Succession of Hezekiah Brown, Jr.

STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
DOCKET NUMBER
2022 CA 0091
SUCCESSION OF HEZEKIAH BROWN, ] R.
Judgment Rendered: OCT 1 9 2022
C
ON APPEAL FROM THE
19th JUDICIAL DISTRICT COURT, SECTION 23
EAST BATON ROUGE PARISH, LOUISIANA
DOCKET NUMBER 108, 206
HONORABLE WILLIAM A. MORVANT, JUDGE PRESIDING
Derrick Jerome Allen Defendant -Appellant
St. Gabriel, Louisiana Pro Se
James Morgan Field, III Attorney for Plaintiff -Appellee
Baton Rouge, Louisiana Shirley Mae Miles Brown
BEFORE: McDONALD, McCLENDON, and HOLDRIDGE, JJ.
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WDONALD, I
A plaintiff claiming to be an intestate heir of a decedent appeals a judgment granting
the succession executor's peremptory exception pleading the objection of no right of action'
and dismissing the plaintiff's opposition to the decedent's testament. After review, we affirm
in part, vacate in part, and remand.
FACTUAL AND PROCEDURAL BACKGROUND
Hezekiah Brown, Jr. died on March 22, 2020, at the age of 73. Thereafter, in August
2020, Derrick Jerome Allen, pro se, filed a Petition for Judicial Partition of the Succession in
Kind and a separate Petition to Appoint Administrator, both captioned " Succession of
Hezekiah Brown, Jr." In these petitions, Mr. Allen alleged Mr. Brown was his father, and
had died intestate, leaving a widow, Shirley Miles Brown, and four children, two born to Mrs.
Brown and two born to other mothers. Mr. Allen further alleged he was one of Mr. Brown' s
two children who was born to a mother other than Mrs. Brown. Mr. Allen sought recognition
as Mr. Brown' s intestate heir, to open the succession, appointment of an estate
administrator, judicial partition of Mr. Brown' s estate, and an order to Mrs. Brown to
discontinue disposing of estate assets. Mr. Brown attached an Affidavit of Death, Domicile,
and Heirship, wherein two affiants, Carla Boyle S. Brown and Ursilla Chatman, attested that
they were personally acquainted with the Brown family, that three children were born of the
Browns' marriage, and that Mr. Brown had two other children, including Mr. Allen, born to
other women.'
By letter dated August 7, 2020, Mrs. Brown' s attorney informed Mr. Allen that Mr.
Brown had died testate, not intestate, as shown by an enclosed copy of a 2014 testament
purportedly signed by Mr. Brown, wherein he left his entire estate to Mrs. Brown and named
her as executor of his testament. Mrs. Brown' s attorney asked Mr. Allen to review the
testament and to then execute and return an enclosed waiver form indicating Mr. Allen did
Louisiana Code of Civil Procedure article 922 recognizes only three exceptions: the declinatory exception, the
dilatory exception, and the peremptory exception. See La. C. C. P. arts. 925, 926, 927. In this case, the
defendant filed a peremptory exception pleading the objection of no right of action. See La. C.C. P. art. 927.
Herein, for brevity, we refer to that exception as an exception of no right of action,
2 In his petitions, Mr. Allen alleged that, even though a fifth child was born during the Browns' marriage and
used the surname " Brown," that fifth child, a male, was not Mr. Brown' s son. In their affidavit, Carla Boyle S.
Brown and Ursilla Chatman also attested that Mr. Brown was not the father of that fifth child. Also, we note,
but do not address, that the two affiants signed a single affidavit.
2
not object to probate of Mr. Brown' s 2014 testament. Mr. Allen did not comply with the
request.
