The Succession of Linda Hack Pellette

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

NUMBER 2019 CA 1355

6b
THE SUCCESSION OF LINDA PELLETTE

Judgment Rendered: JUN 12 2020

On appeal from the
Nineteenth Judicial District Court
In and for the Parish of East Baton Rouge
State of Louisiana
Docket Number P73158

Honorable Donald R. Johnson, Judge Presiding

Stephen C. Carleton Counsel for Defendants/ Appellants
Victor R. Loraso, III Ryan Bettencourtt and Jason
Carmen T. Hebert Bettencourtt
Baton Rouge, LA

Wendy J. Moran Counsel for Plaintiff/Appellee
Baton Rouge, LA Jerome Pellette

BEFORE: WHIPPLE, C. J., GUIDRY, AND BURRIS,' JJ.

Judge William J. Burris, retired, serving pro tempore by special appointment of the Louisiana
Supreme Court.

GUIDRY, J.

Appellants, Ryan Bettencourtt and Jason Bettencourtt, appeal a trial court

judgment denying their claims for rental reimbursement and awarding co- owner

and Appellee, Jerome Pellette, closing costs and certain other reimbursements

upon reconventional demand. For the reasons that follow, we affirm in part,

reverse in part, and vacate in part.

FACTS AND PROCEDURAL HISTORY

Linda Hack Pellette died intestate on January 24, 1999, after having been

married twice. Her first marriage to Raymond Bettencourtt ended in divorce in

1985. Of this marriage, two children were born, Ryan Bettencourtt and Jason

Bettencourtt. Linda married a second time to Jerome Pellette on October 27, 1990.

Of the second marriage, two children were born, Lindsey Pellette and Tender

Pellette, who were both minors at the time of their mother' s death. At the time of

Linda' s death, Ryan was 21 years old and Jason was 17 years old. Jerome, the

surviving spouse, was appointed administrator of Linda' s succession. On May 11,

2001, Jerome married Vicki Poirrier.

By a Judgment of Possession dated April 6, 2001, Jerome was placed in

possession of an undivided one- half of the property belonging to the community of

acquets and gains that existed between him and Linda. A part of that community

included immovable property located at 4953 Parkforest Drive (" the home" or " the

property") and a Bank One account, which are the subjects of the dispute herein.

The Judgment of Possession also recognized that Jerome was entitled to the

usufruct of the portion of the community property formerly belonging to Linda for

the remainder of his life or until remarriage. The other heirs, Linda' s children,

Ryan, Jason, Lindsey, and Tender, were entitled to the naked ownership, in equal

shares, of the one- half of the community property formerly belonging to Linda' s

succession, subject to the usufruct of Jerome.
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On September 30, 2016, Ryan and Jason filed a petition for partition in the

succession proceedings, requesting that the property located at 4953 Parkforest

Drive be partitioned. Ryan and Jason also requested any rental reimbursement due

to them from Jerome. Jerome answered the partition, claiming that a co- owner is

not entitled to rental payments. He also filed a reconventional demand against

Ryan and Jason, requesting reimbursement for the mortgage he paid on the

property and for expenses he incurred maintaining the property.' Jerome further

sought reimbursement from Ryan for money allegedly withdrawn on July 24,

1999, from a Bank One account belonging to Linda' s estate. Ryan and Jason

answered Jerome' s reconventional demand and filed exceptions raising the

objections of prescription, no right of action, and no cause of action.

In connection with the trial, the parties entered a number of joint

stipulations; the parties stipulated to a private sale of the property to Jerome,

subject to any reductions ordered by the trial court related to the mortgage and

expenses paid by Jerome and/ or the rental claim of Ryan and Jason.

The trial in this matter was conducted over two days in September of 2017.

On November 14, 2017, the trial court issued a judgment, which was the subject of

a prior appeal to this court. See Matter of Succession of Pellette, 18- 0728 ( La.

App. 1st Cir. 4/ 16/ 19), 2019 WL 1614718 ( dismissing and remanding the appeal

that arose from the November 14, 2017 judgment for want of appellate

jurisdiction). Later, on June 18, 2019, the November 2017 judgment was

amended.' The trial court ordered a private sale in accordance with the parties'

Jerome filed the answer and reconventional demand individually and as the permanent natural
tutor of Tender.

