Samuel R. Breaux, II v. Cozy Cottages, LLC

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

14-486 consolidated with 14-597

SAMUEL R. BREAUX, II

VERSUS

COZY COTTAGES, LLC

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APPEAL FROM THE
THIRTY-EIGHTH JUDICIAL DISTRICT COURT
PARISH OF CAMERON, NO. 10-18336
HONORABLE PENELOPE QUINN RICHARD, DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of John D. Saunders, Billy Howard Ezell, and Phyllis M. Keaty,
Judges.

WRITS DENIED.

James M. Garner
Elwood Francis Xavier Cahill, Jr.
John T. Balhoff, II
Paul R. Trapani, III
Sher Garner Cahill Richter Klein & Hilbert L.L.C.
909 Poydras Street, 28th Floor
New Orleans, LA 70112
(504) 299-2100
COUNSEL FOR DEFENDANT APPLICANT:
Chicago Title Insurance Company

David Frank Dwight
Stephen C. Dwight
Dwight Law Firm
1400 Ryan St.
Lake Charles, LA 70601
(337) 439-3138
COUNSEL FOR DEFENDANT RESPONDENT:
Cozy Cottages, L.L.C.

Claude P. Devall
J. Lee Hoffoss, Jr.
Donald Wayne McKnight
Hoffoss Devall, L.L.C.
3205 Ryan Street
Lake Charles, LA 70601
(337) 433-2053
COUNSEL FOR DEFENDANT RESPONDENT:
Cozy Cottages, L.L.C.

Hon. Cecil R. Sanner
District Attorney 38th JDC
P. O. Drawer 280
Cameron, LA 70631
(337) 775-5713
COUNSEL FOR RESPONDENT:
Richard Abshire
Richcore, Inc.
Jessica Abshire

Charles Schrumpf
Law Offices of Oliver and Charles Schrumpf, P.L.C.
3801 Maplewood Dr.
Sulphur, LA 70663
(337) 625-9077
COUNSEL FOR PLAINTIFF RESPONDENT:
Samuel R. Breaux, II

Dennis R. Sumpter
Sumpter Law Offices
1003 South Huntington St.
Sulphur, LA 70663
(337) 527-5278
COUNSEL FOR RESPONDENT:
Dennis R. Sumpter

James Huey Gibson
Allen & Gooch
P. O. Box 81129
Lafayette, LA 70598-1129
(337) 291-1300
COUNSEL FOR RESPONDENT:
Charles K. Watts
Seale, Smith, Zuber & Barnette
Lawrence R. Anderson, Jr.

SAUNDERS, Judge

This is a case involving a dispute over title to immovable property located in

Cameron Parish, Louisiana. Two parties claim title to the same tract of land from

two separate chains of title. Samuel R. Breaux, II (hereafter “Plaintiff”) filed suit

for declaratory judgment against Cozy Cottages, LLC (hereafter “Cozy Cottages),

seeking recognition of his right of ownership.

FACTS AND PROCEDURAL HISTORY

This case revolves around a title dispute over Lot 8, located in the Edmond

Doiron Subdivision in Cameron Parish (hereafter “the property”). Lot 8 of the

Edmond Dorion Subdivision in Cameron Parish came into being in 1883 when

Edmond Dorion’s children partitioned his property. His son, Edward Doiron,

received Lot 8. Edward Doiron had ten children. One of them was Antoine

Doiron. Antoine Doiron had no children, but was married to Mary Viola Doiron,

who had a son, Lawrence Marsh.

Antoine Doiron died testate in 1952. His testament, executed on March 31,

1949, provided that his wife, Mary Viola Doiron, be given “use, enjoyment, rents,

royalties, and income of and from all lands owned by me, or in which I may have

an interest, in Cameron Parish, Louisiana, to have and to hold the same for her and

during her natural life.” The next paragraph of the testament provided that the

“reversion and remainder of my lands above mentioned, from and after the decease

[sic] of my said wife, to my brothers and sisters, in fee simple, share and share

alike.” A judgment of possession was signed on November 15, 1952, which

decreed that Antoine Doiron’s wife, Mary Viola Doiron, be “sent into possession,

as owner, of the use and usufruct, and all emoluments, issuing and emanating from

the rent, royalties, and incomes from that certain property, left by the deceased in

Cameron Parish, Louisiana.” Then, the property is described. Finally, the next

paragraph orders that Antoine Doiron’s widow “be sent into possession, as owner,

of the above estate, free and clear of any inheritance tax.”

