Succession of Stanley Sam Hebert

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-1467

SUCCESSION OF STANLEY SAM HEBERT

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT, DIVISION E
PARISH OF LAFAYETTE, NO. P-930258
HONORABLE HERMAN C. CLAUSE, DISTRICT JUDGE

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JOHN E. CONERY
JUDGE

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Court composed of Sylvia R. Cooks, James T. Genovese, and John E. Conery,
Judges.

AFFIRMED.

Charles Benjamin Landry
Attorney at Law
1309 Lafayette Street
Lafayette, Louisiana 70501
(337) 232-9806
COUNSEL FOR APPELLANT:
Alfredia Breaux Demette

Charles K. Hutchens
Attorney at Law
1704 West University Avenue
Lafayette, Louisiana 70506
(337) 237-4102
COUNSEL FOR APPELLEE:
Rachel Mouton

CONERY, Judge.

Plaintiff, Alfredia Breaux Demette (Mrs. Demette), the surviving spouse of

her late husband, Stanley Sam Hebert (Mr. Hebert), filed a motion seeking to

reopen his succession. A Judgment of Possession had been rendered in the

succession on June 2, 1993. The pleading seeking relief was titled, “Motion to

Amend Judgment of Possession In Accordance With La. Code Of Civil Procedure

Articles 1951 And 3393 With Rule” (Motion). Mrs. Demette asked that her late

husband’s intestate succession be reopened in order to amend the detailed

descriptive list to include additional “debts” of the estate. The trial court denied

the Motion for oral reasons assigned, and signed a final judgment on August 13,

2012, from which Mrs. Demette now appeals. For the following reasons, we

affirm.

FACTS AND PROCEDURAL HISTORY

Mr. Hebert died intestate in Lafayette Parish on December 14, 1991. He

was married once to Alfredia May Breaux, now Mrs. Demette. Three children

were born of the marriage, Rachael Ann Hebert, Stanley Sam Hebert, Jr., and

Christina Ann Hebert (the heirs). At the time of Mr. Hebert’s death, Stanley, Jr.

and Christina were minors. Stanley reached the age of majority on July 19, 1992,

while Christina reached the age of majority on October 16, 1998.

On June 2, 1993, a petition for possession in the Succession of Stanley Sam

Hebert was filed in Lafayette Parish under probate docket number 93-0258. The

documents filed in conjunction with the Petition for Possession included an

“AFFIDAVIT ESTABLISHING JURISDICTION AND RELATIONSHIP,” and a

“DETAILED DESCRIPTIVE LIST OF PROPERTY[,] AND VERIFICATION OF

PETITION FOR POSSESSION” signed by Alfredia B. Hebert. A “JUDGMENT

OF POSSESSION” was signed on June 2, 1993, by the Honorable Durwood

Conque, along with the requisite “Louisiana Inheritance and Estate Transfer Tax

Return.” A listing of debts was included, reflecting Mrs. Demette’s one-half

liability of $6,872.52 for a loan from the Section 705 Credit Union for the purchase

of a truck, and $14,828.21 for a “Separate debt (one-half ½) of community funds

used for improvements on separate property of deceased.”

Mrs. Demette, on her own behalf and on behalf of the heirs, accepted the

succession purely, simply, and unconditionally. The Petition for Possession stated

in paragraph eight, “There is no necessity for an administration of the succession

of the deceased. It is relatively free from debt and petitioners accept the succession

unconditionally.”

The Judgment of Possession recognized Ms. Demette as the surviving

spouse in community with her deceased husband and owner of an undivided one-

half interest in the property belonging to the community. Pursuant to La.Civ.Code.

art. 890, she was also granted a usufruct for life or until remarriage over the

community property belonging to her deceased husband, Mr. Hebert. Mrs.

Demette married Mr. Henry Demette on June 14, 1993, just twelve days after the

Judgment of Possession was signed, thus dissolving her usufruct over Mr. Hebert’s

portion of the community property.

The children of the marriage, the heirs, were recognized as sole heirs and

owners in equal shares of Mr. Hebert’s separate property upon which the marital

domicile was located. In addition, they were recognized as the sole heirs and

owners in equal shares of one-half of all of the property belonging to the

community, subject to their mother’s usufruct, which dissolved upon Mrs.

Demette’s remarriage. Mrs. Demette and her current husband, Henry, have

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continued to reside rent free in the marital domicile to date. The heirs have never

claimed reimbursement from Mrs. Demette.

