Succession of Milton E. Cotaya, Jr

SUCCESSION OF EDNA B. COTAYA NO. 24-CA-228 C/W
24-CA-227
C/W
FIFTH CIRCUIT
SUCCESSION OF MILTON E. COTAYA, JR
COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 838-243 C/W 838-251, DIVISION "J"
HONORABLE STEPHEN C. GREFER, JUDGE PRESIDING

December 26, 2024

STEPHEN J. WINDHORST
JUDGE

Panel composed of Judges Marc E. Johnson,
Stephen J. Windhorst, and Timothy S. Marcel

AFFIRMED
SJW
MEJ
TSM

COUNSEL FOR INTERVENOR/APPELLANT,
VICKI TOSH
James A. Harry
William R. Penton, III
Cesar R. Burgos
Robert J. Daigre
George M. McGregor

COUNSEL FOR PLAINTIFF/APPELLEE,
LEE COTAYA, INDIVIDUALLY AND AS SUCCESSION REPRESENTATIVE
OF EDNA B. COTAYA
J. Douglas Sunseri

WINDHORST, J.

Appellant, the succession representative, Vicki Tosh, appeals the trial court’s

November 12, 2023 judgment (1) denying her motion to traverse; and (2) adopting

the Amended Sworn Descriptive List and Amended Final Tableau of Distribution

filed by the Special Master. For the following reasons, we affirm.

PROCEDURAL HISTORY and FACTS

Because of the contentious and litigious nature of these succession

proceedings, the following facts and procedural history are relevant. Six children

were born of the marriage of Milton and Edna Cotaya: Milton E. Cotaya, III

(“Skip”), Terrence M. Cotaya, Sr., Cathy Cotaya Huber, Lee Cotaya, Vicki Cotaya

Tosh, and Trudi Cotaya Blackwood. Milton and Edna each executed a Last Will

and Testament on August 30, 2000. On October 11, 2010, they each executed a

codicil to their respective wills. In the codicils, subject to a usufruct in favor of each

other, Milton and Edna, respectively, (1) left any and all interest in Fasteners, Inc.,

(“Fasteners”) including voting and non-voting shares owned by each, to all of their

children, except Skip,1 in equal shares; and (2) left the remainder of all property to

their children, except Skip, “in equal shares.” However, on May 26, 2012, Milton

and Edna donated their 70% interest in Fasteners (“Fasteners’ stock”) to Lee.2 The

parties have been embroiled in several contentious litigation proceedings, including

the present succession proceedings, since this donation.

Interdiction proceeding and nullification proceeding

On October 2, 2012, Vicki instituted interdiction proceedings in the 24th

Judicial District Court (hereafter “JDC”), No. 719-653, Interdiction of Milton E.

Cotaya, Jr. and Edna B. Cotaya, seeking the full interdiction of her parents, Milton

and Edna Cotaya. Albert “Joey” Richard was appointed the financial curator for

1 Skip is not a part of any of the proceedings as he was intentionally omitted from Milton and Edna’s wills.
2 Prior to this donation, Milton and Edna owned a 70% shareholder interest in Fasteners.

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Milton and Edna.3 By judgment dated December 23, 2013, Milton and Edna (also

referred to as “the interdicts”) were placed under full interdiction. The trial court

appointed William C. Credo, III as their curator, and because Vicki was the primary

caregiver of the interdicts, she was appointed as the undercurator. Vicki was

subsequently removed for cause on September 14, 2014 as undercurator. On May

16, 2013, Vicki filed a petition for nullification in the interdiction proceeding, 24th

JDC, docket no. 719-653.

On May 16, 2014, Vicki, Terrence, and Trudi filed a Petition for Nullification

of Donation (“the nullification proceeding”), against Lee, Fasteners, and Credo,

seeking to nullify the donation of the Fasteners’ stock to Lee, in the 24th JDC, docket

no. 738-534, Petition for Nullification of Donation (Milton E. Cotaya, Jr. and Edna

B. Cotaya).4 Credo, in his capacity as curator for Milton and Edna filed a motion to

transfer the nullification proceeding to docket no. 719-653, the interdiction

proceeding. The interdiction and nullification proceedings were subsequently

consolidated. In December 2014, Credo resigned 5 as curator for the interdicts, and

thereafter, the trial court appointed John Sudderth and Robert Grant as co-curators.

