Succession of Sandra Jean Deal

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

13-200

SUCCESSION OF SANDRA JEAN DEAL

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, NO. 21170
HONORABLE JAMES R. MCCLELLAND, DISTRICT JUDGE

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PHYLLIS M. KEATY
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks,
Marc T. Amy, J. David Painter, and Phyllis M. Keaty, Judges.

Amy, J., dissents and assigns reasons.

REVERSED.

Lewis H. Pitman, Jr.
Pitman Broussard
209 West Main Street
New Iberia, Louisiana 70560
(337) 365-3800
Counsel for Appellee:
Succession of Sandra Jean Deal

Frank E. Barber
Attorney at Law
116 Field Street
New Iberia, Louisiana 70560-4487
(337) 256-8370
Counsel for Appellant:
Carolyn Deal

KEATY, Judge.

Carolyn D. Deal (Carolyn) appeals from a judgment of eviction. For the

following reasons, we reverse.

FACTS AND PROCEDURAL HISTORY

Carolyn is a surviving half-sibling of Sandra Jean Deal (Sandra or the

Decedent), who died intestate on February 13, 2011. The Decedent was also

survived by her parents, Clarence Davis and Anna Belle Deal (Anna); however,

she was never married, and she had no descendants.1

On April 7, 2011, Anna was confirmed as administratrix of the Succession

of Sandra Jean Deal (the Succession). In that capacity, Anna filed a detailed

descriptive list in September of 2011. Among the assets listed was the immovable

property located at 2104 Cherry Palm Circle in New Iberia, Louisiana (the home),

upon which sat the home where Sandra resided at the time of her death. Anna also

filed a petition for authority to execute a real estate listing agreement for the home

wherein she alleged that it was necessary to sell the home in order to pay the debts

and expenses of the Succession. The trial court signed an order on September 26,

2011, authorizing Anna to execute the listing agreement. Thereafter, Carolyn filed

a motion for new trial/reconsideration of the September 26, 2011 order along with

an opposition to the descriptive list. The trial court signed an order setting a rule to

show cause on Carolyn’s motion. According to the court minutes dated

October 21, 2011, when the matter came for hearing, however, the trial court

granted the motion for new trial and postponed trial on the merits to be refixed by

later motion.

1
In addition to Carolyn, the Decedent was survived by half-siblings Lavernne Raby and
Todd Davis.

On April 4, 2012, Anna, in her capacity as Succession administratrix, filed a

rule to evict Carolyn from the home. She alleged therein that Carolyn had refused

to vacate and surrender the premises despite having been provided with a letter

dated September 15, 2011, terminating her continued occupancy of the home and

ordering her to surrender its possession by September 30, 2011. The letter also

indicated that her failure to vacate would result in the filing of an eviction

proceeding against her. Anna also alleged that the Succession lacked sufficient

funds necessitating sale of the home. The rule for eviction was set for April 16,

2012. Three days before the scheduled hearing, Carolyn filed an answer to the rule

for eviction in which she denied the facts alleged therein. At the start of the

eviction hearing, Carolyn’s counsel filed a petition to disqualify and remove Anna

as the administrator of the Succession as well as a reconventional demand wherein

she challenged Anna’s authority and ability to represent the fiduciary interests of

the heirs of the Succession. Following the conclusion of the hearing, the trial court

granted the rule for eviction in open court.2 Later that day, Carolyn filed, and the

trial court granted, a motion for suspensive appeal from the judgment of eviction.

The written judgment of eviction was not signed until February 11, 2013.

Carolyn assigns two errors on appeal. First, she asserts that the trial court

erred in finding that the Succession was the owner of the home and that the

administratrix had authority to evict her. Second, she asserts that the judgment of

eviction was prematurely rendered because of the pendency of three outstanding

motions.

2
No transcript was made of the eviction hearing.

2

DISCUSSION

[Louisiana Code of Civil Procedure Article] 3191 . . . provides, in
part, that a succession representative is “a fiduciary with respect to the
succession” and “shall have the duty of collecting, preserving, and
managing the property of the succession in accordance with law.”
(Emphasis added.) Further, the succession representative “shall act at
all times as a prudent administrator, and shall be personally
responsible for all damages resulting from his failure so to act.” LSA-
C.C.P. art. 3191. Since “the succession” is “the transmission of the
estate of the deceased to his successors,” as defined in LSA-C.C. art.
871, then, logically, it follows that part of the succession
representative’s fiduciary duty is to transmit property contained in the
deceased’s estate to his heirs. (Emphasis added.)

Matthews v. Horrell, 06-1973, p. 18 (La.App. 1 Cir. 11/7/07), 977 So.2d 62, 75

(footnote omitted).

In Coon v. Miller, 175 So.2d 385 (La.App. 2 Cir. 1965), the second circuit

set aside and reversed a judgment ordering the defendant, surviving spouse of the

decedent, to vacate the family home in which she had been living prior to

decedent’s death, in conjunction with an action for eviction filed by the

administrator of the decedent’s succession. Prior to filing the eviction, the

administrator obtained a default judgment against the defendant in the amount of

$1,920 for rent of the home accruing since the decedent’s death. After noting that

defendant, “as surviving widow in community with the deceased,” was the owner

of an undivided one-half interest in the home, the court concluded that “a co-owner

cannot be divested of possession by an action of eviction.” Id. at 386-87. The

court reiterated that “the rights of co-owners to possession of property [are] equal

and coextensive,” and that “[a] co-owner deprived of the possession and benefit of

property has a remedy by a suit for partition.” Id. (citing Juneau v. Laborde, 82

3

So.2d 693 (La.1955);3 Moreira v. Schwan, 37 So. 542 (La.1904); and Arcemont v.

