In Re: Succession of the Estate of Robert Charles Johnson ( 2020 )

NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2019 CW 0786
IN RE: SUCCESSION OF THE ESTATE OF ROBERT CHARLES JOHNSON
Judgment rendered: MAY 2 8 2020
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On Appeal from the
Twenty -First Judicial District Court
In and for the Parish of Livingston
State of Louisiana
No. 15222, Div. " C"
The Honorable Robert H. Morrison, III, Judge Presiding
Todd E. Gaudin Attorney for Plaintiff/Appellant
Baton Rouge, Louisiana Beverly Garner Edwin
Sherman Q. Mack Attorneys for Defendants/ Appellees
C. Glenn Westmoreland Lorie J. Parker, Robert C. Johnson,
Matthew H. Todd Jr., and Aveis J. Parker
Albany, Louisiana
BEFORE: McCLENDON, WELCH, AND HOLDRIDGE, JJ.
HOLDRIDGE, J.
In this intestate succession proceeding, Beverly Garner Edwin appeals the
trial court' s dismissal of her motion to enforce a conventional usufruct over
immovable property in the succession. For the following reasons, we convert the
appeal to an application for supervisory writs, deny the writ, and affirm the trial
court' s judgment.
PROCEDURAL AND FACTUAL BACKGROUND
On June 7, 1995, Ms. Edwin' s former husband, Robert C. Johnson, signed
an " Affidavit of Usufruct" in her favor for immovable property located in Walker,
Louisiana, that he owned prior to their marriage! The usufruct was " for the
remainder of her life even if she remarries" and was recorded on .June 14, 1995.
Mr. Johnson married Ms. Edwin in 1984, they separated in 2002 or 2003, and they
were divorced in 2006. Prior to their separation, they lived together in the house
on the property subject to the usufruct. After the separation, only Mr. Johnson
continued to live in the house.
Mr. Johnson died intestate on August 13, 2010. Ms. Edwin filed a petition
to be named administratrix of Mr. Johnson' s succession on June 3, 2014. She was
initially appointed administratrix, but on September 18, 2014, the trial court
removed her and appointed three of Mr. Johnson' s fourteen children, Lorie Parker,
Avies Parker, and Robert C. Johnson, Jr., to be co -administrators of the succession.
Thereafter, on September 26, 2018, Ms. Edwin filed a " Motion to Enforce
2
Conventional Usufruct & Spousal Reimbursement Claim. , She alleged that the
property subject to the usufruct was vacant, its value was depreciating, and it was
1 In her petition, Ms. Edwin alleged that the house and property at issue were part of the
community property between Mr. Johnson and his first wife. Mr. Johnson retained the property
after the divorce.
2 Ms. Edwin attached a certified copy of the usufruct to her petition. This conventional usufruct
of nonconsumables was established by an inter vivos donation in the form of an authentic act.
See La. C. C. arts. 537, 544.
2
in need of repair. Ms. Edwin further stated that she had paid to clean up the
property because it was being neglected by the co -administrators. She also
requested that the court recognize her claim against Mr. Johnson' s estate totaling
21, 600. 00, representing the amount of funds she alleged she used to maintain and
improve the property subject to the usufruct.'
In response to Ms. Edwin' s claim, the co -administrators filed a peremptory
exception raising the objection of prescription, asserting that the usufruct was
extinguished by ten years of non-use pursuant to La. C. C. art. 621. Louisiana Civil
Code article 621 provides, in pertinent part, " A usufruct terminates by the
prescription of nonuse if neither the usufructuary nor any other person acting in his
name exercises the right during a period of ten years." Ms. Edwin opposed the
motion,
contending that the prescription of non-use did not apply to a lifetime
usufruct and that she used the property within the ten-year period to interrupt the
prescriptive period.
The trial court initially held a hearing to determine whether La. C. C. art. 621
applied to a lifetime usufruct. Following argument, the trial court issued an order
wherein it found that La. C. C. art. 621 does apply to a lifetime usufruct. The trial
court then held an evidentiary hearing and issued reasons for judgment on
February 15, 2019, finding that the usufruct was extinguished through nonuse. On
the same date, the trial court signed a judgment which sustained the exception of
prescription and dismissed Ms. Edwin' s usufruct claim. From this judgment, Ms.
