In the Matter of the Succession of Loyce Spurlock Scott

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2023 CA 0826

IN THE MATTER OF THE SUCCESSION OF
LOYCE SPURLOCK SCOTT

Judgment Rendered: MAR 2 0 2024

On Appeal from the 19" Judicial District Court
In and for the Parish of East Baton Rouge
State of Louisiana
Trial Court Docket Number P 110821, Div./Sec. 27

Hon. Max N. Tobias, Judge Presiding

W. Michael Stemmans Counsel for Plaintiffs/ Appellees,
M. Todd Alley Ron Troyd Ennis and
Michael J. Taffaro Sadie Ennis Williams
Jennifer E. Frederickson
Baton Rouge, Louisiana

Kathleen Wilson Counsel for Defendant/ Appellant,
Baton Rouge, Louisiana Thomas Scott, Jr.

BEFORE: THERIOT, PENZATO, AND GREENE, JJ.

PENZATO, J.

In this succession proceeding, Thomas Scott, Jr., the decedent' s spouse,

appeals a judgment of the trial court denying his objection to the succession

administrator' s preliminary detailed descriptive list and sustaining the

administrator' s peremptory exception of prescription. After review, we affirm.

FACTS AND PROCEDURAL HISTORY

A petition to open the succession of Loyce Spurlock Scott and to appoint her

daughter, Sadie Ennis Williams, as administrator was filed on December 22, 2021.

According to the petition, Mrs. Scott died intestate on November 26, 2021. At the

time of her death, Mrs. Scott was married to Thomas Scott, Jr.

Ms. Williams was appointed as the administrator of Mrs. Scott' s succession

on January 4, 2022. On April 27, 2022, Ms. Williams filed a preliminary detailed

descriptive list, identifying a parcel of immovable property with a municipal address

of 15035 Shenandoah Ave., Baton Rouge, Louisiana, as Mrs. Scott' s separate

property.'

Mr. Scott filed an objection to the preliminary detailed descriptive list on July

295 2022, stating the Shenandoah property was not Mrs. Scott' s separate property

but was, instead, owned by the community. Ms. Williams opposed Mr. Scott' s

position regarding the classification of the property. She also raised a peremptory

exception of prescription, arguing Mr. Scott' s right to controvert Mrs. Scott' s

declaration of acquisition of separate property, made by Mrs. Scott in the Act of

Cash Sale for the Shenandoah property, was prescribed. See La. C. C. P. art.

927( A)( 1); La. C. C. art. 2342.

3 The preliminary detailed descriptive list also identified movable property owned by the
community and the properties' estimated value. Mr. Scott filed a traversal of the preliminary
detailed descriptive list, disputing the monetary values for the community movable property
assigned by Ms. Williams. The value of this property is not at issue in this appeal.
2

An evidentiary hearing on Mr. Scott' s objection to the preliminary detailed

descriptive list was held on April 4, 2023. At the conclusion of the hearing, the trial

court rendered judgment sustaining the exception of prescription, denying Mr.

Scott' s objection to the preliminary detailed descriptive list, and finding the

Shenandoah property was Mrs. Scott' s separate property. Mr. Scott filed the instant

appeal from the trial court' s April 20, 2023 judgment.

JURISDICTION

This court' s appellate jurisdiction extends to final judgments and to

interlocutory judgments when expressly allowed by law.2 See La. C. C.P. art. 2083;

Succession ofSaucier, 2021- 1466 ( La. App. 1st Cir. 6129122), 344 So. 3d 108, 113.

Appellate courts have a duty to examine their subject matter jurisdiction sua sponte.

Succession ofSaucier, 344 So.3d at 113. Louisiana Code of Civil Procedure article

2974 provides, in part, that appeals from orders or judgments rendered in succession

proceedings are governed by the rules applicable to appeals in ordinary proceedings.

The April 20, 2023 judgment does not dismiss a party, is not a judgment of

possession of the property at issue, and does not determine the merits of all issues in

the succession proceeding. Therefore, it is a partial judgment appealable only if

authorized by La. C. C. P. art. 1915. See In re Succession ofMorgan, 2015- 0335 ( La.

