Succession of Charley A. Cheney, Sr.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

13-1455

SUCCESSION OF

CHARLEY A. CHENEY, SR.

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 40,187
HONORABLE JOHN C. DAVIDSON, DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, James T. Genovese,
and John E. Conery, Judges.

Conery, J., concurs in the result and assigns reasons.

REVERSED AND VACATED.
REMANDED WITH INSTRUCTIONS.

Edward Larvadain, Jr.
Edward Larvadain, Jr. Law Office
626 Eighth Street
Alexandria, LA 71301
Telephone: (318) 445-6717
COUNSEL FOR:
Appellants - Wanda Cheney and Patsy Cheney Washington

Harry Brenner Sadler
Provosty, Sadler, deLaunay, Fiorenza & Sobel
P. O. Box 1791
Alexandria, LA 71309-1791
Telephone: (318) 445-3531
COUNSEL FOR:
Appellee - Charley A. Cheney, III

THIBODEAUX, Chief Judge.

In this succession proceeding, the decedent, Charley A. Cheney, Sr.,

died intestate and was survived by two children and three grandchildren. One of

the decedent’s grandchildren, Charley A. Cheney, III, filed a petition to be named

the provisional administrator of the estate and subsequently petitioned to

consolidate estate funds and manage the decedent’s business. Wanda Cheney and

Patsy Cheney Washington, the surviving children of the decedent, filed an

opposition to Cheney, III’s petition, seeking to remove Cheney, III as provisional

administrator and have Wanda appointed administratrix of the decedent’s estate.

The trial court, after reasoning that neither Cheney, III nor Wanda had acted

appropriately in opening the succession and managing the estate, ordered that

neither party should serve as administrator and that both parties should submit a

name to the court from which the court would select an administrator. Considering

the administrator appointment claim was not raised properly before the trial court,

we reverse and vacate the trial court’s judgment and remand the case with

instructions.

I.

ISSUE

We shall consider whether the trial court erred by refusing to appoint

either Charley Cheney, III or Wanda Cheney as the administrator to the succession,

and instead, electing to appoint an administrator from the best qualified nominee of

the two heirs.

II.

FACTS AND PROCEDURAL HISTORY

The decedent, Charley A. Cheney, Sr., died intestate on December 8,

2011. His wife predeceased him, and he had five children:

(1) Charley A. Cheney, Jr., who predeceased the decedent leaving
three surviving children, Charley A. Cheney, III, Charlene N.
Cheney, and Catherine D. Cheney;

(2) Wanda Y. Cheney;

(3) Patsy A. Cheney Washington;

(4) Calvin Cheney, who predeceased the decedent leaving no heirs;
and

(5) Ida B. Cheney, who died leaving no heirs.

After the decedent’s death, despite receiving consultation from an

attorney regarding the proper procedure for opening the succession, neither Wanda

nor Patsy ever filed a petition to be appointed administratrix and continued to

manage the business without any formal accounting of estate assets.

Frustrated by Wanda’s failure to open the succession for nearly a year,

Cheney, III filed a petition to be provisional administrator, to which he was

subsequently appointed. However, as a non-resident of Louisiana, he did not

appoint a resident agent for service of process until February 23, 2013, which was

well after the date of his appointment on November 29, 2012.

As the provisional administrator, Cheney, III filed a petition to

consolidate the estate funds into an estate checking account. He also filed a

petition to continue business and collect rental incomes of the decedent. In

response, Wanda and Patsy filed an opposition to Cheney, III’s petition to continue

the business. In their opposition, they sought the removal of Cheney, III as

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provisional administrator on the grounds that he had applied to be provisional

administrator only to gain access to the estate assets, that he did not inform the

other heirs when he filed the petition to be appointed, and that he failed to file a

descriptive list of estate assets or post security. The opposition also requested that

Wanda be named administratrix of the estate as she was the best qualified heir

given her extensive experience in helping manage and run the decedent’s business.

After reasoning that Cheney, III and Wanda could not properly serve

as administrators, the trial court ordered each side to submit a name to the court

from which the court would select the administrator of the estate. The court further

ordered Wanda and Patsy to provide a detailed descriptive list and accounting of

the estate’s assets within forty-five days from the date of the judgment. Wanda

and Patsy now appeal the trial court’s judgment.

III.

