Succession of Charles C. Pedescleaux C/W Westlawn Cemeteries, L.L.C. Versus The Louisiana Cemetery Board ( 2020 )

SUCCESSION OF CHARLES C. NO. 19-CA-250
PEDESCLEAUX
FIFTH CIRCUIT
COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-THIRD JUDICIAL DISTRICT COURT
PARISH OF ST. JAMES, STATE OF LOUISIANA
NO. 89,19, DIVISION "A"
HONORABLE JASON VERDIGETS, JUDGE PRESIDING
February 07, 2020
FREDERICKA HOMBERG WICKER
JUDGE
Panel composed of Judges Fredericka Homberg Wicker,
Jude G. Gravois, and Robert A. Chaisson
EXCEPTION SUSTAINED; JUDGMENT VACATED AND MATTER
REMANDED
FHW
JGG
RAC
COUNSEL FOR PLAINTIFF/APPELLANT,
CHARLES PEDESCLEAUX, JR.
Benjamin L. Johnson
COUNSEL FOR DEFENDANT/APPELLEE-2ND APPELLANT,
OLGA PEDESCLEAUX
Arthur A. Morrell
Madro Bandaries
WICKER, J.
In this appeal from a trial court judgment in the Succession of Charles C.
Pedescleaux, Charles Pedescleaux, Jr. filed a “Peremptory Exception of Nonjoinder of
Parties under Articles 641 and 642 of the Code of Civil Procedure.” For the following
reasons, the exception of nonjoinder is sustained, the judgment of the trial court is
vacated, and the matter is remanded for joinder of the absent parties and retrial.
FACTUAL AND PROCEDURAL HISTORY
Charles C. Pedescleaux, Sr. (the “decedent”) died on April 16, 2017. Olga
Pedescleaux (“Olga”), the widow of the decendent, filed a Petition to Open Succession
on April 20, 2017, alleging that the decedent died intestate and requesting that she be
appointed Administratrix over the estate. The Petition acknowledged the decendent’s
five surviving children born of a previous marriage by name: “Charlesetta, Connie,
Charles, Jr., Jessica and Dedria.” Olga was appointed Administratrix for the decedent’s
estate on April 27, 2017.
On June 1, 2017, Charles Pedescleaux, Jr. (“Charles, Jr.”) filed a “Petition to
Admit the Last Will and Testament of Charles C. Pedescleaux, Sr.” The will purported to
leave all of the decedent’s property “both real and personal, separate and community,
movable and immovable corporeal and incorporeal . . .” to the decendent’s children—
“Charles Pedescleaux, Jr., Charlesetta Pedescleaux Knight, Constance Pedescleaux
Bernard, Jessica Pedescleaux Geason and Deidra Pedescleaux Grant”—to be shared
equally. Charles, Jr.’s petition asked the court to appoint him Executor of the estate (per
the stipulations of the will) and to declare that certain real estate located at 10561 Charles
Lane, St. James Parish, Louisiana remained separate property, the decedent having
purchased the property prior to his marriage to Olga.
Thereafter, on December 20, 2018, Olga filed a motion and memorandum titled:
Motion and Rule to Show Cause Why The Last Will and Testament of Charles
C. Pedescleaux, Sr. Should Not be Null and Void Because of Failure to
Observe Statutory Formalities; Why Mrs. Olga H. Pedescleaux, Spouse of
Deceased Charles C. Pedescleaux, Sr. Should Not be Declared Administratrix
of Decedent's Estate; Why All Financial Documents and Any and All
Documents Whatsoever Being Held by Decedent's Children: Charles
Pedescleaux, Jr., Charlesetta Pedescleaux Knight, Constance Pedescleaux
Bernard, Jessica Pedescleaux Geason, And Deidra Pedescleaux Grant or
Anyone Else Should Not Turn Over Said Documents to Mover and With Full
Accounting of Said Financial Records and Documents and Why the Marital
Domiciled [sic] Should Not be Designated as Community Property.
A hearing was set for January 22, 2019 to take up Olga’s motion. At the hearing
the trial court denied Olga’s request that the last will and testament be declared null and
void and took the issue of whether the home on Charles Lane was community property
under advisement. A judgment was issued on January 25, 2019 which declared the
Charles Lane home community property. Both parties appealed the trial court’s
judgment.
However, on November 4, 2019, this Court, on its own motion, found that the
January 25, 2019 judgment was not a final judgment sufficient to invoke appellate court
jurisdiction. Therefore, this Court remanded the matter to the trial court for formulation
of a final judgment and supplementation of the appellate record. See Succession of
Charles C. Pedescleaux, 19-250 (La. App. 5 Cir. 11/4/19) (per curiam).