Trial on the merits of the petition for nullification of the donation to Lee was

set on January 14 and 15, 2015. Prior to the conclusion of the trial, the parties6

entered into a consent judgment wherein (1) defendants Lee and Fasteners agreed to

pay $4,000.00 every month to Milton and Edna “as their deferred compensation,”

payable “no later than” the seventh day of each month until the death of both Milton

and Edna; (2) defendant Fasteners agreed to pay $3,750.00 to Milton and Edna

3 By judgment dated November 12, 2013, the trial court granted Richard further authority over the finances
of Milton and Edna.
4 The proceeding is also captioned Milton E. Cotaya, Jr., Edna B. Cotaya, Vicki Cotaya Tosh, Vicki Cotaya,
Terrence Cotaya, Trudi Cotaya Blackwood, Trudi Cotaya v. Lee M. Cotaya, Fasteners Inc., William C.
Credo.
5 The record does not show when or why Credo resigned or was replaced with Sudderth and Grant as co-
curators of the interdicts. In his brief to this court, Lee asserts that Credo resigned due to the litigation
proceedings filed against him by Vicki and her failure to cooperate.
6 The parties in the nullification proceeding were Vicki, Terrence, Trudi, Lee, Fasteners, and Sudderth and
Grant, the co-curators for the interdicts, Milton and Edna.

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pursuant to the lease agreement entered into by the parties on January 22, 1999,

payable to Milton and Edna “no later than” the seventh day of each month, and the

payments shall not cease prior to the death of both Milton and Edna; (3) “failure to

pay monthly payments of $7,750.00 as ordered herein will result in the transfer of

all stock in Fasteners” to Edna and Milton; (4) defendants Fasteners and Lee agreed

to pay a lump sum of $5,000.00 to Milton and Edna, or to the survivor, within 90

days of the signing of the consent judgment; (5) Vicki and Trudi agreed to

immediately withdraw their complaints against Lee’s wife Jan Cotaya filed with the

Accounting Board; (6) “all exceptions, motions, and claims presently pending in the

above-entitled matters [docket nos. 738-534 c/w 719-653 interdiction and

nullification proceedings] are hereby dismissed with prejudice, each party to bear

their own costs”; (7) “any and all collateral and ancillary litigation, lawsuits, actions

or pleadings presently pending in this or any other Court in the State of Louisiana

by and against the parties, including but not limited to the following:” docket nos.

717-393, Lee M. Cotaya and Fasteners, Inc. v. Vicki Cotaya Tosh; 727-085, Edna

B. Cotaya and Milton E. Cotaya, Jr. v. Lee Cotaya; and 727-885, Lee Cotaya and

Fasteners, Inc. v. Vicki Cotaya Tosh, are dismissed with prejudice; (8) the court

appointed curators, John Sudderth, Robert Grant and Albert “Joey” Richard, have

full and independent authority to enter into any and all business transactions on

behalf of Edna and now deceased, Milton, which they “agree are reasonable and in

the best interest” of Edna and now deceased, Milton.

Fasteners and Lee filed a motion to enforce judgment, contempt of court and

attorney’s fees and costs against Vicki. On June 2, 2016, the trial court found Vicki

in contempt and sentenced her to serve seven days in the Jefferson Parish

Correctional Center but gave her five working days to purge herself of the contempt

order by submitting specific documents listed in the judgment to the financial

curator, Richard. The trial court also ordered Vicki to provide counsel for Lee

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written proof that she withdrew her complaint against Lee’s wife Jan filed with the

CPA/Accounting Board. The trial court further awarded attorney’s fees to Lee’s

counsel and the interdicts’ counsels against Vicki.

Succession proceedings in the 22nd JDC in St. Tammany Parish

On August 10, 2015, Milton Cotaya died. On December 2, 2015, Vicki

instituted the first succession proceeding, the Succession of Milton E. Cotaya, Jr., in

the 22nd JDC in St. Tammany Parish. In her verified “Petition for Probate of

Notarial Testament and Confirmation of Independent Executrix,” Vicki asserted that

Milton “resided in” and was “domiciled in” St. Tammany Parish at the time of his

death. Conversely, the attached affidavit of death, domicile and heirship asserted

that Milton “resided in” St. Tammany Parish. Vicki was appointed executrix.