Rather, on August 20, 2020, Mr. Allen responded by filing an Objection to Last Will
Dated 9-2- 14 Being Probated Into Court Proceedings and a Motion Dismissing And Striking
Notice of Objection In This Matter ( collectively, August 20th motions), contending the 2014
testament was " fake," had been fraudulently drafted only after Mr. Allen filed the intestate
succession pleadings, and that Mr. Brown' s signature on the testament was forged. To his
pleadings, Mr. Allen attached copies of the August 7, 2020 letter, the 2014 testament, and
Mr. Brown' s obituary.3 The trial court set a show cause hearing on the August 20th motions.4
On August 28, 2020, Mrs. Brown responded by filing a Petition to Open Succession,
File Notarial Testament and Appoint Independent Executor, seeking to file Mr. Brown' s
attached 2014 testament, seeking to appoint herself as executor of his estate, claiming to
be Mr. Brown' s sole universal legatee, and contending that administration of the estate was
necessary. She further alleged Mr. Allen did not have standing to file an action, because
Mr. Allen was never acknowledged by the Decedent[,] ... no record of filiation exists in any
court record[,] ... [ and] Decedent did not list Mr. Allen as his child in his Last Will and
Testament." Mrs. Brown attached her Affidavit of Death, Domicile, and Heirship to the
petition, wherein she attested that she and Mr. Brown were married when he died, they had
three children during their marriage, and that Mr. Brown had fathered one other child, a
daughter. She then attested that Mr. Brown " had no other children" ( beside the previously
referenced four), and " never adopted any children ...." Mrs. Brown attached a second
affidavit by Georgia B. Harris, a Brown family acquaintance, wherein Ms. Harris attested to
the same facts as Mrs. Brown.
On August 31, 2020, Mr. Allen responded by filing a Supplement to Objections to Last
Will dated 9- 2- 14 Being Probated Into Court Proceedings, a Motion to Strike Petition to Open
3
Under La. C. C. P. art. 2853, if a person has possession of a document purporting to be the testament of a
deceased person, even though he believes that the document is not the valid testament of the deceased, or
has doubts concerning the validity thereof, he shall present it to the court with his petition praying that the
document be filed in the record of the succession proceeding. A person so presenting a purported testament
to the court shall not be deemed to vouch for its authenticity or validity, nor precluded from asserting its
invalidity.
4 The hearing was originally scheduled for December 7, 2020, but was twice continued and ultimately held
on March 8, 2021, at which time the trial court addressed the August 20th motions, as well as Mr. Allen' s later
motions filed on August 31, 2020, and Mrs. Brown' s later exceptions filed on November 25, 2020.
3
Succession, File Notarial Testament, and Appoint Independent Executor, and a Motion to
Prohibit Col. Luke Rheams & Shirley Brown from Interfering with his Access to Probate Court,
Litigation, and his Constitutional Rights ( collectively, August 31st motions). On September
2, 2020, Mr. Alien also filed an "'Objections/ Answer" to Mrs. Brown' s petition.
On September 3, 2020, the trial court signed an order, opening Mr. Brown' s
succession, ordering that his 2014 testament " had been probated and recorded," ordering
that it be executed, and appointing Mrs. Brown as the independent executor of Mr. Brown' s
succession,
Mrs. Brown then filed exceptions to Mr. Allen' s August 20th and August 31st motions, 5-
including an exception of no right of action, nonjoinder of a party, and lis pendens, and
sought sanctions against Mr. Allen under La. C. C. P. art. 863. Mr. Allen opposed the
exceptions; in support of his opposition, he introduced an East Baton Rouge Parish Family
Court judgment, dated March 4, 2015, where, in a prior paternity suit Mr. Allen had filed
against Mr. Brown, the court had ordered Mr. Brown to " submit to the collection of blood
and tissue samples" at a testing facility of Mr. Allen' s choice and at Mr. Allen' s costa It is
undisputed, however, that Mr. Brown did not submit to the ordered testing, and Mr. Allen' s
paternity suit remained pending when Mr. Brown died in 2020.
On March 8, 2021, the trial court held a hearing on Mr. Allen' s August 20th and 311t
motions and on Mrs. Brown' s exceptions. No evidence was introduced at the hearing. On
April 9, 2021, the trial court signed a judgment, granting Mrs. Brown' s exception of no right
of action, sanctioning Mr. Allen under La. C. C. P. art. 863, and dismissing his August 20th and
5 When an opposition is filed in a succession proceeding, responsive pleadings, including exceptions to the
opposition, may be filed as provided in La. C. C. P. art. 2593. See La. C. C. P. art. 2973. Under La. C. C. P. art.