Antoine Doiron’s wife, Mary Viola Doiron, died in 1983. In 1988 and 1989,

the Cameron Parish Tax Assessor’s office sent notices of a tax sale in the name of

the Viola Doiron Estate. It is undisputed that the notices were sent through

Lawrence Marsh, the son of Mary Viola Doiron, who was the tax sale purchaser.

Lawrence Marsh was married to Mabel Marsh, and their son is Robert

Marsh. Lawrence Marsh’s testament willed his entire estate to his wife, Mabel.

After Lawrence Marsh died, Mabel Marsh and Robert Marsh sold their interest in

the property to Plaintiff.

Cozy Cottages claims title to the property at issue from a completely

different chain of title, beginning with persons named Clarville Doiron and Isaac

Doiron. Clarville Doiron sold part of the property to Clarence Turner on October

18, 1949. Isaac Doiron sold part of the property to Clarence Turner on March 22,

1958. The record contains no information as to who these persons may be or the

source of their title. From the sales to Clarence Turner, the property changed

hands multiple times, eventually leading to the purchase by Cozy Cottages from

Richard, Jessica, and Marion Abshire, and the Abshire’s company, Richcore

Enterprises, in 2008. It is from this complicated set of facts that this dispute arises.

Plaintiff filed suit for declaratory judgment, claiming title to the property at

issue following his purchase in 2005. Cozy Cottages claims an interest in the same

property, following its purchase in 2008 from the Abshires and Richcore

Enterprises. Cozy Cottages purchased title insurance from Chicago Title Insurance

Company (hereafter “Chicago Title”) in conjunction with its 2008 purchase of the

property. Through the course of several supplemental and amended third-party

petitions, Cozy Cottages filed third-party demands against Chicago Title, seeking
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defense of Plaintiff’s claims against it or damages, and damages for failing to cure

additional defects in the title. All parties filed separate motions for summary

judgment.

In its motion for summary judgment, Chicago Title sought dismissal of Cozy

Cottages’ claims against it, asserting:

1. Plaintiff has no claims against Cozy Cottages because the tax sales were

absolute nullities for failure to give all owners notice of the tax sale, thus,

Cozy Cottages has no claims against Chicago Title;

2. coverage under the insurance policy issued to Cozy Cottages terminated

because Cozy Cottages failed to cooperate when it hired new counsel

prior to consummation of a settlement negotiated by the law firm hired

by Chicago Title to represent Cozy Cottages; and

3. Chicago Title has no duty to defend Cozy Cottages against the claims of

Plaintiff because the policy provides that Chicago Title has the option to

defend, tender policy limits, or settle with or pay parties other than the

insured.

Cozy Cottages also filed a motion for summary judgment seeking dismissal

of Plaintiff’s claims against it, asserting that Plaintiff has no interest in the property

because the tax sales were absolute nullities for failure to provide all owners with

notice of the tax sale. All parties’ motions for summary judgment were denied.

Chicago Title filed a writ application, No. 14-486, requesting review of the

trial court’s denial of its motion for summary judgment seeking to have Cozy

Cottages’ claims against Chicago Title dismissed. Cozy Cottages filed a writ

application, No. 14-597, requesting review of the trial court’s denial of its motion

for summary judgment seeking dismissal of Plaintiff’s claims against Cozy

Cottages. Because there is an issue common to both writ applications, we
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consolidate the two writs and address them in a single opinion. We find the trial

court did not err in failing to grant either motion for summary judgment and, thus,

deny these writs.

STANDARD OF REVIEW

Since the denial of a motion for summary judgment is an interlocutory ruling

from which no appeal may be taken, the only practical remedy available to avoid a

possibly useless trial on the merits is to request that the appellate court exercise its

supervisory jurisdiction to review the propriety of this ruling. Louviere v. Byers,

526 So.2d 1253 (La.App. 3 Cir.), writ denied, 528 So.2d 153 (La.1988). This

court has stated, “[t]he exercise of supervisory jurisdiction by appellate courts is

within their plenary power. La.Const. art. 5, ' 10. Appellate courts generally will

not exercise such jurisdiction unless an error in the trial court’s ruling will cause

the petitioner irreparable injury or an ordinary appeal does not afford an adequate

remedy.” Borrel’s, Inc. v. City of Marksville, 05-48, p. 1 (La.App. 3 Cir. 6/1/05),

904 So.2d 938, 939 (citing Stevens v. Patterson Menhaden Corp., 191 So.2d 692

(La.App. 1 Cir. 1966), writ denied, 250 La. 5, 193 So.2d 524 (1967)).