Edwin appeals.
APPELLATE JURISDICTION
Appellate courts have a duty to examine subject matter jurisdiction sua
sponte, even when the parties do not raise the issue. Texas Gas Exploration
According to Ms. Edwin' s petition, the house on the property caught fire in the early 1980s.
Thereafter, she and Mr. Johnson rebuilt the house on the same lot allegedly using her income to
purchase supplies to construct the new house.
3
Corp. v. Lafourche Realty Co., Inc., 2011- 0520 ( La. App. 1 Cir. 11/ 9/ 11), 79
So. 3d 1054, 1059, writ denied, 2012- 0360 ( La. 4/ 9/ 12), 85 So. 3d 698. Subject to
certain exceptions, appeals from orders or judgments rendered in succession
proceedings are governed by the same rules applicable to appeals in ordinary
proceedings. See La. C. C. P. art. 2974. The Code of Civil Procedure grants the
right to an immediate appeal of certain judgments rendered in succession
proceedings; however, the present judgment is not among those identified by the
Code. See La. C. C. P. art. 3308 ( judgment homologating tableau of distribution
may be suspensively appealed); La. C. C.P. art. 3337 (judgment homologating final
account is a " final judgment"); La. C. C.P. arts. 2122 and 2974 ( governing appeals
of orders appointing or removing a succession representative).
This court' s appellate jurisdiction extends to " final judgments." La. C. C. P.
art. 2083. 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.
1841. The judgment on appeal determines only one issue in the succession,
namely, the enforceability of the usufruct over Mr. Johnson' s immovable property.
The resolution of that issue, however, does not conclude the succession. The heirs
have not been placed in possession of their respective portions of the estates, nor
has a judgment been rendered homologating final accounts by the current co -
administrators. See La. C. C. P. art. 3337. In addition, Ms. Edwin' s spousal
reimbursement claim has not been adjudicated. Therefore, the judgment at issue is
a partial judgment.
Whether a partial final judgment is immediately appealable during ongoing
litigation is determined by examining the requirements of La. C. C.P. art. 1915.
See Succession of Jaga, 2016- 1291 ( La. App. 1 Cir. 9/ 15/ 17), 227 So. 3d 325, 328;
Successions of Wayne, 2018- 1177 ( La. App. 1 Cir. 5/ 31/ 19), 2019 WL 2332357,
M
2 ( unpublished); see also In re Succession of Faget, 2006- 2159 (
at *
La. App. 1
Cir. 9/ 19/ 07), 984 So. 2d 7, 10. The instant judgment does not fall within any of
the categories of partial judgments subject to immediate appeal under Article
1915( A).4 Therefore, the appeal of the judgment is governed by Subsection B of
that article, which provides that "[ w] hen a court renders a partial judgment ..., as to
one or more but less than all of the claims, demands, issues, or theories" presented
in an action, that judgment shall not constitute a final judgment, and thus shall not
be immediately appealable, unless it is designated as a final judgment by the court
after an express determination that there is no just reason for delay. La. C. C.P. art.
1915( B). The trial court did not designate the judgment as final for purposes of
5
immediate appeal or make a determination that there was no just reason for delay.
Therefore, the judgment is not a final judgment for purposes of immediate appeal.'
4 We reject Ms. Edwin' s contention the judgment is final under La. C. C. P. arts. 1915( A)( 1) and
4) because she is a third -party plaintiff in the succession of her former husband' s estate and the
trial court dismissed her third -party demand, which was tried separately from the principle
demand, with prejudice. Although the trial court dismissed her usufruct claim, the judgment did
not address the reimbursement claim. Therefore, the judgment is not a partial final judgment
under La. C. C. P. art. 1915( A)( 1) because it does not resolve the entirety of Ms. Edwin' s claims.
The judgment is also not a partial final judgment pursuant to La. C. C. P. art. 1915( A)(4) because
the entirety of the " incidental demand" was not tried separately from the main demand as
envisioned by La. C. C. P. art. 1038.