When Edna died on November 17, 2016, Lee filed the Succession of Edna B.

Cotaya in the 22nd JDC in St. Tammany Parish. The Petition to Appoint a Notary to

Search for Testament and for Appointment of Provisional Administrator and the

attached affidavit of death, domicile and heirship asserted that Edna was “domiciled

in” St. Tammany Parish. Thereafter, Vicki sought several times to be appointed the

executrix of Edna’s succession; however, Lee was subsequently appointed

provisional administrator.

By consent judgment dated April 11, 2017, the Succession of Milton E.

Cotaya and the Succession of Edna B. Cotaya were consolidated. On June 21, 2017,

Lee’s counsel filed a Proof of Claim in the succession proceedings alleging that Lee

incurred attorney’s fees in the amount of $66,188.38 in the interdiction proceeding

(docket no. 719-653), due to the “improper fraudulent conduct and action of

Executrix, Vicki Cotaya and was necessary to preserve the estates of Milton E.

Cotaya, Jr. and Edna B. Cotaya.” The record does not show that any opposition was

filed as to Lee’s proof of claim for attorney’s fees.

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On August 2, 2017, the parties entered into a consent judgment agreeing to

the appointment of a Special Master “to provide findings of fact and

recommendations for any and all claims by the legatees and/or heirs, as well as the

administration, liquidation and closing” of the succession proceedings.7 By consent

judgment dated November 14, 2017, the parties appointed William Magee as the

Special Master for the successions.

During the succession proceedings, the legatees Vicki, Terrence, and Trudi

demanded collation of the Fasteners’ stock donated to Lee, asserting that the

Fasteners’ stock was an asset of the estates. In August 2018, Lee filed a motion for

partial summary judgment contending that the donation of the Fasteners’ stock to

Lee was not subject to collation because the legatees are not forced heirs and the

donation occurred more than three years prior to the deaths of Milton and Edna. In

response, the Special Master issued a report recommending that the trial court grant

Lee’s motion for partial summary judgment finding that (1) Louisiana law limits the

right to demand collation to forced heirs and it is undisputed that there are no forced

heirs in this case; and (2) the donation was made more than three years prior to the

deaths of Milton and Edna. Consequently, the Special Master further found that the

donation of the Fasteners’ stock to Lee was not a part of the estates of Milton and

Edna. Vicki, Terrence, and Trudi filed an objection to the Special Master’s report.

By judgment dated April 23, 2019, the trial court (1) adopted the Special Master’s

finding that the 70% shareholder interest in Fasteners (i.e., the Fasteners’ stock)

donated to Lee is not part of the estates of Milton and Edna and not subject to

collation; (2) denied and dismissed the objection to the Special Master’s report filed

by Vick, Terrence, and Trudi; (3) adopted the Special Master’s recommendation to

grant Lee’s motion for partial summary judgment, finding that the 70% shareholder

7 A written judgment was signed August 28, 2017.

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interest in Fasteners (i.e., the Fasteners’ stock) donated to Lee is not subject to

collation and is excluded as an asset of the estates of Milton and Edna.

Subsequently, Vicki, Terrence and Trudi filed a motion to dismiss Magee as

the Special Master, which was granted by the trial court.8 Lee filed a motion to

appoint a successor Special Master pursuant to the August 2, 2017 consent judgment.

The motion was opposed by Vicki, Terrence, and Trudi. After a contradictory

hearing, the trial court granted Lee’s motion and named Ronald “Chip” Morrison as

Special Master.

On June 23, 2021, almost six years after she initially filed the first succession

proceeding in St. Tammany Parish (i.e., the Succession of Milton E. Cotaya) and

after numerous unfavorable rulings, Vicki filed a Rule to Show Cause to Determine

Jurisdiction against Lee and Fasteners, alleging that decedents Milton and Edna were

domiciled in Jefferson before they were interdicted and they lacked capacity to

change domicile after they were interdicted. As such, Vicki asserted that Milton and

Edna were domiciled in Jefferson Parish at the time of their deaths and thus, the

succession proceedings filed in St. Tammany Parish are absolutely null. Lee filed a

Motion to Dismiss Challenge of Jurisdiction, Exception of No Cause of Action and

Motion for Sanctions (“motion to dismiss”). Vicki filed an opposition and

supplemental opposition to Lee’s motion to dismiss, additionally arguing that the

decedents were interdicted at time of death and therefore, the domicile of the

interdicts was that of their curators, (i.e., all curators domiciled in Jefferson Parish,

not St. Tammany Parish). On November 10, 2021, after a status conference, the

parties withdrew their respective motions.

