Roger W. Hoffman v. The Unopened Succession of Dominique Marie Butler

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2020 CA 1330

ROGER W. HOFFMAN

VERSUS

THE UNOPENED SUCCESSION OF DOMINIQUE MARIE BUTLER

1_

1k judgment Rendered: JUN 3 0 2021

On Appeal from the Twenty -Third Judicial District Court
In and for the Parish of Ascension
State of Louisiana
Docket No. 123, 164

Honorable Alvin Turner, Jr., Judge Presiding

Amos J. Cormier, III Counsel for Plaintiff/ Appellant
Felix J. Sternfels Roger W. Hoffman
Napoleonviile, LA

Allen J. Myles Counsel for Defendant/ Appellee
Plaquemine, LA Unopened Succession of
Dominique Marie Butler

BEFORE: GUIDRY, McCLENDON, AND LANIER, 33.

McClendon, J.

In this appeal, plaintiff-appellant challenges a trial court judgment that

granted a permanent injunction enjoining the public sale of immovable property

belonging to minor children without appraisal; ordered an appraisal of the property

with each party to bear half of the costs; and, ordered that the minimum price of

the sale be at least two-thirds of the appraised value. For the reasons that follow,

we amend the judgment of the trial court, and affirm as amended.

FACTUAL AND PROCEDURAL HISTORY

Dominique Marie Butler died on February 13, 2018. She was survived by

four minor children: Makiyah Butler, Tija Butler, Kaleb Butler, and Blake Pleasant.

On September 12, 2018, Roger W. Hoffman filed a petition seeking partition of a

certain tract of immovable property identified as 251 Evangeline Drive,

Donaldsonville, Louisiana 70346 ( the property). The petition for partition named

as defendant the Unopened Succession of Dominique Marie Butler ( Ms. Butler's

succession). Mr. Hoffman alleged that he and Ms. Butler' s succession owned the

property in indivision, in the proportion of an undivided one- half interest each; that

the property was insusceptible of being partitioned in kind; and, that the co- owners

had been unable to agree upon a non -judicial partition. Accordingly, Mr. Hoffman

moved for a curator ad hoc to be appointed to represent the interests of Ms.

Butler's succession and her minor children, and sought to have the property sold

at private sale or public auction in order to effect a partition by licitation.

A court-appointed curator answered Mr. Hoffman' s petition for partition on

behalf of Ms. Butler's succession on May 29, 2019. Following a trial to partition the

property, which the court-appointed curator did not attend, the trial court executed

a September 23, 2019 judgment ordering the partition and sale of the property.

On December 10, 2019, the Ascension Parish Sheriff issued a notice of seizure and

sale of the property. The public sale was initially set for January 22, 2020, but was

later rescheduled for June 24, 2020.

On June 19, 2020, a provisional administrator, on behalf of Ms. Butler's

succession, filed a petition for injunctive relief seeking to enjoin the sale of the

2

property belonging to Ms. Butler's minor children without appraisal. Therein, it was

alleged that Mr. Hoffman was aware that the provisional administrator was the

legal custodian of Ms. Butler's children, but that he failed to provide her contact

information to the court-appointed succession curator, because he " wants this sale

to proceed without appraisal so that he can bid the property in cheap, undermining

the minors['] interest." The trial court granted the temporary restraining order

restraining the sale of the property until further order of the court "'because a sale

without appraisal does not protect the minors herein that are co- owners."

Following a July 9, 2020 hearing, the trial court granted the preliminary

injunction and enjoined the public sale until further order of the court. A written

judgment consistent therewith was executed on July 21, 2020.

On July 31, 2020, the trial of the permanent injunction was taken up.' The

trial court granted judgment in favor of Ms. Butler's succession. A written judgment

in conformity therewith was executed on September 15, 2020, and provided in

pertinent part as follows:

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the
public sale of the minor[ s'] property without appraisal be
permanently enjoined.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that an
appraisal of the property be done and that the parties each pay fifty
50%) percent of the cost.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that
the minimum price at the sale be set at two- thirds ( 2/ 3) of the
appraisal value.

