Hubert Arvie v. Geico Casualty Company

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 22-670

HUBERT ARVIE

VERSUS

GEICO CASUALTY COMPANY, ET AL.

**********

APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2021-3843
HONORABLE CLAYTON DAVIS, DISTRICT JUDGE

**********

D. KENT SAVOIE

JUDGE

**********

Court composed of D. Kent Savoie, Van H. Kyzar, and Candyce G. Perret, Judges.

MOTION TO COMPEL SUBSTITUTION OF PARTY-APPELLEE
DENIED.

James Huey Gibson
Anna M. Grand
Gibson Law Partners
Post Office Box 52124
Lafayette, LA 70505
(337) 761-6023
COUNSEL FOR DEFENDANT/APPELLEE:
Christian D. Chesson

Van Clifton Seneca
Plauche, Smith & Nieset
435 10th Street
Lake Charles, LA 70601
(337) 436-0522
COUNSEL FOR DEFENDANTS/APPELLEES:
Mark Dejean
Merric Dejean

Hubert Arvie
In Proper Person
1901 Knapp Street
Lake Charles, LA 70601
(337) 244-6776
COUNSEL FOR PLAINTIFF/APPELLANT:
Hubert Arvie

Angela Arvie
In Proper Person
411 North Blake Street
Lake Charles, LA 70601
(337) 563-7655
COUNSEL FOR DEFENDANT/APPELLEE:
Angela Arvie

SAVOIE, Judge.

Appellant, Hubert Arvie, pro se, filed a Motion and Order to Compell [sic] the

Substitution of Party-Appellee. This court issued a rule to show cause to counsel for

Appellee, Mark DeJean (Mark), “why the Legal Successor Representatives or Heirs

should not be substituted in the stead of Mark DeJean.” For the reasons stated herein,

we deny Mr. Arvie’s motion.

Mr. Arvie alleges that Mark DeJean rear-ended him while driving a truck owned

by Merric DeJean, Mark DeJean’s father. The truck was insured with Louisiana Farm

Bureau Casualty Insurance Company (Farm Bureau). Mr. Arvie asserted a claim

against Farm Bureau. In exchange for a release for itself and the insureds, Mark and

Merric DeJean, Farm Bureau paid its policy limits.

Almost two years after the accident, Mr. Arvie filed the instant uninsured

motorist suit, asserting therein that he has not been fully compensated for his alleged

injuries. Mr. Arvie also listed Mark and Merric DeJean as defendants to this lawsuit.

Farm Bureau retained counsel to represent Mark and Merric DeJean who subsequently

filed exceptions of prescription and res judicata. The exceptions were granted on May

26, 2022, dismissing Mark and Merric DeJean from the lawsuit. Notice of judgment

was mailed to the parties on June 7, 2022.

Mr. Arvie filed the instant appeal on August 5, 2022. At issue herein is Mr.

Arvie’s Motion and Order to Compell [sic] the Substitution of Party-Appellee. Mr.

Arvie explains that on July 24, 2022, Mark DeJean passed away. Mr. Arvie states in

his motion that on November 30, 2022, he called the civil records department for the

Fourteenth Judicial District Court and was advised that a succession for Mark DeJean

had not yet been filed. In support of his motion, Mr. Arvie refers to La.Code Civ.P. art.

801 which provides:

When a party dies during the pendency of an action which is not
extinguished by his death, his legal successor may have himself substituted
for the deceased party, on ex parte written motion supported by proof of
his quality.
As used in Articles 801 through 804, “legal successor” means:
(1) The survivors designated in Article 2315.1 of the Civil Code, if the
action survives in their favor; and
(2) Otherwise, it means the succession representative of the deceased
appointed by a court of this state, if the succession is under administration
therein; or the heirs and legatees of the deceased, if the deceased's
succession is not under administration therein.

Since Mark DeJean’s legal succession representatives have not sought to be

substituted for Mark DeJean, Mr. Arvie submits that this court should order Van Seneca,

counsel for Mark DeJean, to show cause why the addresses of Mark DeJean’s legal

succession representatives should not be provided to Mr. Arvie for the purpose of

substituting them as party defendants in the stead of Mark DeJean. Mr. Arvie cites

Cortes v. Fleming, 307 So.2d 611 (La.1974), wherein the supreme court granted a

rehearing because the original judgment of the court was rendered against a deceased

party (the defendant) and was an absolute nullity. When the case was called for

rehearing, no proper substitution of parties had yet been made due to the plaintiff’s

ignorance of the identity of the defendant’s legal successor(s). The Chief Justice, in

open court, subsequently directed counsel for the deceased defendant to make available

such information to the plaintiff. Counsel subsequently filed a brief on behalf of the

deceased defendant arguing, in part, that the plaintiff’s action for alimony abated upon

the defendant’s death and that the plaintiff could no longer enforce her right to alimony

because the deceased defendant was unrepresented. Proceeding under Articles 801

through 807 of the Louisiana Code of Civil Procedure, the plaintiff filed a Motion and

Order to Summon Legal Successor of Deceased Defendant. The motion was granted,

and service was made on the daughter of the deceased defendant to appear and substitute

herself within eighty days of service. She did not appear to be substituted. The plaintiff

2

then filed an additional Motion and Order to Summon Legal Successor of Deceased

Defendant/Respondent, alleging that the deceased defendant’s son should be substituted

as party defendant. Because his whereabouts were unknown, the court was asked to

appoint an attorney to represent the deceased defendant and all other heirs, succession

representative, and other persons who may have an interest in the deceased defendant’s

succession. The motion was granted.