Lee then filed a Motion to Compel Final Participation in the Completion of the

Special Master Proceeding (“motion to compel participation”). On August 25, 2022,

8 The trial court granted the motion to dismiss Magee as Special Master due to Magee’s temporary
suspension from the practice of law.

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after a contradictory hearing, the trial court (1) granted Lee’s motion to compel

participation; (2) ordered that all claims, demands, motions and memorandums in

support of claims for reimbursement made against any party in the successions shall

be filed within 45 days of August 25, 2022; (3) ordered that the Special Master shall

file a proposed Final Tableau of Distribution within 90 days of August 25, 2022; and

(4) set Vicki’s exception of lack of subject matter jurisdiction for hearing.

On August 22, 2022, nine months after the withdrawal of her prior rule to

determine jurisdiction, Vicki filed an exception of lack of subject matter jurisdiction

only as to the Succession of Edna B. Cotaya, which was filed by Lee. Lee filed an

opposition.

On December 9, 2022, the trial court (1) granted Vicki’s exception of lack of

subject matter jurisdiction; (2) denied Vicki’s request to cast Lee with all costs and

reasonable attorney’s fees; (3) denied Vicki’s “demand to dismiss the Successions

of Milton E. Cotaya and Edna B. Cotaya and their underlying Judgments;” and (4)

“in the interest of justice,” ordered “the Succession of Milton E. Cotaya and the

Succession of Edna B. Cotaya along with all underlying pleadings, deadlines, and

orders” to be transferred to the 24th JDC pursuant to La. C.C.P. art. 932 B. Vicki did

not contest, appeal, or collaterally attack any part of the trial court’s December 9,

2022 judgment granting her exception of lack of subject matter jurisdiction and

transferring Milton and Edna’s succession proceedings to the 24 th JDC pursuant to

La. C.C.P. art. 932 B. Instead, two months later and while the transfer was pending,

Vicki filed a new “Petition to Open Succession, Probate Will and Confirm

Administrator,” captioned Successions of Milton Cotaya and Edna Cotaya, docket

no. 837-862 in the 24th JDC, seeking to confirm herself as administrator of both of

her parents’ successions.

When the proceedings were transferred from the 22nd JDC to the 24th JDC,

they were unconsolidated and assigned to separate divisions in the 24 th JDC. The

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Succession of Edna B. Cotaya was assigned to Division “J,” docket no. 838-243, and

Succession of Milton E. Cotaya, Jr. was assigned to Division “F,” docket no. 838-

251. Lee filed a motion to consolidate 838-243 and 838-251 and a motion to adopt

all underlying pleadings, orders, and judgments and to order the special master to

set deadlines.

In response, Vicki filed a Petition to Dismiss, To Intervene, and to Strike

Transferred Successions for Nullity (“motion to dismiss”), alleging for the first time

that the transferred successions from the 22nd JDC were absolutely null. On April

11, 2023, the trial court rendered judgment (1) granting Lee’s motion to consolidate

838-243 and 838-2519; (2) granting Lee’s motion to adopt all underlying pleadings,

orders and judgments from the proceedings in St. Tammany Parish; (3) ordering

Ronald “Chip” Morrison to continue to serve as the Special Master for the

consolidated successions and to set deadlines; and (4) denying Vicki’s petition to

dismiss.

Thereafter, on June 23, 2023, the Special Master filed a Proposed Sworn

Descriptive List. The original descriptive list included payment of the proof of claim

filed by Lee on June 16, 2017, for attorney’s fees incurred in the interdiction

proceeding, docket no. 738-534 c/w 719-653, payable to Lee and it did not include

the Fasteners’ stock as an asset of the estates of Milton and Edna. 10 The Special

Master also filed a Recommendation for First and Final Tableau of Distribution,

which recommended that the legatees (Vicki, Lee, Trudi, Terrence, and Cathy) split

the remaining assets equally. The Special Master filed a notice of filing of the above.