STANDARD OF REVIEW

The decision to either remove or replace a succession representative is

within the discretion of the trial court and will not be disturbed absent a clear abuse

of discretion. In re Succession of Bijeaux, 06-1256 (La.App. 3 Cir. 2/7/07), 948

So.2d 1222. “However, when one or more trial court legal errors interdict the fact-

finding process . . . the appellate court should make its own independent de novo

review of the record[.]” Evans v. Lungrin, 97-541, p. 5 (La. 2/6/98), 708 So.2d

731, 735. More specifically, the appellate court is required “to render judgment on

the record by applying the correct law[.]” Id. (citing Lasha v. Olin Corp., 625

So.2d 1002 (La.1993)).

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IV.

LAW AND DISCUSSION

The appellants’ primary complaint is that the trial court erred by not

appointing Wanda administratrix of the decedent’s succession. However, from a

procedural standpoint, the trial court actually erred by making any ruling on the

administrator issue as it was never properly brought before the court. Louisiana

Code of Civil Procedure Article 3096, in pertinent part, provides the applicable

procedures for appointing a succession administrator:

At the hearing on the application for appointment
as administrator, if no opposition thereto has been filed,
the court shall appoint the applicant, unless he is
disqualified under Article 3097.

If an opposition to the application for appointment
has been filed prior to the hearing thereon, the court shall
assign the opposition for trial. After this trial, the court
shall appoint as administrator the qualified claimant
having the highest priority of appointment.

Given that the appointment of the administrator is premised on a hearing regarding

the application for appointment and an opportunity to file an opposition, the

language of Article 3096 implies that one must first apply for appointment to

initiate proceedings. This is a necessary procedural step to ensure the sanctity of

the succession, given the increased duties and liabilities of an administrator as

opposed to a provisional administrator.

Here, Cheney, III never petitioned to become administrator; rather, he

only petitioned to consolidate estate funds and continue the decedent’s business in

his capacity as provisional administrator. As such, Wanda and Patsy may not

properly raise the administrator appointment issue for the first time via opposition

and must file a formal petition in order to appoint Wanda administratrix. Since no

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petition was ever filed in these proceedings, the court erred in issuing a judgment

on this issue.

We note that even if a petition for appointment had properly been

filed, and that petition had been opposed, the trial court did not properly appoint

“the qualified claimant having the highest priority” in accordance with La.Code

Civ.P. art. 3096. Louisiana Code of Civil Procedure Article 3098 states:

A. When the appointment as administrator or
dative testamentary executor is claimed by more than one
qualified person, except as otherwise provided by law,
preference in the appointment shall be given by the court
in the following order to:

(1) The best qualified among the surviving spouse,
competent heirs or legatees, or the legal representatives
of any incompetent heirs or legatees of the deceased.

(2) The best qualified of the nominees of the
surviving spouse, of the competent heirs or legatees, or of
the legal representatives of any incompetent heirs or
legatees of the deceased.

(3) The best qualified of the creditors of the
deceased or a creditor of the estate of the deceased, or a
co-owner of immovable property with the deceased.

The trial court elected to choose an administrator from nominees of Cheney, III

and Wanda, reasoning that Cheney, III was not best suited for the position given

his lack of business experience, and Wanda was not best suited given her disregard

for opening the succession and lack of accounting and potential mingling of assets.

However, as the election from nominees is second in priority, it is only an option to

the trial court under Article 3098 if the competent heirs seeking appointment are

not qualified under the law. The Louisiana Code of Civil Procedure does not

provide any necessary qualifications to become administrator; rather, it only lists

the following disqualifications under La.Code Civ.P. art. 3097:

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A. No person may be confirmed as testamentary
executor, or appointed dative testamentary executor,
provisional administrator, or administrator who is:

(1) Under eighteen years of age;

(2) Interdicted, or who, on contradictory hearing, is
proved to be mentally incompetent;

(3) A convicted felon, under the laws of the United
States or of any state or territory thereof;

(4) A nonresident of the state who has not
appointed a resident agent for the service of process in all
actions and proceedings with respect to the succession,
and caused such appointment to be filed in the succession
proceeding;

(5) A corporation not authorized to perform the
duties of the office in this state; or

(6) A person who, on contradictory hearing, is
proved to be unfit for appointment because of bad moral
character.

