SUCCESSION OF EDWARD A. HORRELL, SR.
NO. 2021-CA-0168 CONSOLIDATED WITH: NO. 2021-CA-0285
COURT OF APPEAL FOURTH CIRCUIT STATE OF LOUISIANA
November 17, 2021
Judge Tiffany Gautier Chase
APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 1993-11275 C\W 1993-11701, DIVISION “G-11” Honorable Robin M. Giarrusso, Judge
(Court composed of Chief Judge James F. McKay, III, Judge Tiffany Gautier Chase, Judge Dale N. Atkins)
Walter J. Horrell
P.O. Box 1244
Covington, LA 70434
COUNSEL FOR APPELLANT
Maria I. O’Byrne Stephenson
STEPHENSON, CHAVARRI & DAWSON, LLC
400 Poydras Street, Suite 1990
New Orleans, LA 70130
Jack M. Alltmont
SESSIONS, FISHMAN & NATHAN, LLC
400 Poydras Street, Suite 2550
New Orleans, LA 70130
COUNSEL FOR APPELLEES
AFFIRMED
Facts and Procedural History
This appeal stems from protracted succession litigation spanning more than 25 years and multiple appeals.2 The pertinent facts have previously been articulated by this Court:
Edward A. Horrell, Sr. (“Mr. Horrell“), died in 1993. Since his death, his eldest son, the appellant, has been fighting over his father‘s estate. Just prior to Mr. Horrell‘s death, appellant presented his father with a statutory will that appellant
and his attorney daughter prepared. Mr. Horrell signed the will, with his attorney granddaughter and appellant‘s wife acting as witnesses. The will was deemed invalid by this Court because of Mr. Horrell‘s lack of mental capacity at the time he signed it. See Succession of Horrell, 95-1598, 95-1599 (La.App. 4 Cir. 9/11/96), 680 So.2d 725. Simultaneously with the signing of the will, appellant presented his dying father with an act of donation, which would operate to donate a plot of land in Covington to the appellant. The property was Mr. Horrell‘s separate property.
Appellant‘s mother and his four siblings (referred to hereinafter collectively as “the Horrells“) learned of the donation prior to Mr. Horrell‘s death and presented him with a revocation and a power-of-attorney in favor of his wife. Appellant subsequently presented his father with a document revoking Mrs. Horrell‘s power-of-attorney, and an incomplete petition to dismiss any suit Mrs. Horrell may file to revoke the donation.
Two days before Mr. Horrell died, his wife filed a petition in St. Tammany Parish to revoke the donation of the Covington property. She thereafter amended the petition to substitute Mr. Horrell‘s other four children as petitioners. Appellant answered the suit with an exception of no right of action. The trial court denied the exception. It ultimately granted a summary judgment in favor of plaintiffs (appellant‘s siblings) based on res judicata. Appellant appealed that judgment.
On rehearing, the First Circuit looked to the ruling of this Court finding that Mr. Horrell lacked the mental capacity to execute the will. The court reasoned that Mr. Horrell‘s mental capacity to execute the contested will was already decided in Succession of Horrell, supra; therefore, the issue of his mental capacity to sign the donation was res judicata. See Horrell v. Horrell, 99-1093 (La. App. 1 Cir. 8/15/01), (on rehearing), 808 So.2d 363.
After this Court declared the will invalid, appellant sought to be named administrator of his father‘s estate. The trial court refused and an appeal followed. This Court found that appellant‘s involvement in having his father execute a will when he lacked the mental capacity to do so, demonstrated bad moral character on the part of appellant, thereby disqualifying him to serve as administrator. See Succession of Horrell, 97-2115 (La. App. 4 Cir. 3/25/98), 709 So.2d 1069.
Because of the continued wrangling between the appellant and the Horrells, the trial court appointed a provisional administratrix to handle the affairs of the estate. This appointment was also challenged by appellant, but was upheld.