Vicki did not file an opposition to the first descriptive list and final tableau of

distribution.

9 The record contains a transfer order signed by the Division F judge transferring docket no. 838-251 to
docket no. 838-243, Division J.
10 This initial descriptive list was missing several values for assets of Milton and Edna that were in the
possession of Vicki, to which the value was unknown.

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On September 1, 2023, the Special Master issued an Amended Proposed

Sworn Descriptive List (“Amended Sworn Descriptive List”), Amended First and

Final Tableau of Distribution (“Amended Final Tableau of Distribution”), and notice

of filing of the same. Vicki filed a Motion to Traverse on September 12, 2023. Vicki

argued (1) that the donation of the Fasteners’ stock to Lee was an advance on Lee’s

inheritance; (2) Lee’s attorney’s fees for interdiction proceeding cannot be paid by

the estates; and (3) Lee should be removed as succession representative for Edna.

Lee individually, and on behalf of the Succession of Edna B. Cotaya filed an

opposition to the motion to traverse. After a contradictory hearing, the trial court

denied Vicki’s motion to traverse and adopted the Amended Sworn Descriptive List

and Amended Final Tableau of Distribution.

This appeal followed.

LAW and ANALYSIS

On appeal, Vicki contends the trial court erred in denying her Motion to

Traverse and in adopting the Amended Sworn Descriptive List and the Amended

Final Tableau of Distribution filed by the Special Master because the Special Master

was appointed by a court (i.e., the 22nd JDC) which lacked subject matter jurisdiction

to appoint a special master. Vicki also contends that the trial court erred in adopting

the underlying pleadings, orders and judgments from the succession proceedings

transferred from the 22nd JDC to the 24th JDC, including the order appointing a

Special Master, because the 22nd JDC lacked subject matter jurisdiction over the

succession proceedings. Vicki further argues that under La. C.C.P. art. 932B, only

the lawsuit (i.e., transfer of the action) can be transferred, not the proceedings (i.e.,

underlying rulings and judgments) because the proceedings are absolutely null, and

therefore, do not exist.

Alternatively, in the event the Special Master was properly appointed, Vicki

contends the Amended Final Tableau of Distribution (1) should not have paid Lee a

24-CA-228 C/W 24-CA-227 9

portion of the estates of Milton and Edna because he received his inheritance in the

donation of the Fasteners’ stock, which was an advance on his inheritance; (2) should

not have paid Lee’s claim for attorney’s fees for adverse legal work not related to

the successions and a prior consent judgment provided that the parties were to bear

their own costs, including attorney’s fees; and (3) failed to list the Fasteners’ stock

as an asset of the successions of Milton and Edna. Accordingly, Vicki requests the

Amended Final Tableau of Distribution to be stricken and requests Lee be removed

as the succession representative of Edna’s estate.

Subject Matter Jurisdiction

Initially, this court must determine whether the trial court erred in adopting

the underlying pleadings, orders and judgments from the succession proceedings

transferred from the 22nd JDC to the 24th JDC, including the order appointing the

Special Master.

Under the mandates of La. C.C.P. art. 2811, a proceeding to open a succession

shall be brought in the trial court of the parish where the deceased was domiciled at

the time of his death. The domicile of a natural person is the place of his habitual

residence. La. C.C. art. 38. Furthermore, the domicile of a full interdict is that of

the curator. La. C.C. art. 42.

Jurisdiction over subject matter is the legal power and authority of a court to

hear and determine a particular class of actions or proceedings, based upon the object

of the demand, the amount in dispute, or the value of the right asserted. La. C.C.P.

art. 2. Subject matter jurisdiction addresses a court’s authority to adjudicate the

cause before it. Boudreaux v. State, Dept of Transp. & Dev., 01-11329 (La.

02/26/02), 815 So.2d 7, 13. Even when the issue is not raised by the litigants, the

trial court has a duty to examine subject matter jurisdiction sua sponte. Id. “[T]he

issue may be considered at any time, even by the court on its own motion, at any

stage of the action.” Id. A judgment rendered by a court which has no jurisdiction

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over the subject matter of the action or proceeding is void. La. C.C.P. art. 3. Subject

matter jurisdiction cannot be conferred by consent of the parties, nor can it be

waived. Id.; Comeaux v. Louisiana Tax Commission, 20-1037 (La. 05/20/21), 320

So.3d 1083, 1091. Nevertheless, even though a judgment may be null, there are

circumstances which preclude a court from declaring its nullity, particularly as

provided in La. C.C.P. arts. 2002 and 2003. See also Official Revision Comment (b)

to La. C.C.P. art. 3.