Here, while Cheney, III may lack experience, he is still a qualified

heir under the law as he is not subject to any disqualifications. The only argument

Wanda and Patsy could potentially raise is that he never qualified as a provisional

administrator given that he did not name a resident agent until after his

appointment. While he may not have qualified as a provisional administrator, this

issue is irrelevant as to whether he qualifies as an administrator, considering these

are two separate appointments with different duties and liabilities. Furthermore,

while Wanda failed to open the succession and potentially mingled funds without

proper accounting, she still is a qualified claimant as her actions do not amount to

“bad moral character” that would render her disqualified. See Succession of

Browne, 150 So.2d 555 (La.1963). Since both heirs are qualified and have

priority, the trial court should have appointed the best qualified heir between them

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to serve as administrator had the issue properly been raised before the trial court.

While a determination of the best qualified claimant normally would be subject to

a de novo review given the trial court’s legal error, Wanda and Patsy still failed to

raise their claim for appointment of administratrix properly, and thus, we cannot

issue a judgment on this point. As such, we reverse and vacate the trial court’s

judgment regarding the appointment of an administrator. Furthermore, considering

Wanda and Patsy were never appointed succession representatives, we reverse and

vacate the trial court’s judgment that they be required to render a descriptive list

and accounting of all estate assets as they have no obligation to perform these tasks

under the law.

Beyond the appointment of Wanda as administratrix, the appellants’

opposition also sought the removal of Cheney, III as provisional administrator.

Louisiana Code of Civil Procedure Article 3182 outlines the removal proceedings

of a succession representative:

The court may remove any succession
representative who is or has become disqualified, has
become incapable of discharging the duties of his office,
has mismanaged the estate, has failed to perform any
duty imposed by law or by order of court, has ceased to
be a domiciliary of the state without appointing an agent
as provided in Article 3097(4), or has failed to give
notice of his application for appointment when required
under Article 3093.

The court on its own motion may, and on motion
of any interested party shall, order the succession
representative sought to be removed to show cause why
he should not be removed from office. The removal of a
succession representative from office does not invalidate
any of his official acts performed prior to his removal.

The Official Revision Comments to Article 3182 further state:

(a) This article drops the requirement that a
succession representative be removed only in an ordinary

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action commenced by a petition and citation, and permits
his removal in a summary proceeding commenced by a
contradictory motion of an heir, creditor, or other
interested person. Cf. Art. 1017 of the Code of Practice.
If the succession representative has committed some act
serious enough to justify a court in removing him, then
he should be removed expeditiously.
Given that removal actions may be brought summarily, the trial court had authority

to rule on appellants’ claim that Cheney, III be removed from his position as

provisional administrator even though this claim was first raised via opposition.

As the trial court’s judgment failed to address this issue, we remand the case to the

trial court with instructions that it should only rule summarily on whether Cheney,

III should be removed under La.Code Civ.P. art. 3182, and if not, whether he can

continue the business of the decedent in his capacity as provisional administrator in

accordance with La.Code Civ.P. art. 3224. The trial court is ordered to set a

hearing on these issues within forty-five (45) days of remand.

V.

CONCLUSION
For the foregoing reasons, we reverse and vacate the trial court’s

judgment and remand the case with instructions.

REVERSED AND VACATED. REMANDED WITH

INSTRUCTIONS.

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NUMBER 13-1455

COURT OF APPEAL, THIRD CIRCUIT

STATE OF LOUISIANA

SUCCESSION OF CHARLEY A. CHENEY, SR.

Conery, J., concurs in the result for the following reasons.

In this case, a request for notice of application for appointment of

administrator of the Succession of Charley A. Cheney, Sr. was timely and properly

filed by Charley A. Cheney, III pursuant to La.Code Civ.P. arts. 3091 and 3092.

He was entitled to notice should anyone apply to be appointed administrator. He

was properly appointed provisional administrator and another heir, Wanda Cheney,

later filed a motion to remove him as provisional administrator under La.Code

Civ.P. art. 3182, and opposed his application to manage the business of the

succession he had filed pursuant to La.Code Civ.P. arts. 3224-3225. Wanda also

requested in her motion that she be appointed administratrix. The majority held,

and I agree, that Wanda had not filed a proper application to be appointed

administratrix. Charley, III was entitled to notice and an opportunity to file an

opposition to Wanda’s “application,” even assuming Wanda’s “application” for

appointment as administratrix was properly filed. I agree with the majority that it

was not.

Since no proper petition for application for appointment as adminisratrix

was filed by Wanda with sufficient notice pursuant to La.Code Civ.P. art. 3094, I

agree with the majority’s decision to reverse and vacate the trial court’s judgment

holding that Wanda “should” not be appointed administratrix. That issue was not

properly before the trial court.

