no merit to any of these grounds or contentions.
As to Vann' s alleged failure to close the succession, La. C. C. P. art. 3197
provides that "[ i] t shall be the duty of a succession representative to close the
succession as soon as advisable." The opposing heirs point out that the successions
have been pending for over eighteen years. However, according to Vann, the
family/heirs decided to close the succession by selling the land " inside of the family"
and he was constrained to sell the property within the family; otherwise, he stated
that he would have sold it in 2005. Vann further testified that no other sibling
submitted a plan to resolve the succession within the six- month time period allowed
by the trial court after the June 23, 2021 hearing on the first motion to remove, and
the opposing heirs' testimony does not refute this. While Learinza testified that he
made two offers to purchase the property in 2005 and 2009, he provided no details
of these offers or his offered purchase price. Conversely, when Vann was asked if
anyone else ( besides Mary) offered money to purchase the property, he answered
that no one offered any money whatsoever. Vann further stated that Learinza did
not make an offer to purchase the property until recently." There is no evidence of
an offer to purchase the property by any other sibling at any other time.
The purchase agreement that Vann entered into with Mary was signed on June
15, 2021, and the property was sold to her in November 2021. On April 6, 2022,
Vann filed the petition to file detailed descriptive list and proposed tableau of
distribution, seeking to pay his administrative expenses and to distribute the net
proceeds to the heirs. Notably, there was no showing that the assets of the succession
depreciated during Vann' s lengthy term as administrator. Rather, the evidence
16 See footnote 15.
30
reflects that the property appreciated. In this regard, the March 1, 2005 appraisal
conducted just prior to the commencement of his administration) valued the
property at $ 34,000.00 and the May 20, 2021 appraisal valued the property at
64, 000. 00. Thus, where no harm or prejudice to the succession was established by
the lengthy administration and Vann was actively trying to close the succession, we
cannot say that the trial court abused its discretion in failing to remove Vann as
administrator for failing to close the succession.
Next, insofar as to the opposing heirs claim that Vann failed to open a
succession account for funds collected from the other heirs, La. C. C. P. art. 3211
provides that "[ a] succession representative shall be deemed to have possession of
all property of the succession ...." Additionally, La. C. C. P. art. 3222, which is titled
Deposit of succession funds; unauthorized withdrawals prohibited; penalty," states,
in pertinent part, that "[ a] succession representative shall deposit all moneys
collected by him as soon as received, in a bank account in his official capacity, ...
and shall not withdraw the deposits or any part thereof, except in accordance with
law." The opposing heirs contend that Vann' s failure to open a succession account
for funds collected from the heirs was a violation of La. C. C. P. art. 3222. Notably,
however, the opposing heirs have not alleged that Vann failed to deposit succession
funds into a bank account. In fact, Vann testified that there was no money available
from the succession and there were no bank accounts. Moreover, he testified that
the estate had not generated any income and that there were no monies received by
or paid through the succession. We note that no evidence was offered by the
opposing heirs to the contrary. Thus, the trial court did not abuse its discretion in
denying the motion to remove on this basis.
With respect to Vann' s failure to render an annual accounting of receipts and
disbursements, La. C. C. P. art. 3331 provides that "[ a] succession representative shall
file an account annually and at any other time when ordered by the court...." Thus,
La. C. C. P. art. 3331 imposes on the representative a duty to render an annual
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accounting. Cucchero, 845 So. 2d at 453. An account shall show the money and
other property received by and in the possession of the succession representative at
the beginning of the period covered by the account, the revenue, other receipts,
disbursements, and disposition of property during the period, and the remainder in
his possession at the end of the period. La. C. C. P. art. 3333. A full, true, and
complete account of all assets and liabilities, and of the administration thereof is
contemplated. La. C. C. P. art. 3333, Revision Comments - 1960 ( a). Louisiana
Code of Civil Procedure article 3334 provides for removal of a succession
representative who has failed to file an account after being ordered to do so by the
court.
In this case, the record does not establish that Vann was ordered by the court
to render an accounting and failed to do so; thus, this article cannot provide the basis
for Vann' s removal as administrator.
However, a trial court has discretionary power under La. C. C. P. art. 3182 to
remove a succession representative for failure to provide an annual account, even
though he has not been previously ordered to do so. See Succession of Roy, 192
So. 2d 603, 605 ( La. App. 3rd Cir. 1966). As to whether the trial court abused its
discretion in failing to remove Vann as administrator in this basis, there is no
evidence of any succession funds or revenues having been received or administered
by Vann, and there is no evidence of Vann' s expenditure of succession funds at all
or using such to satisfy any debt. 7 Vann testified that the estate had no debts and
no charges against it other than attorney fees; the estate generated no income; there
was no money available to the succession and it had no bank accounts, Vann
testified that there was no accounting the he could possibly provide, as he never
received any money and the estate never paid any money. The opposing heirs point
to Vann' s collection of money from the heirs to pay property taxes without rendering
17 But c.£ Cucchero, 845 So. 2d at 454 ( affirming the removal of the succession representative for
failure to file an accounting where she received court authority to pay attorney fees and expenses,
and annual accounts would have showed money/property received at the beginning of each year,
all revenues and disbursements during the year, and the amount remaining and would have allowed
the trial court to compare payments made during the year to the value of the succession' s assets,
considering its concern over the amount of attorney fees incurred).
