Bena Lanza Tozel and Christena Carleen Tozel Versus Jody Ann Spencer Jordan Tozel

BENA LANZA TOZEL AND CHRISTENA NO. 21-CA-134
CARLEEN TOZEL
FIFTH CIRCUIT
VERSUS
COURT OF APPEAL
JODY ANN SPENCER JORDAN TOZEL
STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 808-762, DIVISION "H"
HONORABLE GLENN B. ANSARDI, JUDGE PRESIDING

November 03, 2021

FREDERICKA HOMBERG WICKER
JUDGE

Panel composed of Judges Susan M. Chehardy,
Fredericka Homberg Wicker, and John J. Molaison, Jr.

JUDGMENT AFFIRMED IN PART; VACATED IN PART; REMANDED
FHW
SMC
JJM

COUNSEL FOR DEFENDANT/APPELLANT,
JODY ANN SPENCER JORDAN TOZEL
Joseph R. McMahon, III

COUNSEL FOR PLAINTIFF/APPELLEE,
BENA LANZA TOZEL AND CHRISTENA CARLEEN TOZEL
Michael G. Calogero

WICKER, J.

Defendant, Jody Tozel, seeks review of the trial court’s judgment granting

the “Rule for Contempt, for Preliminary and Permanent Injunction, and Motion for

Summary Judgment” filed by plaintiffs, Bena Tozel, age 93, and Christena Tozel,

Bena’s granddaughter. Defendant-appellant herein, Jody, is Christena’s

stepmother and the wife of Bena’s deceased son Calvin. This appeal primarily

involves the parties’ rights to a piece of property. Because we find that the trial

court improperly ruled on an issue not before the court, we vacate the judgment

insofar as it terminates Jody’s testamentary usufruct over the property pursuant to

La. C.C. art. 623. In all other respects, we affirm the trial court judgment.

FACTUAL AND PROCEDURAL BACKGROUND

This litigation arises out a dispute surrounding a piece of property

(hereinafter referred to as “the Severn Place property”), originally purchased on

October 6, 1967 by Bena and her husband, Vincent Tozel. Bena and Vincent were

married and had one son, Calvin Tozel. In January 1994, Vincent died intestate.

As reflected in the Judgment of Possession rendered in connection with Vincent’s

succession, Bena maintained her one-half ownership interest in the property and

Calvin inherited Vincent’s undivided interest in the property at issue, subject to

Bena’s surviving spouse legal usufruct under La. C.C. art. 890. Bena continued to

reside in the Severn Place residence after her husband’s death. Years later, on

April 13, 2013, Bena executed an Act of Donation inter vivos wherein she

transferred “all of her undivided interest” in the property to her only son, Calvin,

thereby granting Calvin full ownership of the property. Calvin’s spouse at that

time, defendant herein Jody, acknowledged the Severn Place property as Calvin’s

separate property.

21-CA-134 1

On May 3, 2016, three years later, Calvin died testate, predeceasing his

mother. In his Last Will and Testament, Calvin bequeathed to his spouse, Jody, his

interest in their marital home in Slidell, Louisiana. He further bequeathed to his

only daughter, Christena, his interest in his separate property, the Severn Place

property, subject to his spouse, Jody’s, “full usufruct, including all rights affected

by law [of the property],…until her death, marriage, or cohabitation.” The parties

contend that, at some point after Calvin’s death, Jody moved into the Severn Place

residence with Bena, exercising her testamentary usufruct bequeathed to her upon

Calvin’s death.1

On July 29, 2020, Bena and Christena filed an “Ex Parte emergency motion

for Temporary Restraining Order, Verified Petition for Preliminary and Permanent

Injunction and for Damages.” The petition alleged that Bena resided at the Severn

Place property from 1967 until the date of the filing of the petition. The petition

further alleged that at that time Jody and Bena resided together at the Severn Place

property, but that Jody evicted Bena while Bena was on vacation visiting her

granddaughter, Christena, in North Carolina. The petition alleged that Jody

discarded Bena’s personal property from the Severn Place property without Bena’s

permission and further claimed that Jody disregarded Christena’s requests not to

renovate the property and alleged that Jody renovated the property without

consent.

