Succession of Jack Patton Mabray, Jr.

Judgment rendered February 26, 2025.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 56,102-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

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SUCCESSION OF JACK PATTON MABRAY, JR.

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Appealed from the
Sixth Judicial District Court for the
Parish of Tensas, Louisiana
Trial Court No. 24,603A

Honorable Angela Lynn Claxton, Judge

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HESSE & BUTTERWORTH, LLC Counsel for Appellant,
By: Michael O’Brien Hesse Janet Maxwell Mabray
Zach Butterworth

PREIS GORDON, APLC
By: Phillip Wesley Preis

BREITHAUPT, DOBOS Counsel for Appellees,
& WOLLESON, LLC Wilson Tremble Mabray,
By: Robert Alan Breithaupt Independent Executor,
James R. Close and the Succession of
Jack Patton Mabray, Jr.

BISHOP, PAXTON, CRIGLER
& MOBERLEY
By: John Durham Crigler, Jr.

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Before PITMAN, STONE, and ROBINSON, JJ.

ROBINSON, J.

Appellant, Janet Maxwell Mabray (“Jan”) filed a petition to amend

the judgment of possession entered in the succession of her deceased

husband, Jack Patton Mabray, Jr. (“Pat”). In her petition, she prayed to

remove the reference to a 50 percent ownership interest in certain real

property located in Colorado (the “Colorado property”). The petition

alleged that the couple had acquired the property as joint tenants during their

marriage by contributing one-half each of their separate funds in accordance

with the separate property regime established by valid premarital contract.

Wilson Mabray (“Wilson”), Pat’s son from his previous marriage and

the named Independent Administrator, filed an answer to Jan’s petition to

amend the judgment of possession and a reconventional demand seeking the

recognition of the succession’s 50 percent ownership of the Colorado

property. Jan then filed a motion to declare the judgment of possession an

absolute nullity as to the Colorado property. Wilson filed a peremptory

exception of no right of action as to both the petition to amend and motion to

annul. The trial court granted Wilson’s exception after a hearing on March

19, 2024, finding Jan had no standing in the succession. A judgment was

rendered on April 1, 2024, from which Jan appeals.

For the following reasons, we AFFIRM the trial court’s judgment.

FACTS AND PROCEDURAL HISTORY

Jan and Pat were married on August 29, 2009. The couple established

a separate property regime by premarital agreement entered into on August

26, 2009. They were domiciled in Tensas Parish but purchased the Colorado

property by Warranty Deed dated August 4, 2015, which stated, in part, that

the property was sold to Pat and Jan “not in tenancy in common but in joint

tenancy.” They built a house on the property, contributing their respective

separate funds for one-half each of the purchase price and building costs.

Pat died intestate on March 14, 2022. Wilson was named Independent

Administrator of Pat’s estate on April 22, 2022. Wilson is Pat’s sole heir

pursuant to intestacy laws. Jan is not an heir, legatee, surviving spouse in

community, or usufructuary. The detailed descriptive list filed by Wilson

included an “undivided one-half ownership” interest in the Colorado

property as an asset of the succession. A judgment of possession was

rendered on November 9, 2022, listing the 50 percent interest in the

Colorado property as an asset.

Jan filed a petition to amend the judgment of possession on November

22, 2022, alleging that she became the 100 percent owner of the Colorado

property by right of survivorship created pursuant to the joint tenancy

ownership of the property and requesting that the judgment of possession be

amended to delete any reference to the ownership of the Colorado property.

Jan also requested that a temporary restraining order be entered, enjoining

and restraining Wilson, as Independent Administrator, from granting any

encumbrance or transferring ownership of the Colorado property. The

parties later stipulated to the entering of the temporary restraining order.

Jan filed a motion for summary judgment on August 31, 2023,

seeking a determination that she was the 100 percent owner of the Colorado

property and the removal of the succession’s claim of ownership of the

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property from the detailed descriptive list and judgment of possession. She

included affidavits from two different attorneys regarding choice of law

issues. Wilson opposed Jan’s motion based on various procedural grounds,

particularly that no answer had been filed prior to the filing of the motion for

summary judgment, as well as the existence of disputed material facts

relevant to Colorado law regarding rights of survivorship with joint tenancy

ownership. Jan alleged in her reply that Louisiana courts lacked jurisdiction

to adjudicate ownership and resolve title disputes regarding property situated

in Colorado. Wilson filed motions to strike the two affidavits as

impermissible expert opinions on Louisiana law, as well as Jan’s response to

the opposition, claiming that Jan impermissibly asserted the defense of lack

of subject matter jurisdiction for the first time in her reply to Wilson’s

opposition. A hearing was conducted on November 30, 2023, and the trial

court sustained Wilson’s motions to strike and denied Jan’s motion for

summary judgment. An order was entered December 18, 2023.

