Succession of Maggie McClendon Ard

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2019 CA 0293

SUCCESSION OF MAGGIE MCCLENDON ARD

DATE OF JUDGMENT' '
N0V 1 5 2019
k.
ON APPEAL FROM THE
i TWENTY-FIRST JUDICIAL DISTRICT COURT
NUMBER 23, 420, DIVISION F, PARISH OF ST. HELENA
STATE OF LOUISIANA

HONORABLE ELIZABETH P. WOLFE, JUDGE

Robert J. Carter Counsel for Appellant
Greensburg, Louisiana Martha Ard Hamler, as
Succession Administrator
Jessica C. Ledet
Amite, Louisiana

Brad P. Scott Counsel for Petitioner -Appellee
Ashley U. Schmidt Leroy Ard
O. Genevieve Leslie
New Orleans, Louisiana

BEFORE: MCDONALD, THERIOT, AND CHUTZ, JJ.

Disposition: VACATED AND REMANDED.

CHUTZ, J.

Appellant, Martha Ard Hamler ( Ms. Hamler), in her capacity as the

administrator of the Succession of Maggie McClendon Ard, appeals a judgment of

possession sending numerous persons into possession of succession property. For

the following reasons, we vacate and remand.

FACTUAL AND PROCEDURAL BACKGROUND

The decedent, Maggie McClendon Ard, died intestate on December 25, 1970.

No action was taken in her succession for over forty- five years. In July 2017, the

decedent' s daughter, Ms. Hamler, filed a petition for appointment as administrator

of the decedent' s succession. Ms. Hamler was appointed administrator of the

Succession on July 21, 2017. She claimed an administration was needed in order to

partition the succession property, which consisted of an undivided interest in certain

immovable property. It appears Ms. Hamler' s action was precipitated by her

brother, Leroy Ard (Mr. Ard), placing a mobile home in front of the house where

Ms. Hamler lived on land they regarded as succession property.

According to the amended affidavit of death and heirship filed by Ms. Hamler,

the decedent had six children: Martha Ard Hamler, Florence Pearline Ard, Leroy
Ard, Joseph Ard, John Eli Ard, and Myrtis Earnestine Ard Burton. At the time Ms.

Hamler was appointed as administrator, she and Mr. Ard were the decedent' s only

surviving children. The amended affidavit of death and heirship also listed the

children and grandchildren of Ms. Hamler' s deceased siblings, several of whom

were also deceased.

As administrator, Ms. Hamler filed a detailed descriptive list, which listed

twenty acres of land in St. Helena Parish as the only asset of the Succession. Ms.

Hamler valued the property at $ 50, 000. 00. The twenty acres constituted the

decedent' s undivided interest in a larger ninety -acre tract, which apparently was part

of the succession of Jake McClendon. Ms. Hamler claimed Jake McClendon' s heirs

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agreed in principle concerning where the decedent' s twenty acres were located

within the ninety -acre tract. However, a partition of the 90 -acre tract was never

completed.

In December 2017, Mr. Ard filed a petition for possession) In the petition,

Mr. Ard made allegations regarding the identity of decedent' s heirs, but he did not

file an affidavit of death and heirship. He asserted there was no need for further

administration of the succession, which he claimed was debt -free, and requested he

and the other heirs be put into possession of their shares of the succession property.

Following a hearing at which Ms. Hamler opposed putting any heirs into

possession, the trial court ruled in favor of Mr. Ard. The trial court signed a

judgment on April 23, 2018, sending Mr. Ard and several other purported heirs into

possession of the succession property. Ms. Hamler filed a motion for new trial

alleging the judgment of possession was contrary to the law and evidence. The trial

court denied the motion for new trial on October 1, 2018.

Ms. Hamler now appeals the judgment of possession rendered by the trial
a
court, raising five assignments of error. She argues the trial court committed

Mr. Ard also requested injunctive relief and a temporary restraining order. The trial court
concluded the request for injunctive relief was moot in light of its ruling on Mr. Ard' s request to
be placed into possession of the succession property. Mr. Ard did not appeal that ruling.
Accordingly, there is no issue regarding Mr. Ard' s request for injunctive relief before this court.