App. 1st Cir. 2124116), ( unpublished) 2016 WL 770192 at * 2 ( judgment declaring

ownership of disputed estate property, which was not a judgment of possession and

did not dismiss a party, was a partial judgment subject to appeal only as provided by

La. C. C. P. art. 1915); In re Succession of Faget, 2006- 2159 ( La. App. 1 st Cir.

9119107), 984 So. 2d 7, 9- 10 ( judgment declaring surviving spouse to be a co- owner

2 A final judgment determines the merits of a controversy, in whole or in part; in contrast, an
interlocutory judgment does not determine the merits, but only preliminary matters in the course
of an action. See La. C. C. P. art. 1841.

3

of family home was a partial judgment subject to appeal only under La. C. C. P. art.
1915).

Louisiana Code of Civil Procedure art. 1915( A) identifies those partial final

judgments that are appealable as a matter of right. See Triton Diving Services LLC

v. Offshore Marine Service Association, Inc., 2023- 0169 ( La. App. 1 st Cir. 9/ 21/ 23),

372 So. 3d 832, 836. The April 20, 2023 judgment does not fall within one of the

categories enumerated in Article 1915( A). Therefore, the judgment is only

appealable pursuant to Article 1915( B)( 1), which pertinently provides that a partial

judgment " shall not constitute a final judgment unless it is designated as a final

judgment by the court after an express determination that there is no just reason for
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delay."

The judgment on appeal states that it is a final judgment pursuant to La. C. G. P.

1915, and "[ n] o just reason for delay of an appeal exists." Presumably, the trial court

intended to certify the judgment pursuant to Article 1915( B); however, this

designation by the trial court is not determinative of this court' s jurisdiction. See

Crosstex Energy Services, LP v. Texas Brine Co., LLC, 2022- 0832 (La. App. 1 st Cir.

3/ 16/ 23), 363 So. 3d 557, 562. Where, as here, no reasons for the certification are

provided, but some justification is apparent from the record, the appellate court

should make a de novo determination of whether the certification was proper,

considering the factors set forth in R.J. Messinger, Inc. v. Rosenblum, 2004- 1664

La. 312105), 894 So. 2d 1113, 1122- 23. Particularly, Messinger instructs this court

to consider the relationship between the adjudicated and unadjudicated claims; the

possibility the need for review might or might not be mooted by future developments

in the trial court; the possibility the reviewing court might be obliged to consider the

3 The Louisiana Code of Civil Procedure provides for an appeal from certain partial judgments in
succession proceedings. See La. C. C. P. arts. 2122, 2974, 3308, and 3337. The judgment on appeal
does not fall into one of these categories.
4

same issue a second time; and miscellaneous factors such as delay, economic and

solvency considerations, shortening the time of trial, frivolity of competing claims,

and expense. Messinger, 894 So.2d at 1122- 23.

Applying these factors, we find the April 20, 2023 judgment was properly

certified pursuant to La. C. C. P. art. 1915( B). The determination of whether the trial

court erred in finding Mr. Scott' s right to controvert Mrs. Scott' s declaration of

acquisition of separate property was prescribed and the classification of the

Shenandoah property as separate or community property may facilitate resolution of

the remaining litigation, reduce the costs of litigation, and foster judicial economy.

Therefore, appellate review at this juncture is warranted.

FACTS ESTABLISHED DURING THE EVIDENTIARY HEARING

Mrs. Scott was involved in a car accident in 2005 and subsequently filed suit

for personal injuries. Mr. Scott was not involved in the accident nor was he injured,

but he was a party plaintiff in Mrs. Scott' s lawsuit. The Scotts settled their claims

arising out of the accident in May 2007 and received a check in the amount of

850,000 from Travelers Indemnity Company, the defendant insurer. A copy of the

check, which included Travelers' " explanation of payment," was admitted into

evidence. The check is dated May 17, 2007 and made payable to Loyce Scott,

Thomas Scott, and their attorney for ` BODILY INJURY LIABILITY" and for

FULL AND FINAL SETTLEMENT OF ANY AND ALL CLAIMS."