On January 17, 2012, prior to filing the instant case, Mrs. Demette and her

husband, Henry, filed a suit for monetary judgment (Civil Suit) against her

children, the heirs, entitled, “Alfredia Breaux Demette and Henry Demette v. Estate

of Stanley Sam Hebert, Rachel Ann Hebert Mouton, Stanley Sam Hebert, Jr. and

Christina Ann Hebert Ross,” under docket number 2012-0208, which suit was

assigned to Judge Marilyn Castle.

An exception of prescription to some of the claims asserted by the Demettes

was filed by all defendants in the Civil Suit. After a hearing held on April 2, 2012,

the trial court partially sustained the exception and found that any sums claimed

prior to January 17, 2012 were prescribed. The trial court also denied the

Demettes’ motion to consolidate the Civil Suit with the succession proceeding. No

writs were taken from that ruling, and the case remains pending before Judge

Castle.

In the interim, on March 7, 2012, some nineteen years after the succession

was accepted and closed, Mrs. Demette filed the Motion that is the subject of this

appeal in the original succession of Mr. Hebert, docket number 93-0258. In her

Motion, she sought to include additional debts, which were not part of the original

succession, and higher figures for the estate and administrative debts that were

included in the succession at the time of signing of the Judgment of Possession on

June 2, 1993.

A hearing on the Motion was held in the Succession Proceeding before the

Honorable Judge Herman Clause on July 23, 2012. The trial court denied the

Motion for oral reasons assigned, finding that neither La.Code Civ.P. art. 3393 or

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La.Code Civ.P. art. 1951 provided a basis to reopen the succession. Ms. Demette

filed a request for written reasons on July 26, 2012. The record does not contain

separate written reasons for judgment, but does contain a transcript of the hearing,

with oral reasons and a final judgment signed on August 13, 2012, designating its

ruling denying Mrs. Demette’s Motion as a final judgment, from which she now

appeals.1

ASSIGNMENTS OF ERROR

1. The trial Court abused its discretion in failing to reopen the
succession under administration.

2. The trial Court abused its discretion in failing to reopen the
succession to amend the judgment of possession to correct
errors in calculation and/or to amend the detailed descriptive
list.

3. The trial Court abused its discretion in not permitting the
consolidation of the current matters.

4. The trial Court abused its discretion in not providing written
reasons in accordance with La. Code of Civil Procedure Article
1917.

LAW AND ANALYSIS

The Louisiana Supreme Court, in Succession of Villarrubia, 95-2610, p. 6

(La. 9/5/96), 680 So.2d 1147, 1150, stated the standard of review applicable in a

request by a party to reopen a succession, “At the outset, it must be noted that

whether or not a succession will be reopened is within the sound discretion of the

trial court.” (citing Danos v. Waterford Oil Co., 225 So.2d 708, writ denied, 227

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It appears the pleadings may have been expanded during the July 23, 2012 hearing. The
record before this court on appeal does not contain a formal motion to consolidate. It contains
only a discussion between counsel and the trial court during the July 23, 2012 hearing. At that
hearing, the trial court’s ruling denied the Motion to consolidate for oral reason’s assigned, and
Mrs. Demette has assigned as error the trial court’s ruling on the issue. Since the parties have
briefed the issue on appeal, we will consider the issue as well.

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So.2d 595 (1969)). Therefore, we will review the trial court’s rulings under the

manifest error standard.

In order to clarify the procedural posture of this appeal we will first address

assignment of error four, the alleged failure of the trial court to render written

reasons pursuant to La.Code Civ.P. art. 1917.

Assignment of Error Four-Failure to Assign Written Reasons

Louisiana Code of Civil Procedure Article 1917(A) (emphasis added)

requires that written reasons for judgment shall be provided and states in pertinent

part:

In all appealable contested cases, other than those tried by a
jury, the court when requested to do so by a party shall give in writing
its findings of fact and reasons for judgment, provided the request is
made not later than ten days after the signing of the judgment.
If a trial court fails to act on a timely request for written reasons for

judgment pursuant to La.Code Civ.P. art. 1917, the proper remedy for the

aggrieved party is to apply for supervisory writs or file a motion for remand with

the appellate court in order to allow the trial court to comply with the request.

Rosella v. DeDe’s Wholesale Florist, 607 So.2d 1055 (La.App. 3 Cir. 1992);

Brocato v. Brocato, 369 So.2d 1083 (La.App. 1 Cir.), writ denied, 371 So.2d 1341

(La.1979).

In this case, Mrs. Demette did timely request written reasons but did not

apply for supervisory writs on the issue or seek a remand. Instead, she includes the

issue as an assignment of error on appeal. The failure of the trial court to issue

written reasons, as required by La.Code Civ.P. art. 1917, is not fatal to Ms.