La. C.C.P. art. 2002 provides that a final judgment is an absolute nullity for a

vice of form, if it is rendered under one of the following exclusive11 grounds: (1)

against an incompetent person not represented as required by law; (2) against a

defendant who has not been served with process as required by law and who has not

waived objection to jurisdiction, or against whom a valid default judgment has not

been taken; or (3) by a court which does not have jurisdiction over the subject matter

of the suit. See Anderson v. Anderson, 20-186 (La. App. 5 Cir. 12/23/20), 309 So.3d

868, 874. Except as otherwise provided in La. C.C.P. art. 2003, absolutely null

judgments may be asserted at any time, in a direct or collateral proceeding, before

any court, and are not subject to requirements of statutory action for nullity for fraud

or ill practices. La. C.C.P. arts. 2002 B and 2003; State v. Ramos, 18-136 (La. App.

5 Cir. 12/27/18), 264 So.3d 564, 567; Champagne and Rodgers Realty Co., Inc. v.

Guillot, 06-237 (La. App. 5 Cir. 11/14/06), 947 So.2d 39, 45, writ denied, 06-2920

(La. 3/9/07), 949 So.2d 440; Barnett Marine, Inc. v. Van Den Adel, 96-1029 (La.

App. 5 Cir. 04/09/97), 694 So.2d 453, 457, writ denied, 97-1236 (La. 09/26/97), 701

So.2d 983. Thus, an absolutely null judgment may be collaterally attacked by

procedural means short of a petition for nullity, such as a contradictory motion or

rule. Zavala v. Dover Constr. USA, LLC, 17-1 (La. App. 1 Cir. 04/11/18), 249 So.3d

11 See Cosse v. Orihuela, 12-456 (La. App. 5 Cir. 01/30/13), 109 So.3d 950, 955, writ denied, 13-680 (La.
04/26/13), 112 So.3d 850; See also Official Revision Comment (e) to La. C.C.P. art. 2002.

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24, 29; Lexington Ins. Co. v. Tasch, Inc., 12-339 (La. App. 5 Cir. 11/27/12), 105

So.3d 950, 956.

However, an action for nullity is not a substitute for an appeal. Home

Distribution, Inc. v. Dollar Amusement, Inc., 98-1692 (La. App. 1 Cir. 09/24/99),

754 So.2d 1057, 1060; La. C.C.P. art. 2002 A(3). Additionally, the grounds for

absolutely null judgments as listed in La. C.C.P. art. 2002 cannot be raised by parties

who voluntarily acquiesced in a judgment or were present in the parish at the time

of the judgment’s execution and did not attempt to enjoin its enforcement. La.

C.C.P. art. 2003; See In re Succession of Wilkinson, 07-1038 (La. App. 5 Cir.

05/27/08), 986 So.2d 141, 145; Home Distribution, Inc., 754 So.2d at 1059.

In the instant case, even though Vicki’s exception of lack of subject matter

jurisdiction was directed only at Edna’s succession proceedings filed by Lee in the

22nd JDC, the trial court had a duty to examine subject matter jurisdiction sua sponte

as to Milton’s succession proceeding as well.12 In its judgment, the trial court

granted Vicki’s exception of lack of subject matter jurisdiction. However, in the

interest of justice, the trial court transferred both succession proceedings to the 24th

JDC. Upon review, we find it is undisputed that at the time, the succession

proceedings for Milton and Edna were filed in the 22nd JDC in St. Tammany Parish,

the decedents were fully interdicted and the court appointed curators were all

domiciled in Jefferson Parish. As such, Milton and Edna’s succession proceedings

should have been filed in the 24th JDC in Jefferson Parish. Accordingly, we find the

succession proceedings were improperly filed in the 22nd JDC and the trial court

properly granted the exception of lack of subject matter jurisdiction.