Now that a final judgment has been rendered that enables this Court to exercise its
appellate jurisdiction over this matter, we take up the peremptory exception of nonjoinder
filed by Charles, Jr.
LAW AND DISCUSSION
The peremptory exception of nonjoinder may be pleaded for the first time in the
appellate court, if pleaded prior to the submission of the case for decision, and if proof of
the ground of the exception appears on the record. La. C.C.P. art. 2163; Rourke v. Estate
of Dretar, 17-672 (La. App. 5 Cir. 5/23/18), 248 So.3d 653, 658. Louisiana Code of
Civil Procedure Article 641 is entitled “Joinder of parties needed for just adjudication”
and provides,
A person shall be joined as a party in the action when either:
(1) In his absence complete relief cannot be accorded among those already
parties.
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(2) He claims an interest relating to the subject matter of the action and is so
situated that the adjudication of the action in his absence may either:
(a) As a practical matter, impair or impede his ability to protect that interest.
(b) Leave any of the persons already parties subject to a substantial risk of
incurring multiple or inconsistent obligations.
In the event that a party described in Article 641 cannot be joined in the
litigation, La. C.C.P. art. 642 allows the court to determine whether the action
should proceed among the parties currently before it or be dismissed based on a
consideration of a number of factors. The current statutory construction replaced
the previous rules for joinder which distinguished between “necessary” and
“indispensable” parties. See Succession of Populus, 95-1469 (La. App. 1 Cir.
2/23/96), 668 So.2d 747, 748; Two Canal St. Inv'rs, Inc. v. New Orleans Bldg.
Corp., 16-0825 (La. App. 4 Cir. 9/23/16), 202 So.3d 1003, 1012.
Historically, in actions contesting the validity of a will, the legatees named
in the will must be joined in the suit. La. C.C.P. art. 2931 (direct action to annul a
probated testament must be brought against the legatees, residuary heir, and
executor); Succession of Burgess, 323 So.2d 914, 917 (La. Ct. App. 1975) (action
seeking declaratory judgment invalidating will required joinder of legatees); In re
Succession of Treadaway, 01-0080 (La. App. 4 Cir. 3/7/01), 782 So.2d 1142, 1144
(parties with an interest in the will plaintiffs sought to invalidate were required to
be joined pursuant to La. C.C.P. art. 641).
Furthermore, the fact that Olga sought to have the marital domicile declared
community property necessitated the joinder of all parties who claim an interest in
the Charles Lane property from the Succession of Charles C. Pedescleaux. A
judgment declaring the real estate community property would necessarily affect the
interests the decedent’s children had in the property—whether heirs by intestacy or
legatees to his will. See La. C.C.P. art. 1880 (“When declaratory relief is sought,
all persons shall be made parties who have or claim any interest which would be
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affected by the declaration.”); Blanchard v. Naquin, 428 So.2d 926, 928 (La. App.
1 Cir.), writ denied, 433 So.2d 162 (La. 1983) (plaintiff who sought to be declared
owner of property was required to join all heirs who purportedly gained ownership
interest through intestate succession).
The existence of parties with an interest in the subject matter of the litigation
is apparent from the record. Olga named the decedent’s heirs in her petition to
open the succession, as well as in her later motion which sought a declaration that
the will was null and void, a declaration that the martial domicile was community
property, and an order requiring the named heirs to render an accounting. The
contested will is also included in the record naming the decedent’s children as
legatees.
When an appellate court recognizes that joinder of parties is required for proper
adjudication of the matter, the appropriate course of action is to set aside the judgment at
issue and remand the matter to the trial court for joinder of the absent parties and a retrial
of the case. Rourke, 248 So.3d at 659; Blanchard, 428 So.2d at 928.
CONCLUSION
Accordingly, Charles, Jr.’s exception of nonjoinder is sustained. We hereby vacate
the judgment of the trial court declaring the last will and testament of Charles C.
Pedesclaux valid and declaring the real estate located at 10561 Charles Lane community
property. This matter is remanded for joinder of the absent parties and further
proceedings consistent with this opinion.
EXCEPTION SUSTAINED; JUDGMENT VACATED
AND MATTER REMANDED
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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
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
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NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
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
FEBRUARY 7, 2020 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
19-CA-250
E-NOTIFIED
23RD JUDICIAL DISTRICT COURT (CLERK)
HON. JASON VERDIGETS (DISTRICT JUDGE)
BENJAMIN L. JOHNSON (APPELLANT) MADRO BANDARIES (APPELLANT)
MAILED
ARTHUR A. MORRELL (APPELLANT)
ATTORNEY AT LAW
POST OFFICE BOX 26306
NEW ORLEANS, LA 70186