Succession of Ja Kun Kang Crumbley

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

06-402

SUCCESSION

OF

JA KUN KANG CRUMBLEY

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, DOCKET NO. 32,288 – “G”
HONORABLE HARRY FRED RANDOW, DISTRICT JUDGE

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JAMES T. GENOVESE
JUDGE

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Court composed of John D. Saunders, Elizabeth A. Pickett, and James T. Genovese,
Judges.
AFFIRMED.

W. Alan Pesnell
Post Office Box 1794
Shreveport, Louisiana 71166-1794
(318) 226-5577
COUNSEL FOR EXECUTOR/APPELLANT:
Kenneth W. Crumbley, Jr. (Executor)

Perrell Fuselier
Post Office Box 652
Oakdale, Louisiana 71463
(318) 335-2951
COUNSEL FOR APPELLEE:
Kenneth W. Crumbley, Sr.

GENOVESE, Judge.

Kenneth W. Crumbley, Jr., as Executor of the Succession of Ja Kun Kang

Crumbley, appeals the judgment of the trial court annulling the judgment of

possession in favor of Kenneth W. Crumbley, Jr., John Thomas Crumbley, and Toya

Johnette Crumbley Creighton, the only children of Ja Kun Kang Crumbley. For the

following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Decedent, Ja Kun Kang Crumbley, a resident and domiciliary of Alexandria,

Rapides Parish, Louisiana, died testate in Dallas, Texas, on October 30, 1999. She

was survived by her husband, Kenneth W. Crumbley, Sr., and three children, Kenneth

W. Crumbley, Jr., John Thomas Crumbley, and Toya Johnette Crumbley Creighton.

Decedent executed a last will and testament on September 23, 1999. In her

will, decedent designated her son, Kenneth W. Crumbley, Jr., as executor of her estate

and bequeathed her entire estate to her three children in equal shares.

In June of 2000, Kenneth W. Crumbley, Jr. (Executor) filed a petition for

probate of his mother’s will and to have himself confirmed as executor of the estate.

Said petition contained a certificate attesting that copies of the aforementioned

pleadings were mailed to counsel for Kenneth W. Crumbley, Sr. Inventories of

decedent’s assets were then performed with the knowledge and participation of either

Kenneth W. Crumbley, Sr. or his counsel. At these inventories, Kenneth W.

Crumbley, Sr. asserts that he declared to counsel for the Executor that certain items

were, in fact, his separate property.

On December 18, 2001, the Executor filed a petition for possession and for

homologation of first and final tableau of distribution. A judgment of possession was

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signed by the trial court on January 9, 2002, recognizing the decedent’s three children

as the sole legatees of their mother’s estate.

On February 20, 2002, Kenneth W. Crumbley, Sr. filed a petition to annul

judgment seeking to set aside the judgment of possession signed on January 9, 2002,

alleging that “the [j]udgment . . . was obtained by ill practice, due to an apparent

oversight by the attorney for the heirs.” Kenneth W. Crumbley, Sr. avers that neither

he nor his attorney received copies of the detailed descriptive list of assets and other

documents which were filed and upon which the judgment of possession was

rendered. Kenneth W. Crumbley, Sr. further asserts that his separate funds were

incorporated into the community of acquets and gains.

Following a hearing on July 15, 2002, the trial court took the matter under

advisement and, on November 18, 2002, granted judgment in his favor stating:

KENNETH W. CRUMBLEY, SR., was not properly served with process
as required by the Code of Civil Procedure; therefore, the Judgment of
Possession rendered on the 9th day of January 2002, is hereby declared
a nullity and the Petition to Annul the Judgment of Possession filed on
behalf of KENNETH W. CRUMBLEY, SR., is granted.

The Executor appeals.

ISSUE

The Executor asserts that the trial court erred in declaring the January 9, 2002

judgment of possession a nullity pursuant to La.Code Civ.P. art. 2004.