In their petition, Christena and Bena sought injunctive relief to prevent Jody

from, “in effect, unlawfully evicting Bena, or kicking her out of the Seven Avenue

residence.” They further sought an order prohibiting Jody from continuing to

discard Bena’s personal property or unilaterally preventing Bena from exercising

1
On appeal, Christena and Bena make the argument that Jody and Bena residing together at the Severn
Place property constitutes “cohabitation” sufficient to serve as grounds to terminate Jody’s testamentary
usufruct per the terms set forth in Calvin’s Last Will and Testament. The record does not reflect any
motion for partial summary judgment on that issue or any factual finding by the trial court on that issue
and we, thus, decline to opine on that argument.

21-CA-134 2

her right to legal usufruct pursuant to La. C.C. Article 890. The petition alleged

that although Bena donated her one-half ownership interest to her son Calvin in

2013 upon his request, the other one-half interest Calvin acquired through

Vincent’s death remains subject to the surviving spouse usufruct Bena acquired by

operation of law pursuant to La. C.C. art. 890.

On July 29, 2020, the trial court issued a temporary restraining order

prohibiting Jody from “evicting Bena Lanza Tozel” from the Severn Place

property, “whether by restricting co-petitioner, Bena Lanza Tozel, from returning

to the residence to claim her personal property or allowing access to the residence

in the presence of law enforcement officers, pending further orders of the Court.”

The TRO further prohibited Jody “from making or commencing with any

renovations, modifications, alterations to the structure” of the Severn Place

property and further “from contracting for any modification or renovations” to the

Severn Place property.

On August 22, 2020, Bena and Christena filed a supplemental and amended

“motion for temporary restraining order, motion for contempt, for preliminary and

permanent injunctions, and supplemental and amended petition for damages,

before Answer is filed.” In the supplemental petition, Bena and Christena alleged

that Jody violated the TRO in place, contending that Jody prohibited Bena from

returning to the residence by changing the locks to the doors. They further alleged

that Jody renovated the property without Christena’s permission and disposed of

Bena’s personal property in violation of the TRO. Plaintiffs sought a contempt

finding as well as attorney fees, costs, and other equitable relief.

The supplemental petition asserted additional causes of action against Jody,

first seeking a declaration that Bena’s 2013 Act of Donation to Calvin was an

absolute nullity and, second, seeking termination of Jody’s testamentary usufruct

pursuant to La. C.C. art. 623.

21-CA-134 3

The parties filed cross motions for summary judgment. On August 28, 2020,

Jody filed a motion for summary judgment, contending that because Bena did not

specifically reserve her surviving spouse usufruct in the 2013 Act of Donation, her

usufruct terminated when she donated “all of her undivided interest” in the Severn

Place property to her son, Calvin. On September 23, 2020, Bena and Christena

filed “Motions for Summary Judgment, for Equitable Relief, and for Preliminary

and Permanent Injunctions[,]” contending that Bena’s surviving spouse usufruct

remains in effect for her lifetime pursuant to La. C.C. art. 890 and can only be

terminated upon death or remarriage. They argued that the clear language of the

2013 Act of Donation did not transfer Bena’s surviving spouse usufruct that stems

from Vincent’s one-half ownership interest, but rather only transferred Bena’s

undivided one-half interest in the Severn Place property. Alternatively, Bena and

Christena argued that the language in the 2013 Act of Donation is ambiguous and

should be interpreted or reformed based on the intent of the parties. They argued

that the actions of the parties after the Act of Donation reflect the parties’ true

intent—for Bena to maintain her surviving spouse usufruct and continue to

exercise her usufructuary rights by residing in the home she lived in for more than

sixty years.