We note that the appellee herein contends that the June 18, 2019 amended judgment lacks
decretal language; specifically, the appellee asserts that paragraph 10 of 15 lacks the appropriate
language. We disagree. A final, appealable judgment must contain decretal language, and must
name the party in favor of whom the ruling is ordered, the party against whom the ruling is
ordered, and the relief that is granted or denied. These determinations should be evident from
the language of the judgment without reference to other documents in the record, as we believe
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stipulation as to the value of the property, denied Ryan and Jason' s rental

reimbursement claim, and granted certain recoveries to Jerome. Ryan and Jason

now appeal that judgment, and assign the following errors: 1) the trial court erred

in denying their rental reimbursement claim and finding that a demand for

occupancy could not be made during the usufruct; 2) the trial court erred in

denying their rental reimbursement claim when Jerome had exclusive use of the

property; 3) the trial court erred in awarding Jerome $ 5, 686. 00 in connection with

a related succession asset, the Bank One account; 4) the trial erred in awarding

Jerome fifty percent of his closing costs, filing fees, and recording fees in

connection with the sale of the property; and 5) the trial court erred in awarding a

percentage of insurance and property taxes to Jerome.

STANDARD OF REVIEW

On legal issues, the appellate court gives no special weight to the

factfinder' s conclusions, but exercises its constitutional duty to review questions of

law and renders judgment on the record. Chaisson v. Oceanside Seafood, 97- 2756,

p. 3 ( La. App. 1 st Cir. 6/ 29/ 98), 713 So. 2d 1286, 1288. However, the two- part test

for the appellate review of a factual finding is 1) whether there is a reasonable

factual basis in the record for the finding of the trial court, and 2) whether the

record further establishes that the finding is not manifestly erroneous. Marietta

Trust v. J. R. Logging Inc., 16- 1136, p. 4 ( La. App. 1st Cir. 5/ 11/ 17), 225 So. 3d

1144, 1147, writ denied, 17- 1751 ( La. 12/ 5/ 17), 231 So. 3d 631. If a reasonable

factual basis exists, an appellate court may set aside a trial court' s factual finding

only if, after reviewing the record in its entirety, it determines the trial court' s

finding was clearly wrong. Mixed questions of law and fact are also subject to the

they are here. See Advanced Leveling & Concrete Solutions v. Lathan Company, Inc., 17- 1250,
p. 4 ( La. App. 1st Cir. 12/ 20/ 18), 268 So. 3d 1044, 1046 ( en Banc).

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manifest error standard of review. Marietta Trust, 16- 1136 at p. 4, 225 So. 3d at

1147- 1148.

DISCUSSION

Rental Reimbursement

In their first two assignments of error, the appellants essentially contend that

their demands for occupancy both before and after Jerome' s usufruct entitle them

to rental reimbursement for Jerome' s exclusive use of the property after the

usufruct ended. Here, with Jerome as the usufructuary and Ryan and Jason as the

naked owners,' we note the following: the rights and obligations of the naked

owner are limited in comparison to those of the usufructuary. The naked owner

can dispose of his naked ownership; however, he cannot affect the rights of the

usufructuary. La. C. C. art. 603. The naked owner must not interfere with the

rights of the usufructuary. La. C. C. art. 605; Walker v. Holt, 03- 1722, pp. 5- 6 ( La.

App. 3rd Cir. 9/ 29/ 04), 888 So. 2d 255, 258- 259.

In addition, the use and management of the thing held in indivision is

La. C. C. 801. Except as
determined by agreement of all the co- owners. art.

otherwise provided in Article 801, a co- owner is entitled to use the thing held in

indivision according to its destination, but he cannot prevent another co- owner

from making such use of it. La. C. C. art. 802. It is well established that a co-

owner need not pay rent to another co- owner for his exclusive use of the co -owned

property. McCarroll v. McCarroll, 96- 2700, pp. 18- 19 ( La. 10/ 21/ 97), 701 So. 2d

1280, 1289. A co- owner in exclusive possession may be liable for rent, but only

beginning on the date another co- owner has demanded occupancy and has been
refused. McCarroll, 96- 2700 at pp. 19- 20, 701 So. 2d at 1290. However, even in

these instances, the co- owner in possession cannot be enjoined from occupying the

property or cultivating it. The remedy of the co- owner out of possession is by suit

4 We recognize that Lindsey and Tender were also naked owners.
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for a partition. Juneau v. Laborde, 228 La. 410, 418, 82 So. 2d 693, 696 ( La.

1955).