12 Because we do not have the transcript of the hearing on the exception of lack of jurisdiction, we assume
the parties agreed to expand the pleading to include Milton’s succession, and/or that the trial court sua
sponte determined the jurisdiction issue as to Milton’s succession as well. Regardless, this issue was not
raised by or objected to by the appellant in this appeal.

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Nevertheless, La. C.C.P. art. 932 B provides that if an action is brought in a

court of improper jurisdiction, the court may transfer the action to a proper court in

the interest of justice.13 When a suit is filed in a court of improper jurisdiction, courts

have generally permitted a transfer without discussion or ordered a remand for a

determination of whether the interest of justice supports a transfer. See Alvarado v.

Poche, 02-2 (La. App. 3 Cir. 06/05/02), 819 So.2d 1150, 1153; Starr v. Ackor, 482

So.2d 4 (La. App. 5 Cir. 1985). Thus, under La. C.C.P. art. 932 B, in the interest of

justice, the 22nd JDC trial court had discretionary authority to transfer the succession

proceedings, along with the underlying rulings, judgments, and orders, including the

order appointing the Special Master, to the 24th JDC. Considering the interest of

justice under La. C.C.P. art. 932 B and the lengthy, acrimonious, and contentious

history of these succession proceedings, we find the trial court did not abuse its

discretion in transferring the succession proceedings, as well as the underlying

pleadings, orders and judgments, including the order appointing the Special Master,

to the 24th JDC.

Moreover, we find Vicki voluntarily consented to or acquiesced in the

appointment of a Special Master in 2017 (and entered into additional consent

judgments) in the 22nd JDC succession proceedings. Further, she was present in the

parish at the time of the judgment’s execution and did not attempt to enjoin its

enforcement (or enjoin enforcement of other numerous adverse judgments) until after

the proceedings were transferred to the 24th JDC pursuant to La. C.C.P. art. 932 B

upon the 22nd JDC trial court’s judgment granting Vicki’s exception of lack of

subject matter jurisdiction. La. C.C.P. art. 2003; See also Succession of Wilkinson,

07-1038 (La. App. 5 Cir. 05/27/08), 986 So.2d 141, 145.

13 With the passage of La. Acts 2023, No. 5, §§ 1 & 3 (effective August 1, 2023), the legislature deleted the
objection of lack of subject matter jurisdiction from the objections raised through declinatory exception
pursuant to La. C.C.P. art. 925, and added it to the list of objections raised through a peremptory exception
found in La. C.C.P. art. 927. The exception of lack of subject matter jurisdiction was filed August 22, 2022
prior to this amendment, and the 22nd JDC’s judgment sustaining the exception and transferring both Edna’s
and Milton’s successions to the 24th JDC was on December 9, 2022. Therefore, we find that application of
La. C.C.P. art. 932 B in this case was appropriate.

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Accordingly, based on the records of these succession proceedings, we find

that La. C.C.P. art. 2003 precludes Vicki from now alleging (1) that the original

succession proceedings, and their underlying pleadings, orders and judgments

(including the order appointing the Special Master) from the 22nd JDC are absolutely

null and void; (2) that the 22nd JDC erred in transferring the same pursuant to La.

C.C.P. art. 932 B; and (3) that the 24th JDC erred in adopting the same.

We therefore now consider Vicki’s alternative assignments of error.

Motion to Traverse and Special Master’s recommendation for Final
Tableau of Distribution

Alternatively, in the event the Special Master was properly appointed, Vicki

contends the Amended Final Tableau of Distribution (1) should not have paid any

amount to Lee from the estates of Milton and Edna to Lee because he received an

advance on his inheritance from the donation of Fasteners’ stock; (2) should not have

paid Lee’s proof of claim for attorney’s fees because the work performed occurred

in adverse legal work not related to the successions and a prior consent judgment

provided that the parties were to bear their own costs, which included attorney’s

fees; and (3) failed to list the Fasteners’ stock as an asset of the estates of Milton and

Edna Cotaya.

The descriptive list in a succession proceeding is accepted as prima facie proof

of all matters shown therein, unless amended or traversed successfully. La. C.C.P.

art. 3137. Prima facie evidence is defined as evidence sufficient to establish a given

fact and which, if not rebutted or contradicted, will remain sufficient. Succession of

Clark, 22-190 (La. App. 3 Cir. 11/23/22), 354 So.3d 116, 126. The burden is on the

party filing a motion to traverse to show that the descriptive list is in error. Id.