Bena and Christena also filed a “Rule for Defendant, Jody Ann Spencer

Jordan Tozel’s Contempt of Court for Violations of Temporary Restraining

Order[,]” contending that Jody should be held in constructive contempt for

preventing Bena from returning to the residence by changing the locks, removing

Bena’s personal property from the home, and renovating the home in violation of

the TRO in place.

On September 30, 2020, the trial court conducted a hearing.

At the hearing and in open court, the parties made the following stipulation:

21-CA-134 4

The defendant, Jody Tozel-- for brevity and not her full name --
renovated subject property located at 1713 Severn Avenue, Metairie,
Louisiana before and after July 31st 2020 through September 13, 2020
through after September 13, 2020 and that defendant, Ms. Jody Tozel,
discarded movable property from the subject property located at 1713
Severn Avenue, Metairie, Louisiana before and after July 31st 2020.

On November 17, 2020, after taking the matter under advisement, the trial

court issued a judgment granting Bena and Christena’s motion for summary

judgment, finding that Bena’s 2013 Act of Donation to Calvin transferred only

Bena’s one-half ownership interest in the property and did not include the

surviving spouse usufruct she acquired from her husband’s succession stemming

from his undivided interest in the property. The trial judge further found Jody to

be in contempt of court for “discard[ing] moveable property from the subject

property” while the TRO was in place.2 The judgment granted Bena and

Christena’s request for injunctive relief, prohibiting Jody from “denying plaintiff

Bena Tozel’s legal usufruct and exclusive use of the premises at issue.” The

judgment further ordered that Christena is permitted to terminate Jody’s usufruct

“since defendant [Jody] abused the usufruct she had over the house through

Calvin’s will,” but failed to award any monetary damages for such violation.3

DISCUSSION

Jody has appealed the trial court judgment. First, Jody contends that the trial

court erred in its interpretation of the 2013 Act of Donation executed by Bena,

asserting that the plain language of the donation reflects that Bena donated to

Calvin the entirety of her interest in the Severn Place property, including her

surviving spouse usufruct. Second, Jody complains that the trial court erred in

permitting Christena as the naked owner to terminate Jody’s testamentary usufruct

2
The trial court ordered Jody to pay court costs associated with the rule for contempt.
3
On November 30, 2020, the trial judge issued an amended judgment, designating the judgment as a
partial, final judgment under La. C.C.P. art. 1915(B)(1).

21-CA-134 5

under La. C.C. art. 623. In this appeal, Jody does not seek review of the trial

court’s contempt judgment. We address each in turn.

The 2013 Act of Donation

At issue in the cross motions for summary judgment is interpretation of the

2013 Act of Donation executed by Bena in favor of her son, Calvin. Bena and

Christena contend that the Act of Donation transferred only Bena’s undivided

interest in her one-half of the property to Calvin—who already had ownership,

through Vincent’s succession, of the other one-half interest in the property, subject

to Bena’s surviving spouse usufruct that arises by operation of law under La. C.C.

art. 890. Jody, on the other hand, contends that the language of the 2013 Act of

Donation, wherein Bena transferred “all of her undivided interest”, is clear and

includes the donation or transfer of all of Bena’s interest in the property, including

her surviving spouse usufruct.

Appellate courts review summary judgments de novo, using the same criteria

that govern the trial court's consideration of whether summary judgment is

appropriate. Vill. Shopping Ctr. P'ship v. Kimble Dev., LLC, 18-740 (La. App. 5

Cir. 4/24/19), 271 So. 3d 376, 381; Lincoln v. Acadian Plumbing & Drain, LLC,

17-684 (La. App. 5 Cir. 5/16/18), 247 So.3d 205, 209, writ denied, 18-1074 (La.

