Succession of Marilyn Vaughn Smith Phillips

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
CW13-251

SUCCESSION

OF

MARILYN VAUGHN SMITH PHILLIPS

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SUPERVISORY WRIT FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 51,686
HONORABLE G. MICHAEL CANADAY, JUDGE

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J. DAVID PAINTER JUDGE

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Court composed of Jimmie C. Peters, Billie Howard Ezell, and J. David Painter,
Judges.
REVERSED.

Kenneth Michael Wright
203 W. Clarence Street
Lake Charles, LA 70601
Attorney for Defendant-Relator:
Briant L. Smith

Maurice Tynes
4839 Ihles Road
Lake Charles, LA 70605
Attorney for Plaintiff-Respondent:
Julie Clark

PAINTER, Judge.

Relator, Briant L. Smith, seeks supervisory writs from the ruling of the trial

court ordering him to give certain real property to Julie Clark, administratrix of the

Succession of Marilyn Vaughn Smith Phillips. For the following reasons, we

reverse the ruling of the trial court.

FACTS AND PROCEDURAL HISTORY

Marilyn Vaughn Smith Phillips died on February 4, 1999. She was survived

by her two children, Relator and Arn Smith who died on August 14, 2005. Relator

filed a Petition for Appointment as Administrator Forthwith on December 12,

2011. Attached as an exhibit was an affidavit dated May 14, 2000, from Arn Smith

verifying that he relinquished any claim to the succession property located at 1317

East Ford Street in Lake Charles, LA, as well as his death certificate showing his

date of death as August 14, 2005. On December 20, 2011, the trial court signed an

order appointing relator as administrator. Relator filed a Petition for Possession on

January 13, 2012, and on January 24, 2012, the trial court signed a judgment of

possession putting Relator into possession of the succession property.

On May 1, 2012, Julie Clark filed a Petition to Re-Open Succession, and for

Appointment of a Succession Representative, and Other Relief. The trial court

issued a judgment reopening the succession and appointing Clark as the

administratrix. On February 13, 2013, a hearing was held on a rule to show cause

why Respondent should not deliver the Ford Street house to Clark. The trial court

subsequently issued a ruling ordering Smith to deliver physical possession of the

Ford Street house to Clark. That ruling was reduced to a written judgment which

was signed on March 14, 2013. On February 14, 2013, Respondent filed a Notice

of Intent to Apply for Supervisory Writs and Request for Stay. The trial court

stayed the effect of its ruling pending action by this court and gave Respondent

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until March 14, 2013 to file his writ application. The application was timely filed

with this court.

DISCUSSION

Respondent asserts that to return the property to the succession, the new

succession representative would need to petition the court for nullity of the

previously issued judgment of possession, and that proper procedure for annulment

has not been followed. He also notes that the petition to reopen was not based on

the omission of property.

In Clark’s petition to reopen the succession and to be appointed

administratrix, she asserted the following grounds:

1. Olmsted Shipyard, Inc. filed a Request for Notice of Appointment
of Succession Representative on July 2, 2012, under docket number
49738-G; the deputy clerk signed a certificate on December 12, 2011,
indicating that no notice had been filed; therefore, the relator’s
appointment as administrator was based on a false certificate.

2. The instrument allegedly signed by Smith, releasing his interest in
the property, was not in sufficient form and was notarized by a person
whose commission had not been issued.

3. Smith was a co-heir at the time of Phillips’ death.

4. The affidavit of death and heirship and oath of administrator filed
on December 12, 2011, were sworn to on January 8, 2008, by the
relator’s wife, a person whose notary commission was not in effect on
that date.

5. A proposed judgment of possession was filed on December 12,
2011, and signed by Judge Savoie on December 20, 2011, who wrote
“denied” with the notation that an administrator was appointed.

6. A petition for possession was filed on January 13, 2012, purportedly
signed by the relator; the signature was unlike the relator’s other
signatures and looked similar to that of the relator’s wife.

7. A sworn descriptive list of properties comprising Phillips’ estate
was sworn to before the relator’s wife, and the affiant’s signature
appeared to be in the same hand as the relator’s wife; the list included
only the house and no other belongings.

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8. The affidavit verifying the petition for possession was sworn to
before the relator’s wife, and both signatures appear to be in the same
hand; the affidavit is false, and therefore, insufficient.