32
an accounting. However, the funds collected from the heirs were not succession
funds subject to an accounting. Nevertheless, the evidence shows that the sums paid
by the administrator and the sums collected from the other heirs were used to pay
property taxes. Thus, the trial court did not abuse its discretion in failing to remove
Vann as administrator for failure to file an accounting.
As to the opposing heirs' claim that Vann failed to obtain court authorization
to pay debts of the estates, i.e. property taxes, in violation of La. C. C.P. art. 3301,
which provides that "[
a] succession representative may pay an estate debt only with
the authorization of the court ....," nothing reflects that succession funds were used
to satisfy property taxes; instead the funds used to pay the property taxes were funds
from Vann and/ or his other siblings.
Lastly, with respect to Vann' s alleged failure to post an adequate security
bond, La. C. C. P. art. 3151 provides, in pertinent part, that "... the person appointed
administrator shall furnish security for the faithful performance of his duties in an
amount exceeding by one- fourth the total value of all property of the succession as
shown by the inventory or descriptive list." This article further provides that "[ t] he
court may reduce the amount of this security, on proper showing, whenever it is
proved that the security required is substantially in excess of that needed for the
protection of the heirs and creditors." When Vann opened the succession and sought
to be appointed administrator, he requested a reduced bond, and the trial court
ordered him to post a bond in the amount of $50, 000. 00. A document entitled
Succession Representative' s Bond" was executed by Vann and Joanrita Morris.
However, there is no evidence in the record as to the sufficiency of this bond.
Notably, the failure to furnish security does not mandate the removal of the
succession representative. See La. C. C. P. art. 3182. Accordingly, even if Vann' s
bond was insufficient, we cannot say that the trial court abused its discretion in
failing to remove Vann as the administrator on this basis.
33
Therefore, we find that the trial court was neither manifestly erroneous nor
clearly wrong in concluding that under the facts and law, the opposing heirs failed
to show that Vann either breached his fiduciary duty to the succession or the
existence of one of the grounds for removal as administrator. Further, we find that
the trial court did not abuse its discretion in denying the second motion to remove.
Accordingly the opposing heirs' supervisory writ application is denied.
CONCLUSION
For all of the above and foregoing reasons, we dismiss the appeal of the
January 17, 2023 judgment and we deny the application for supervisory writ filed
by Levi Morris, Daisy Morris Carter, Learinza Morris, and Virginia Briggs Morris.
All costs are assessed to Levi Morris, Daisy Morris Carter, Learinza Morris, and
Virginia Briggs Morris.
APPEAL DISMISSED; WRIT DENIED.
34
SUCCESSION OF STATE OF LOUISIANA
DAISY LEE MORRIS, COURT OF APPEAL
WIFE OF/AND LEVI MORRIS FIRST CIRCUIT
2023 CA 0575
and
2023 CW 0312
L Holdrid aa J., concurring.
I respectfully concur with the majority opinion. I would decline to exercise
this court' s supervisory jurisdiction over the interlocutory judgment denying the
motion to remove Mr. Morris as administrator of the succession. See Triton Diving
Services LLC v. Offshore Marine Service Association, Inc., 2023- 0169 (La. App.
1 Cir. 9121/ 23), So. 3d . Pursuant to Herlitz Construction Company,
Inc. v. Hotel Investors of New Iberia, Inc., 396 So. 2d 878 ( La. 198 1) ( per curiam),
appellate courts should consider an application for supervisory writs when the trial
court judgment is arguably incorrect, there is no dispute of fact to be resolved, and
a reversal would terminate the litigation. The Herlitz factors are not met at this time.
The only matters that appear to be left in the succession are for the trial court to rule
upon the motion to traverse the sworn detailed descriptive list, the opposition to the
tableau of distribution, and the accounting by the administrator, and then for a
judgment of possession to be filed and signed. Removing the administrator at this
point affects very little, and the relators are protected and have a right to present
evidence if the distribution to the parties is incorrect or the accounting by the
administrator is in error. If the other suit or suits involving the annulment of the sale
are successful before the remaining items in the succession suit are accomplished,
then the administrator' s removal becomes an issue again. Since the appointment of
the administrator is an interlocutory judgment, the removal of the administrator can
be raised at the trial court. An appellate court will generally refrain from the exercise
of its supervisory jurisdiction when an adequate remedy exists by appeal upon the
entry of the requisite final judgment. See Boyd Louisiana Racing, Inc. v. Bridges,
2015- 0393 ( La. App. 1 Cir, 12123/ 15), 2015 WL 9435285, * 4 ( unpublished). This
court' s exercise of its supervisory review in this case would promote piecemeal
review and infringe on the principles of judicial economy. Burford v. Burford,
2018- 0558 ( La. App. 4 Cir. 11/ 28/ 18), 259 So. 3d 1086, 1089.
01