10/15/18), 253 So.3d 1302. A motion for summary judgment is a procedural

device used to avoid a full-scale trial when there is no genuine issue of material

fact, and is favored and designed to secure the just, speedy, and inexpensive

determination of every action. Id; see also Populis v. State Dep’t of Transportation

& Dev., 16-655 (La. App. 5 Cir. 5/31/17), 222 So.3d 975, 979, writ denied, 17-

1106 (La. 10/16/17), 228 So.3d 753, quoting Pouncy v. Winn-Dixie La., Inc., 15-

189 (La. App. 5 Cir. 10/28/15), 178 So.3d 603, 605. A motion for summary

judgment shall be granted if the motion, memorandum, and supporting documents

21-CA-134 6

show that there is no genuine issue as to material fact and that the mover is entitled

to judgment as a matter of law. La. C.C.P. art. 966. If only one conclusion could

be reached by reasonable persons, summary judgment is appropriate, as there is no

need for a trial on that issue. Id.

The interpretation of a contract’s provisions is typically a matter of law that

properly may be decided on motion for summary judgment. Vill. Shopping Ctr.

P'ship, 271 So. 3d at 381. The responsibility of the judiciary in

interpreting contracts is to determine the parties’ common intent. Vill. Shopping

Ctr., supra; La. C.C. art. 2045. Courts begin their analysis of the parties’ common

intent by examining the words of the contract itself. La. C.C. art. 2046. When the

words of the contract are clear, unambiguous, and lead to no absurd consequence,

no further interpretation may be made in search of the parties’ intent.

Conversely, when the written terms of a contract are susceptible to more

than one interpretation, there is uncertainty as to its provisions, or the parties’

intent cannot be ascertained from the language used, parole evidence is admissible

to clarify the ambiguity or show the intention of the parties. First Bank & Tr. v.

Redman Gaming of Louisiana, Inc., 13-369 (La. App. 5 Cir. 12/12/13), 131 So.3d

224, 228. A doubtful provision must be interpreted in light of the nature of the

contract, equity, usages, the conduct of the parties before and after the formation of

the contract, and of other contracts of a like nature between the same parties. La.

C.C. art. 2053.

A donation inter vivos is a contract by which a person, called the donor,

gratuitously divests himself, at present and irrevocably, of the thing given in favor

of another, called the donee, who accepts it. La. C.C. art. 1468. Pursuant to this

article, in order for the donation to be valid, there must be a divestment,

accompanied by donative intent. In re Succession of O'Krepki, 16-50 (La. App. 5

Cir. 5/26/16), 193 So.3d 574, 579, writ denied sub nom. Succession of O'Krepki,

21-CA-134 7

16-1202 (La. 10/10/16), 207 So.3d 406. Although summary judgment is seldom

appropriate for determinations based on subjective facts of motive, intent, good

faith, knowledge, or malice, “summary judgment may be granted on

subjective intent issues when no issue of material fact exists concerning the

pertinent intent.” B & P Rest. Grp., LLC v. Delta Admin. Servs., LLC, 18-442 (La.

App. 5 Cir. 9/4/19), 279 So.3d 492, 499, writ denied sub nom. B&P Rest. Grp.,

LLC v. Delta Admin. Servs., LLC, 19-01755 (La. 1/14/20), 291 So.3d 685, quoting

Bourgeois v. Allstate Ins. Co., et al., 15-451 (La. App. 5 Cir. 12/23/15), 182 So.3d

1177, 1180.

The 2013 Act of Donation, introduced into evidence at the hearing,

contained language similar to that contained in the Judgment of Possession issued

in Vincent’s succession. The 2007 Judgment of Possession from Vincent’s

succession, also introduced into evidence at the hearing, provided that Bena, as the

“surviving spouse of the deceased, Vincent Joseph Tozel, is hereby recognized as

the surviving spouse in community and as the owner of her one-half interest in [the

property],” and further that Calvin is “recognized as the sole heir of the deceased

and, as such, is hereby placed in possession of, subject to a usufruct in favor of

Bena Lanza Tozel[,] the other one-half interest in [the property].” The 2013 Act of

Donation provided that Bena transferred “ALL OF HER UNDIVIDED

INTEREST” (emphasis in the original) in the Severn Place property, “being the

same property acquired by the Succession of Vincent Joseph Tozel.”