After the record was lodged with this court, this court issued a rule to show cause, noting that it
appeared that the judgment at issue was a partial judgment, which had not been certified as final
by the trial court pursuant to La. C. C. P. art. 1915( B). This court invited the trial court to
designate the judgment under La. C. C. P. art. 1915( B) if it chose to do so, or to advise this court
that no certification was necessary by July 15, 2019. The trial court did not certify the judgment
or advise this court as to the need for certification.
Although a trial court may grant a partial judgment as to less than all the claims, demands,
issues, or theories against a party and designate such judgment as a final judgment after an
express determination that there is no just reasons for delay, as authorized by La. C. C. P. art.
1915, the judgment must still comply with the requirement that it contain decretal language. Hill
v. TMR Exploration, Inc., 2018- 1074 ( La. App. 1 Cir. 2/ 25/ 19), 2019 WL 938857, at * 2 n.2
unpublished); Boyd Louisiana Racing, Inc. v. Bridges, 2015- 0393 ( La. App. 1 Cir. 12/ 23/ 15)
2015 WL 9435285, at * 2- 3 ( unpublished); see also Gaten v. Tangipahoa Parish School
System, 2011- 1133 ( La. App. 1 Cir. 3/ 23/ 12), 91 So. 3d 1073, 1074. We note that the instant
judgment does not state in whose favor the ruling is ordered; however, this is a succession matter
and the exception was urged by the co -administrators of the succession to defeat a claim against
the succession.
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See La. C. C. P. art. 1915( B)( 2). Consequently, this court lacks appellate
jurisdiction to consider the present appeal. See La. C. C. P. arts. 1841, 1911, 2083.
Nevertheless, La. Const. art. V, § 10( A) provides that a court of appeal has
supervisory jurisdiction over cases which arise within its circuit." Because Ms.
Edwin filed the motion for appeal within the thirty -day delay provided for seeking
supervisory writs, we exercise our discretion to convert her appeal to an
application for supervisory writ, and consider the merits of his appeal under our
supervisory jurisdiction. See La. Uniform Rules - Court of Appeal, Rule 4- 3; KAS
Properties, LLC v. Louisiana Board of Supervisors for Louisiana State
University, 2014- 0566 ( La. App. 1 Cir. 4/ 21/ 15), 167 So. 3d 1007, 1010. See also
Stelluto v. Stelluto, 2005- 0074 ( La. 6/ 29/ 05), 914 So. 2d 34, 39 ( noting that the
decision to convert an appeal to an application for supervisory writ is within the
discretion of the appellate courts); Successions of Wayne, 2019 WL 2332357, at
2 ( this court exercised supervisory jurisdiction to review an uncertified judgment
that did not resolve the successions, but only concerned three assets in the
proceedings).
DISCUSSION
On appeal, Ms. Edwin challenges the trial court' s conclusion that her claim
is prescribed. Ordinarily, the party urging prescription bears the burden of proving
such at the trial of the exception; however, if the petition is prescribed on its face,
the burden shifts to the plaintiff to show his action is not prescribed. Quinn v.
Louisiana Citizens Property Insurance Corp., 2012- 0152 ( La. 11/ 2/ 12), 118
So. 3d 1011, 1017. When the plaintiff is contending there is a suspension of
prescription, he then has the burden of proving the suspension. Shannon v.
Vannoy, 2017- 1722 ( La. App. 1 Cir. 6/ 1/ 18), 251 So. 3d 442, 448. In this case,
Ms. Edwin' s claim is not prescribed on its face; therefore, the co -administrators
on
had the burden of proving that Ms. Edwin did not use the usufruct for a ten-year
period.
Appellate review applicable to a prescription exception depends on the
manner in which the exception is heard. Shannon, 251 So. 3d at 448. Evidence
may be introduced to support or controvert the exception of prescription when the
grounds thereof do not appear from the petition. La. C. C. P. art. 931. In the
absence of evidence, the exception must be decided on the facts alleged in the
petition, which are accepted as true. Shannon, 251 So. 3d at 448- 49. Since
evidence was introduced in this case, the trial court made factual findings and
determinations. A court of appeal may not set aside a trial court' s factual finding
unless it is manifestly erroneous or clearly wrong. A trial court' s factual finding is
manifestly erroneous/ clearly wrong when, after review of the entire record, the
appellate court finds both that no reasonable factual basis exists for the finding and
that it is manifestly erroneous or clearly wrong. See Stobart v. State through
Department of Transportation and Development, 617 So. 2d 880, 882 ( La.
