Succession of Cornelia Smith

SUCCESSION OF CORNELIA SMITH NO. 22-CA-565

FIFTH CIRCUIT

COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-NINTH JUDICIAL DISTRICT COURT
PARISH OF ST. CHARLES, STATE OF LOUISIANA
NO. 13,060, DIVISION "D"
HONORABLE M. LAUREN LEMMON, JUDGE PRESIDING

May 24, 2023

JUDE G. GRAVOIS
JUDGE

Panel composed of Judges Fredericka Homberg Wicker,
Jude G. Gravois, and John J. Molaison, Jr.

AFFIRMED IN PART; REVERSED IN PART; REMANDED
JGG
FHW
JJM

COUNSEL FOR PLAINTIFF/APPELLEE,
TIFFANY WHITE
Charles K. Chauvin
Jane Williams Chauvin

COUNSEL FOR DEFENDANT/APPELLANT,
ZELVIN H. SMITH
Brad P. Scott
Jane C. Alvarez
Kayla Martynenko
Kameron P. Whitmeyer

GRAVOIS, J.

Appellant, Zelvin Smith, appeals the trial court’s August 22, 2022 judgment

which removed him as provisional administrator of the Succession of Cornelia

Smith and dismissed the succession proceeding. For the following reasons, we

affirm in part, reverse in part, and remand.

FACTS

The appellate record and briefs reflect that Mrs. Cornelia Smith, the

decedent, died intestate on May 20, 2021 while domiciled in St. Charles Parish.

On July 8, 2021, appellant, Mr. Smith, filed a “Petition for Appointment of

Provisional Administrator,” alleging that he was a son and heir of Mrs. Smith—as

one of sixteen (16) children of Mrs. Smith, five of whom predeceased her, four of

whom left additional heirs, all of whom were listed in the petition. The petition

alleged that Mrs. Smith left immovable property located within St. Charles Parish,

that an administration of the succession was necessary for the proper handling

thereof, and that Mr. Smith desired to be appointed as provisional administrator of

the succession proceeding in order to “preserve and safeguard” the assets of the

succession. By Order signed on July 9, 2021, Mr. Smith was duly appointed

provisional administrator of the succession proceeding. The Order also required

him to post a bond in the amount of $1,000.00, which he subsequently did. Letters

of Administration were issued on August 20, 2021.

Thereafter, on January 7, 2022, Mr. Smith filed a “Petition for Possession of

Premises Pursuant to La. C.C.P. Article 4731,” alleging that Mrs. Smith’s house

was occupied by Ranza Smith and Orvette Smith, despite his amicable demand for

them to vacate the premises. The petition alleged that the property was owned by

the Succession of Cornelia Smith and that Ranza Smith and Orvette Smith had no

legal right to occupy the premises, as they had no ownership interest in the

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property, nor a lease thereto.1 The petition prayed that Ranza Smith and Orvette

Smith be ordered to vacate and deliver possession of the premises to Mr. Smith.

The matter came on for a hearing on February 25, 2022, at which time it was

agreed that a ruling on possession of the premises would be deferred and re-set,

and that defendant Ranza Smith would provide keys and unrestricted access to the

property to Mr. Smith, but was not ordered to vacate the premises.2

On June 30, 2022, a “Motion and Incorporated Memorandum to Remove

Provisional Administrator and Dismiss Proceeding” was filed by Tiffany White, a

surviving child and intestate heir of the decedent. Therein, Ms. White alleged that

Mr. Smith’s original petition for appointment of a provisional administrator alleged

no facts demonstrating the need for an administration of the succession or the

appointment of a provisional administrator, as the petition failed to set forth any

facts suggesting that any of the heirs were incompetent or unwilling to accept the

succession, or that the succession was burdened with any debts that would warrant

the need for an administration. She further alleged that Mr. Smith had improperly

used his authority as provisional administrator to attempt to evict several heirs

from the property, improperly invoking La. C.C.P. art. 4731 to support their

eviction.3 She also alleged that Mr. Smith was improperly using his authority as

provisional administrator to sell the succession property, when there was no

compelling need to do so. The matter was set for a hearing on July 29, 2022. Mr.

Smith opposed the motion, and Ms. White filed a reply brief.

1
In fact, however, the defendants Ranza and Orvette Smith were listed in Mr. Smith’s
Petition for Appointment of Provisional Administrator as two of decedent’s children and
intestate heirs.
2
The Petition for Possession came on for a hearing again on March 16, 2022, but for
various reasons not germane to this appeal, the hearing did not go forward on that date.
3
La. C.C.P. art. 4731 applies to leases, which does not apply here. Mr. Smith’s Petition
for Possession had alleged that the occupants were without authority to inhabit the premises,
partly because they did not have a lease.

22-CA-565 2

Following the hearing, the trial judge granted Ms. White’s motion, removing

Mr. Smith as provisional administrator and dismissing the succession proceeding,

with each party to bear their own costs. At the hearing, the trial judge gave oral

reasons for her ruling. Based upon the arguments made at the hearing, the trial

judge found that under La. C.C.P. arts. 3001 and 3111, an administration of the

succession was not necessary. A judgment was signed on August 22, 2022. This

timely appeal followed.

