Succession of Tiffany Angelle Arthur ( 2020 )

SUCCESSION OF TIFFANY ANGELLE NO. 20-CA-75
ARTHUR
FIFTH CIRCUIT
COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 785-620, DIVISION "E"
HONORABLE FRANK A. BRINDISI, JUDGE PRESIDING
May 27, 2020
JUDE G. GRAVOIS
JUDGE
Panel composed of Judges Jude G. Gravois,
Hans J. Liljeberg, and John J. Molaison, Jr.
AFFIRMED
JGG
HJL
JJM
COUNSEL FOR PLAINTIFF/APPELLANT,
SHAWN SUBERVILLE TERREBONNE (ORIGINALLY PETITIONED AS
"SHAWN TERREBONNE SUBERVIELLE")
Robert M. Braiwick, Jr.
GRAVOIS, J.
Appellant, Shawn Terrebonne Subervielle, administratrix of the Succession
of Tiffany Angelle Arthur, appeals the trial court’s August 23, 2019 judgment
which denied her Rule to Show Cause Why Succession Assets Should Not Be
Accounted For and Released to Administratrix. The judgment on appeal in this
case involves interpretation of specific provisions of a testamentary trust. No
evidence was introduced at the contradictory hearing on the Rule to Show Cause.
Finding that the record does not contain evidentiary support in favor of the claims
made in the Rule to Show Cause, we affirm the trial court’s judgment which
denied the Rule to Show Cause.
FACTS AND PROCEDURAL BACKGROUND
On July 13, 2018, Shawn Terrebonne Subervielle filed a “Petition to
Appointment [sic] Administratrix” of the Succession of Tiffany Angelle Arthur,
No. 785-620 of the 24th Judicial District Court, Parish of Jefferson, State of
Louisiana, alleging therein that on August 27, 2018,1 Tiffany Angelle Arthur died
in Jefferson Parish, Louisiana, that it was necessary that Ms. Arthur’s estate be
administered, that Ms. Arthur was survived by two minor twin sons, Brody
Michael Arthur and Brice Matthew Arthur, who were born on April 9, 2009, and
that Ms. Subervielle had been granted custody of Brody and Brice by the Juvenile
Court. In her petition, Ms. Subervielle further alleged that she desired to be
appointed administratrix of the succession proceeding upon her complying with the
legal requirements therefor. After considering the petition and other pleadings
filed by Ms. Subervielle, the trial court proceeded on July 13, 2018 to appoint her
as administratrix of the succession proceeding.
1
Although the petition states that Ms. Arthur died on August 27, 2018, the Affidavit of
Jurisdiction, Death and Heirship found in the record clarifies that Ms. Arthur actually died on August 27,
2017.
20-CA-75 1
On September 10, 2018, Ms. Subervielle filed the subject Rule to Show
Cause Why Succession Assets Should Not Be Accounted For and Released to
Administratrix, alleging therein that pursuant to the last will and testament of Ms.
Arthur’s mother, Vera Frances Barrient, filed for probate with the Clerk of Court
of the 24th Judicial District Court, Ms. Barrient’s estate was bequeathed to the Vera
Frances Barrient Trust (“the Trust”) of which Ms. Arthur was a fifty percent
income and principal beneficiary. In the Rule to Show Cause, Ms. Subervielle
further alleged that the Trust provided that the Trust shall terminate as to the
interest of each principal beneficiary upon such beneficiary’s death, and
accordingly, because Ms. Arthur was then deceased, her succession owned and
was entitled to possession of a fifty percent interest in the Trust that should be
released to Ms. Subervielle as administratrix of Ms. Arthur’s succession. Made
defendant in the Rule to Show Cause was Linda Barrient McCraney, as trustee of
the Trust.
Ms. McCraney filed an opposition to the Rule to Show Cause, alleging that
although the Trust provided that it shall terminate as to the interest of each
principal beneficiary upon such beneficiary’s death, the Trust also provided, in
accordance with the Louisiana Trust Code, that Brice and Brody’s interest in the
Trust will terminate in whole or in part at any time on or after Brody and Brice
have reached their 21st birthday. Accordingly, she argued that since Brody and
Brice were still minors, the court should deny the Rule to Show Cause.
A hearing on the Rule to Show Cause was conducted on August 23, 2019.
