318 So.3d 348
La. Ct. App.2021Background
- Decedent Edna Braud Johnson Brown died June 12, 2017; she had a 1993 will and six children (one is Appellant Sheila Johnson; another is Appellee Paula Jackson, whose filial status was disputed).
- Decedent owned 8333-8335 Spruce St. outright; she and predeceased husband William Brown owned 2339 Wisteria St. as community property; Wisteria went into foreclosure in 2018.
- Appellee Paula Jackson (a Nevada resident) filed to open the successions and was appointed administratrix in April–May 2019; her filings asserted intestacy and omitted the Spruce St. property.
- Appellant Sheila Johnson objected, asserted the 1993 testament named her executrix, alleged Paula was not an heir, and moved to remove Paula as administratrix and to block sale of Wisteria.
- At the October 9, 2019 hearing only Paula’s Louisiana agent, T. Colette White, testified; Appellant was not present and the trial court denied removal and lifted the stay; Appellant appealed.
- The appellate court denied Paula’s motion to dismiss the appeal for abandonment (late payment of estimated costs) and reversed/remanded because the trial court failed to hold a full evidentiary hearing on removal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Trial court prevented Appellant from testifying at hearing | Sheila: she was improperly denied the chance to testify and present facts | Paula: proceedings and record (and agent’s testimony) were adequate | Reversed — court committed manifest error by failing to conduct a full evidentiary hearing and by not allowing Appellant to present testimony |
| Appointment of Appellee as administratrix | Sheila: appointment improper because the 1993 will exists and Appellee is not an heir | Paula: she timely sought appointment claiming intestacy; agent represented her | Reversed/remanded — validity of appointment is a factual question requiring an evidentiary hearing |
| Failure to name Appellant executrix as provided by testament | Sheila: the will names her executor/executrix and should control | Paula: contends intestacy; will’s effect disputed in filings | Remanded — trial court must resolve whether the testament controls at a full hearing |
| Whether Appellee is an heir or legatee (filial status) | Sheila: Paula is a step-daughter (not a daughter/heir) and lacks standing as administratrix | Paula: asserts she is a daughter/heir | Remanded — filial status is a factual dispute to be decided at evidentiary hearing |
| Motion to dismiss appeal for abandonment (late payment of costs) | Sheila: late payment cured under La. C.C.P. art. 2126(F); appeal should proceed | Paula: appellee urged dismissal for untimely payment | Denied — costs were ultimately paid and dismissal requires a hearing; appeal not abandoned |
Key Cases Cited
- Succession of Keyes, 133 So.3d 163 (La. App. 4 Cir. 2014) (trial court has broad discretion to remove a succession representative; review for abuse of discretion)
- Succession of Krushevski, 528 So.2d 743 (La. App. 4 Cir. 1988) (standards for removal of succession representative)
- Succession of Cucchero, 845 So.2d 450 (La. App. 1 Cir. 2003) (trial court must hold appropriate proceedings before removing a succession representative)
- Succession of Gaulden, 593 So.2d 805 (La. App. 4 Cir. 1992) (removal requires full evidentiary hearing when factual disputes exist)
- In re Succession of Cannata, 180 So.3d 355 (La. App. 1 Cir. 2015) (discussing requirement for hearing and evidentiary support when challenging a succession representative)