JURISDICTIONAL NOTE

As a preliminary matter, Ms. White argues in brief that the judgment on

appeal removing the provisional administrator is interlocutory rather than final,

citing this Court’s opinion in Succession of Ally, 22-16 (La. App. 5 Cir. 12/31/22),

354 So.3d 1248, and thus argues that the appeal should be dismissed for lack of

appellate jurisdiction. Ms. White, however, did not file a motion to dismiss the

appeal in this Court. Nevertheless, before considering the merits in any appeal,

appellate courts have the duty to determine sua sponte whether subject matter

jurisdiction exists, even when the parties do not raise the issue. Plaisance v.

Jefferson Par. Sch. Bd., 16-747 (La. App. 5 Cir. 4/12/17), 218 So.3d 708, 712,

citing Input/Output Marine Sys. v. Wilson Greatbatch Techs., Inc., 10-477 (La.

App. 5 Cir. 10/29/10), 52 So.3d 909, 910. This Court cannot determine the merits

of an appeal unless our appellate court jurisdiction is properly invoked by a valid

final judgment. Id.

This Court held in Succession of Ally, 354 So.3d at 1251-52, that a judgment

appointing or removing a succession administrator is a nonappealable interlocutory

judgment, absent dismissal of a party or designation of the judgment as final and

appealable, citing La. C.C.P. arts. 1915 and 2974. However, when an unrestricted

appeal is taken from a final judgment, the appellant is entitled to seek review of all

adverse interlocutory rulings prejudicial to him, in addition to the review of the

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final judgment appealed from. Household Fin. Corp., II v. Borry, 18-209 (La.

App. 5 Cir. 12/28/18), 264 So.3d 575, 579, citing Bezou v. Bezou, 15-1879 (La.

App. 1 Cir. 9/16/16), 203 So.3d 488, 493, writ denied, 16-1869 (La. 12/5/16), 210

So.3d 814; La. C.C.P. arts. 1841 and 2083.

In the present case, the judgment of August 22, 2022 not only removed Mr.

Smith as provisional administrator, but it also dismissed the entire succession

proceeding. Accordingly, the judgment of August 22, 2022 was a final judgment

under La. C.C.P. art. 1841,4 and as such, because Mr. Smith moved for an

unrestricted appeal of the entire judgment, he may seek appellate review herein of

all interlocutory judgments rendered, including the portion of the judgment

removing him as provisional administrator.

ANALYSIS
On appeal, Mr. Smith argues that the trial court erred in removing him as

provisional administrator because Ms. White failed to show by clear and

convincing evidence that he qualified for removal under any reason stated in La.

C.C.P. art. 3182,5 nor that he breached his fiduciary duty imposed by La. C.C.P.

art. 3191.6 He also argues that the court erred in dismissing the succession

proceeding.

4
La. C.C.P. art. 1841 provides in pertinent part: “… A judgment that determines the
merits in whole or in part is a final judgment.”
5
La. C.C.P. art. 3182 provides:
The court may remove any succession representative who is or has become
disqualified, has become incapable of discharging the duties of his office, has
mismanaged the estate, has failed to perform any duty imposed by law or by order
of court, has ceased to be a domiciliary of the state without appointing an agent as
provided in Article 3097(4), or has failed to give notice of his application for
appointment when required under Article 3093.
The court on its own motion may, and on motion of any interested party shall,
order the succession representative sought to be removed to show cause why he
should not be removed from office. The removal of a succession representative
from office does not invalidate any of his official acts performed prior to his
removal.
6
La. C.C.P. art. 3191(A) provides: “A succession representative is a fiduciary with
respect to the succession, and shall have the duty of collecting, preserving, and managing the
property of the succession in accordance with law. He shall act at all times as a prudent

22-CA-565 4

Ms. White counters first that Mr. Smith’s petition to appoint a provisional

administrator alleged no facts to justify an administration of this succession, and

second, that Mr. Smith’s actions in trying to sell the succession’s only asset went

well beyond the duties of a provisional administrator, which are to maintain the

status quo of the estate pending the appointment of an administrator.

La. C.C.P. art. 3111 provides:

The court may appoint a provisional administrator of a succession,
pending the appointment of an administrator or the confirmation of an
executor, when it deems such appointment necessary to preserve,
safeguard, and operate the property of the succession. On the
application of an interested party, or on its own motion, when such an
appointment is deemed necessary, the court may appoint a qualified
person as provisional administrator forthwith. (Emphasis added.)