No evidence was introduced by either party at the hearing. After hearing argument
of counsel, the trial court denied the Rule to Show Cause, finding that under the
terms of the Trust, Ms. McCraney, whom the Trust had appointed as custodian for
the minor children under the Louisiana Uniform Gift to Minors Act, was the proper
person to receive the claimed distribution from the Trust, and not Ms. Subervielle,
20-CA-75 2
though no distribution was ordered therein. A judgment to this effect was signed
by the trial court that same day. After Ms. Subervielle’s Motion for New Trial on
the Rule to Show Cause was denied after a hearing, Ms. Subervielle timely filed a
Motion for Appeal of the trial court’s August 23, 2019 judgment which denied the
Rule to Show Cause. The trial court granted Ms. Subervielle a devolutive appeal
on January 7, 2020. This appeal followed.
On appeal, Ms. Subervielle argues that the trial court erred in finding that
Ms. McCraney, as trustee of the Trust, rather than Ms. Subervielle, as
administratrix of the succession, was the proper person to receive the claimed
distribution from the Trust. Ms. McCraney did not file an appellee brief with this
Court.
ANALYSIS
In its August 23, 2019 judgment, the trial court denied the Rule to Show
Cause Why Succession Assets Should not be Released to Administratrix. The
judgment then goes on to state:
Shawn Terrebonne Subervielle argues that the assets in possession of
Linda Barrient McCraney, Trustee of the Vera Frances Barrient Trust,
which belong to the Succession of Tiffany Angelle Arthur, should be
turned over to Shawn Terrebonne Subervielle as the administratrix of
the Succession. The Court finds that Article III, Part B of the Trust
governs. That provision states that if any person under the age of
eighteen is or becomes entitled to receive in outright ownership any
interest in the property as an outright legacy, the distribution from the
Trust is to be paid to a custodian under the Louisiana Uniform
Transfers to Minors Act. The Trust names Linda McCraney as the
custodian, and therefore, the Court finds that Shawn Terrebonne
Subervielle is not the proper person to receive a distribution from the
Trust.
The issue raised in the Rule to Show Cause was interpretation of specific
provisions of the Trust. A rule to show cause is a contradictory motion, and as
such, it is incumbent upon the moving party to produce evidence which supports
the relief sought. La. C.C.P. art. 963. As indicated above, at the hearing on the
Rule to Show Cause, no testimony was adduced and no exhibits were introduced.
20-CA-75 3
Only portions of what purport to be certain provisions of the Trust were excerpted
in both the Rule to Show Cause and the Opposition thereto. We find, however,
that such excerpts, having not been properly introduced into evidence, provide an
insufficient evidentiary basis upon which to grant the relief sought in the Rule to
Show Cause.2 We find that it was incumbent upon Ms. Subervielle, as mover in
the Rule, to at least introduce into evidence at the contradictory hearing on the
Rule a certified copy of Mrs. Barrient’s last will and testament which purportedly
established the Trust. Because the record does not contain evidentiary support in
favor of the claims made in the Rule to Show Cause, the trial court properly denied
the Rule to Show Cause.
In light of the foregoing, under the particular factual and procedural
circumstances present in this case, we affirm the trial court’s judgment which
denied the Rule to Show Cause.
CONCLUSION
For the foregoing reasons, the judgment rendered by the trial court on
August 23, 2019 denying Ms. Subervielle’s Rule to Show Cause is affirmed.
AFFIRMED
2
No document or exhibit purporting be the testament of Vera Frances Barrient appears in the
appellate record, either. A document entitled “Last Will and Testament of Vera Frances Barrient” is
appended to appellant’s brief. The law is clear that an appellate court is precluded from considering
evidence that is not part of the record. Examination of exhibits attached to an appellate brief, but not
offered into evidence at trial, is beyond the scope of our review. United Gen. Title Ins. Co. v. Casey Title,
Ltd., 01-600 (La. App. 5 Cir. 10/30/01), 800 So.2d 1061, 1065, citing Davis v. St. Jude Medical Center,
Inc., 94-353 (La. App. 5 Cir. 10/25/94), 645 So.2d 771, 772, writ denied, 94-2864 (La. 1/27/95), 649
So.2d 387.
20-CA-75 4
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
MARY E. LEGNON
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
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I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
MAY 27, 2020 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT
REPRESENTED BY COUNSEL, AS LISTED BELOW:
20-CA-75
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE FRANK A. BRINDISI (DISTRICT JUDGE)
ROBERT M. BRAIWICK, JR. (APPELLANT)
MAILED
CLINT L. PIERSON, JR. (ATTORNEY) LINDA B. MCCRANEY (APPELLEE)
5100 VILLAGE WALK IN PROPER PERSON
SUITE 101 75397 HENDERSON ROAD
COVINGTON, LA 70433 COVINGTON, LA 70435