Likewise, in the instant case, Mr. Arvie maintains that if Mr. Seneca cannot show

good cause why the addresses of Mark DeJean’s legal successors should not be

provided, the court should order Mr. Seneca to provide the information to Mr. Arvie. If

Mr. Seneca is not aware of the legal succession representatives whereabouts, Mr. Arvie

asks this court to appoint an attorney to represent the legal succession representatives

and other persons who may have any interest in the succession of Mark DeJean.

In response to the rule to show cause issued by this court on December 20, 2022,

Mr. Seneca states that Uniform Court of Appeal, Rule 2-9 provides that “[t]he rules and

procedures for substitution of parties provided by LSA-C.C.P. arts. 801-897 shall

regulate the substitution of parties” in the appellate court. Mr. Seneca adds that he has

reviewed the Fourteenth Judicial District Court clerk’s records and found no succession

opened for Mark DeJean. Further, he does not know the identity of Mark DeJean’s

heirs or legatees and does not know of anyone who has accepted Mark DeJean’s

succession. Mr. Seneca has no reason to believe that anyone would be willing to be

substituted as a party in this case.

Louisiana Code of Civil Procedure Article 802 provides:

On ex parte written motion of any other party, supported by an affidavit of
the truth of the facts alleged, the court may order the issuance of a
summons to the legal successor to appear and substitute himself for the
deceased party. This summons shall show the title and docket number of
the action, and the name and address of the court where the action is
pending.

3

Even if a legal succession had been identified, Mr. Seneca maintains he has no legal

authority to file a motion for the issuance of the summons contemplated by Article 802.

He further stated that he is also not in a position to execute the affidavit necessary for

the issuance of a summons.

If a summons were to be issued, Mr. Seneca directs this court to Article 803 which

provides instructions on how to proceed:

A. When the name and address of the legal successor is known, and he is
a resident of the state, he shall be summoned to appear and substitute
himself for the deceased party within thirty days of the date the summons
is served on him.
B. When the name and address of the legal successor is known, but he is a
nonresident or absentee, he shall be summoned to appear and substitute
himself for the deceased party within sixty days of the receipt of the
summons through registered or certified mail.
C. If the name or address of the legal successor is unknown, the summons
shall be by two publications not less than fifteen days apart in a newspaper
published in the parish where the action is pending and in the parish of the
domicile of the deceased party, which shall summon him to appear and
substitute himself for the deceased party within sixty days of the first
publication. The summons shall be addressed to the legal successor by
name, if the latter is known; and otherwise shall be addressed to “The legal
successor of ____________, deceased”.

Since the name or address of the legal successor is unknown, if the appointment of a

legal successor were appropriate, the publication requirements and legal delays of

subsection C would apply. No publication, however, has occurred nor have the delays

begun to run. Mr. Seneca complains that Mr. Arvie, ostensibly, intends to skip the steps

set forth in Articles 802 and 803, since the order he submitted to this court has no

provision for complying. The order submitted by Mr. Arvie contains the following

provision:

If Seneca is unable to provide the address of Mark’s Legal Representative
or Heirs to Arvie, the court will appoint an attorney to represent the interest
of all heirs, Legal Succession Representatives, and other persons who may
have any interest in the succession of Mark, the party-appellee, upon the
failure to Seneca to do so.

4

Mr. Seneca asserts that the fact that he cannot produce a succession representative

does not mean that this court should appoint an attorney as suggested by Mr. Arvie.

Article 804 provides:

When the legal successor fails to appear and substitute himself for the
deceased party within the delay allowed in the summons, on ex parte
written motion of any other party, the court may:
(1) Dismiss the action as to the deceased party, with or without prejudice,
if the deceased was a plaintiff; or
(2) When the legal successor of a deceased defendant has not been served
by personal or domiciliary service with summons to appear and substitute,
appoint an attorney at law to represent such legal successor, and the action
shall be proceeded with contradictorily against the attorney at law.

Because no summons has been issued, served, or published, and no legal delays have

run, Mr. Seneca maintains that this case is not in a proper posture for appointing an

attorney to represent any legal successor. Further, if this court were to appoint an

attorney to represent a legal successor, Mr. Seneca states that the attorney should assert

the same exceptions that were raised by Mark DeJean because the case is prescribed on

its face and settled. Mr. Seneca points out that the attorney, however, would have no

means of being compensated.

Mr. Seneca concludes that Mr. Arvie takes the doctrine of affording liberal

construction to the pleadings of a pro se litigant to the extreme. Pursuant to La.Code

Civ.P. arts. 863(B) and 1420(B), pleadings and discovery are required to be warranted

by existing law and not designed to harass, cause unnecessary expense, or be unduly

burdensome. Mr. Seneca maintains that Mr. Arvie’s request for this court to allow him

to needlessly burden another lawyer exemplifies a belief that none of the rules

applicable to other litigants apply to him. The court in Arvie v. Tanner, 2012 WL

3597127 (E.D. La. 2012), recognized that Mr. Arvie has a history of filing frivolous

lawsuits. His filing here, Mr. Seneca contends, are consistent with his prior behavior.

Also, Mr. Seneca points out that Mr. Arvie is not spending anything to assert his

positions since he is proceeding in forma pauperis, whereas responding is quite

5

expensive. Mr. Seneca request that this court curtail Mr. Arvie’s behavior and not

appoint an additional attorney to defend this case.

We note, first, that Mr. Seneca indicates he does not know the identity of Mark

DeJean’s heirs or legatees or of anyone who has accepted Mark DeJean’s succession.

Further, we find that Articles 801 through 804 do not provide for the relief sought

by Mr. Arvie. Accordingly, we hereby deny Mr. Arvie’s motion to compel the

substitution of a party-appellee.

MOTION TO COMPEL SUBSTITUTION OF PARTY-APPELLEE
DENIED.

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION.
Uniform Rules―Courts of Appeal, Rule 2-16.3.

6