1993). This court' s determination is not whether the trier of fact was correct, but
whether the factfinder' s conclusion was reasonable. Id. Even though an appellate
court may feel its own evaluations and inferences are more reasonable than the
factfinder' s, reasonable evaluations of credibility and reasonable inferences of fact
should not be disturbed upon review where conflict exists in the testimony. Id.On appeal, Ms. Edwin initially contends that the trial court erred in
determining that a conventional lifetime usufruct is subject to prescription for
nonuse pursuant to La. C. C. art. 621. Ms. Edwin argues that a usufruct established
for a term or under a condition as authorized under La. C. C. art. 545' terminates
Louisiana Civil Code article 545 states:
Usufruct may be established for a term or under a condition, and subject to any
modification consistent with the nature of the usufruct.
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only when that specific term expires or the condition occurs under La. C. C. art.
610,8 which would be at her death. Ms. Erwin asserts that La. C. C. art. 621 applies
only to usufructs created without a term or condition or where nonuse is the
express condition. Ms. Edwin does not cite any authority in support of her
contention. In rejecting Ms. Edwin' s contention, the trial court found that La. C. C.
art. 545 did not purport to impose a different rule on a lifetime usufruct for nonuse,
but merely set forth that a usufruct could be for life and could be subject to
modification. We agree with the trial court and also note that La. C. C. art. 621,
which provides that a usufruct " terminates by the prescription of nonuse if neither
the usufructuary nor any other person acting in his name exercises the right during
a period of ten years," does not impose a different rule upon a usufruct created for
a term or condition.' Therefore, we find no error in the trial court' s conclusion that
a lifetime usufruct may be legally extinguished by the prescription of non-use for a
period of ten years or more.
Ms. Edwin next contends on appeal that the trial court erred in determining
that she had not used the usufruct during a ten-year period. As the usufructuary,
Ms. Edwin had " the right to possess [ the property] and to derive the utility, profits,
and advantages that [ the property] may produce, under the obligation of preserving
the property' s] substance. La. C. C. art. 539. 10 Regarding "[ p] ossession and use of
the things," La. C. C. art. 557 provides that "[ t]he usufructuary takes the things in
The rights and obligations of the usufructuary and of the naked owner may be
modified by agreement unless modification is prohibited by law or by the grantor in the act
establishing the usufruct.
8 Louisiana Civil Code article 610 states, " A usufruct established for a term or subject to a
condition terminates upon the expiration of the term or the happening of the condition."
9 See also La. C. C. art. 3448, which states, " Prescription of nonuse is a mode of extinction of a
real right of ownership as a result of failure to exercise the right for a period of time."
to Louisiana Civil Code article 539 also provides that the usufructuary is bound to use the things
subject to the usufruct as a prudent administrator and to deliver them to the naked owner at
termination of the usufruct.
t
the state in which they are at the commencement of the usufruct."" A
usufructuary may institute all actions against the naked owner or third persons that
are necessary to insure the possession, enjoyment, and preservation of his or her
rights. La. C. C. art. 566. In its reasons for judgment, the trial court reviewed the
testimony and evidence and determined that Ms. Edwin did not use the property
for a ten-year period.
At the hearing on the prescription exception, the co -administrators and
children of Mr. Johnson testified that Ms. Edwin did not live on the property after
she separated from Mr. Johnson. Ms. Lorie Parker, one of the co -administrators
and Mr. Johnson' s daughter, also testified that she lived on the property,
maintained it, paid the taxes, and kept a travel camper on it. In opposition to the
exception, Ms. Edwin testified that she lived in the house on the property until she
separated from Mr. Johnson in 2003, whereupon she moved out; they divorced in
2006. Ms. Edwin testified that after 2003, she visited the property weekly or
biweekly until 2006 to store and retrieve school supplies she used in her teaching
job. According to Ms. Edwin, she attended a birthday party in 2006 on the
property, and visited Mr. Johnson in 2008 and 2009. In 2007, she told her son he
could live in the house with his father, but she did not charge him rent. She added
that in 2007 and 2008, she cleaned, " kept the place up," and mowed the yard with
her son and his girlfriend and her daughter.