2593, applicable to a summary proceeding, exceptions to an opposition shall be fled and disposed of prior to
the trial.
6 A child may institute an action to prove paternity even though he is presumed to be the child of another
man. La. C. C. art. 197. In such an action, the court has authority to order blood and/ or tissue samples. See
La. R. S. 9: 396.
4
31st motions against Mrs. Brown and Colonel Rheams. 7 After the trial court denied his
motion for new trial, Mr. Allen appealed the April 9, 2021 judgment.$
RIGHT OF ACTION IN A
CONTRADICTORY SUCCESSION PROCEEDING
Mr. Allen contends the trial court erred in granting Mrs. Brown' s exception of no right
of action.
Generally, an action can be brought only by a person having a real and actual
interest which he asserts. La. C. C. P. art. 681. The exception of no right of action is designed
to test whether the plaintiff belongs to the class of persons to whom the law grants the
cause of action asserted in the suit. La. C. C. P. art. 927( 6); Louisiana Environmental Action
Network, Inc. v. Brown, 19- 0607 ( La. App. 1 Cir. 1/ 9/ 20), 294 So. 3d 1066, 1071, writ
denied, 20- 00246 ( La. 4/ 27/ 20), 295 So. 3d 950. The party raising the exception has the
burden of proving the plaintiff has no right of action to proceed with his claim. Id.Generally, on review of an exception of no right of action, this court reviews the
pleadings as well as any evidence submitted in support of or in opposition to the exception.
See La. C. C. P. art. 931. However, there are specific procedural rules that apply to the
opening of a deceased' s succession, whether the succession is testate or intestate. See La.
C. C. P. arts. 2811- 2826, 2971- 2974, and 3061- 3062. 9 And, when a specific procedural rule
governs in a succession proceeding, that specific rule governs over a more general
procedural rule. See Gerrets v. Gerrets, 06- 0087 ( La. App. 4 Cir. 1/ 10/ 07), 948 So. 2d 343,
347- 48. Relevant here, in an uncontested succession proceeding, certain facts including
those necessary to establish the court's jurisdiction, such as the deceased' s domicile at time
of death and his ownership of property in the state, may be evidenced by affidavits. See
On May 4, 2021, the trial court signed a partial judgment of possession, recognizing Mrs. Brown as Mr.
Brown' s sole universal legatee, and placing her in possession and ownership of certain assets in Mr. Brown' s
estate. A judgment of possession is prima facie evidence of the right of heirs in whose favor it is rendered to
take possession of the decedent' s estate; however, it is not a basis for a plea of res judicata or conclusive
evidence against persons having an adverse interest in or claim against the estate. Guidry v. Dufrene, 96-
0194 ( La. App. 1 Cir. 11/ 8/ 96), 687 So. 2d 1044, 1046.
B Although captioned " Motion Requesting Reconsideration And/ Or Rehearing," the pleading was substantively
a motion for new trial. See Lexington Land Dev., L. L. 0 v. Chevron Pipeline Co., 20- 0622 ( La. App, 1 Cir.
5/ 25/ 21), 327 So. 3d 8, 17, writ denied, 21- 01194 ( La. 11/ 17/ 21), 327 So. 3d 996 ( noting that the Louisiana
Code of Civil Procedure does not provide for a motion for reconsideration; instead, such a motion is generally
treated as a motion for new trial). Further, we interpret Mr. Allen' s appeal from the judgment denying his
incorrectly captioned motion for new trial as an appeal from the judgment on the merits. See Doctors for
Women Med. Ctr., L. L. C. v. Breen, 19- 0582 ( La. App. 1 Cir. 5/ 11/ 20), 303 So. 3d 667, 671.
