Succession of Scofield Davis

SUCCESSION OF SCOFIELD DAVIS NO. 24-C-396

FIFTH CIRCUIT

COURT OF APPEAL

STATE OF LOUISIANA

August 27, 2024

Linda Wiseman
First Deputy Clerk

IN RE NAOMI DAVIS

APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT,
PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE DONALD L. FORET,
DIVISION "H", NUMBER 815-612

Panel composed of Judges Marc E. Johnson,
Scott U. Schlegel, and Timothy S. Marcel

WRIT GRANTED; REMANDED FOR FURTHER PROCEEDINGS;
AUGUST 26, 2024 STAY LIFTED

Relator, Naomi Davis, seeks review of the trial court’s August 16, 2024 order

that lifted a temporary restraining order of her eviction and subsequently ordered the

Jefferson Parish Sheriff’s Office to proceed with the eviction process of her from the

property located at 1001 Garden Road in Marrero, Louisiana. This is the second

supervisory writ application contesting the eviction of Relator from the subject

property. (See, Succession of Scofield Davis, 24-269 (La. App. 5 Cir.

7/2/24)(unpublished writ application), where this Court found that the trial court’s

April 8, 2024 judgment ordering Relator to vacate the premises no later than May 1,

2024, was a final judgment, and the trial court’ ex parte order directing the Jefferson

Parish Sheriff’s Office (“the Sheriff’s Office”) to evict Relator from the premises

and to return the property to Barbara Davis—the executrix of the Succession of

Scofield Davis1—was proper.)

In this instance, on August 8, 2024, Relator filed a motion for temporary

restraining order (“TRO”), preliminary injunction, and permanent injunction,

wherein she stated that a writ of possession was issued by the trial court on July 25,

2024 in favor of Barbara Davis; however, Barbara Davis had passed away on July

14, 2024. Relator argued that the execution of the writ of possession was illegal and

improper because Barbara Davis died before it was obtained. She contended there

is currently no executrix to take possession of the property, and the home will be

abandoned to the detriment of all the heirs and creditors.

On August 13, 2024, the trial court issued a TRO restraining the Sheriff’s

Office from executing the writ of possession and evicting Relator from the property.

It also set a rule to show cause hearing on the motion for permanent injunction. At

the August 16, 2024 hearing on the motion for permanent injunction, the trial court

lifted the TRO, finding that it never had the authority to issue it because there is a

pending appeal of the April 8, 2024 judgment.2 The court reasoned that it never

intended to stop Relator’s eviction from the subject property.

La. C.C.P. art. 2088(A) provides, in pertinent part:

A. The jurisdiction of the trial court over all matters in the case
reviewable under the appeal is divested, and that of the appellate
court attaches, on the granting of the order of appeal and the timely
filing of the appeal bond, in the case of a suspensive appeal or on
the granting of the order of appeal, in the case of a devolutive appeal.
Thereafter, the trial court has jurisdiction in the case only over those
matters not reviewable under the appeal….

Article 2088 “contains a list of specific actions over which a district court retains

jurisdiction in a case after the filing of an order of appeal.” Waiters v. deVille, 20-

556 (La. App. 4 Cir. 12/30/20), 365 So.3d 544, 553, writ denied, 21-283 (La.

1
Relator is the surviving spouse of Scofield Davis.
2
Succession of Scofield Davis, 24-CA-388.

4/13/21), 313 So.3d 1249, quoting Doe v. Louisiana Health Service & Indemnity

Company, 16-552 (La. App. 4 Cir. 3/15/17), 214 So.3d 99, 102, writ denied, 17-606

(La. 5/26/17), 221 So.3d 865. The language “not reviewable under the appeal” has

generally been interpreted to give the trial court continuing jurisdiction over all

issues that are unaffected by the appeal, even if the issue is not specifically listed in

the La. C.C.P. art. 2088. Quality Paint Hardware and Marine Supply Inc. v.

Crescent Coating and Services, Inc., 13-129 (La. App. 5 Cir. 8/27/13), 123 So.3d

780, 784.

In this case, the trial court’s order authorizing the issuance of the warrant of

possession directed the Sheriff’s Office to deliver possession of the property located

at 1001 Garden Road to the executrix of the Succession of Scofield Davis, Barbara

Davis. The court has notice that Barbara Davis is deceased and is no longer able to

take possession of the property. La. C.C.P. art. 3083 provides, “If no executor has

been named in the testament, or if the one named is dead, disqualified, or declines

the trust, on its own motion or on motion of any interested party, the court shall

appoint a dative testamentary executor, in the manner provided for the appointment

of an administrator of an intestate succession.” Furthermore, the court may appoint

a provisional administrator of a succession, on its own motion, 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. La. C.C.P. art. 3111. Because the trial court has notice of the death of

the executrix and the succession currently has no representative, we find that the

appointment of a succession representative to preserve, safeguard, and operate the

property is required.3 According to Relator’s motion for devolutive appeal in case

3
See, Succession of Reno, 15-854 (La. App. 1 Cir. 9/12/16), 202 So.3d 1147, 1154, writ denied, 16-2106
(La. 2/10/17), 215 So.3d 701, where the court found that the executor (administrator or succession representative) of
a succession is the majordomo of the estate, having possession of all its property, as well as the power and
responsibility to preserve its assets and enforce its claims.

number 24-CA-388, the appointment of a representative for the succession is not a

contested issue in the appeal. Thus, pursuant to La. C.C.P. art. 2088, the trial court

has retained the authority to appoint a dative testamentary executor for the

succession (or a provisional administrator in the interim).

Therefore, we find that the trial court erroneously lifted the temporary

restraining order of Relator’s eviction from the property located at 1001 Garden

Road in Marrero, Louisiana, on the basis that the Succession of Scofield Davis has

no executor to proceed in the matter. Accordingly, we grant the writ application,

reverse the trial court’s ruling that lifted the TRO of the eviction proceeding,

reinstate the August 13, 2024 temporary restraining order, and remand the matter to

the trial court for the appointment of an administrator or executor of the Succession

of Scofield Davis, in compliance with all requirements of law. Additionally, because

the lifting of the temporary restraining order by the trial court is reversed, we lift the

stay order issued by this Court on August 26, 2024.

Gretna, Louisiana, this 27th day of August, 2024.

MEJ
SUS
TSM

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
STEPHEN J. WINDHORST LINDA M. WISEMAN
JOHN J. MOLAISON, JR.
FIRST DEPUTY CLERK
SCOTT U. SCHLEGEL
TIMOTHY S. MARCEL FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
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GRETNA, LOUISIANA 70054 (504) 376-1400

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I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN
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THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY
COUNSEL, AS LISTED BELOW:

24-C-396
E-NOTIFIED
24th Judicial District Court (Clerk)
Honorable Donald L. Foret (DISTRICT JUDGE)
James A. Harry (Relator) Rudy W. Gorrell, Jr. (Respondent)

MAILED
William R. Penton, III (Relator)
Attorney at Law
3535 Canal Street
Suite 200
New Orleans, LA 70119

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I i . .Atto~y at Law
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24-C-396 08-27-24
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