“Appellate courts review summary judgments de novo, applying the same

criteria that govern a trial court's determination of a motion for summary

judgment.” Johnson v. State Farm Ins., 08-1250, p. 2 (La.App. 3 Cir. 4/1/09), 8

So.3d 808, 810. Summary judgment “shall be rendered forthwith if the pleadings,

depositions, answers to interrogatories, and admissions, together with the

affidavits, if any, admitted for purposes of the motion for summary judgment,

show that there is no genuine issue as to material fact, and that mover is entitled to

judgment as a matter of law.” La.Code Civ.P. art. 966(B)(2). Thus, we “review[]

the record de novo to determine whether there is any genuine issue of material

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fact.” Quantum Res. Mgmt., L.L.C. v. Pirate Lake Oil Corp., 12-1472, p. 5 (La.

3/19/13), 112 So.3d 209, 214, cert. denied, 134 S.Ct. 197 (2013).

DISCUSSION

Nullity of the tax sales

Chicago Title and Cozy Cottages maintain summary judgment dismissing

the claims of Plaintiff is appropriate because notice of the tax sale was not given to

the siblings of Antoine Doiron, the alleged naked owners of the property. Although

there is no dispute that the siblings of Antoine Doiron or the heirs of the siblings of

Antoine Doiron were not notified of the pending tax sale, we find summary

judgment inappropriate on this issue.

Notice of a tax sale to the property owner is a prerequisite to the validity of

the tax sale. Failure to give the requisite notice is a violation of Due Process and

the subsequent tax sale is an absolute nullity. Quantum Res. Mgmt., 112 So.3d 209.

However, the notice requirement announced in Mennonite Board of Missions v.

Adams, 462 U.S. 791, 103 S.Ct. 2706 (1983), will not serve to retroactively undo

prescription that has already accrued. Quantum Res. Mgmt., 112 So.3d 209.

Antoine Doiron died in 1952. All succession rights are “governed by the

law in effect on the date of the decedent’s death.” La.Civ.Code art. 870(B). At the

time of his death, former La.Civ.Code art. 1030 (1870), provided a prescriptive

period of thirty years for acceptance or renunciation of a succession. Prescription

began to run at the death of the testator. Sun Oil Co. v. Tarver, 219 La. 103, 52

So.2d 437 (1951)). The heir that failed to accept or renounce within the thirty-year

period “bec[ame] a stranger to the succession,” 10 La.Civ. L. Treatise, Successions

and Donations § 7.11 (1995), and “[could] neither accept nor renounce.” Id. at

n.21 (citing Sun Oil Co., 52 So.2d 437). Former La.Civ.Code art. 1030 was still in

effect in 1982, when the prescriptive period accrued.
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Under the prior law, an heir was able to expressly or tacitly accept a

succession. See La.Civ.Code art. 988 (1870). Express acceptance occurred “when

the heir assume[d] the quality of heir in an unqualified manner, in some authentic

or private instrument, or in some judicial proceeding.” Id.; See also Succession of

Blanchard, 243 So.2d 329, 332-33 (La.App. 4 Cir. 1971). Tacit acceptance

occurred “when some act [was] done by the heir, which necessarily supposes his

intention to accept, and which he would have no right to do but in his quality of

heir.” La.Civ.Code art. 988 (1870); Blanchard, 243 So.2d at 333. “Not only the

person who is entitled to an inheritance may accept it, but if he dies before having

expressly or tacitly accepted or rejected it, his heir shall have a right to accept it

under him. La.C.C. art. 1007 [(1870)].” In re Succession of Moore, 97-1668, 97-

1669, p. 16 (La.App.4 Cir. 4/1/98), 737 So.2d 749, 758, writ denied, 99-0781 (La.

4/30/99), 743 So.2d 207. Intent to accept was required. La.Civ.Code arts. 990 and

991(1870). Under the prior law, renunciation of a succession was not presumed.

La.Civ.Code art. 1017 (1870). Renunciation must have been expressly made in

authentic form. Id. Renunciation may have also occurred by pleading it in a

judicial proceeding or by failing to accept or renounce within thirty years of the

death of the ancestor. 10 La.Civ. L. Treatise, Successions and Donations § 7.8

(1995).