In the matter before us, following the death of Ms. Pellette in 1999, Jason

moved out of the family home within weeks of his mother' s death; Ryan was not

living at the home at the time of his mother' s death. Afterwards, according to their

testimonies, both Ryan and Jason made attempts to collect their belongings from

the home. However, the locks were changed by Jerome, and Ryan and Jason were

denied access to the home. 5

Thereafter, the record shows that Ryan and Jason made requests to Jerome to

visit with or pick-up their young sisters. In June of 2000, Ryan and Jason filed suit

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in family court seeking custody of their sisters, or alternatively, visitation.'

record also shows periodic communication between Jerome and Ryan regarding

Ryan' s and Jason' s ownership interests in the home. At points during 2001 to

2004, the parties discussed the sale of Ryan' s and Jason' s ownership interests to

Jerome.

By Jason' s testimony at trial, which is primarily limited to the period during
the usufruct, he and his brother, Ryan, were denied access to the home and denied

visitation with their young sisters. Ryan, through his testimony, admitted that he

supported " the situation of [Jerome' s] living," as Jerome had expressed concerns

of providing Lindsey and Tender with a stable home environment. Ryan testified

that he expressed to Jerome that he was " okay" with Jerome using the house

following the custody/ visitation trial.' Ryan also admitted that he never demanded

a key to the home and made no more " demand[ s]" after the custody suit was filed

5 Ryan and Jason testified that they picked up their belongings from the open carport or curbside.

Jerome maintained custody of Lindsey and Tender. According to Jason, the suit was " not
completed." Jerome inferred, however, that the suit was dismissed.

In our opinion, it is clear from the record that Ryan also spoke on the behalf of Jason.
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and the usufruct ended. According to Ryan, following the suit for custody, his and

Jason' s demands were exhausted.

Additionally, according to the testimonies of Jerome and his wife, Ryan and

Jason never came to the home, were never refused entry to the home, and

following the termination of the usufruct, never tried to the access the home or

come over to visit with their sisters, Lindsey and Tender.

Here, while it is clear that Ryan and Jason made attempts to retrieve

belongings from the home following the death of their mother, and made attempts

to visit with their young sisters, these attempts were made during the period of the

usufruct, where Jerome had the right of exclusive use of the property. A naked

owner can never enter into the enjoyment of the use of the property until after the

extinction of the usufruct. Melancon v. Garon, 14- 1532 ( La. App. 1st Cir.

4/ 24/ 15), 2015 WL 1882732, * 2 ( citing Theriot v. Terrebonne, 195 So. 2d 740, 743

La. App. 1 st Cir. 1967)). Therefore, Jerome could rightfully deny Ryan and Jason

access to the home during the usufruct.

The usufruct terminated with Jerome' s remarriage in May of 2001. See La.

C. C. art. 890. However, following the termination of the usufruct, we can find no

demand for occupancy made by either Ryan or Jason, which would entitle them to

rental reimbursement. Instead, Ryan admitted through his testimony that no

demands for occupancy were made following the usufruct. Likewise, we note that

Ryan communicated to Jerome that he and Jason were supportive of Jerome using

the home for the stability of their sisters, Lindsey and Tender.

Considering the evidence and testimony before us, we cannot say the trial

court was clearly wrong in finding that neither Ryan nor Jason made a demand to

occupy the home and were refused following the termination of the usufruct.

Furthermore, when considering the rights and obligations of a usufructuary in

comparison to those of a naked owner, we are led to the conclusion that a naked
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owner is not entitled to a right of occupancy during the usufruct. Therefore, any

demand for such, made during the period of the usufruct, would not entitle him to

rental reimbursement. We find no merit in these assignments of error.

Insurance and Property Taxes

Ryan and Jason contend the trial court erred in awarding a percentage of the

insurance and property taxes to Jerome because Jerome had exclusive use of the

property. Thus, Ryan and Jason essentially contend that any award for the

insurance and property taxes should have been offset by the value of Jerome' s use

of the property.

Louisiana Civil Code article 806 states:

A co- owner who on account of the thing held in indivision has
incurred necessary expenses, expenses for ordinary maintenance and
repairs, or necessary management expenses paid to a third person, is
entitled to reimbursement from the other co- owners in proportion to
their shares.

If the co- owner who incurred the expenses had the enjoyment of the
thing held in indivision, his reimbursement shall be reduced in
proportion to the value of the enjoyment.

Insurance and property taxes paid by a co- owner are necessary expenses

pursuant to Article 806. See La. C. C. art. 527, Revision Comment ( b). However,

in the instant case, because Jerome had the enjoyment of the property, any

reimbursement to which he is entitled is subject to a reduction. See Clark v.

Simmons, 14- 133, pp. 7- 8 ( La. App. 5th Cir. 12/ 23/ 14), 167 So. 3d 140, 143- 144.