Since the appointment of the administratrix, the courts of the First Circuit and Fourth Circuit have considered, among other things, whether appellant should be evicted from his residence, whether he should be ordered to allow the administratrix into his residence to inventory and appraise succession property, whether appellant should be held in contempt for abuse of the judicial process and for avoiding service, and whether appellant should be forced to pay attorney‘s fees and costs from his share of the estate. Succession of Edward A. Horrell, Sr., 11-1574, pp. 1-3 (La.App. 4 Cir. 4/11/12), 102 So.3d 139, 140-41.
On April 12, 2010, a hearing was held on a petition for partial possession filed by the Horrells. On April 12, 2011, the trial court rendered a judgment of possession. Clare Horrell, the decedent‘s surviving spouse, died while the appeal of the judgment of possession was pending.
No substitution of parties was made for Clare Horrell, as required by La. C.C.P. art. 801 .On July 13, 2018 the provisional administratrix, Lisa Matthews, filed a petition to file final tableau of distribution, along with a tableau of distribution. On July 31 and October 23, 2018, Appellant filed two oppositions to the tableau of distribution. The trial court held a hearing on December 6, 2018, and the court signed a judgment dated December 7, 2018 approving and homologating the tableau. When the judgment was rendered, no one had been substituted to represent Clare Horrell.
Succession of Horrell, 2019-0269, pp. 1-3 (La.App. 4 Cir. 11/6/19), 285 So.3d 27, 28-30 (internal footnotes omitted).3
Appellant timely appealed the trial court‘s December 7, 2018 judgment. This Court rendered its opinion on November 6, 2019, concluding that the judgment of possession and homologation in favor of Clare Horrell were nullities because, upon her death, a proper party plaintiff was not substituted to allow the action to continue. Id., 2019-0269, p.5, 285 So.3d at 30-31. As such, this Court dismissed the appeal, without prejudice, and remanded “to the trial court so that it may substitute the succession representative or heir/legatee of Clare Horrell as a proper party to this succession.” Id.
On July 21, 2020, Gaye Coffer (hereinafter “Ms. Coffer“), as executrix of the Succession of Clare Y. Horrell, filed a motion for leave to file petition for intervention. Ms. Coffer had been duly appointed as testamentary executrix of the Succession of Clare Y. Horrell in the 24th Judicial District Court, docket number 807-320, Division “J.” On July 22, 2020, the trial court granted Ms. Coffer‘s petition.
In response to the petition for intervention, Appellant filed exceptions of non-joinder of a party, no cause of action, no right of action and prematurity. The matter came before the trial court on November 9, 2020. Following the hearing, the Horrell family (not including Appellant) filed a motion for re-entry of the April 19, 2011 judgment of possession. That issue was heard by the trial court on December 10, 2020. By judgment dated the same date, the trial court denied all the exceptions filed by Mr. Horrell; appointed Ms. Matthews as full administrator of the succession based on an oral motion submitted during the hearing; and adopted the April 19, 2011 judgment of possession as a new judgment of the trial court.
On December 29, 2020, Ms. Matthews filed a petition to homologate tableau of distribution; homologate final accounting; and discharge administratrix. Thereafter, she filed a motion to homologate the tableau of distribution filed on December 29, 2020. Appellant opposed the petition to homologate the tableau of distribution. After the hearing on February 12, 2021, the trial court ordered that Ms. Matthews be authorized to pay the debts outlined in the petition and that the petition be homologated; approved the tableau of distribution as the final accounting; and discharged Ms. Matthews as administratrix of the succession. This appeal followed.4
This appeal presents multiple issues which require the application of different standards of review. Thus, for ease of discussion we will address the applicable standard of review prior to our analysis of the issues.
On appeal, Appellant challenges the trial court‘s December 10, 2020 and February 12, 2021 judgments. His assignments of error can be summarized into the following categories: (1) petition for intervention and exceptions of non-joinder of a party, no right of action and prematurity; (2) exception of no cause of action and adoption of April 19, 2011 judgment; (3) appointment of Ms. Matthews as full administratrix; and (4) homologation and final accounting. We will discuss each topic in turn.