LAW AND DISCUSSION

Louisiana Code of Civil Procedure article 2004 provides, in pertinent part, that

“[a] final judgment obtained by fraud or ill practices may be annulled” if the “action

to annul . . . [is] brought within one year of the discovery by the plaintiff in the nullity

action of the fraud or ill practices.”

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The Executor argues on appeal that since Kenneth W. Crumbley, Sr. did not

follow the procedural requirements set forth in La.Code Civ.P. art. 33051, the failure

to send notice could not be deemed an “ill practice” warranting nullification of the

judgment of possession. The Executor contends that both Kenneth W. Crumbley, Sr.

and his attorney were aware of the proceedings and even participated in the

inventories of decedent’s assets; therefore, Kenneth W. Crumbley, Sr. had the duty

to request notice in accordance with La.Code Civ.P. art. 3305. The Executor further

asserts that since no notice was requested by Kenneth W. Crumbley, Sr. that he is

bound by the tableau of distribution and judgment of possession because he is, by his

omission, subject to the same form of notice to which any other person interested in

the succession is subjected, i.e., notice by publication.

Kenneth W. Crumbley, Sr. contends that he has been deprived of possession

of his separate property; therefore, the lack of notice constitutes an ill practice

justifying nullification of the judgment of possession pursuant to La.Code Civ.P. art.

2004. Kenneth W. Crumbley, Sr. further asserts that the trial court was correct in

annulling the judgment of possession rendered in this succession proceeding because

the Executor knew of his interest in decedent’s estate and knew he was represented

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Louisiana Code of Civil Procedure Article 3305. Petition for notice of filing of tableau
of distribution.

An interested person may petition the court for notice of the filing of a tableau of distribution.

The petition for such notice shall be signed by the petitioner or by his attorney, and shall set
forth: (1) the name, surname, and address of the petitioner; (2) a statement of the interest of
petitioner; (3) the name, surname, and office address of the attorney at law licensed to practice law
in this state to whom the notice prayed for shall be mailed; and (4) a prayer that petitioner be
notified, through his attorney, of the filing of the tableau of distribution.

A copy of this petition shall be served upon the succession representative, as provided in
Article 1314.

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by counsel; yet, neither he nor his counsel received notice of the filing of the detailed

descriptive list of assets and the petition for possession from the Executor until after

the judgment of possession was signed by the trial court and funds were distributed.

In the alternative, the Executor argues that all of the statutory notice

requirements have been met; therefore, annulment was not proper. In support of his

contention, the Executor argues that the alleged separate property of Kenneth W.

Crumbley, Sr. contained in the judgment of possession is considered a debt against

decedent’s estate; therefore, the only manner in which the Executor was bound to

give Kenneth W. Crumbly, Sr. notice of their filing of the tableau of distribution with

the court is through publication mandated by La.Code Civ.P. art. 33042. The record

of these proceedings contains an affidavit verifying that the Executor followed the

procedural rule enunciated in Article 3304 by publishing a notice of the application

to pay succession debts and charges in the official Rapides Parish newspaper on

December 28, 2001. Therefore, the Executor contends that notice was given to

Kenneth W. Crumbley, Sr. via publication of the tableau of distribution on December

28, 2001.

Conversely, Kenneth W. Crumbley, Sr. cites the mandate set forth in La.Code

Civ.P.art. 3306. His contention is that the Executor’s failure to send him notice of the

detailed descriptive list of assets prior to the filing of the petition for possession and

for homologation of first and final tableau of distribution amounts to an “ill practice”

and is justification for a nullification of the judgment of possession signed by the trial

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Louisiana Code of Civil Procedure Article 3304. Notice of filing of petition;
publication.

Notice of the filing of a petition for authority to pay an estate debt shall be published once
in the parish where the succession proceeding is pending in the manner provided by law. The notice
shall state that the petition can be homologated after the expiration of seven days from the date of
publication and that any opposition to the petition must be filed prior to homologation.