We hold that the trial court erred in its award to Jerome for the insurance and

property taxes for which he paid. Jerome enjoyed the subject property exclusively

for a significant amount of time, since May of 2001. Consequently, we conclude

that the value of Jerome' s exclusive enjoyment of the property far exceeds the

stipulated amount of $910. 97 that would be owed by each appellant herein for his

percentage of the necessary expenses paid by Jerome. In our opinion, Jerome' s

claim for the necessary expenses of insurance and property tax is entirely offset by

his exclusive use and enjoyment of the property. Therefore, on this issue, we

reverse the judgment of the trial court.

Closing Costs

In their fourth assignment of error, the appellants argue that the trial court

erred in ordering them to reimburse Jerome for closing costs associated with the

sale of the home. The appellants argue that closing costs were not demanded from

Jerome either in his pleadings or at trial, and as such, an award for these costs

amounted to a denial of due process.

We find that the trial court erred as a matter of law when it entered a

judgment assessing all of the parties equally with the costs of closing, including the

costs of filing and recording fees. The trial court may only grant relief warranted

by the arguments contained in the pleadings and the evidence. In re Interdiction of

Amoroso, 19- 0987 ( La. App. 1st Cir. 2/ 21/ 20), 2020 WL 862230, * 2.

Furthermore, due process requires adequate notice to the parties of the matters that

will be adjudicated. Glover v. Medical Center of Baton Rouge, 97- 1710, p. 3 ( La.

App. 1st Cir. 6/ 29/ 98), 713 So. 2d 1261, 1262.

Pursuant to La. C. C. P art. 1154, when issues not raised by the pleadings are

tried by express or implied consent of the parties, they shall be treated in all

respects as if they had been raised by the pleading. In addition, La. C. C. P. art. 862

grants the trial court authority to render a final judgment granting the relief to

which the party in whose favor it is rendered is entitled, even if the party has not
demanded such relief in his pleadings. Nothing in Article 862, however, is

intended to confer jurisdiction on a court to decide a controversy which the parties

have not regularly brought before it. Ussery v. Ussery, 583 So. 2d 838, 841 ( La.

App. 2nd Cir. 1991).

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In the instant case, the relief sought by the parties included a partition of the

property and certain recoveries. Prior to trial, the parties agreed to a private sale of

the property with Jerome purchasing from Ryan and Jason their ownership

interests.$ However, Jerome, as the purchaser of the property, never filed any

pleading concerning the recovery of closing costs. Neither did Jerome make any

declaration or request at trial for such coststhe record lacks evidence of anything

concerning closing costs.

The character of an action is fixed by the pleadings filed by the parties.

Ussery, 583 So. 2d at 841. Moreover, a judgment beyond the pleadings is a

nullity. Domingue v. Bodin, 2008- 62, p. 3 ( La. App. 3d Cir. 11/ 5/ 08), 996 So. 2d

654, 657. In this matter, the trial court addressed issues beyond the scope of the

pleadings. We therefore vacate that portion of the judgment, which assessed all of

the parties equally with the costs of closing, including the costs of filing and

recording fees.

Bank One Account

In response to Jerome' s Bank One Account claim, Ryan and Jason filed

peremptory exceptions of no right of action, no cause of action, and prescription.

Allegedly, on July 24, 1999, Ryan withdrew funds from a Bank One account

belonging to his mother' s estate. However, a Judgment of Possession dated April

61 2001 listed the Bank One account as property from the community. The trial

court ruled in favor of Jerome, dismissing each of Ryan and Jason' s exceptions and

ordering the return of the bank account funds to Jerome in the amount of

The parties may agree to a private sale prior to public sale. See La. C. C.P. art 4607; La. C. C.
art. 811; Hebert' s Holdings, L.L.C. v. Mouton, 97- 1238 ( La. App. 3rd Cir. 3/ 6/ 98), 709 So. 2d
983, writ denied, 98- 1397 ( La. 7/ 2/ 98), 724 So. 2d 738.

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5, 686. 00. On appeal, Ryan and Jason question the trial court' s ruling, arguing

that 1) the claim is prescribed and 2) the claim was not addressed at trial.'

We first address the issue of prescription, noting that La. C. C. art. 3499

provides, "[ u] nless otherwise provided by legislation, a personal action is subject

to a liberative prescription of ten years." Comment ( b) of that article states that

articles 3492- 3498 of the Civil Code establish shorter prescriptive periods and that

numerous other articles establish longer ones. See also Starns v. Emmons, 538 So.

2d 275, 277 ( La. 1989). Further, Article 3502 provides, "[ a] n action for the

recognition of a right of inheritance and recovery of the whole or a part of a

succession is subject to a liberative prescription of thirty years. This prescription

commences to run from the day of the opening of the succession."