2 In her motion for appeal, Ms. Hamler referred to the dates of the denial and signing ofher motion
for new trial rather than to the April 23, 2018 date on which the judgment ofpossession was signed.
A judgment denying a motion for new trial is an interlocutory order and is normally not
appealable.
However, Louisiana jurisprudence has consistently held that appeals should not be
dismissed for a mere technicality. Williams v. Hospital Service District No. I of Tangipahoa
Parish, 18- 13 86 ( La. 12/ 17/ 18), 258 So. 3d 584, 584 ( per curiam). When a motion for appeal refers
by date to the judgment denying a motion for new trial, but the circumstances indicate the
appellant intended to appeal from the final judgment on the merits, the appeal should
be maintained as taken from the judgment on the merits. Williams, 258 So. 3d at 585;
Byrd v. Pulmonary Care Specialists, Inc., 16- 0485 ( La. App. 1 st Cir. 12/ 22/ 16), 209 So. 3d 192,
195.
In this case, it is clear from the assignments of error, four out of five of which specifically
assert the trial court committed reversible error " in granting the judgment of possession," that Ms.
Hamler sought to appeal from the judgment of possession signed by the trial court on April 23,
2018. Ms. Hamler' s error in listing the date of the wrong judgment in her motion for appeal is

insufficient grounds to dismiss this appeal, particularly since appeals are favored and will be
dismissed only when the grounds are free from doubt. Byrd, 209 So. 3d at 195. Thus, we find the
merits of the April 23, 2018 judgment of possession are properly before us. -

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reversible error in granting the April 23, 2018 judgment of possession because: a

majority of the heirs did not petition for possession as required by La. C. C.P. art.

3362; there was no evidence the heirs unconditionally accepted the debts of the

succession; no assets were retained to pay succession debts as required by La. C. C.P.

art. 3362; and the trial court recognized heirs of the decedent' s descendants without

judgments or affidavits being introduced to establish their rights as heirs.

Additionally, Ms. Hamler contends the trial court erred in denying her motion to

continue since Mr. Ard failed to attach a memorandum to his petition as required by
Louisiana District Courts Rule 9. 9( b).

DISCUSSION

Irrespective of Ms. Hamler' s assignments of error, our examination of the

judgment of possession revealed a fatal defect requiring that the judgment be
vacated. The judgment of possession provides:

LEROY ARD, MARTHA ARD HAMLER, JOSEPH ARD, SR., now
deceased, FLORENCE PEARLINE ARD, now deceased, JOHN ELI
ARD, SR., now deceased, ROSE HITCHENS, ERNEST BURTON,
IRMA BURTON JACKSON, now deceased, and OTIS BURTON,
now deceased, be recognized as the heirs of the DECEDENT,
MAGGIE MCCLENDON ARD, and that LEROY ARD, MARTHA
ARD HAMLER, JOSEPH ARD, SR., now deceased, FLORENCE
PEARLINE ARD, now deceased, and JOHN ELI ARD, SR., now

deceased, be placed in possession of 1/ 5 each of Decedent' s undivided
interest; that ROSE HITCHENS, ERNEST BURTON, IRMA
BURTON JACKSON, now deceased, and OTIS BURTON, now

deceased, be placed in possession of 1/ 20 each of Decedent' s undivided
interest. [ Emphasis added.]

Thus, the trial court recognized several deceased persons in the judgment of

possession as being the decedent' s heirs and sent them into possession of the

succession property.

The heirs of an intestate decedent shall be recognized by the court when all of
the heirs are competent and accept the succession. La. C. C. P. art. 3001. However,

because the deceased persons named in the judgment of possession were natural

persons, their personalities terminated upon their deaths. See La. C. C. arts. 24 and

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25. Accordingly, they were not competent and were incapable of accepting the

succession. See In re Succession ofMoore, 97- 1668 ( La. App. 4th Cir. 4/ l/ 98), 737

So. 2d 749, 759, writ denied, 99- 0781 ( La. 4/ 30/ 99), 743 So. 2d 207. Further, a

judgment rendered for or against a deceased person is an absolute nullity. Allen v.