Demette’s appeal. We find, as did the court in DeDe’s, that the record is sufficient

such that we can fully consider the issues on appeal without the trial court’s written

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reasons and, to do so, would not be prejudicial to Mrs. Demette.

Assignment of Error Three-Consolidation

The record further shows that the trial court denied Mrs. Demette’s “Motion

to Consolidate” the succession proceeding with the Civil Suit for monetary

damages presently pending in docket number 2012-0208. Mrs. Demette concedes

in her brief before this court that a motion to consolidate was not filed in the

succession proceeding, only in the Civil Suit. However, Mrs. Demette argues that

based on La.Code Civ.P. art. 1561, consolidation is proper, and it was an abuse of

the trial court’s discretion to deny consolidation. We disagree.

Louisiana Code of Civil Procedure Article 1561(A) provides, in pertinent

part:

When two or more separate actions are pending in the same
court, the section or division of the court in which the first filed action
is pending may order consolidation of the actions for trial after a
contradictory hearing, and upon a finding that common issues of fact
and law predominate, and, in the event a trial date has been set in a
subsequently filed action, upon a finding that consolidation is in the
interest of justice. The contradictory hearing may be waived upon the
certification by the mover that all parties in all cases to be
consolidated consent to the consolidation.

In its discussion on the record at the hearing, the trial court indicated that it

agreed with Judge Castle’s assessment that consolidation was “inappropriate” and

stated:

THE COURT: I agree with that. Consolidation is inappropriate. I’m
denying the consolidation. And as a result of the denial of the
consolidation, relative to any claims, she has begun considering them
and some she has knocked out, for whatever reason, and, apparently,
is leaving some claims, but those have been placed before Judge
Castle. And now they’re before Judge Castle, and they’re going to
stay before Judge Castle and not be part of this claim. I’ll say this, I
don’t think it should have been, but it –

MR. LANDRY: But the claims that --

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THE COURT: -- your client -- you chose to bring it before Judge
Castle as a separate matter rather than in the Succession proceeding.
And to do otherwise, would allow forum shopping, which is frowned
upon.

This court has stated, “A trial court has wide latitude with regard to the

consolidation of suits pending in the same court.” Bonnette v. Tunica-Biloxi

Indians, 02-019, p. 13 (La.App. 3 Cir. 5/28/03), 873 So.2d 1, 10 (quoting Ferguson

v. Sugar, 00-2528, p. 7 (La.App. 4 Cir. 12/19/01), 804 So.2d 844, 848).

Considering that the trial court’s power to consolidate is discretionary under

La.Code Civ.P. art. 1561, its decision is reviewed under an abuse of discretion

standard. Id. We find that the trial court did not abuse its vast discretion in

denying Mrs. Demette’s motion to consolidate. Assignment of error number three

is without merit.

Assignments of Errors One and Two

After determining the procedural posture of this case, this court is now free

to address the substantive issues appealed by Mrs. Demette, i.e. the denial of the

trial court to reopen the succession of her late husband in order to either place the

succession under administration or to reopen the succession to “amend the

judgment of possession to correct errors in calculation and/or to amend the detailed

descriptive list.”

Mrs. Demette first argues that the application of La.Code Civ.P. art. 3393

provides a basis that allows her to reopen the succession. Louisiana Code Civil

Procedure Article 3393(B) provides in applicable part:

After formal or informal acceptance by the heirs or legatees or
rendition of a judgment of possession by a court of competent
jurisdiction, if other property is discovered, or for any other proper
cause, upon the petition of any interested person, the court, without
notice or upon such notice as it may direct, may order that the

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succession be opened or reopened, as the case may be, regardless of
whether or not, theretofore, any succession proceedings had been filed
in court.

In Succession of Villarrubia, our supreme court stated, “The basic purpose

of LSA-C.C.P. art. 3393 is to provide a means for dealing with overlooked assets.”

Succession of Villarrubia, 680 So.2d at 1150. In the instant case, there is no claim

that any assets were omitted from the original judgment of possession. In

Villarrubia, the court further provided, as in this case, that if “no other estate

property has been discovered, the question before us is whether ‘other proper

cause’ exists to allow reopening of the succession.” Id.

The application of “other proper cause[,]” pursuant to La.Code Civ.P. art.

3393, has been applied by the courts “under extremely limited circumstances, such

as where a valid will is discovered after the administration of an intestate

succession.” Id (citing Succession of McLendon, 383 So.2d 55 (La.App. 2 Cir.

1980)).