Ryan avers that Jerome' s claim is a money claim, subject to a prescriptive

period of three years, and thus, the claim is prescribed. However, considering the

facts of this case, we find that the claim asserted by Jerome ( individually and as

tutor of Tender) for the return of the bank account funds is classified as a claim for

inheritance under Article 3502. Such a claim for inheritance is subject to a

prescriptive period of thirty years. Accordingly, we find that the claim is not

prescribed.

This is not to say that the issue of returning the bank account funds was

properly before the trial court so that it could render a judgment on the merits of

the claim. The procedure for a trial in an ordinary proceeding is set out in La.

C. C. P. art. 1631, et seq. Article 1632 provides for the presentation of evidence by

the parties. Further, a plaintiff must prove his case before he can recover, and in

order to prove his case, it is necessary that a certain amount of evidence be

9 While the exception of prescription was urged for review on appeal, we note that the issues
pertaining to the exceptions of no right and no cause of action were not urged by brief or
otherwise. Therefore, we deem any appeal of the exceptions of no right of action and no cause of
action abandoned. See Rule 1- 3, Uniform Rules, Courts of Appeal.

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presented. Tri -City Finance Plan, Inc. v. Barbier, 207 So. 2d 269, 272 ( La. App.

1st Cir. 1968); Fruge Aquafarms, Inc. v. Hicks, 16- 1001, p. 8 ( La. App. 3rd Cir.

5/ 3/ 17), 218 So. 3d 1106, 1112.

In the instant case, the minutes reflect that the evidentiary hearing on

expense issues began on September 5, 2017, and continued on September 29,

2017. On September 5, arguments were held on the peremptory exceptions filed

by Ryan and Jason. The court deferred ruling on the " merits of the exceptions"

until the end of the trial. Thereafter, at trial, the parties presented evidence on the

demand for occupancy" and the claim for rental reimbursement. However, no

evidence was offered by either party on the merits of the claim for the return of the

bank account funds.

Jerome' s counsel argues that a separate hearing was held on November 9,

2017, which addressed the bank account claim. However, the record herein is

devoid of a transcript from the November 9 hearing, and the court minutes

pertinently read as follows:

This matter came on for hearing for Clarity of Judgments. Present in
Court: Mr. Stephen Carleton, counsel on behalf of the plaintiff, Ryan
Betteneourt; and Ms. Wendra Moran, counsel on behalf of the
defendant, Jerome Pellette. The parties clarified Mr. Pellette paid

expenses before May of 2001 and after May of 2001 for the property
in dispute. As to the Sam['] s Construction roofing repair completed
August 25, 2008, the parties clarified the plaintiff' s stipulated in the
joint stipulation responsibility for a quarter share of that amount. No
evidence was presented by either side for home preservation expenses
beyond the stipulation as to the roof expense. Finally, the parties
presented additional argument as to the dispute regarding the Bank
One Account of $9, 098. 17. Whereupon, for oral reasons assigned, the
Court made note of the parties respective positions to assist in the
Court['] s ruling.

The appellate court shall render any judgment which is just, legal, and

proper upon the record on appeal. La. C. C. P. art. 2164. We further note that "[ a]

court may not consider exhibits filed in the record which were not filed into

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evidence unless it is introduced and is admissible at the trial or hearing." Landis

Const. Co. v. State, 15- 1167, p. 3 ( La. App. lst Cir. 2/ 29/ 16), 199 So. 3d 1, 2 n. 1.

The judgment on the merits here, based on the record before us, was

rendered without the taking of any evidence. Even the November 9 court minutes

do not indicate that evidence was produced by the parties on the merits of returning

the bank account funds. Indeed, while there were arguments on the exceptions

filed by Ryan and Jason in regards to Jerome' s bank account claim, the claim on

the merits was not otherwise litigated by the parties. Accordingly, we find that the

ruling of the trial court on the merits of Jerome' s reimbursement claim, ordering

the return of the bank account funds, was without proper foundation. We therefore

reverse that portion of the judgment.

CONCLUSION

The rulings of the trial court, dismissing the appellants' demand for rental

reimbursement and exception of prescription, are affirmed. The rulings of the trial

court, awarding reimbursement for insurance and property taxes to the appellee

and awarding reimbursement from the Bank One account to the appellee, are

reversed. The portion of the judgment awarding closing costs to the appellee is

vacated. Costs of this appeal are assessed equally to the two parties, Appellants,

Ryan and Jason Bettencourtt, and Appellee, Jerome Pellette.

AFFIRMED IN PART; REVERSED IN PART; VACATED IN PART.

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