Petition for Intervention and Exceptions
Appellant argues the trial court erred in denying his exceptions and allowing Ms. Coffer to file her petition for intervention. In response to the petition for intervention, Appellant filed exceptions of non-joinder of a party, no cause of action, no right of action and prematurity. An analysis of the exception of no cause of action will be discussed in conjunction with review of the adoption of the April 19, 2011 judgment of possession.
Non-Joinder of a Party
Appellant asserts that Ms. Coffer‘s failure to initially join Ms. Matthews in the petition for intervention invalidates Ms. Coffer‘s request to intervene.
On appeal from the grant or denial of a peremptory exception based on the non-joinder of a party needed for just adjudication, the appellate court “review[s] the findings of the trial court in accordance with the ‘abuse of discretion’ standard of review.” Rayford v. Nat‘l R.R. Passenger Corp., 2005-1273, p. 7 (La.App. 4 Cir. 4/13/07), 962 So.2d 5, 9. Whether a party is required to be joined in a process is governed by
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.
(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.
Ms. Matthews was appointed provisional administratrix by the trial court on July 3, 1997 and has consistently been a part of the succession litigation not only in this circuit but also, in the Court of Appeal, First Circuit.5 The petition for intervention only sought to substitute Ms. Coffer as the proper party to this succession proceeding. Whether or not Ms. Matthews was recorded as a party to Ms. Coffer‘s petition for intervention is not germane to the underlying succession.
Furthermore,
No Right of Action
Appellant asserts that Ms. Coffer has no right of action against him, through the petition for intervention, because he is not the succession representative and thus, not the proper party defendant. Appellant‘s argument derives from the fact that Ms. Coffer served him with the petition for intervention. “Exceptions of no right of action and no cause of action present questions of law and are reviewed by this Court under a de novo standard of review.” In re Succession of Duskin, 2014-0236, p. 4 (La.App. 4 Cir. 11/19/14), 153 So.3d 567, 571. Thus, we are tasked with determining whether the trial court‘s ruling was legally correct. St. Pierre v. Northrop Grumman Shipbuilding Inc., 2012-0545, p. 7 (La.App. 4 Cir. 10/24/12), 102 So.3d 1003, 1009.
A peremptory exception of no right of action “assumes that the petition offers a valid cause of action and considers whether the instant plaintiff is a member of the class that has a legal interest in the underlying case.” Duskin, 2014-0236, p. 4, 153 So.3d at 571. “The function of an exception of no right of action is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit.” N. Clark, L.L.C. v. Chisesi, 2016-0599, p. 5 (La.App. 4 Cir. 12/7/16), 206 So.3d 1013, 1016 (quoting Hood v. Cotter, 2008-0215, p. 17 (La. 12/2/08), 5 So.3d 819, 829) (emphasis added). The focus of an exception of no right of action is on the plaintiff being the proper party, not the defendant. See J-W Power Co. v. State ex rel. Dept. of Revenue & Taxation, 2010-1598, p. 7 (La. 3/15/11), 59 So.3d 1234, 1238-39 (quoting Reese v. State, Dept. of Pub. Safety & Corr., 2003-1615, pp. 3 (La. 2/20/04), 866 So.2d 244, 246) (“The focus in an exception of no right of action is on whether the particular plaintiff has a right to bring the suit...“)
We find no merit to Appellant‘s assertion that the petition for intervention is invalid against him because he was served with the petition. Appellant is not a named defendant in the petition for intervention. Likewise, the “plaintiff” in the petition for intervention is Ms. Coffer who, as the daughter of Edward A. Horrell, Sr. and Clare Y. Horrell, and as executrix of the succession of Clare Y. Horrell, has a legal interest in these succession proceedings. The purpose of her petition for intervention was to be substituted for Clare Y. Horrell in the current succession, not assert a cause of action against Appellant. As Ms. Coffer has a legal interest in the current matter, we find that she is a member of the class of persons allowed to intervene. Thus, the trial court‘s ruling was legally correct and it was not error to deny Appellant‘s exception of no right of action.