9 Except as otherwise provided by law, the rules of pleading and service of process applicable in ordinary
proceedings shall apply to succession proceedings. La. C. C. P. art. 2971. Specific procedural rules applicable
to intestate successions are set forth in La. C. C. P. arts. 3001- 3008; and, specific procedural rules applicable
to testate successions are set forth in La. C.C. P. arts. 2851- 2904 and 3431- 3035.
5
La. C. C. P. arts. 2821- 22. However, in a contradictory succession proceeding, no fact that is
an issue may be proved by affidavit under La. C. C. P. arts. 2821- 22; rather, in such case,
issues of fact shall be determined at a trial thereof only by evidence introduced as in ordinary
cases. La. C. C. P. art. 2824. Evidence " introduced as in ordinary cases" means testimony or
documentary evidence ( either viva voce in open court or by deposition) introduced in open
court at trial. La. C. C. P. art. 2824 —Official Revision Comments — 1960, Comment ( c). For
example, see State v. Twin Cities Memorial Gardens, Inc, 43, 568 ( La. App. 2 Cir. 9/ 17/ 08),
997 So. 2d 16, 21 ( live testimony); Licfro, Inc. v. State, ex rel. Department of Revenue,
Office of Alcohol and Tobacco Control, 03- 0737 ( La. App. 4 Cir. 10/ 1/ 03), 859 So. 2d 7391F
742 ( oral argument is not evidence); Kilbourne v. Hunt, 276 So. 2d 742, 744-45 ( La. App. 1
Cir. 1973) ( live testimony).
In this case, Mr. Allen commenced the action as a purported intestate heir of Mr.
Brown. After receiving Mr. Brown's purported 2014 testament, Mr. Allen filed an objection
to probate of that testament, claiming that it was invalid. See La. C. C. P. arts. 2853, 2881,
and 2902. Thus, when Mrs. Brown thereafter filed a petition to probate the testament, the
trial court had Mr. Allen' s objection before it, the matter was a contradictory matter, and
the trial court could only probate the 2014 testament at a contradictory trial. See La. C. C. P.
art. 2901. Contrast Succession of Teal, 21- 226 ( La. App. 5 Cir. 6/ 4/ 21), So. 3d ,
2021 WL 2301802, * 3 ( finding that, when there is no objection from parties to a
succession, the trial court has a mandatory obligation, under La. C. C. P. art. 2891, to probate
a notarial testament, when such is presented).
At the March 8, 2021 contradictory hearing herein, the parties did not introduce
evidence; thus, the only evidence before the trial court at that time consisted of pleadings
and attachments thereto, namely, the conflicting affidavits of death, domicile, and heirship,
the contested 2014 testament, Mr. Brown' s obituary, and the March 4, 2015 judgment
10
ordering Mr. Brown' s submission to testing. In a typical civil case, the trial court could
have decided the exception of no right of action solely on this evidence. See La. C. C. P. art.
io In brief, Mr. Allen relies on documents allegedly written by one of Mr. Brown's daughters and by Mr. Brown' s
niece as evidence. These documents physically appear in the appellate record but are not properly attached
as exhibits to any pleading. See La. C. C. P. art. 853. Documents not properly offered and introduced cannot
be considered as evidence, even if physically placed in the record. Bailey v. Loewe, 19- 0915 ( La. App. 1 Cir.
8/ 3/ 20), 310 So. 3d 746, 748.
2u
931. However, in this contradictory succession proceeding, under La. C. C. P. art. 2824, the
trial court was prohibited from deciding the exception of no right of action solely on these
filings, because the determination of whether Mr. Allen has a right of action herein includes
contested issues of fact. Thus, under specific rules applicable to contradictory succession
proceedings, we conclude the parties were required to file " evidence introduced as in
ordinary cases" at the March 8, 2021 hearing, and, absent such, the trial court committed
legal error in granting Mrs. Brown' s exception of no right of action as to Mr. Allen' s August
201' and August 31 motions.
We vacate the April 9, 2021 judgment as to this ruling and
remand this matter for a contradictory hearing as provided in La. C. C. P. arts. 2901- 2904.