Allen, 15- 0529 ( La. App. 1st Cir. 2/ 9/ 17) ( unpublished), 2017 WL 532354, * 2;

Rainey v. Entergy GulfStates, Inc., 01- 2414 ( La. App. 1st Cir. 6/ 25/ 04), 885 So. 2d

1193, 1197, writs denied, 04- 1878, 04- 1883, 04- 1884 ( La. 11/ 15/ 04), 887 So. 2d

478- 79. Accordingly, the April 23, 2018 judgment of possession is an absolute

nullity for defects patent on its face and must be vacated.' See La. C. C.P. art. 2164;

In re Succession ofMoore, 737 So. 2d at 759.

Moreover, we note several of Ms. Hamler' s assignments of error appear to

have merit. Louisiana Code of Civil Procedure article 3362 provides that " a

majority of the heirs of an intestate decedent whose succession is under

administration may be sent into possession of all or part of the property of the

succession upon their filing a petition for possession." ( Emphasis added.) In this

case, Mr. Ard was the sole petitioner. Although a number of purported heirs later

filed " concurrences" into the record stating they joined in and adopted the petition

for possession filed by Mr. Ard, the concurrences did not meet the requirement of

Article 3362 that a majority of heirs file the petition for possession. Additionally,

the concurrences were not filed into the record until after the trial court signed the

judgment of possession.' There also was no showing that " adequate assets" were

3 When an appellate court notices an absolute nullity, the court is empowered to vacate or correct
the judgment on its own motion. Brown v. Terrebonne Parish Sheriffs Office, 17- 1305 ( La.
App. 1 st Cir. 4/ 13/ 18), 249 So. 3d 864, 869, writ not considered 18- 00964 ( La. 10/ 8/ 18), 253 So. 3d
792; Pope v. Roberts, 13- 1407 ( La. App. 1st Cir. 4/ 16/ 14), 144 So. 3d 1059, 1064- 65 n. 3.

4 Mr. Ard argues any issue regarding compliance with the Article 3362 requirement that a majority
of heirs file the petition for possession was waived by Ms. Hamler' s failure to file an exception of
nonjoinder prior to the hearing. Even if Mr. Ard is correct, the peremptory exception of non-
joinder of a party can be noticed by either the trial or appellate court on its own motion. See La.
C. C. P. art. 927( A)(4) & ( B).

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retained in the succession to pay succession debts, such as court costs and

administrator fees, as required by Article 3362.

Further, while the record appears to establish that the decedent' s heirs at the

time of her death were her six children, the record is insufficient to establish the

identity of all the decedent' s current heirs. The amended affidavit of death and

heirship filed by Ms. Hamler as administrator (Mr. Ard did not file such an affidavit)

lists the names of the decedent' s children and indicates they are all now deceased

except Ms. Hamler and Mr. Ard. The amended affidavit also lists the children of the

deceased original heirs ( i.e., the decedent' s grandchildren), and in cases where any

of those children are deceased, it lists their children ( i.e., the decedent' s great-

grandchildren). Nevertheless, the amended affidavit does not reflect whether the

deceased persons died testate or intestate or how old their children were at the time

oftheir parent' s death. Therefore, the amended affidavit was insufficient to establish

whether the listed grandchildren and great-grandchildren were heirs of the decedent

either by representation through their deceased parent or forced heirship. The

amended affidavit also does not establish whether the purported heirs were

competent, which is a requirement for a person to be sent into possession of

succession property. See La. C. C. P. art. 3001.

Finally, there appears to be a mathematical error in the judgment of

possession.
When all of the shares of succession property distributed in the

judgement of possession are combined, the total exceeds 100%. Specifically, the

judgment of possession purported to distribute 6/ 5ths5 of the succession property,

an obvious impossibility.

5 The judgment of possession placed Leroy Ard, Martha Ard Hamler, Joseph Ard, Sr. ( deceased),
Florence Pearline Ard (deceased), and John Eli Ard, Sr. ( deceased) into possession of a 1/ 5th share
each of the succession property, a total of 5/ 5ths. Additionally, the judgment of possession placed
Rose Hitchens, Ernest Burton, Irma Burton Jackson ( deceased), and Otis Burton ( deceased) into
possession of a 1/ 20th share each of the succession property, a total of 1/ 5th (i.e., 4/ 20ths = 1/ 5th).
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CONCLUSION

For the reasons assigned, the April 23, 2018 judgment of possession is hereby

vacated as being an absolute nullity, and this matter is remanded for further

proceedings in accordance with this opinion. All appeal costs are to paid by

appellee, Leroy Ard.

VACATED AND REMANDED.

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