According to Ms. Williams, the Scotts received $ 379, 000. Mr. Scott was

unable to recall the amount of settlement funds the Scotts personally received after

costs and fees were deducted from the $ 850, 000 total settlement; however, he

confirmed it was more than $ 300, 000. Mr. Scott testified that, to his knowledge,

Mrs. Scott did not have a separate bank account during their marriage, and the

settlement funds were deposited into the Scotts' joint bank account.

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Mrs. Scott purchased the Shenandoah property on June 14, 2007 for $232, 000.

Mrs. Scott paid the full purchase price of the property via cashier' s check remitted

in her name alone.' The Act of Cash Sale, also introduced into evidence, identifies

Mrs. Scott as " PURCHASER( S)" and states:

Loyce S. Scott, born Spurlock, a resident of the full age of majority of
the Parish of East Baton Rouge, State of Louisiana, who declared that
she is married to and living with Thomas Scott, acquiring the
hereinafter described property as her separate property, with her
separate funds, for use under her separate administration and control[.]
Emphasis original.)

Mr. Scott was not present at the closing when Mrs. Scott purchased the

Shenandoah property, did not sign purchase documents for the property, and did not

execute a power of attorney authorizing Mrs. Scott to complete the purchase on his

behalf. Mr. Scott testified that he believed the Shenandoah property belonged to

both he and Mrs. Scott, and he first became aware the property was allegedly Mrs.

Scott' s separate property through the subject succession proceeding. Conversely,

Ms. Williams testified that her mother and Mr. Scott consistently recognized the

Shenandoah property was Mrs. Scott' s separate property.

Sheila Robinson was Mrs. Scott' s real estate agent for the purchase of the

Shenandoah property. Ms. Robinson testified that Mrs. Scott " was really being

persistent" in her efforts to purchase a home when she " knew that she was going to

come into [ the] settlement," related to the 2005 car accident. Ms. Robinson also

stated that, prior to the closing, Mrs. Scott asked whether she could purchase the

property in her name alone. Ms. Robinson advised Mrs. Scott to speak to the closing

attorney about the issue.

The copy of the cashier' s check admitted into evidence is in the amount of $233, 353. 47 made
payable to Commerce Title.

DISCUSSION

Under Louisiana law, property of married persons is generally characterized

as either community or separate. La. C.C. art. 233 5. Things in the possession of a

spouse during the existence of a regime of community of acquets and gains are

presumed to be community. La. C. C. art. 2340. However, the law provides that

damages recovered due to personal injuries sustained during the existence of the

community by a spouse are separate property; although, the portion of damages

attributable to expenses incurred by the community as a result of the injury, or in

compensation of the loss of community earnings, is community property. La. C. C.

art. 2344. Additionally, separate property includes property acquired by a spouse

with separate things or with separate and community things when the value of the

community things is inconsequential in comparison with the value of the separate

things used. La. C. C. art. 2341. Louisiana Civil Code art. 2342( A) pertinently

provides that a declaration in an act of acquisition that things are acquired with

separate funds as the separate property of a spouse may be controverted by the other

spouse unless he concurred in the act. Separate property of a spouse is hers

exclusively. La. C. C. art. 2341.

The party asserting the separate nature of property acquired during the

marriage has the burden of overcoming a strong presumption in favor of the

community. In re Succession ofHebert, 2003- 0531 ( La. App. 1st Cir. 9117104), 887

So. 2d 98, 101, writ denied, 2004- 2571 ( La. 12/ 17/ 04), 888 So. 2d 872. Either spouse

may rebut the community presumption by showing the separate nature of property

brought into the community by a preponderance of the evidence, " the lowest burden

of persuasion." Talbot v. Talbot, 2003- 0814 (La. 12112J03), 864 So. 2d 590, 600- 01.