Because we vacate the judgment on this basis, we also vacate the judgment's imposition of
sanctions against Mr. Allen.
MOTION TO PROHIBIT COLONEL LUKE RHEAMS AND MRS. BROWN
FROM INTERFERING WITH MR. ALLEN' S ACCESS TO PROBATE COURT
Mr. Allen next contends the trial court erred in dismissing his " Motion to Prohibit Cal.
Luke Rheams & Shirley Brown From [ Interfering] With [ his] Access to Probate Court,
Litigation, and [ his] Constitutional Rights." In the motion, Mr. Allen alleged that Colonel
Luke Rheams, an official at the prison where Mr. Allen was housed, conspired with Mrs.
Brown to keep him from mailing copies of pleadings he filed in the case to Brown family
members. As to the claim against Colonel Rheams, we agree with the trial court that it had
no subject matter jurisdiction to address this claim absent Mr. Allen' s exhaustion of available
administrative remedies. See generally La. R. S. 15: 1171, etseq.; Collins v. Vanny, 14- 0675
La. App. 1 Cir. 1/ 15/ 15), 169 So. 3d 405, 407. As to Mrs. Brown, the trial court did not
specifically rule on the motion as to Mrs. Brown. Where a trial court's ruling is silent as to
any demand at issue under the pleadings, however, such silence constitutes an absolute
rejection of such demand. Lovell v. Blazer Boats, Inc., 11- 1666 ( La. App. 1 Cir. 10/ 24/ 12),
104 So -3d 549, 558. Further, Mr. Allen produced no evidence that Mrs. Brown conspired
with anyone to interfere with his access to probate court. In light of the lack of evidence to
prove such, we find the trial court did not err in implicitly rejecting this claim against Mrs.
Brown.
FA
CONCLUSION
For the above reasons, we vacate the trial court's April 9, 2021 judgment insofar as
it: granted Mrs. Brown' s exception of no right of action; dismissed Mr. Allen' s Objection to
Last Will Dated 9- 2- 14 Being Probated into Court Proceedings filed on August 20, 2020;
dismissed Mr. Allen' s Motion Dismissing and Striking Notice of Objection In This Matter filed
on August 20, 2020; dismissed Mr. Allen' s Supplement to Objections to Last Will dated 9- 2-
14 filed on August 31, 2020; dismissed Mr. Allen' s Motion to Strike Petition to Open
Succession, File Notarial Testament and Appoint Independent Executor filed on August 31,
2020; and, sanctioned Mr. Alien under Louisiana C. C. P. art. 863. In all other respects, we
affirm the trial court' s April 9, 2021 judgment. We assess costs of the appeal one- half to
Derrick Jerome Allen and one- half to Shirley Mae Miles Brown."
AFFIRMED IN PART; VACATED IN PART; REMANDED.
11 Although Mr. Allen filed his appeal in forma pauperis, the costs of an unsuccessful appeal may be assessed
against him. Pierre v. Dept ofPub. Safety& Corr., 2020- 0480 ( La. App. 1 Cir. 12/ 30/ 20), 2020 WL 7770405,
3, n. 5; Foster v. Tinnea, 96-2178 ( La. App. 1 Cir. 12129/ 97), 705 5o. 2d 782, 787.
8
STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2022 CA 0091
SUCCESSION OF HEZEKIAH BROWN, JR.
Holdridge, J., concurring.
I respectfully concur. Louisiana Code of Civil Procedure article 922
recognizes only three exceptions: the declinatory exception, the dilatory exception,
and the peremptory exception. Louisiana. Code of Civil Procedure articles 925, 926,
and provide non- inclusive lists of objections that may be raised by the three
exceptions.
In this case, the appellant appeals a judgment that granted a peremptory
exception raising the objection of no right of action, For brevity, the majority
opinion refers to the objection of no right of action as an exception of no right of
action. While often misused by all courts, there is no exception of no right of action.
See La. C. C. P. arts. 922, 927. This objection maybe raised through a peremptory
exception in accordance with La. C. C. P. art. 927.