On the same date as the motion for summary judgment hearing,

Wilson filed an answer to Jan’s petition to amend judgment of possession

and a reconventional demand asking that the succession be recognized as 50

percent owner of the property. Jan filed an answer to the reconventional

demand, along with an exception of lack of jurisdiction, on December 21,

2023. Jan also filed a motion to declare the judgment of possession an

absolute nullity as to the Colorado property on January 5, 2024. Wilson then

filed an exception and answer to the motion to declare the judgment of

possession an absolute nullity as to Colorado property and additional

exception to petition to amend judgment of possession, claiming the

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peremptory exception of no right of action. At a hearing on March 19, 2024,

the trial court granted Wilson’s exception of no right of action as to both

Jan’s petition to amend and motion to annul, completely dismissing the

claims against the succession. A judgment was rendered on April 1, 2024,

from which Jan appeals.

DISCUSSION

The April 1, 2024, judgment from which this appeal is based grants

Wilson’s exceptions of no right of action as to Jan’s January 5, 2024, motion

to declare judgment of possession an absolute nullity as to Colorado

property, and her previous August 31, 2023, petition to amend judgment of

possession, thereby dismissing all claims. The judgment is limited in scope

to the issue of standing. The trial court noted its review of the case law

presented and found that it was supportive of a distinction between a

succession and the assets of succession. It, therefore, concluded that,

although Jan may have an interest in an asset of Pat’s succession, she had no

standing in the succession itself.

An appellate court reviews a trial court’s ruling granting an exception

of no right of action de novo. Badeaux v. Sw. Computer Bureau, Inc., 05-

0612 (La. 3/17/06), 929 So. 2d 1211; Young v. Horseshoe Entertainment,

Limited Partnership, 55,749 (La. App. 2 Cir. 9/4/24), 2024 WL 4031832.

The exception presents a question of law, requiring a de novo review by

appellate courts. La. C.C.P. art. 923; In re: Succession of Harrison, 48,432

(La. App. 2 Cir. 11/8/13), 129 So. 3d 681, writ denied, 14-0273 (La. 4/4/14),

135 So. 3d 1185; Thornton v. Carthon, 47,948 (La. App. 2 Cir. 5/15/13),

114 So. 3d 554, writ denied, 13-785 (La. 11/1/13), 125 So. 3d 435; Wagoner

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v. Chevron USA Inc., 45,507 (La. App. 2 Cir. 8/18/10), 55 So. 3d 12, writ

denied, 10-2773 (La. 3/2/12), 83 So. 3d 1032; Skannal v. Bamburg, 44,820

(La. App. 2 Cir. 1/27/10), 33 So. 3d 227, writ denied, 10-0707 (La. 5/28/10),

36 So. 3d 254; City of New Orleans v. Board of Directors of Louisiana State

Museum, 98-1170 (La. 3/2/99), 739 So. 2d 748. The burden of proof

establishing the exception of no right of action is on the exceptor. La.

C.C.P. art. 923; Harrison, supra; Thornton, supra; Wagoner, supra; City of

New Orleans, supra.

Only a person having a real and actual interest to assert may bring an

action. La. C.C.P. art. 681. Thornton, supra; Wagoner, supra; Skannal,

supra. A peremptory exception of no right of action is used to show that a

plaintiff has no legal right or interest in enforcing the matter asserted, based

upon facts and evidence submitted. La. C.C.P. arts. 681 and 927; Campbell

v. Nexion Health at Claiborne, Inc., 49-150, (La. App. 2 Cir. 10/1/14), 149

So. 3d 436; Thornton, supra. An exception of no right of action is a

peremptory exception, the function of which is “to have the plaintiff’s action

declared legally nonexistent, or barred by effect of law, and hence this

exception tends to dismiss or defeat the action.” La. C.C.P. art. 923;

Wagoner, supra.

In support of its argument that Jan lacked standing to assert claims in

the succession, Wilson refers to Guidry v. Dufrene, 96-0194 (La. App. 1 Cir.