From this judgment, Mr. Hoffman appeals.

RULE TO SHOW CAUSE

On March 1, 2021, this Court issued a Rule to Show Cause Order, stating

that the September 15, 2020 judgment on appeal did not describe the immovable

property in question with sufficient particularity. Citing LSA- C. C. P. art. 1919, this

Court ordered the parties to show cause by briefs whether the appeal should or

1 Mr. Hoffman filed an answer to the petition for injunction and denied the allegations made therein
the same day.

3

should not be dismissed. The Rule to Show Cause Order was referred to the panel

to which this appeal is assigned. Accordingly, we address it herein.

Louisiana Code of Civil Procedure article 1919 provides:

All final judgments which affect title to immovable property shall
describe the immovable property affected with particularity.

This article does not apply to judgments in succession proceedings
recognizing heirs or legatees and sending them into possession.

Similarly, LSA- C. C. P. art. 2089 provides:

All judgments and decrees which affect title to immovable property
shall describe with particularity the immovable property affected.

In Carmena v. O' Connell, 2018- 0661 ( La. App. 1 Cir. 2/ 6/ 19), 2019 WL

474730 ( unpublished), the judgment on appeal permanently enjoined the plaintiffs

from interfering with the defendant's use and enjoyment of a servitude of access

located on plaintiffs' property, but did not contain a specific description of the

immovable property and servitude affected. This Court found that although the

judgment was subject to the specificity requirements of LSA- C. C. P. arts. 1919 and

2089, '' the failure of the judgment to specifically describe the servitude does not

nullify or affect the judgment rendered." Carmena, 2019 WL 474730 at * 2, citing

Goal Properties, Inc. v. Prestridge, 2014- 0422 ( La. App. 3 Cir. 11/ 5/ 14), 150

So. 3d 610, 613. This Court further wrote:

Where the record contains an accurate description of the subject
property, courts have addressed the merits of the case and amended
the judgment to include the property description. See George M.
Murrell Planting & Manufacturing Company v. Dennis, 2006-
1341 ( La. App. 1 Cir. 9/ 21/ 07), 970 So. 2d 1075, 1088; Fields v.
Etheridge, 487 So. 2d 551, 552 ( La. App. 4 Cir. 1986). In other
cases, appellate courts have determined the merits of the appeal and
remanded to the trial courts for reformation of the judgment to
comply with La. C. C. P. art. 1919. See Williams v. Adams, 2010-
0477 ( La. App. 1 Cir. 11/ 1/ 10), 2010 WL 4278275 * 5
unpublished); Hooper v. Hero Lands Company, 2015- 0929 ( La.

App. 4 Cir. 3/ 30/ 16), 216 So. 3d 965, 980- 81, writ denied, 2016- 0971
La. 9/ 16/ 16), 206 So. 3d 205.

In this case, the act of sale by which Mr. O' Connell acquired the
servitude of passage contains an accurate description of the

servitude in question. Accordingly, we maintain the appeal and will
amend the judgment to comply with La. C. C. P. art. 1919.

Carmena, 2019 WL 474730 at * 2- 3.

2

In this matter, as in Carmena, an accurate description of the property at

issue appears in the record before us. Accordingly, we maintain the appeal and

will amend the judgment to comply with the specificity requirements of LSA- C. C. P.

art. 1919. 2

LAW AND DISCUSSION

Louisiana has two types of judicial partitions, in kind and by licitation. LSA-

C. C. art. 810, 811. Partition in kind is favored. LSA- C. C. art. 810; LSA- C. C. P. art.

4606. When property is indivisible by nature or cannot be conveniently divided,

however, the law directs the court to order partition by licitation or by private sale,

and the proceeds are then distributed to the co- owners in proportion to their

shares. LSA- C. C. art. 811. Partition by licitation is conducted by public auction,

after the advertisements required for judicial sales under execution. LSA- C. C. P. art.

4607; Pugh v. NPC Services, Inc., 97- 2360 ( La. App. 1 Cir. 11/ 6/ 98), 721 So -2d

1056, 1057, writ denied, 98- 3052 ( La. 2/ 5/ 99), 738 So. 2d 4.