Under the current law, an heir may still expressly or tacitly accept a

succession, although the terminology has changed to formal or informal

acceptance. La.Civ.Code art. 957. Formal acceptance occurs when the successor

“expressly accepts in writing or assumes the quality of successor in a judicial

proceeding.” Id. Informal acceptance occurs when the successor takes an action

which implies the intention to accept. Id. Intent to accept is still required. See

La.Civ.Code arts. 957 and 958. Currently, acceptance is presumed, La.Civ.Code
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art. 962, and renunciation must be express and in writing, although it is no longer

required to be in authentic form, La.Civ.Code art. 963. Compare La.Civ.Code art.

1017 (1870).

Whether or not the tax sales were null turns on whether Antoine Doiron’s

siblings were entitled to notice. Under the former law, this depends on whether

they were actually naked owners of the property, which turns on whether they, or

their heirs, accepted, renounced, or renounced by failing to accept or renounce the

succession within thirty years. Under the current law, it also turns on whether the

heirs accepted or renounced the succession. Under both the prior and current law,

if the siblings of Antoine Doiron accepted the succession, then they were naked

owners and entitled to notice of the tax sale. Since they did not receive notice,

then the tax sales would be absolute nullities, and Plaintiff’s claims fail. However,

if they renounced, under both the prior and current law, or failed to accept or

renounce within the thirty-year prescriptive period, under the prior law, then they

were not naked owners and, therefore, not entitled to notice of the pending tax sale.

If they were not entitled to notice, then Plaintiff may indeed have an interest in the

property.

Although the record indicates that the siblings of Antoine Doiron did not

participate in the succession proceeding of their deceased brother, they were not

required to do so in order to accept or renounce the succession. Under both the

former and current law, acts of ownership may suffice to constitute acceptance.

La.Civ.Code art. 994 (1870); La.Civ.Code art. 959. Leasing or occupying the

succession property, execution of a deed, and donation, sale, or assignment of

succession rights have been held to constitute tacit acceptance. 10 La.Civ. L.

Treatise, Successions and Donations § 7.7 (1995). Even granting another co-heir

permission to occupy the property has been held to constitute tacit acceptance. Id.
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at n.9 (citing Succession of Blanchard, 243 So.2d 329, La.App. 4 Cir. 1971). From

the record before us, we cannot determine whether the siblings of Antoine Doiron,

or their heirs, accepted or renounced the succession of Antoine Doiron. There is

no evidence in the record concerning either. All that is known is that it is

undisputed the siblings of Antoine Doiron did not formally participate in the

succession proceedings.

Finally, “issues pertaining to subjective facts such as intent, knowledge,

motive, malice, or good faith are usually not appropriate to a summary judgment

determination.” Murphy’s Lease & Welding Serv., Inc. v. Bayou Concessions

Salvage, Inc., 00-978, 00-979, p. 6 (La.App. 3 Cir. 3/8/01), 780 So.2d 1284, 1289,

writ denied, 01-1005 (La. 6/1/01), 793 So.2d 195. Thus, even if Cozy Cottages

and Chicago Title could point to some evidence in the record of an act that might

indicate Antoine Doiron’s siblings accepted the succession, summary judgment

would nonetheless be inappropriate as the intent of the act must be explored at trial.

Therefore, we conclude that a genuine issue of material fact exists on this issue,

precluding a finding that Plaintiff has no ownership interest in the property at issue.

Thus, the trial court’s denial of Chicago Title’s and Cozy Cottages’ motions for

summary judgment seeking a determination that the tax sales were absolute

nullities was not in error.

Coverage

In its writ application, Chicago Title argues that the trial court erred in

denying its motion for summary judgment on the ground that, in the event Plaintiff

does have any claims against Cozy Cottages and, as a result, Cozy Cottages has a

claim against Chicago Title, Chicago Title’s contractual obligations were

terminated because Cozy Cottages failed to cooperate in facilitating a settlement

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with Plaintiff. Chicago Title relies on the following policy provision in support of

this contention:

Whenever requested by the Company, the Insured, at the
Company’s expense, shall give the Company all
reasonable aid (i) in securing evidence, obtaining
witnesses, prosecuting or defending the action or
proceeding, or effecting settlement . . . . If the Company
is prejudiced by the failure of the Insured to furnish the
required cooperation, the Company’s obligations to the
Insured under the policy shall terminate, including any
liability or obligation to defend, prosecute, or continue
any litigation, with regard to the matter or matters
requiring such cooperation.

Chicago Title contends that Cozy Cottages’ engagement of new counsel before a

settlement negotiated by the law firm hired by Chicago Title was finalized

constitutes non-cooperation under the provision above, such that all its obligations

under the policy are terminated.