11/8/96), 687 So. 2d 1044, in which the First Circuit affirmed the trial

court’s granting of an exception of no right of action after the heir’s father

filed a petition to annul a judgment of possession. The father claimed he

fully owned certain Louisiana immovable property named in the judgment

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of possession because he had never been married to the decedent, despite the

acquisition deed reflecting that he was married to the decedent at the time of

purchase. Id. The court stated that “there is a clear distinction between a

succession and the assets of a succession” and found that the father could not

pursue the determination of the true interests of all parties in the property

through an action for nullity of the judgment of possession and had no

standing to do so. Id.

Wilson further refers to the Third Circuit’s decision in Succession of

Gunter, 05-1122 (La. App. 3 Cir. 3/1/06) 924 So. 2d 1214, writ denied, 06-

0621 (La. 5/26/06) 930 So. 2d 27. The plaintiffs who held an ownership

interest in certain tracts of land listed in the judgment of possession filed a

petition to annul the judgment. The court held that while the plaintiffs may

have an interest in property that is part of the succession proceedings, they

had no interest whatsoever in the succession itself.

Jan also refers to the holding in Guidry, supra, that a judgment of

possession is prima facie evidence of the right of the heirs in whose favor it

was rendered to take possession of the decedent’s estate, though it is not a

basis for a plea of res judicata or conclusive evidence against persons having

an adverse interest in or claim against the estate. She argues that she has a

“claim against the estate” based upon her right of survivorship claim to 100

percent ownership of the Colorado property, and the above reasoning

supports that she has standing for an action against the succession to contest

the ownership of the property.

Wilson asserts that both Guidry and Gunter illustrate that merely

having an interest in an asset of a succession is not enough to convey

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standing. He further notes that Jan does not distinguish either case other

than to point out that she was named as a defendant in reconvention, which

ignores that the exception of no right of action is peremptory in nature and is

not waived by the filing of a reconventional or any other demand.

La. C.C.P. art. 3062 provides:

The judgment of possession rendered in a succession proceeding
shall be prima facie evidence of the relationship to the deceased
of the parties recognized therein, as heir, legatee, surviving
spouse in community, or usufructuary, as the case may be, and
of their right to the possession of the estate of the deceased.

It is uncontested that Jan had none of the referenced relationships to the

decedent provided in the above statute, due to the premarital agreement.

Wilson urges that Jan lacks standing as a result of the lack of any such

relationship, which is bolstered by the distinction between an interest in the

succession versus an interest in merely an asset of the succession.

Jan argues that despite not having one of the relationships referred to

in La. C.C.P. art. 3062, she, nevertheless, has standing because she has a real

and actual interest in the action asserted due to the impingement of her

ownership interest in the Colorado property. La. C.C.P. art. 681 provides:

Except as otherwise provided by law, an action can be brought
only by a person having a real and actual interest which he
asserts.

Jan’s argument that La. C.C.P. art. 681 creates standing in the

succession action is misplaced. A party cannot bring an action, in general,

unless he has a real and actual interest; nevertheless, he is not entitled to

bring any action just because he may have a real and actual interest.

Standing is a concept utilized to determine if a party is sufficiently

affected so as to ensure that a justiciable controversy is presented to the

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court. Guidry, supra. Jan recognizes the concept in Guidry, supra, that a

judgment of possession is not a basis for a plea of res judicata or conclusive

evidence against persons having an adverse interest in or claim against the

estate. Quiett v. Moore’s Estate, 378 So. 2d 362 (La. 1979). However, her

claims fixate on the Colorado property’s inclusion in the judgment of

possession and appear to be based on the mistaken belief that a judgment of

possession is dispositive of ownership, such that she would have standing in

the succession. The record indicates that Jan is not barred from asserting an

ownership interest in an action separate and apart from the succession. She

even argues that Louisiana courts have no subject matter jurisdiction over

the Colorado property, yet she asks that the court determine ownership of the

property. Because Jan is able to bring a separate action to conclusively

determine ownership of the Colorado property, she is not sufficiently

affected by the inability to bring an action in the succession.

Further, there is no justiciable controversy as it relates to the

succession because she has no interest in the estate per La. C.C.P. art. 3062.

Jan’s claim is in the asset itself, not against the estate.

CONCLUSION

For the foregoing reasons, we AFFIRM the trial court’s judgment.

All costs of this proceeding are to be split equally between Plaintiff and

Defendants.

AFFIRMED.

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