Proof is sufficient to constitute a preponderance when the entirety of the evidence,

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both direct and circumstantial, establishes the fact or causation sought to be proved

is more probable than not. Talbot, 864 So.2d at 600.5

It is undisputed that Mr. and Mrs. Scott did not enter a separate property

regime either before or during their marriage. See La. C. C. art. 2328. Therefore, the

Shenandoah property was presumed to belong to the community, since Mrs. Scott

acquired it during their marriage. See La. C. C. art. 2340. Thus, Ms. Williams, as

administrator of Mrs. Scott' s estate, bore the initial burden of proving the

Shenandoah property was Mrs. Scott' s separate property and the relief sought by

Mr. Scott was barred by prescription. See In re Succession ofHebert, 887 So.2d at

101; Landco Construction, LLC v. Precision Construction & Maintenance, LLC,

2019- 0403 ( La. App. 1st Cir. 11115119), 290 So. 3d 1185, 1190, writ denied, 2019-

01977 (La. 2110120), 292 So.3d 67 ( The party who raises an exception of prescription

ordinarily bears the burden of proof at trial on the exception.).

Exception ofPrescription

Ms. Williams asserts a spouse' s right to contest the separate or community

nature of property pursuant to La. C.C. art. 2342 is a personal action subject to the

ten- year prescriptive period found in La. C. C. art. 3499.' Ms. Williams contends

that, because Mrs. Scott executed the declaration of acquisition of separate property

5 Mr. Scott asserts Ms. Williams had the burden of proving the Shenandoah property was Mrs.
Scott' s separate property through proof that is " fixed, clear, positive and legally certain." In
Talbot, 864 So. 2d at 598- 600, the Louisiana Supreme Court noted this burden of proof was the
same as the clear and convincing standard and declined to require a spouse to rebut the presumption
of community through proof that is fixed, clear, positive, and legally certain. The Talbot court
recognized that imposing the clear and convincing burden of proof would render near impossible
the ability of some spouses to prove the separate nature of property acquired, possibly decades
before the termination of the community regime. During that broad expanse of time, records are
lost, destroyed, and possibly stolen, and to satisfy the clear and convincing burden of proof, a
spouse would potentially need to keep evidence dating back decades. See Talbot, 864 So. 2d 599-
600.

6 On appeal, Mr. Scott asserts the trial court improperly required him to prove the Shenandoah
property was community, rather than requiring Ms. Williams to prove the property was not
community. We disagree and find the trial court applied the proper burden of proof.
Louisiana Civil Code art. 3499 states, " Unless otherwise provided by legislation, a personal
action is subject to a liberative prescription of ten years."

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in June 2007, Mr. Scott' s cause of action to contest the declaration prescribed in June

2017, years before the present claim was asserted. Mr. Scott does not dispute this

timeline. Instead, Mr. Scott argues that, because he did not sign or concur in Mrs.

Scott' s declaration of acquisition of separate property, " there was no prescriptive

period that applied to him." Mr. Scott cites no legal authority to support this

assertion.

In a case involving no dispute regarding material facts, but only the

determination of a legal issue, the reviewing court must apply the de novo standard

of review. Big 4 Trucking, Inc. v. New Hampshire Ins. Co., 2017- 0420 ( La. App.

1st Cir. 11/ 1117), 233 So. 3d 686, 689. The proper application and interpretation of

a prescriptive statute is a question of law. Theriot v. Archer Construction, L.L. C.,

2017- 1304 ( La. App. 1 st Cir. 4/ 30/ 18), 250 So. 3d 927, 929, writ denied, 2018- 0843

La. 9128/ 18), 253 So. 3d 145. The issue of whether Mr. Scott' s action is prescribed

involves the proper application of La. C. C. arts. 2342 and 3499; thus, we apply the

de novo standard of review.

We find the trial court was legally correct in determining that Mr. Scott' s right

to controvert Mrs. Scott' s declaration of acquisition of separate property under La.