Prematurity
Appellant presents an assignment of error asserting the trial court erred in denying his exceptions to the petition for intervention. He filed exceptions of non-joinder of a party, no right of action, no cause of action and prematurity. However, Appellant fails to brief the issue regarding his exception of prematurity. Assignments of error, and issues for review must be briefed, and the appellate court may consider as abandoned any assigned error or issue for review that has not been
Exception of No Cause of Action and Adoption of April 19, 2011 Judgment of Possession
Appellant argues the petition for intervention fails to state a cause of action against him because the intervention seeks to ratify and adopt the April 19, 2011 judgment of possession. He maintains that since the April 19, 2011 judgment of possession was declared null by this Court, it has no legal effect and cannot be ratified or adopted. As previously noted, an exception of no cause of action is reviewed de novo. In re Succession of Duskin, 2014-0236, p. 4, 153 So.3d at 571.
“A peremptory exception of no cause of action tests the legal sufficiency of a petition by determining whether the law affords the plaintiff a remedy based upon the facts alleged in the pleading.” Duskin, 2014-0236, p. 11, 153 So.3d at 575. “A court appropriately sustains the peremptory exception of no cause of action only when, conceding the correctness of the facts, the plaintiff has not stated a claim for which he or she can receive legal remedy under the applicable substantive law.” Deutsche Bank Nat‘l Trust Co. v. McNamara, 2017-0173, p. 4 (La.App. 4 Cir. 10/18/17), 316 So.3d 881, 883 (quoting City of Marksville” cite=“149 So. 3d 210” pinpoint=“215” court=“La.” date=“2014“>Maw Enters., L.L.C. v. City of Marksville, 2014-0090, p. 7 (La. 9/3/14), 149 So.3d 210, 215). Pursuant to this Court‘s previous opinion, the matter was remanded in order to allow the proper representative to be substituted for decedent Clare Y. Horrell. Succession of Horrell, 2019-0269, p. 5, 285 So.3d at 31. The sole purpose of the petition for intervention was to allow Ms. Coffer to be substituted as the legal successor for Clare Y. Horrell in the current proceedings. Therefore, it was procedurally required that Ms. Coffer be substituted as the testamentary executrix.
Appellant is correct in his assertion that a judgment declared an absolute nullity has no legal effect and cannot be reinstated. See Succession of Crute v. Crute, 2016-0836, p. 22 (La.App. 1 Cir. 8/30/17), 226 So.3d 1161, 1177 (“A null judgment is never valid and any proceedings conducted under the authority of a null judgment are absolutely void.“). However, the trial court did not reinstate the April 19, 2011 judgment, but rather included the terms of that judgment in forming a new judgment of the trial court. Specifically, the December 10, 2020 judgment stated:
Accordingly, the Court will enter judgment as prayed for by [Ms.] Coffer adopting all of the terms and conditions of the above-referenced April 19, 2011 judgment so that it will be a new judgment of this Court to which the Succession of Clare Y. Horrell and the Testamentary Executrix thereof are parties and specifically stating that the judgment is now binding on all parties to the litigation....
Thus, while the December 10, 2020 judgment incorporates the same terms as the April 19, 2011 judgment it is not a reinstatement of the April 19, 2011 judgment. As such, we find the trial court did not err in denying Appellant‘s exception of no cause of action and incorporating the
Appointment of Lisa Matthews as Administratrix
Appellant argues the trial court erred in appointing Ms. Matthews as full administratrix of the succession because she abused her role as provisional administratrix. Additionally, he maintains that the previous bond set for Ms. Matthews, as provisional administratrix, is inadequate for her position as full administratrix.
The appointment of a succession administratrix is subject to a manifest error standard of review. Succession of Brown, 2020-0518, p. 8 (La.App. 4 Cir. 4/21/21), 318 So.3d 348, 354. In the matter sub judice, Ms. Matthews orally motioned the trial court to be appointed full administratrix at the hearing on Appellant‘s exceptions to the petition for intervention.6 In order to reverse a finder of facts determination under the manifest error standard of review, this Court “must find from the record that a reasonable factual basis does not exist for the finding of the trial court.” Mule v. St. Bernard Par. Fire Dep‘t, 2018-0507, p. 4 (La.App. 4 Cir. 11/21/18), 259 So.3d 452, 454. We must also determine “that the record establishes that the finding is clearly wrong (manifestly erroneous).” Id.