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court on January 9, 2002. Louisiana Code of Civil Procedure Article 3306 (emphasis

added) provides:

When notice has been requested in accordance with Article 3305,
the succession representative, without the necessity for a court order
thereon, shall send a notice of the filing of a tableau of distribution by
mail to the attorney designated by the person praying for notice at the
address designated. Proof of mailing is sufficient; no proof of receipt
is required.
If no notice of the filing of a tableau of distribution has been
mailed when required under this article, a judgment homologating the
tableau of distribution shall have no effect against the person praying
for such notice.

Kenneth W. Crumbley, Sr. argues that the Executor knew of his interest in

decedent’s estate and was required under La.Code Civ.P. art. 3306 to provide him

with notice. Kenneth W. Crumbley, Sr. further asserts that the Executor’s actions, or

lack thereof, equate to an “ill practice” because he relied upon the Executor’s

knowledge of his interest in decedent’s estate, which resulted in the deprivation of his

legal rights, and that enforcement of the judgment of possession would be

unconscionable and inequitable.

This court in Succession of Blackwell, 98-50 (La.App. 3 Cir. 5/6/98), 713 So.2d

625, writ denied, 98-1983 (La. 10/30/98), 727 So.2d 1169, affirmed a nullification

of a judgment of possession where the parties had not filed formal pleadings with

each other, but rather had communicated informally. Citing La.Code Civ.P. art. 2004,

this court reasoned:

The courts have recognized that this provision is not limited to actual
fraud or wrong doing. Schoen v. Burns, 321 So.2d 908 (La.App. 1
Cir.1975). The court is also directed to look to equitable considerations.
There is actionable fraud or ill practice when (1) the circumstances
illustrate a deprivation of the legal rights of the litigant seeking relief,
and (2) enforcement of the judgment would be unconscionable and
inequitable. Douglas v. Louisiana Gin Co., Inc., 95-1637 (La.App. 3
Cir. 6/5/96); 688 So.2d 1058.

Id. at 628.

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The supreme court in Kem Search, Inc. v. Sheffield, 434 So.2d 1067, 1070

(La.1983)(emphasis added), interpreted La.Code Civ.P. art. 2004 to:

encompass all situations wherein a judgment is rendered through some
improper practice or procedure which operates, even innocently, to
deprive the party cast in judgment of some legal right, and where the
enforcement of the judgment would be unconscionable and inequitable.
Chauvin v. Nelkin Ins. Agency, Inc. 345 So.2d 132 (La.App. 1st
Cir.1977), writ denied, 347 So.2d 256 (La.1977); Schoen v. Burns, 321
So.2d 908 (La.App. 1st Cir.1975); St. Mary v. St. Mary, 175 So.2d 893
(La.App. 3d Cir.1965); Tapp v. Guaranty Finance Co., 158 So.2d 228
(La.App. 1st Cir.1963), writ denied, 245 La. 640, 160 So.2d 228 (1964).

We find that Kenneth W. Crumbley, Sr.’s claim of ill practices is supported by

the record of these proceedings. The Executor was aware that Kenneth W. Crumbley,

Sr. was an interested party and was represented by counsel. The Executor was

likewise aware that Kenneth W. Crumbley, Sr. disputed the descriptive list of assets

and claimed that certain accounts and investments were his separate property. The

record does not contain evidence of sufficient notice to Kenneth W. Crumbley, Sr. of

the filing of the petition for possession for homologation of first and final tableau of

distribution prior to obtaining the judgment of possession in this matter. Therefore,

we find that the record supports the trial court’s judgment declaring the January 9,

2002 judgment of possession a nullity pursuant to La.Code Civ.P. art. 2004.

DECREE

For the above stated reasons, we affirm the judgment of the trial court. The

costs of this appeal are assessed to the Succession of Ja Kun Kang Crumbley through

its Executor, Kenneth W. Crumbley, Jr.

AFFIRMED.

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