This circuit, in Succession of Delegal, 01-1581 (La.App 3 Cir. 4/3/02), 813

So.2d 1202, reiterated the strict application of La.Code Civ.P. art. 3393, as

explained in both Estate of Sylvester, 93-731 (La.App. 3 Cir. 2/2/94), 631 So.2d

614, and Villarrubia, 680 So.2d at 1147, stating “successions are not reopened to

allow for collation, for the assertion of forced heirship rights, or for error of law.”

Delegal, 813 So.2d at 1204 (quoting Villarrubia, 680 So.2d at 1147, 1204).

In this case, in the trial court’s discussion with Mrs. Demette’s counsel, the

trial court clearly indicated that Mrs. Demette still remains in the marital domicile

and is seeking debts related to her occupancy. When counsel for Mrs. Demette

indicated this situation meant that the “estate has not been wound up in the sense

that she has not been reimbursed,” the trial court responded:

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THE COURT: Well, the Succession was closed by the Judgment of
Possession. And hasn't your client, in fact, accepted the Succession?

MR. LANDRY: My client is -- whatever was filed speaks for itself.

THE COURT: By the actions, I understand that she continued to
reside in the -- what was the family home, which was community
property subject to the usufruct.

MR. LANDRY: Right.

THE COURT: And, actually, the usufruct was recognized in that
Succession, and she has exercised rights pursuant to that Succession,
and then now, she’s wanting to challenge that Succession.

MR. LANDRY: Well, the usufruct discontinued when she remarried,
which was --

THE COURT: Yes, but she enjoyed the benefits for a period of time.
And, generally, when you accept the benefits of the Succession, you
accept the Succession.

Mrs. Demette’s counsel argued that not to reopen the succession to correct

errors in calculations by appointing an administrator to properly calculate debts

owed to Mrs. Demette would be unfair to her. However, La.Code Civ.P. art.

3393(C) (emphasis added) provides:

The reopening of a succession shall in no way adversely affect
or cause loss to any bank, savings and loan association or other person,
firm or corporation, who has in good faith acted in accordance with
any order or judgment of a court of competent jurisdiction in any
previous succession proceedings.

As argued by counsel for the heirs, the reopening of the succession would

have an adverse effect on their rights under the succession, considering their

position as owners of the land and owners of one-half of the marital domicile, a

home enjoyed by Mr. and Mrs. Demette rent free for the past nineteen years.

In denying the reopening of the succession, the trial court found, “Basically,

let me say this, the Court finds that pursuant to Article 3393, that there’s no other

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property discovered and as a failure to show proper cause why the Succession

should be reopened, and, therefore, I’ll deny the reopening of the Succession.” [sic]

Again, we find that the trial court did not abuse its vast discretion. We

affirm the trial court’s ruling that Mrs. Demette failed to carry her heavy burden to

prove that La.Code Civ.P. art. 3339 and the jurisprudence interpreting its

provisions, provide a basis to reopen the succession of her late husband, Mr.

Hebert. This court further finds, as did the trial court, that Ms. Demette’s remedy

for the collection of any debts involving the marital domicile are still pending

before Judge Castle in the Civil Suit, and thus, she is not without recourse under

the law.

Mrs. Demette also argued in her Motion that La.Code Civ.P. art. 1951 also

provided a vehicle for the reopening of the succession in order to correct “an

apparent error in calculating the correct estate debts.” Louisiana Code Civil

Procedure Article 19512 provides:

A final judgment may be amended by the trial court at any time,
with or without notice, on its own motion or on motion of any party:

(1) To alter the phraseology of the judgment, but not
the substance; or

(2) To correct errors of calculation.

However, under the jurisprudence interpreting La.Code Civ.P. art. 1951, we

find, as did the trial court, that the changes requested by Mrs. Demette in the

succession documents which form the basis for the Judgment of Possession are

substantive in nature. To allow such corrections would adversely affect the rights

of the heirs to the succession and not merely “correct errors of calculation.” Saacks

2
Louisiana Code of Civil Procedure Article 1951 was amended, effective August 1, 2013,
subsequent to the judgment and amended judgment at issue.

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v. Mohawk Carpet Corp., 03-386, p.19 (La.App. 4 Cir. 8/20/03), 855 So.2d 359,

372, writs denied, 03-2632 (La. 12/12/03), 860 So.2d 1158. (citing Teague v.

Barnes, 519 So.2d 817 (La.App. 5 Cir. 1988)). This assignment of error likewise

has no merit.

DISPOSITION

For the foregoing reasons, we affirm, in its entirety, the trial court’s Final

Judgment denying the “Motion to Amend Judgment of Possession In Accordance

With La. Code Of Civil Procedure Articles 1951 And 3393 With Rule.” Costs of

this appeal are assessed to Alfredia Breaux Demette.

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform
Rules—Courts of Appeal. Rule 2–16.3.

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