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Since Charley, III has never applied to be appointed administrator, only

provisional administrator, I would likewise agree with the majority to reverse that

portion of the trial court’s judgment stating that Charley, III “should” not be

appointed administrator.

The majority correctly finds removal of a succession representative, which

would include provisional administrator, is governed by La.Code Civ.P. art. 3182.

I also agree with the majority that the trial judge did not issue a ruling on Wanda’s

motion to remove Charley, III as provisional administrator. I agree with the

majority’s directive for the trial judge to decide this issue within forty-five days of

the remand order. Succession of Armentor, 426 So.2d 1366 (La.App. 3 Cir. 1983);

Succession of Melton, 649 So.2d 759 (La.App. 3 Cir. 1994); Kathryn Venturatos

Lorio, 10 Louisiana Civil Law Treatise, Successions and Donations, § 15:6 (2d ed.

2013.

However, the majority opinion mentions in dicta that Charley, III, a non-

resident, did not appoint a resident agent for service of process until February 20,

2013, which was well after the date of his appointment on November 29, 2012.

Since Charley, III did, in fact, appoint a resident agent, his “late” filing of such an

appointment would no longer serve as grounds for disqualification under La.Code

Civ.P. art. 3097(4), or as grounds for removal under La.Code Civ.P. art. 3182.

Succession of Melton, 649 So.2d 759; Succession of Armentor, 426 So.2d 1366;

Succession of Smith, 219 So.2d 291 (La.App. 3 Cir. 1969).

Likewise, the trial judge made no ruling on Wanda’s motion opposing

Charley, III’s petition for authority to manage the business of the estate of Charley,

Sr., including the right to collect rents from the various pieces of real estate owned

by the estate. An interim order permitting Charley, III to manage the business of

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the estate was filed by Charley, III and signed by the trial judge on April 16, 2013,

pursuant to La.Code Civ.P. art. 3224. That order was timely opposed by Wanda

and a hearing was held on June 26, 2013. However, since such an interim order

“shall expire at the end of forty-five days unless extended by the court” pursuant to

La.Code Civ.P. art. 3225, on remand, the trial judge need not rule on this issue, but

should make clear that the interim order is no longer in effect, and make such

ruling on the necessity for and appointment of someone to manage the business of

the estate as may properly be brought before the trial court.

Further, I disagree with the reasoning of that section of the majority opinion

which states, “We note that even if a petition for appointment had properly been

filed, and that petition has been opposed, the trial court did not properly appoint

‘the qualified claimant having the highest priority’ in accordance with La.Code

Civ.P. art 3096.”

The wording of the trial court’s judgment on this issue stated only, “IT IS

FURTHER ORDERED, ADJUDGED AND DECREED that both parties should

submit a name to the court from which the court will select an

administrator/administratrix who will be paid out of the estate funds.” (Emphasis

added.) That ruling apparently was made in accordance with La.Code Civ.P. art.

3098(A)(2). Again, the judgment is indeterminate due to the use of the word

“should.” Further, the judgment does not set a time within which to submit such a

name.

More importantly, however, since no proper application for appointment as

administratrix was filed by Wanda and no application for appointment as

administrator, was ever filed by Charley, III, either independently or in opposition

to such a motion filed by Wanda, such an order is not only indeterminate, but pre-

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mature. I concur in the result and would reverse that portion of the trial court’s

judgment on that basis, and not on the dicta articulated by the majority on this

issue.

I agree with the majority’s decision to vacate that portion of the trial court’s

judgment ordering Wanda and Patsy to “provide a detailed descriptive list and

accounting of all estate property and file that list into the record of this proceeding

with supporting documentation within forty-five days from the date of the

judgment.” Neither had filed a proper application to be appointed administratrix

and such a ruling is premature.

On proper filing and setting of a motion and order to return succession

property by the provisional administrator or duly appointed

administrator/administratrix, that issue may then be ripe for decision by the trial

court, at which time all property belonging to the succession may be ordered

returned. Comberrel v. Comberrel, 12-1589 (La.App. 4 Cir. 6/12/13), 119 So.3d

897; In re Succession of Banks, 11-26 (La.App. 5 Cir. 6/29/11), 71 So.3d 1086.

I agree with the wording of the remand order, but, to the extent that Charley,

III’s application to continue the business of the succession has expired under

La.Code Civ.P. art. 3225, it would appear that the trial court must either extend the

order or a new application must be filed.

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