Upon our de novo review, given the circumstances that Bena owned both her

one-half undivided interest in the property, as well as a real right of usufruct

against the other one-half undivided interest acquired from Calvin through

Vincent’s succession, we find that the 2013 Act of Donation is ambiguous and

contains a doubtful provision that must be interpreted to determine the common

intent of the parties.

21-CA-134 8

In support of their motion for summary judgment, Bena and Christena

introduced evidence to corroborate their claim that Bena never intended to donate

her usufruct over the Severn Place property to Calvin. First, Bena and Christena

claimed that the 2013 donation of her one-half interest in the Severn Place property

was executed as a practical matter so that Calvin, Bena’s son, could obtain a

mortgage on the property through the Small Business Administration. In support

of her motion, Bena introduced documentation to show that, months after the 2013

donation, Calvin executed a multiple indebtedness mortgage on the property

through the Small Business Administration. Further, Bena and Christena

introduced evidence to show that Bena never transferred physical possession of the

property at issue and continued to reside in the Severn Place property after the

2013 Act of Donation. Bena and Christena contend that the evidence clearly

demonstrates that Bena lacked donative intent as to her surviving spouse usufruct

and that the parties’ actions after the Act of Donation support this claim.

In response, Jody offered no contrary evidence as to the parties’ intent in

executing the 2013 Act of Donation. She did not offer any testimony or evidence

of the parties’ actions after the 2013 Act of Donation but before Calvin’s death to

show that Calvin (or Bena) intended that Bena’s surviving spouse usufruct over the

Severn Place property would be transferred to Calvin.

Upon our de novo review, we find that Bena and Christena put forth

evidence to show that, although Bena intended to donate her one-half ownership

interest in the Severn Place property to her only son, Calvin, to allow him to obtain

financing on the property, the parties never intended to transfer Bena’s surviving

spouse usufruct. Plaintiffs’ claim that Bena lacked donative intent to donate her

right of usufruct over the property is supported by the fact that Bena never

relinquished physical possession of the property and continued, after the 2013 Act

of Donation, to reside in the Severn Place property—her home for more than 60

21-CA-134 9

years. In opposition to the motion for summary judgment, Jody produced no

affidavit or other competent summary judgment evidence to contradict plaintiffs’

claims or create a genuine issue of material fact.

Upon our de novo review, we find that no genuine issue of material fact

remains as to the parties’ intent to transfer only Bena’s one-half ownership interest

to Calvin through the 2013 Act of Donation. Accordingly, we find summary

judgment on this issue appropriate and we affirm the trial court judgment in that

respect.

Termination of Jody’s Usufruct pursuant to La. C.C. art. 623

The trial court judgment further ordered that Christena is permitted to

terminate Jody’s usufruct pursuant to La. C.C. art. 623 “since defendant [Jody]

abused the usufruct she had over the house through Calvin’s will,” but failed to

award any monetary damages for such violation. For the following reasons, we

find that the trial court improperly rendered judgment on this claim and we vacate

that portion of the judgment.

In their supplemental petition, Bena and Christena pled a separate cause of

action to terminate Jody’s usufruct under La. C.C. art. 623. That article provides

that a naked owner may terminate a usufruct “if the usufructuary commits waste,

alienates things without authority, neglects to make ordinary repairs, or abuses his

enjoyment in any other manner.” A naked owner cannot unilaterally terminate a

usufruct. Pidgeon v. Pidgeon, 13-0435 (La. App. 1 Cir. 11/1/13), 136 So.3d 819.

The termination of the enjoyment because of abuse does not take place as a matter

of right; it must be declared by judicial decision. “The law merely accords to the

naked owner a cause of action; the abuse must be established by evidence.” Abuse

of the enjoyment, 3 La. Civ. L. Treatise, Personal Servitudes § 6:14 (5th ed.)

Upon a thorough review of the record in this appeal, we find that the record

does not contain any motion for summary judgment or other request for relief—

21-CA-134 10

other than the initial cause of action pled under La. C.C. art. 623 in the

supplemental petition—concerning Bena and Christena’s cause of action under

C.C. art. 623. It is unclear under which authority the trial court awarded such

relief.