Arcemont, 162 So.2d 813 (La.App. 4 Cir. 1964)). Upon the administrator’s

application for certiorari or writ of review in Coon, the supreme court refused the

writ, stating: “On the facts found by the Court of Appeal the result is correct.”

Coon v. Miller, 176 So.2d 145 (La.1965).4

More recently, in Matthews, the provisional administratrix of the succession

of Edward Horrell, Sr. (the succession) filed a rule to evict against Walter Horrell

and his wife, Edna, (collectively referred to as Walter) alleging that they were

occupying a house in Covington, Louisiana (the property) that was owned by the

succession.5 Walter was one of five of Edward Horrell’s (the decedent’s) adult

children. According to a detailed descriptive list filed shortly after decedent’s

death, he died owning certain separate immovable properties, including the

property located in Covington. Walter, who happens to be an attorney, responded

to the rule to evict by filing exceptions and an answer, wherein he denied that he

was an occupant of the property, instead asserting that he was a legal possessor

with an ownership interest in the property. He asserted that because he had a real

right in the property “that could only be resolved through an ordinary proceeding

and not a summary . . . proceeding such as the action for eviction.” Id. at 71.

3
In Juneau, the supreme court recognized the “the co-owner who takes possession of the
common property does not have to account to his coproprietor, because the right of occupancy is
vested in him by virtue of his ownership.” Juneau, 82 So.2d at 696.
4
To the extent our holding in Simpson v. Colvin, 138 So.2d 438 (La.App. 3 Cir. 1962)
conflicts with the law as later espoused by the Louisiana Supreme Court in Coon, 176 So.2d 145,
it is overruled.
5
The succession has been the subject of protracted litigation since Edward Horrell’s
death in 1993. This appeal will only discuss those facts relevant to the issues presented in this
appeal. See In re Succession of Horrell, 11-194, 11-195 (La.App. 4 Cir. 11/30/11), 79 So.3d
1162; In re Succession of Horrell, 07-1533 (La.App. 4 Cir. 10/1/08), 993 So.2d 354; Matthews v.
Horrell, 06-1973 (La.App. 1 Cir. 11/7/07), 977 So.2d 62; Succession of Horrell, 97-2115
(La.App. 4 Cir. 3/25/98), 709 So.2d 1069; and Succession of Horrell, 95-1598, 95-1599 (La.App.
4 Cir. 9/11/96), 680 So.2d 725, for a more extensive discussion of the facts of that litigation.

4

Walter also contended that the rule for eviction was premature. Following a

hearing, the trial court granted the rule and signed a judgment of eviction.

According to the oral reasons for judgment, the trial court determined that good

cause to evict Walter existed because of his failure to cooperate in the appraisal of

the property and the movable property thereon, coupled with the “extremely

protractive nature” of the litigation. Id.

Walter appealed, and the first circuit reversed, holding that because the

provisional administratrix failed to prove that the purpose of Walter’s occupancy

of the property as an owner thereof had ceased, he was not subject to being evicted.

In so doing, the court found that the provisional administratrix was mistaken in her

claim that the succession owned the property. Matthews, 977 So.2d 62. To the

contrary, the court reasoned that, despite “the succession representative’s fiduciary

duty is to transmit property contained in the deceased’s estate to his heirs,” the

succession representative in that case “seeks to do the opposite; i.e., to divest

succession property from the decedent’s heir who has a one-fifth ownership

interest therein.” Id. at 75. Relying on Coon, the court affirmed the notion that “a

co-owner cannot be divested of possession by an action of eviction.” Id. at 76

(quoting Coon, 175 So.2d at 387). Finally, the Matthews court concluded that the

Louisiana Code of Civil Procedure dictated that “questions regarding the

ownership of immovable property or the right to possession of immovable property

were not intended by the legislature to be litigated in eviction proceedings.”

Matthews, 977 So.2d at 77. As a result, the first circuit reversed the judgment

ordering Walter’s eviction and remanded the matter to the trial court with

instructions that the suit be dismissed.

5

In the instant case, the administratrix concedes that Carolyn is a naked

owner of the home. Because Carolyn possesses the home as an owner, we

conclude that the trial court erred in granting the administratrix’s motion to evict

her in a summary proceeding because she has a real right in the property that must

be challenged via an ordinary proceeding. Accordingly, the judgment of eviction

is reversed, and we need not address Carolyn’s claim that the eviction was

rendered prematurely.

DECREE

For the forgoing reasons, the judgment of the trial court ordering that

Carolyn Deal be evicted from the immovable property located at 2104 Cherry

Palm Circle in New Iberia, Louisiana is reversed. All costs of this proceeding are

assessed against the Succession administratrix personally. See La.Code Civ.P. art.

3191.

REVERSED.

6

NUMBER 13-200
COURT OF APPEAL, THIRD CIRCUIT
STATE OF LOUISIANA

SUCCESSION OF SANDRA JEAN DEAL

AMY, J., dissenting.
I respectfully disagree that a reversal is required in this case. Rather, I find

the jurisprudence on this point fact specific and dependent upon circumstances not

present here. In my opinion, this matter must be resolved by application of

La.Civ.Code art. 938(B), which states that: “If a successor exercises his rights of

ownership after the qualification of a succession representative, the effect of that

exercise is subordinate to the administration of the estate.” The record indicates

that the administratrix in this case demonstrated to the trial court’s satisfaction that

the liabilities of the succession exceeded its assets. Thus, it seems to me that a

motion for eviction, within the confines of the succession, was within the

administratrix’s authority.

Accordingly, I would affirm the trial court’s ruling.