C. C. art. 2342 was prescribed. In Levatino v. Levatino, 506 So. 2d 858, 863 ( La.

App. 1 st Cir. 1987), this court held that the ten-year prescriptive period found in La.

C. C. art. 3499 applied to a wife' s action to controvert a declaration of separate

property pursuant to La. C. G. art. 2342. Similarly, in Estate of Goss v. Estate of

Goss, 2015- 960 (La. App. 3d Cir. 319/ 16), 187 So. 3d 570, 575- 76, writ denied, 2016-

0660 ( La. 5/ 27/ 16), 192 So. 3d 743, the court held that, if the husband was not

prohibited from controverting the declaration because he was a party to it, his right

to contest the classification of the property as his wife' s separate property was a

personal action subject to the ten year prescriptive period set forth in La. C. C. art.

9

3499. 8 Because more than ten years had passed, the action was time- barred pursuant

to La. C. C. art. 2342. Estate of Goss, 187 So. 3d at 576.

The evidence establishes that Mr. Scott failed to controvert Mrs. Scott' s

declaration of acquisition of separate property within ten years of June 2007, when

Mrs. Scott executed the Act of Cash Sale and when the Act was recorded in the East

Baton Rouge Parish mortgage records. Therefore, the trial court correctly

determined Mr. Scott' s cause of action under La. C. C. art. 2342 was prescribed.

Objection to Preliminary Detailed Descriptive List

A trial court' s findings regarding the nature of property as community or

separate is a factual determination subject to manifest error review.' Berthelot v.

Berthelot, 2017- 1055 ( La. App. 1st Cir. 7/ 18/ 18), 254 So. 3d 800, 807. Here, the trial

court concluded that " the evidence clearly preponderates" the Shenandoah property

was Mrs. Scott' s separate property. The trial court relied, in part, on the declaration

of acquisition of separate property executed by Mrs. Scott. We have already

determined that Mr. Scott' s right to controvert the declaration is prescribed. Thus,

Mrs. Scott' s declaration of acquisition of separate property is uncontroverted. See

La. C. C. art. 2342.

However, the trial court explained that the declaration was not its primary

reason for finding the Shenandoah property was Mrs. Scott' s separate property.°

8 For this reason, we find no merit in Mr. Scott' s assertion that this case is distinguishable from
Estate ofGoss because, there, the husband signed a declaration of paraphernality concurring in his
wife' s declaration of separate property. It is apparent the Goss court reached the conclusion that
La. C. C. art. 3499 applied if the husband was not prohibited from contesting the declaration. See
Estate of Goss, 187 So. 3d at 575- 76. Louisiana jurisprudence as well as the plain language of La.
C. C. art. 2342 also belie Mr. Scott' s argument that Mrs. Scott' s declaration of the acquisition of
separate property was invalid because he did not concur in the act of cash sale for the Shenandoah
property.

To reverse a fact finder' s determination under the manifest error standard, the appellate court
must find from the record that a reasonable factual basis does not exist for the finding of the trial
court and that the record establishes that the finding is clearly wrong. Marshall v. Marshall, 2023-
0193 ( La. App. 1st Cir. 9/ 28/ 23), 376 So. 3d 891, 894.
k0
According to Mr. Scott, the trial court concluded the declaration was the only evidence presented
to overcome the strong presumption in favor of the community. This is patently incorrect.
10

Instead, the trial court determined Mrs. Scott received a greater percentage of the

settlement funds, due to the nature of the parties' claims in the personal injury

lawsuit; therefore, Mrs. Scott received sufficient settlement funds, i.e., separate

property, to purchase the Shenandoah property.

Mr. Scott argues separate and community funds were commingled, either by

the lump sum settlement check or through the deposit of the settlement funds into
the Scotts' joint bank account, such that it cannot be determined which portion was

Mrs. Scott' s separate property. Mr. Scott also argues the trial court erred in finding

Mrs. Scott received a larger percentage of the accident settlement, since the record

does not contain an itemization reflecting the amounts paid to resolve specific

claims. We disagree.