In briefs to this Court, Jody asserts that the termination of usufruct claim

was granted in connection with plaintiffs’ motion for summary judgment. To the

extent that the trial judge granted summary judgment on this claim, he did so in

error. La. C.C.P. art. 966(F) provides that “[a] summary judgment may be

rendered or affirmed only as to those issues set forth in the motion under

consideration by the court at that time.” See also Ziegler v. Safety Tubs LLC, 20-

22 (La. App. 5 Cir. 3/5/20) (unpub). A thorough review of Bena and Christena’s

original and supplemental memorandums in support of their motion for summary

judgment reflect no discussion of article 623 to put Jody on notice that termination

of her usufructuary rights would be heard and determined pursuant to La. C.C. art.

623 at the September 30, 2020 hearing.

Bena and Christena, in brief to this Court, contend that the granting of their

claim under article 623 for termination of Jody’s usufruct was rendered as a

punishment in connection with the trial judge’s finding of contempt for violation of

the TRO prohibiting Jody from evicting Bena or renovating the Severn Place

property. However, granting termination of a real right, i.e., a usufruct4, as

punishment for a contempt finding is also improper. The appropriate punishments

for a finding of constructive contempt are set forth in La. R.S. 13:4611. Fines for

contempt of court are collectable by the sheriff and payable to the court or

designated officials, rather than opposing litigants. La. C.C.P. art. 330. The

reasoning underlying this requirement is that contempt proceedings are “designed

for vindication of the dignity of the court rather than for the benefit of

4
A usufruct is a real right of limited duration on the property of another. La. C.C. art. 535.

21-CA-134 11

a litigant.” Joseph v. Entergy, 05–0263 (La. App. 4 Cir. 8/3/05), 918 So.2d 47, 52.

Upon review of the record, we find that the trial court improperly rendered

judgment on Bena and Christena’s cause of action to terminate Jody’s usufruct

pursuant to La. C.C. art. 623. Accordingly, we vacate that portion of the judgment

permitting Christena to terminate Jody’s testamentary usufruct. Consequently,

because we find that the trial court improperly terminated Jody’s usufruct, we

amend that portion of the judgment granting injunctive relief, only insofar as it

grants Bena the “exclusive use” of the Severn Place property.5

Conclusion

Accordingly, for the reasons provided herein, we affirm that portion of the

trial court judgment granting plaintiffs’ motion for summary judgment and finding

that the 2013 Act of Donation between Bena and Calvin did not transfer Bena’s

surviving spouse legal usufruct under La. C.C. art. 890. Further, we vacate that

portion of the judgment permitting Christena as naked owner to terminate Jody’s

testamentary usufruct pursuant to La. C.C. art. 623. Moreover, we amend the trial

court judgment to delete that portion of the judgment granting injunctive relief

only insofar as it grants Bena “exclusive use” of the Severn Place property.

Finally, we remand this matter for further proceedings to reinstate Bena’s usufruct

over the Severn Place property. Given Bena’s age and the importance of shelter

and housing for a 93-year-old individual, we remand this matter for further

proceedings and instruct the trial court to docket this matter in an expeditious

manner.

JUDGMENT AFFIRMED IN PART;
VACATED IN PART; REMANDED

5
This case presents a unique circumstance wherein two individuals may share a usufruct over a single
property. Multiple usufructuaries are permitted under the law. See La. C.C. art. 547.

21-CA-134 12

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

NANCY F. VEGA
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN S. BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX
www.fifthcircuit.org

NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
NOVEMBER 3, 2021 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

21-CA-134
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE GLENN B. ANSARDI (DISTRICT JUDGE)
HONORABLE DONALD L. FORET (DISTRICT JUDGE)
JOSEPH R. MCMAHON, III (APPELLANT) MICHAEL G. CALOGERO (APPELLEE)

MAILED
NO ATTORNEYS WERE MAILED