Mr. Hoffman' s first assignment of error is that the trial court erred in issuing

a temporary restraining order enjoining the public sale of property of the

succession without requiring the posting of security. LSA- C. C. P. art. 3610.

Louisiana jurisprudence holds that an issue is moot when a judgment or decree

on that issue has been " deprived of practical significance" or " made abstract or

purely academic." Pierce v. McCoy, 2016- 0243 ( La. App. 1 Cir. 10/ 31/ 16), 207

So. 3d 1069, 1073. In the context of a petition for injunctive relief, " where the trial

court renders judgment on the merits on the petition for a permanent injunction

the issue of the preliminary injunction becomes moot." Pierce, 207 So. 3d at

1073. In this matter, the trial court held a trial on the merits and granted the

petition for permanent injunction, thus rendering the issue of the preliminary

z We note that in Clark v. Fazekas, 2019- 1386 ( La. App. 1 Cir. 5/ 11/ 20), 303 So. 3d 1066, this
Court dismissed the appeal of a judgment affecting immovable property because the judgment
failed to describe the property with particularity. However, the circumstances in Clark are
significantly distinguishable from those in Carmena and the instant matter, because the servitude
at issue in Clark was not accurately and fully described in any property description contained in
relevant documents in the record. Clark, 303 So. 3d at 1069, n. 2.

9

injunction moot. See Pierce, 207 So. 3d at 1073. Consequently, this assignment

of error lacks merit.

Mr. Hoffman' s second assignment of error is that the trial court erred in

finding that Ms. Butler's minor children are co- owners of the property in dispute,

because the record does not contain evidence of the children' s ownership. Having

thoroughly reviewed the record in its entirety and the applicable law, we find that

the trial court did not err in treating Ms. Butler's minor children as co- owners

because Mr. Hoffman judicially confessed the ownership of the minor children.

A judicial confession is a declaration made by a party in a judicial

proceeding. It constitutes full proof against the party who made it, is indivisible,

and may be revoked only on the basis of error of fact. LSA- C. C. art. 1853;

Cichirillo v. Avondale Industries, Inc., 2004- 2894 ( La. 11/ 29/ 05), 917 So. 2d

4241 428- 29. A judicial confession is a party's explicit admission of an adverse

factual element. Such a confession has the effect of waiving evidence as to the

subject of the admission and withdrawing the subject matter of the confession

from issue. Cichirillo, 917 So. 2d at 429. Thus, a judicial confession may be

characterized as a rule of evidence that deems a party's declaration to be proofof

the facts or obligations therein confessed. See Succession of Villarrubia, 95-

2610 ( La. 9/ 5/ 96), 680 So. 2d 1147, 1151 ( Lemmon, J. dissenting). An admission

in a pleading falls within the scope of a judicial confession. As such, it is full proof

against the party making it. Cola v. Cola, 2019- 0530 ( La. App. 1 Cir. 12/ 27/ 19),

294 So. 3d 6, 11, reh' g denied ( Jan. 23, 2020), writ denied, 2020- 00344 ( La.

6/ 3/ 20), 296 So. 3d 1068, reconsideration not considered, 2020- 00344 ( La.

10/ 6/ 20), 302 So. 3d 530.

In this matter, Mr. Hoffman filed a petition seeking partition of property that

he co -owned with Ms. Butler, wherein he alleged that Ms. Butler is deceased and

survived by four minor children. Succession is the transmission of ownership of the

estate of the deceased to his successors, and occurs by operation of law at the

moment of death. LSA- C. C. arts. 871, 934, and 935; Matthews v. Horrell, 2006-

1973 ( La. App. 1 Cir. 11/ 7/ 07), 977 So. 2d 62, 74, n. 9. It is undisputed that Ms.

Butler's minor children are her successors' and therefore acquired ownership of

her estate at the time of her death. As set forth above, Mr. Hoffman' s petition for

partition asserted that judicial partition was warranted because he and the co-

owners of the property had been unable to agree upon a non -judicial partition.

Further, Mr. Hoffman' s petition sought the appointment of a curator ad hoc to

represent the interests of Ms. Butler's succession as well as her minor children.