The mere mixing of separate and community funds in a bank account does not

itself convert the entire account into community property. Where separate funds can

be traced with sufficient certainty to establish the separate ownership of property

paid for with those funds, the separate status of such property will be upheld.

Downey v. Downey, 2023- 0060 ( La. App. 1st Cir. 9115123), 375 So. 3d 987, 996.

During the hearing on Mr. Scott' s objection to the preliminary detailed

descriptive list, witnesses testified that, due to the passage of time, records from the

bank, the Scotts' personal injury attorney, Travelers, and the title company that

handled the closing on the Shenandoah property were unavailable. A trial court has

broad discretion in determining the admissibility of parol evidence, particularly

when proof required to prove the separate nature of property is difficult to obtain

because of the passage of time. See Talbot, 864 So. 2d at 602; Vidrine v. Vidrine,

2014- 235 ( La. App. 3d Cir. 1011114) ( unpublished), 2014 WL 4926111, * 2; citin

Andrea Carroll & Richard D. Moreno, Louisiana Civil Law Treatise: Matrimonial

11

Regimes § 4. 8 ( 3 ed.). 11 Courts are to resolve the admissibility of evidence in favor

of receiving the evidence. Talbot, 864 So. 2d at 602 ( finding the trial court did not

abuse its discretion by relying on parol evidence, i.e., witness testimony, to establish

that stock was the wife' s separate property where the stock certificates were not

available). We find no abuse of discretion in the trial court' s reliance on testimony

to find, through reasonable inference, Mrs. Scott' s portion of the settlement proceeds

was more substantial than any portion owed to the community or to Mr. Scott and

was sufficient to fully fund the purchase of the Shenandoah property.

Ms. Williams testified that Mrs. Scott was " severely" injured in the 2005

accident and underwent two surgeries, indicating her personal injury damages would

have been substantial. Although Mr. Scott was not involved in the accident, he was

a party plaintiff to Mrs. Scott' s lawsuit, leading the trial court to reasonably conclude

any amount paid to Mr. Scott was for the resolution of his loss of consortium claim.

See Jenkins v. State ex rel. Department of Transportation & Development, 2006-

1804 ( La. App. 1st Cir. 8119108), 993 So. 2d 749, 777, writ denied, 2008- 2471 ( La.

12/ 19/ 08), 996 So. 2d 1133 ( A claim for loss of consortium under La. C. C. art.

2315( B) is a derivative claim, derived from the personal injuries sustained by the

primary victim, and includes damages for the loss of material services and support,

love, companionship, affection, aid and assistance, society, sexual relations,

comfort, solace, and felicity.). Thus, the trial court made the factual determination

that Mrs. Scott' s percentage of the net settlement amount, which was several

hundred thousand dollars, would be " much greater" than the percentage Mr. Scott

would have received for his loss of consortium claim. Finally, Mr. Scott testified

that Mrs. Scott was not employed and did not earn income. Therefore, it is

1 In evaluating the evidence, some allowance must be made where the acquisition occurred many
Parol evidence may be sufficient to rebut the presumption of
years before the claim is asserted.
community where it is uncontradicted. In re Succession of Moore, 2006- 906 ( La. App. 3d Cir.
12120106), 946 So. 2d 700, 703.

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reasonable to infer the settlement would not have included compensation for the loss

of community earnings. See La. C. C. art. 2344.

We find no manifest error in the trial court' s factual conclusion that Mrs. Scott

purchased the Shenandoah property with money she received in the 2007 settlement,

which was her separate property pursuant to La. C. C. art. art. 2344. Mrs. Scott' s

separate funds were traced with sufficient certainty to establish the separate

ownership of the Shenandoah property paid for with those funds; thus, the separate

status of the Shenandoah property was properly upheld. See Downey, 375 So.3d at

a

DECREE

We affirm the April 20, 2023 judgment. All costs of this appeal are assessed

against Thomas Scott, Jr.

AFFIRMED.

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