After a contradictory hearing, the trial court has discretionary authority to

adopt, modify, reject in whole or in part, receive further evidence, or recommit with

24-CA-228 C/W 24-CA-227 14

instructions the Special Master’s Descriptive List and Final Tableau of Distribution

under La. R.S. 13:4165.

In the instant case, after argument of counsel, the motion to traverse was

submitted to the trial court. The following dialogue then occurred:

The Court:
So with respect to the motion to traverse itself and the merits thereof,
the Court would take note of the arguments and statements of counsel
of the mover. However, no evidence of any type has been produced,
and no documents have been offered to be introduced in connection
with the hearing, no witnesses were called in connection with the
hearing. There’s a lot of, “he said this when I had a phone
conversation,” and “no, he didn’t, he actually said that,” and
“something took place in another courtroom, but not really.” All the
Court’s left with is arguments of counsel. I don’t find any of those
to be sufficient to carry the burden of proof of the mover in this
particular matter, as evidence must be presented in order to convince
the Court that the recommendations of the Special Master are incorrect
in some fashion. I don’t find any of the arguments themselves to be
persuasive. So, for those reasons, the Court’s going to deny the motion
to traverse.
I’ll note your objection to the Court’s ruling, Mr. Harry. Other than
that, I think the succession can move forward at this point.
Mr. Harry:
Your Honor, one more thing I need clarification on. Has the Court
accepted the record as evidence on behalf of the mover?
The Court:
Nothing was offered into evidence, so I haven’t accepted any
evidence in connection with the motion to traverse. The record is what
it is. It is part of the record. But nothing was actually moved into
evidence, so I have not considered anything in that regard.
***
Mr. Penton:
Your Honor, just to make sure the record’s clear, we would like to
offer, file and introduce the record for purposes of taking up an appeal,
Your Honor, and make sure that it’s clear what we have done so.
The Court:
So, on appeal, you can certainly designate portions of the records of
the record that you would like the Court to consider on appeal. For
purposes of the record, nothing was offered at the time of the hearing.
The Court granted that opportunity to do so; nothing was offered. I
will take your, I guess, post judgment request to offer the record into
the evidence. If you really want to do that, Mr. Penton, I think that
could be a rather costly thing, because it’s $2 per page if you’re really
offering the record into evidence. If you want the Court to take
judicial notice of the record, it may be a less expensive way of doing
so, but you can handle it whatever way you want to do.

24-CA-228 C/W 24-CA-227 15

Mr. Penton:
Yes, Your Honor, taking judicial notice, you’re correct, would be the
better option.
The Court:
All right. So, certainly, the Court has considered the record that is
part of this proceeding in makings its ruling here today.

The trial court thus found that Vicki did not successfully traverse the Amended

Sworn Descriptive List. Upon review of the record, we agree Vicki did not meet her

burden. Additionally, after finding that Vicki did not submit prima facie evidence

that the Amended Sworn Descriptive List by the Special Master was in error, the

trial court had discretionary authority to adopt, modify, reject in whole or in part,

receive further evidence, or recommit with instructions the Special Master’s

Amended Sworn Descriptive List and Amended Final Tableau of Distribution under

La. R.S. 13:4165. Considering the record of these succession proceedings, we

cannot say that the trial court abused its discretion in adopting in whole the Special

Master’s recommendations as to the Amended Sworn Descriptive List and Amended

Final Tableau of Distribution.

DECREE

Accordingly, for the reasons stated herein, we affirm the trial court’s

November 12, 2023 judgment (1) denying Vicki’s motion to traverse; and (2)

adopting the Amended Sworn Descriptive List and Amended Final Tableau of

Distribution filed by the Special Master.

AFFIRMED

24-CA-228 C/W 24-CA-227 16

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
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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
DECEMBER 26, 2024 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

24-CA-228
C/W 24-CA-227
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE STEPHEN C. GREFER (DISTRICT JUDGE)
GEORGE M. MCGREGOR (APPELLANT) JAMES A. HARRY (APPELLANT) ROBERT J. DAIGRE (APPELLANT)
J. DOUGLAS SUNSERI (APPELLEE)

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