Accordingly, we find the record establishes a judicial confession of the minor

childrens' ownership in the property. 4 This assignment of error lacks merit.

In his third, fourth, and fifth assignments of error, Mr. Hoffman contends

that the trial court erred in granting the permanent injunction, in requiring an

appraisal, and in requiring a minimum sale price of two- thirds of the appraisal

value, respectively. Regarding the permanent injunction, Mr. Hoffman argues that

the September 15, 2020 judgment denies his right to a partition as set forth in

LSA- C. C. art. 807, which provides that "[ n] o one may be compelled to hold a thing

in indivision with another unless the contrary has been provided by law or juridical

act," and "[ a] ny co- owner has a right to demand partition of a thing held in

indivision." With respect to the conditions of an appraisal and a minimum price,

Mr. Hoffman relies on LSA- C. C. P. art. 4602 and LSA- C. C. P. art. 4607. Article 4602

requires a judicial partition in the event the interested parties cannot agree upon

a nonjudicial partition. Article 4607 addresses partition by licitation, and provides:

When a partition is to be made by licitation, the sale shall be
conducted at public auction and after the advertisements required
for judicial sales under execution. When a partition is to be made at
private sale without the consent of all co- owners, the sale shall be
for not less than two-thirds of the appraised value of the property
and shall be made by a court- appointed representative, who may be
a co- owner, after the advertisements required for judicial sales under
execution are made. All counsel of record, including curators
appointed to represent absentee defendants, and persons appearing

3 The record does not indicate whether Ms. Butler died testate or intestate. However, Ms. Butler' s
minor children were forced heirs at the time of her death pursuant to LSA- C. C. art. 1493.
Accordingly, they acquired ownership of at least one- half of her estate regardless.
4 We note Mr. Hoffman' s argument that Ms. Butler's succession is the co- owner of the property.
However, LSA- C. C. art. 871 provides that a succession " is the transmission of the estate of the
deceased to his successors." The Comments to article 871 explicitly state that the article " is
intended to establish that the word succession' means the process by which heirs and legatees
succeed to the property of the deceased", and that the intent of the revision was to eliminate the
meaning of " succession" which describes the " estate" of the deceased as a separate legal entity.
See Matthews, 977 So. 2d at 74.

7

in proper person shall be given notice of the sale date. At any time
prior to the sale, the parties may agree upon a nonjudicial partition.

In response to Mr. Hoffman' s arguments, Ms. Butler's succession maintains

that the trial court has discretion to enjoin the sale without appraisal in order to

protect the best interests of the minor children and prevent them from suffering

irreparable injury. For the reasons that follow, we agree.

Louisiana Code of Civil Procedure article 4605 provides, "[ e] xcept as

otherwise provided in Article 4606, the court has discretion to direct the manner

and conditions of effecting the partition, so that it will be most advantageous and

convenient to the parties." 5 Article 4605, Comment b, provides in pertinent part:

Unlike Art. 1336 of the Civil Code, which subjects the discretion of
the court in the mode of effecting a partition to other provisions of
that Code, the above article gives the court full and

unrestricted discretion in directing the manner in which the
partition is to be made, except as provided in Art. 4606, infra,
which requires the partition to be made in kind unless the property
is indivisible by nature or cannot be conveniently divided.

Emphasis added.)

Interpretation of any statute begins with the language of the statute itself.

David v. Our Lady of the Lake Hosp., Inc., 2002- 2675 ( La. 7/ 2/ 03), 849 So. 2d

38, 46. When the wording of a statute is clear and unambiguous, "' the letter of it

shall not be disregarded under the pretext of pursuing its spirit." LSA- R. S. 1: 4;

David, 849 So. 2d at 46. Further, there is a well- settled presumption that every

word, sentence or provision in the statute was intended to serve some useful

purpose, that some effect is to be given to each such provision, and that no

unnecessary words or provisions were used. Thus, our courts must give effect to

all parts of a statute and construe no sentence, clause or word as meaningless.