Cozy Cottages contends that its expressions of disagreement to the proposed

settlement do not relieve Chicago Title of its obligations under the policy. Cozy

Cottages points out that it disagreed with the settlement because settlement with

Plaintiff would reduce the funds available to resolve the other potential title defects.

Cozy Cottages also contends that the law firm originally provided by Chicago Title

failed to sufficiently protect Cozy Cottages’ interests because that firm failed to

timely file a legal malpractice claim against the attorney who conducted the title

search when Cozy Cottages purchased the property. Cozy Cottages further

contends that, because there is no “consent to settle” clause in the policy, Chicago

Title is not precluded from confecting the proposed settlement.

Whether an insured has breached the duty of cooperation is a factual inquiry

suited to summary judgment determination. Freyou v. Marquette Cas. Co., 149

So.2d 697 (La.App. 3 Cir.), writ refused, 150 So.2d 771 (La.1963). An insured

may “assume and manage its own defense.” Arceneaux v. Amstar Corp., 10-2329,
9

p. 19 (La. 7/1/11), 66 So.3d 438, 451 (citing Arceneaux v. Amstar Corp., 06-1592

(La. App. 4 Cir. 10/31/07), 969 So.2d 755, writ denied, 07-2486 (La. 3/24/08), 977

So.2d 952 and writ denied, 08-0053 (La. 3/24/08), 977 So.2d 953). Any non-

cooperation must be “both material and prejudicial” in order for an insurer to avoid

liability. Freyou, 149 So.2d at 699-00; see also Trosclair v. CNA Ins. Co., 93-1741

(La.App. 4 Cir. 5/17/94), 637 So.2d 1168, writ denied, 94-1596 (La. 9/30/94), 642

So.2d 874. The insurer bears the burden of proving prejudice. Trosclair, 637

So.2d at 1170 (citing Fakouri v. Ins. Co. of N. Am., 378 So.2d 1083 (La.App. 3 Cir.

1979).

Under these facts, Chicago Title has failed to demonstrate how its insured’s

election to assume and manage its own defense in light of a substantial conflict of

interest is a failure to cooperate and, further, how such action materially prejudiced

the insurer. According to the terms of the policy, Chicago Title may elect to

defend Cozy Cottages, tender policy limits to Cozy Cottages, or pay or settle with

third parties to cure Cozy Cottages’ title to the property at issue. All of these

options are still available to Chicago Title. Thus, we find the trial court did not err

in denying Chicago Title’s motion of summary judgment on this issue.

Duty to Defend

Chicago Title also argues that summary judgment is appropriate on the

ground that it has no duty to defend Cozy Cottages against Plaintiff’s claims

because Chicago Title has the option of paying or settling with parties other than

the insured, thereby “curing” the title, or of tendering policy limits to the insured,

instead of defending the claims in litigation, and that the insurer has exercised the

option to settle with Plaintiff. We find the trial court did not err in denying

Chicago Title’s summary judgment on this ground.

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As we explained in Suire v. Lafayette City-Parish Consol. Gov’t, 04-1459,

04-1460, 04-1466, pp. 18-19 (La. 4/12/05), 907 So.2d 37, 51-52 (alterations in

original):

the scope of the duty to defend under an insurance
agreement is broader than the scope of the duty to
provide coverage. Steptore v. Masco Constr. Co., 93-
2064 (La.8/18/94), 643 So.2d 1213, 1218. A court must
examine the well-pleaded allegations of the plaintiff’s
petition to determine whether the plaintiff’s allegations
“unambiguously exclude[]” coverage. Id. Unless
unambiguous exclusion of all of the plaintiff’s claims is
shown, the duty to defend arises. Id. Thus, the duty to
defend does not depend upon the outcome of the suit, as
it does where the purported source of the duty is an
indemnity agreement; rather, where the pleadings
disclose “even a possibility of liability” under the
contract, the duty is triggered. Id.

Chicago Title has not fulfilled its obligations under the contract of insurance

as it has neither cured title nor tendered policy limits. According to the terms of

the policy, the duty to defend does not terminate until claims have been settled or

parties other than the insured have been paid. Neither has happened.

Consequently, we find no error in the trial court’s denial of Chicago Title’s motion

for summary judgment on this issue.

CONCLUSION

For the reasons above, we conclude the trial court did not err in denying

Chicago Title’s and Cozy Cottages’ motions for summary judgment and, therefore,

deny these writs.

WRITS DENIED.

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