9. The judgment of possession is null and void, based on illegal,
fraudulent, and insufficient documents.

This appears to be a collateral attack on the judgment of possession. “A

collateral attack is defined as an attempt to impeach the decree in a proceeding not

instituted for the express purpose of annulling it.” Corcoran v. Gauthier, 97-516, p.

6 (La.App. 4 Cir. 1/7/98), 705 So.2d 1233, 1236, writ denied, 98-342 (La.3/27/98),

716 So.2d 888 (citation omitted). “The only judgments which may be collaterally

attacked are those which are absolutely null because of a vice of form as provided

in LSA-C.C.P. art. 2002.” Succession of Schulz, 622 So.2d 693, 696 (La.App. 4

Cir. 5/27/93). Louisiana Code of Civil Procedure Article 2002 provides that:

A. A final judgment shall be annulled if it is rendered:

(1) Against an incompetent person not represented as required
by law.

(2) Against a defendant who has not been served with process
as required by law and who has not waived objection to jurisdiction,
or against whom a valid judgment by default has not been taken.

(3) By a court which does not have jurisdiction over the subject
matter of the suit.

B. Except as otherwise provided in Article 2003, an action to
annul a judgment on the grounds listed in this Article may be brought
at any time.

Clark does not assert any of these grounds for annulment; rather she asserts

that the judgment of possession was rendered as a result of fraud or ill practices.

A final judgment obtained by fraud or ill practices is not an
absolute nullity; the nullity must be properly decreed within the time
prescribed. Knight, 566 So.2d at 137; see LSA-C.C.P. art. 2004(B).
No specific provision was made in Article 2004 regarding the manner
of asserting the grounds of nullity. This was thought unnecessary in
view of the established jurisprudence to the effect that such grounds
must be asserted in a direct action and cannot be raised collaterally.
LSA-C.C.P. art. 2004, Official Revision Comments-1960, comment

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(d); see Knight, 566 So.2d at 137, citing Nethken, 307 So.2d at 565,
and Pontchartrain Park Homes, Inc. v. Sewerage and Water Bd. of
New Orleans, 246 La. 893, 168 So.2d 595, 597 (1964). Thus, the party
praying for the nullity of a relatively null judgment must bring his
action by means of a petition, and the adverse party must be cited to
appear, as in ordinary suits. Knight, 566 So.2d at 137;see LSA-C.C.P.
art. 1201; Ledford v. Pipes, 507 So.2d 9, 11 n. 1 (La.App. 2nd
Cir.1987). A direct action can be brought by filing a separate
proceeding or by the filing of a pleading in the same proceeding as
that in which the offending judgment was rendered. Roach, 673 So.2d
at 694; Knight, 566 So.2d at 137. The limitation envisioned by
comment (d) to LSA-C.C.P. art. 2004 prohibits the issue from being
raised by way of an affirmative defense, such as in the answer or by
exception. Clearly, any of those methods would be a collateral attack,
that is, an attempt to impeach the decree in a proceeding not instituted
for the express purpose of annulling the judgment. Knight, 566 So.2d
at 137; see Roach, 673 So.2d at 693-94; Succession of Schulz, 622
So.2d 693, 696 n. 3 (La.App. 4th Cir.1993), writ denied, 93-2605
(La.1/13/94), 631 So.2d 1161. The reason for this rule is that a relative
nullity involves a factual issue which must be proven by evidence
placed in the record. Ledford, 507 So.2d at 11.

Smith v. LeBlanc, 06-41, pp. 6-7 (La.App. 1 Cir. 8/15/07), 966 So.2d 66, 71-72. See

also Regions Bank v. Cabinet Works, L.L.C., 11-748 (La.App. 5 Cir. 4/10/12), 92

So.3d 945; American Thrift & Finance Plan Inc. v. Richardson, 07-640 (La.App. 5

Cir. 1/22/08), 977 So.2d 105; Mooring Financial Corp. 401(K) Profit Sharing Plan

v. Mitchell, 08-1250 (La.App. 4 Cir. 6/10/09), 15 So.3d 311. The trial court

suggested in its oral statements at the hearing that it was vacating the prior

judgment of possession.

Since no direct action to annul the succession has been filed, the judgment of

the trial court ordering ordering Smith to deliver physical possession of the Ford

Street house to Clark was improper and is reversed.

CONCLUSION

The judgment of the trial court ordering the delivery of the Ford Street

property is reversed. Costs of this application are assessed to the Respondent, Julie

Clark.

REVERSED.

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