Mr. Smith’s petition alleged that the decedent Mrs. Smith died intestate with

approximately twenty-one intestate heirs, consisting of her surviving children and

the children of her children who predeceased her. The petition and affidavit state

that the succession contains only one asset, a piece of residential immovable

property located in St. Charles Parish. The Affidavit of Valuation and Detailed

Descriptive List attached to the petition shows that the succession is relatively free

from debt.7 The petition does not allege that any heir is not competent or had

refused to accept the succession.8

Comments (a) and (b) to Article 3111 provide aid in determining whether to

appoint a provisional administrator, to wit:

(a) The general language, “preserve, safeguard, and operate the
property of the succession,” is intended to give the court discretion
in determining the necessity for the appointment of the provisional
administrator.

administrator, and shall be personally responsible for all damages resulting from his failure so to
act.”
7
The only debt of the succession listed therein was “Attorney’s Fees – Succession,
$3,000.00.”
8
Mr. Smith argues in brief that the fact that no other heir had stepped forward to initiate
the succession was proof of the other heirs’ refusal to accept the succession, but we decline to
credit this alleged inaction as affirmative refusal to accept a succession.

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(b) When the appointment of a provisional administrator is necessary,
there will be no time available for the giving of notice to the heirs,
creditors, and other interested parties, or to permit them to oppose
the appointment of the particular person whom the court selects.
The court must be empowered to act immediately, on the
application of any interested person, and even on its own motion.

It is thus clear from Article 3111 and the comments thereto that a provisional

administrator serves only temporarily. The petition does not allege any facts

suggesting the urgent need for a provisional administrator to be appointed to

“preserve, safeguard, and operate” the succession property pending “the

appointment of an administrator” or “the confirmation of an executor.” This list—

preserve, safeguard, and operate—uses the word “and,” suggesting that all three

criteria are necessary. Mr. Smith’s petition for appointment alleged that the

succession contained only one asset, a piece of residential property, and that “[a]n

administration of this succession is necessary for the proper handling thereof.”

This quoted statement is a legal conclusion, not a fact. No facts alleged in the

petition or the affidavit suggested that the property required preserving,

safeguarding, or operating pending the appointment of an administrator or the

confirmation of an executor, or that the court must act in haste and was without

time to notify heirs or other interested parties.9 The trial judge apparently had

second thoughts at the hearing about her initial ruling appointing a provisional

administrator. Upon review, under the facts found in the appellate record and the

applicable law, we find no abuse of discretion by the trial judge in her ruling which

granted the motion to remove the provisional administrator.

However, we also find that an administration of this succession proceeding

is not prohibited by La. C.C.P. art. 3001, as argued by Ms. White, and which

provides as follows:

9
Indeed, Mr. Smith did not file the petition for possession of the premises until almost
five months after being appointed provisional administrator, which indicates that haste was not a
factor.

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The heirs of an intestate decedent shall be recognized by the court,
and sent into possession of his property without an administration of
the succession, on the ex parte petition of all of the heirs, when all of
them are competent and accept the succession, and the succession is
relatively free of debt. A succession shall be deemed relatively free of
debt when its only debts are administration expenses, mortgages not
in arrears, and debts of the decedent that are small in comparison with
the assets of the succession.

This Article permits heirs of an intestate succession to be sent into possession of

the decedent’s property without an administration provided that certain criteria are

met, but this article does not prohibit the administration of such a succession.

The trial court, at the hearing, found that no administration of this succession

was necessary because the succession met the conditions of Article 3001, namely

that the succession was relatively free from debt and there were no allegations of

incompetent or unaccepting heirs. While we agree that the large number of heirs,

by itself, does not compel the conclusion that an administration of this succession

is necessary,10 subsequent developments in the case, namely Tiffany White’s filing

of the motion to remove the provisional administrator and her offer to be appointed

administrator or co-administrator, made through her counsel at the hearing, as well

as assertions made by Mr. Smith at the hearing that some heirs might not agree

regarding the handling of the succession property, suggest that an administration of

this succession may indeed be desirable or warranted in the future. Accordingly,

while we affirm the removal of Mr. Smith as provisional administrator, having

found that an administration of this succession may be desirable or warranted in

the future, as evidenced by the proceedings in this appellate record, we reverse the

trial court’s dismissal of the succession proceeding, allowing for further

proceedings as may be deemed necessary in the future.

10
Ms. White’s motion to remove, in fact, argued that most of the heirs desired to keep the
property in the family and not sell it. As Ms. White states in brief, the heirs’ resistance to Mr.
Smith’s attempts to sell the property is not indicative of their refusal to accept the succession.

22-CA-565 7

DECREE

For the foregoing reasons, we affirm the portion of the trial court’s August

22, 2022 judgment which removed Mr. Smith as provisional administrator of the

Succession of Cornelia Smith. We reverse the portion of the judgment which

dismissed the succession proceeding. The matter is remanded for further

proceedings.

AFFIRMED IN PART; REVERSED IN
PART; REMANDED

22-CA-565 8

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
JOHN J. MOLAISON, JR.
CORNELIUS E. REGAN, PRO TEM FIFTH CIRCUIT
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22-CA-565
E-NOTIFIED
29TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE M. LAUREN LEMMON (DISTRICT JUDGE)
CHARLES K. CHAUVIN (APPELLEE) KAMERON P. WHITMEYER (APPELLANT)

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