Bias v. Louisiana Physical Therapy Board, 2018- 2042 ( La. 6/ 26/ 19), 284

So. 3d 1194, 1197.

5 As noted above, article 4606 establishes that partition in kind is favored. Specifically, it provides,
e] xcept as otherwise provided by law, or unless the property is indivisible by nature or cannot
conveniently be divided, the court shall order the partition to be made in kind." The transcript of
the hearing reflects that the property at issue cannot conveniently be divided, and therefore
partition in kind is not appropriate. Thus, article 4606 is not at issue in this matter.

The plain language of article 4605 establishes that the trial court has

discretion to direct the manner and conditions of effecting the partition. Moreover,

Comment b explicitly states that the trial court has " full and unrestricted discretion

in directing the manner in which the partition is to be made." The phrase " full and

unrestricted discretion" makes clear that unless article 4606 applies, which is not

the case in this matter, the legislature did not intend to place any restriction on

the trial court's ability to direct the manner in which the partition is made. While

Mr. Hoffman correctly asserts that he is entitled to a judicial partition by licitation

pursuant to articles 807, 4602, and 4607, the September 15, 2020 judgment at

issue does not deny Mr. Hoffman the partition he seeks. Rather, it enjoins the

Sheriff's sale " without appraisal" and requires that the sale take place under certain

conditions — with an appraisal, and with a minimum price set at two- thirds of the

value of that appraisal. Imposition of such conditions is expressly authorized

pursuant to the plain language of article 4605 and the Comment thereto. Were we

to accept Mr. Hoffman' s argument that the trial court erred in granting the

injunction and imposing these conditions on the sale, we would render useless the

language of article 4605 granting the trial court discretion to direct the manner

and conditions of the partition. These assignments of error lack merit.

CONCLUSION

For the foregoing reasons, that portion of the September 15, 2020

judgment, which previously read as follows:

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the
public sale of the minor[ s] property without appraisal be
permanently enjoined.

Is now amended to read as follows:

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the
public sale of the minors' property without appraisal be permanently
enjoined. Said property is described as follows:

House and Lot located at 251 Evangeline Drive, Donaldsonville,
Louisiana 70346.

A certain lot of ground, situated in Parish of Ascension, State of
Louisiana, designated as Lot 29 of Hadrian Place Subdivision, more
particularly described on that plat prepared by Wallace T. DeBosier
of Carey Hodges Associates, Inc., C. E., recorded at COB 339, Entry
Number 185397, of the records of the Parish of Ascension, Louisiana,

9

located in Section 96, Township 11 South, Range 14 East, City of
Donaldsonville, Ascension Parish, Louisiana, Said Lot having a front
of measurement of sixty-two and 50/ 100 ( 62. 50 feet on the easterly
side of Evangeline Avenue, between equal and parallel lines, by a
depth of one hundred twenty-five ( 125. 0) feet, said lot being
bounded as follows: Northerly by Lot 28 of Hadrian Place Subdivision,
Southerly by Lot 30 of Hadrian Place Subdivision, and Westerly by
Evangeline Avenue; together with all buildings and improvements
thereon and all rights, ways, privileges and servitudes thereunto
belonging or in anywise appertaining.

Said LOT 29 of Hadrian Place Subdivision also being shown on that
plat prepared by Michael P. Blanchard, P. L. S., dated July 28, 2008,
entitled " Plat Showing Final Survey of Phase 1 Of The Hadrian
Subdivision, Located In Section 96, Township it South- Range 14
East, City of Donaldsonville, Ascension Parish, Louisiana, For
Casteigne Real Estate" recorded at Entry Number 704063 of the
records of the Parish of Ascension, LA.

It being the same property acquired by Roger W. Hoffman and
Dominique Marie Butler from Don Julien Christy, III and Gabriel
Armstead Christy by Act of Cash Sale dated June 12, 2017 and filed
on June 14, 2017, in the records of the Parish of Ascension under
Instrument Number 00925978.

As amended, the judgment is affirmed. All costs of this appeal are assessed

to appellant, Roger W. Hoffman.

APPEAL MAINTAINED; AMENDED AND AFFIRMED AS AMENDED.

10