After Mr. Johnson died and Ms. Edwin attended a family meeting regarding
his estate, Ms. Edwin testified that she told the children she wanted her and Mr.
Johnson' s daughter to live on the property, but her daughter did not do so. Ms.
Edwin testified that Ms. Lorie Parker had moved her cars and trailers onto the
11 The right of the usufructuary to take possession of the things may be predicated upon the
discharge of the obligation to make an inventory and give security. La. C. C. art. 557, Revision
Comments - 1976, Comment ( d), citing La. C. C. arts. 570, 575.
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property. On August 27, 2013, a prior attorney for Ms. Edwin sent Ms. Lorie
Parker ( then Mrs. Vaughn) a letter informing her of the usufruct and stating that
Ms. Edwin had the right to lease the property to her daughter if she wished to do
so.
In 2017, in response to a letter she received from the City of Walker stating
that the condition of the property violated city ordinances, Ms. Edwin hired
12
someone to clean up the property.
In its reasons for judgment, the trial court determined that for a ten-year
period after Ms. Edwin stopped using the property to store her school supplies in
2006, Ms. Edwin' s activities on the property did not constitute a use of the
property. The trial court also determined that Ms. Edwin's " allowing" her son to
live in the house along with Mr. Johnson did not amount to a use sufficient to
interrupt prescription. The trial court considered Theriot v. Terrebonne, 195
So. 2d 740, 743 ( La. App. 1 Cir. 1967), which Ms. Edwin contended supported her
argument that her son' s activities constituted a use of the property by her. In
Theriot, the issue was whether use of the property by a naked owner was for
himself or whether the use was for the usufructuary based upon the principle that
the usufructuary has the exclusive right to use the property. Id. at 742. The
testimony established that the mother, the usufructuary, had asked her son, the
proposed naked owner, to care for and look after the property. Id. The son cut the
grass, operated and docked boats at the wharf on the batture, and placed a pile of
oyster shells on the batture. Id. This court found that the son had the mother' s
implied permission to use the property, and that any use made of the property by
the son was not for himself as the proposed naked owner, but was for the use and
benefit of his mother, the usufructuary. Id. at 743. Therefore, his mother' s
12 At the conclusion of Ms. Edwin' s testimony, her counsel and opposing counsel stipulated that
four unidentified witnesses would testify to the same information that Ms. Edwin had.
usufruct was not forfeited for nonuse of ten years. Id. 13 In the case at bar, Ms.
Edwin' s son lived on the property with Mr. Johnson, his father. Moreover, the
testimony established that he did not pay rent and it was unclear whether he helped
with the upkeep of the property, unlike the Theriot case where the son was caring
and looking after the property. See Id. at 742- 43. The trial court commented that
while a usufructuary may exercise his or her rights of usufruct through a third
person, such exercise would seem to require some benefit to the usufructuary. We
cannot find that the trial court erred in holding that Ms. Edwin' s son' s living at his
father' s house did not constitute a use of the usufruct on Ms. Edwin' s behalf.
Therefore, we cannot hold that the trial court was manifestly wrong in finding that
Ms. Edwin' s usufruct was extinguished due to nonuse pursuant to La. C. C. art.
621. Ms. Edwin' s assignments of error have no merit.
DECREE
For these reasons, we convert the appeal to an application for a supervisory
writ and deny the writ. Therefore, we affirm the trial court' s judgment of February
15, 2019, that sustained the exception of prescription and dismissed the usufruct
claim asserted by Beverly Garner Edwin. Appeal costs are assessed against
Beverly Garner Edwin.
APPEAL CONVERTED TO APPLICATION FOR SUPERVISORY
WRIT; WRIT DENIED; JUDGMENT AFFIRMED.
13 In Theriot, the usufructuary' s son was the proposed naked owner of the batture tract because
the description of property previously conveyed to him erroneously included the batture tract.
The naked owner was actually a third person, and the lawsuit was brought by the mother as
usufructuary to compel the naked owner to remove a home he placed on the batture. The naked
owner contended that the usufruct had been forfeited by nonuse for ten years or more.
11