Gilbert Mayo v. James Paul Doherty Jr.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

06-1187

GILBERT MAYO, ET AL.

VERSUS

JAMES P. DOHERTY, JR., ET AL.

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APPEAL FROM THE
TWENTY-SEVENTH JUDICIAL DISTRICT COURT
PARISH OF ST. LANDRY, NO. 03-C-2554-B
HONORABLE ELLIS J. DAIGLE, DISTRICT JUDGE

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OSWALD A. DECUIR
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, and Oswald A. Decuir
and Michael G. Sullivan, Judges.

AFFIRMED.

Alex L. Andrus III
Guglielmo, Lopez, Tuttle, Hunter & Jarrell, L.L.P.
P. O. Drawer 1329
Opelousas, LA 70571-1329
(337) 948-8201
Counsel for Defendant/Appellee:
James Paul Doherty, Jr.

Bruce A. Gaudin
Attorney at Law
100 W. Bellevue Street
Opelousas, LA 70570
(337) 948-3818
Counsel for Defendant/Appellee:
Successions of Edward Milburn
and Virginia Hunt Milburn

Aaron Harris
Harris and Harris
1015 N. Main Street
Opelousas, LA 70570
(337) 942-6788
Counsel for Defendants/Appellees:
Sandra S. Milburn
Charles W. Milburn

J. Arthur Smith III
Attorney at Law
830 North Street
Baton Rouge, LA 70802
(225) 383-7716
Counsel for Plaintiffs/Appellants:
Bertha Mayo Murphy
Emmaline Mayo Winford
Dennis Mayo
Belinda Potts
Donald Mayo
Laura Mayo
Carrie Mayo White Jones
Leitha Mayo Washington
Gilbert Mayo

DECUIR, Judge.

The plaintiffs appeal the dismissal of their petition to annul the sale of

immovable property after the defendants’ peremptory exception of no cause of action

was maintained. For the following reasons, we affirm.

The plaintiffs, Gilbert Mayo and eight others, are heirs of Edward and Virginia

Milburn. The defendants are the administrator of the Milburns’ succession and two

co-heirs who purchased the property at issue herein. The plaintiffs’ petition alleges

that the Milburns have been deceased more than fifty years and their children are also

now deceased; the petition further alleges that all of the descendants of the Milburns

and their children are heirs to their succession. The defendants estimate the number

of heirs at over one hundred.

During the ongoing administration of the Succession of Edward Milburn and

Virginia Hunt Milburn, the Administrator, James P. Doherty, Jr., petitioned the court

for approval to sell a certain piece of immovable property to two co-heirs, Charles

and Sandra Milburn. The plaintiffs refer to an act of sale dated August 25, 2000,

evidencing the sale of the property for $32,000.00. The plaintiffs contend that

because they did not receive actual notice of the impending sale, their due process

rights were violated and the sale must be annulled. The plaintiffs’ petition was filed

nearly three years after the sale took place.

In response to the petition, the defendants filed three peremptory exceptions.

The defendants first except to the non-joinder of indispensable parties. They argue

that when an attempt is made to set aside the sale of land by a succession

representative, all of the heirs of the decedent are indispensable parties because they

all have an interest in the outcome of the case. The defendants next assert that the

plaintiffs’ petition fails to state a cause of action, as the pertinent articles of the Code

of Civil Procedure, Articles 3281 and 3282, do not require actual notice for the

private sale of succession property. Finally, the defendants reference the plaintiffs’

failure to notify the attorney general of their petition, in which the unconstitutionality

of Article 3282 is alleged, in accordance with La.Code Civ.P. art. 1880.

The trial court maintained the exception of no cause of action and granted the

plaintiffs fifteen days to amend their petition to state a cause of action. The

remaining exceptions were dismissed as moot. When the plaintiffs failed to amend

their petition as instructed, the suit was dismissed with prejudice and this appeal

followed.

The plaintiffs argue due process requires that they, as heirs, receive actual

notice of the sale of succession property. In support of this contention, the plaintiffs

rely on Mennonite Board of Missions v. Adams, 462 U.S. 791, 800, 103 S.Ct. 2706,

2712 (1983), which held: “Notice by mail or other means as certain to ensure actual

notice is a minimum constitutional precondition to a proceeding which will adversely

affect the liberty or property interest of any party, whether unlettered or well versed

in commercial practice, if its name and address are reasonably ascertainable.” The

plaintiffs also cite the recent case of Lewis v. Succession of Johnson, 05-1192, p.15

(La. 4/4/06), 925 So.2d 1172, 1181, which explained that “each co-owner is entitled

to individual written notice of delinquent taxes because alienation by tax sale of

immovable property, owned in indivision, without notice to each co-owner deprives

the owners of due process.”

The cases cited by the plaintiffs involve tax sales and the resulting loss of

property. This is not such a case. What distinguishes this dispute from the cases

cited by the plaintiffs is the simple fact that the private sale of succession property to

Charles and Sandra Milburn did not adversely affect or in any way alienate the

property interests of the plaintiffs. Their interest in the subject property was simply

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converted to cash, i.e., a portion of the $32,000.00 sale price. The defendants observe

that the administrator acted under court supervision at the time he sold the property

in question and that he was subject to a court order setting the minimum price for the

sale. Accordingly, the plaintiffs’ interest, indeed the interest of all the heirs, was

protected, as the administrator worked to manage the property of the succession in

accordance with all legal requirements.

The plaintiffs do not allege that the administrator failed to comply with the

requirements for a private sale. They do not allege that a petition was not properly

filed which set forth the proposed price, conditions, and reasons for the sale, in

accordance with La.Code Civ.P. art. 3281. Nor do the plaintiffs assert that

publication of notice of the petition for private sale was not carried out in accordance

with La.Code Civ.P. art. 3282. What the plaintiffs do allege is that they have been

deprived of their property without due process. To the contrary, the facts asserted in

the petition defy this characterization and state no cause of action on which relief can

be granted. The plaintiffs have not alleged that they have been deprived of their

property. Consequently, the dismissal of the petition must be affirmed.

The judgment of the trial court is affirmed. Costs of this appeal are assessed

to the plaintiffs.

AFFIRMED.

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