Ms. Matthews has been provisional administratrix since July 3, 1997. This Court has previously affirmed the appointment of a third party administrator in this matter.7 See Succession of Horrell, 1997-2115 (La.App. 4 Cir. 3/25/98), 709 So.2d 1069.
Additionally, this succession has a contentious and protracted history. Although we recognize that provisional administratrix and full administratrix require different responsibilities, “a provisional administrator has all of the authority and rights of an administrator, and is subject to the same duties and obligations...”
Appellant also maintains that the amount of the bond originally set is insufficient for Ms. Matthews’ appointment as full administratrix. Ms. Matthews initially posted a bond of $50,000.00 in 1997. The trial court allowed that bond to transfer to her role as full administratrix. The amount of the administrator‘s bond is governed by
Except as otherwise provided by law, the person appointed administrator shall furnish security for the faithful performance of his duties in an amount exceeding by one-fourth the total value of all property of the succession as shown by the inventory or descriptive list. The court may reduce the amount of this security, on proper showing, whenever it is proved that the security required is substantially in excess of that needed for the protection of the heirs and creditors.
Thus, the second paragraph of
The annual accounting, filed July 24, 2020, indicates total financial assets as of June 30, 2020 to be $97,070.71. Thus, the bond required in order to protect the interest of the heirs and creditors is 1/4 of $97,070.71, which equals $24,267.68. Based on previous judgments of the trial court, creditors and heirs have already been paid. Additionally, as noted by the trial court, very few assets remain in the estate because a number of the assets have already been distributed. We find the $50,000.00 bond sufficient to protect the interest of the heirs and creditors, based on the current amount of the assets of the estate, and find no error in the trial court‘s ruling regarding the amount of the bond.
Homologation and Final Accounting
Appellant argues the trial court erred in homologating the tableau of distribution; approving the tableau of distribution as the final accounting; and discharging Ms. Matthews and canceling her bond.
A trial court‘s judgment homologating the tableau of distribution must be affirmed if it is reasonably supported by a factual basis. Succession of Manheim, 1998-2051, pp. 5-6 (La.App. 4 Cir. 4/21/99), 734 So.2d 119, 123. “When a succession representative desires to pay estate debts, he shall file a petition for authority and shall include in or annex to the petition a tableau of distribution listing those estate debts to be paid...”
In the case sub judice, the following was included in the record:
- That all debts of the succession have been paid, with the exception of the following, which she requests authority to pay, and there are sufficient funds on hand to pay same:
| | $97,070.71 |
| Minus Bond Renewal Fee Paid October 2020 | <702.00> |
| Minus Accounting Fees 2019 - 2020 Fiscal Year | <TBD> |
| Minus Accounting Fees 2020 - 2021 Fiscal Year/Final Returns | <TBD> |
| Plus 20% of proceeds of sale of preferred stock | 2,200,00 |
| Plus 20% of proceeds of sale of common stock | TBD |
| Equals remaining sums available for distribution | TBD |
| PROPOSED DISTRIBUTIONS: | |
| Distribution to non-Walter heirs in partial satisfaction of sums owed to them from Walter Horrell‘s share of succession assets | $2,000.00 |
| Administratrix fee | 43% of remaining available funds |
| Attorney‘s Fees and Court Costs | 57% of remaining available funds |
| TOTAL CHARGES | (TBD) |
| TOTAL CASH REMAINING IN HANDS OF ADMINISTRATRIX | $0.00 |
”
Appellant further asserts the trial court erred in discharging Ms. Matthews, canceling her bond and not continuing to require her to file an annual accounting of the estate.
Decree
For the foregoing reasons, we affirm both the December 10, 2020 and the February 12, 2021 judgments of the trial court.
AFFIRMED