In re Succession Rivera

336 So.3d 587

SUCCESSION OF Teresa Salazar RIVERA

NO. 21-CA-312

Court of Appeal of Louisiana, Fifth Circuit.

February 23, 2022

COUNSEL FOR PLAINTIFF/APPELLEE, ANGEL L. RIVERA, Anthony J. Milazzo, Jr., Charles V. Giordano, Metairie

COUNSEL FOR PLAINTIFF/APPELLEE, JOSE RIVERA, Albert J. Nicaud, Metairie, Jeffrey M. Siemssen

COUNSEL FOR DEFENDANT/APPELLANT, CHRISTINE LOUIE AND CARMEN LOPEZ, Eric J. Derbes, Metairie, Bryan J. O'Neill

Panel composed of Judges Fredericka Homberg Wicker, Marc E. Johnson, and John J. Molaison, Jr.

MOLAISON, J.

The appellants, Carmen Lopez and Christine Louie, seek review of the trial court's granting of the appellees, Angel and Jose Rivera's Exceptions of No Right of Action, and denial of the appellants’ Petition to Reopen the Succession of Teresa Rivera and Annul Judgment of Possession. For the reasons below, we reverse the judgments of the trial court granting the exception of no right of action, granting of the Motion to Annul and Vacate Order Reopening the Succession, and dismissing the appellants’ Petition to Reopen the Succession and Annul Judgment of Possession.

FACTS

Teresa Salazar Rivera, whose succession is the subject of this litigation, was married to Andres Rivera. They purchased property at 3617 White Street in Metairie on May 28, 1966. Andres Rivera died on May 11, 1999. His will left the naked ownership of his entire estate to two of his five children, Andres Rivera Jr. and Carmen Lopez, in equal shares subject to his wife's usufruct.¹ A detailed descriptive list, sworn by Teresa Rivera, Andres Rivera, Jr., and Carmen Lopez, lists the community, immoveable property at 3617 White Street "acquired by Teresa Salazar Rivera, wife of Andres Rivera,"² and movable, community property, $29,368.73 in the Metairie Bank and Trust Company account and $20,176.96 in a Hibernia Account. A judgment of possession of September 7, 1999, orders that Teresa Rivera as his surviving spouse has an undivided one-half interest in and to all property belonging to the community, including the immovable property at 3617 White Street and movable property described as a 1996 Ford, a Metairie Bank and Trust Company account, and a Hibernia bank account. Andres Rivera Jr. and Carmen Lopez were recognized as the legatees entitled to the naked ownership of the property in equal portion, subject to the decedent's usufruct for life.

On April 4, 2005, Carmen Lopez filed for Chapter 7 bankruptcy. Lopez's bankruptcy trustee, authorized by an order of March 2, 2006 of the bankruptcy court, sold her interest in the estate of Rivera to Christine Louie for $2,000. This interest was recorded in the conveyance records of Jefferson Parish on March 22, 2006. Andres Rivera, Jr. died on July 19, 2014. His succession was not opened until the application of Lopez on March 12, 2021, when she was appointed as his administratrix.

Teresa Salazar Rivera, the decedent, died on July 31, 2017. An obituary was not published. Her will, executed in 2009, left her property to Angel Rivera and Jose Rivera, the appellees,³ whom she also appointed as co-executors. The appellees filed a Petition for Possession on November 6, 2017, which stated that there was no necessity for an administration as the estate was "free from debt," and attached a sworn, detailed descriptive list of assets of $1,452.00 in cash, debts of $1,903.00 for funeral costs, and the immovable property on White Street which is described as "acquired by Teresa Zalazar Rivera, wife of Andres Rivera." A judgment of possession was entered on November 6, 2017.

PROCEDURAL HISTORY

The appellants, Carmen Lopez and Christine Louie, filed a Petition to Reopen Succession and Annul Judgment of Possession on November 6, 2020, seeking to reopen the succession of the decedent and annul the November 6, 2017 Judgment of Possession. The petition alleged that the Judgment of Possession was rendered "ex parte" and based on false and incorrect allegations contained in the Affidavit of Death and Heirship and the Petition for Possession filed by the appellees.

The trial court granted the petition on November 10, 2020. The appellees each filed an Exception of No Right of Action, with Jose Rivera also filing a "Motion to Annul and Vacate Order Reopening Succession of Teresa Salazar Rivera."⁴ The exception and motion alleged that appellants have no interest in the estate of the decedent as they are not her heirs and they have no cause of action as the judgment of possession does not assign the entire White Street property, but only the decedent's half. Jose's petition also alleges that the action to annul is barred by prescription because the judgment has been filed in the property records for over three years, and the appellants failed to provide evidence of fraud or ill practices.⁵ After a hearing on March 22, 2021, the trial court granted the exceptions and motion to annul, dismissing the appellant's petition. This timely appeal followed.

ANALYSIS

The appellants allege four assignments of error.

FIRST AND SECOND ASSIGNMENT OF ERROR

The first assignment alleges that the trial court erred in granting the exceptions of no right of action when finding no proper cause exists to reopen the succession. The second assignment alleges that the court erred in finding the appellants were not "interested persons." We shall address these assignments together since they both require an examination of La. C.C.P. art. 3393(B).

An exception pleading the objection of no right of action questions the plaintiff's standing or interest in the subject matter of the suit. La. C.C.P. art. 927(6). Specifically, the exception of no right of action questions whether a remedy afforded by law can be invoked by the plaintiff and determines if the plaintiff has a right or legal interest in the subject matter of the suit. Guidry v. Dufrene , 96-0194 (La. App. 1 Cir. 11/8/96), 687 So.2d 1044, 1045-46. To assert an action, a plaintiff must have a real and actual interest in the action asserted. La. C.C.P. art. 681. The burden of proof of establishing the exception of no right of action is on the exceptor. Roubion Shoring Company, L.L.C. v. Crescent Shoring, L.L.C., et al. , 16-540, 16-541 (La. App. 5 Cir. 5/17/17), 222 So.3d 921, 926. The exception of no right of action assumes the petition states a valid cause of action for some party and questions whether the plaintiff is a member of the class that has a legal interest in the subject matter of the litigation. L&G Drywall, Inc. v. Gray Ins. Co. , 19-441 (La. App. 5 Cir. 3/18/20), 293 So.3d 775, 778.

The concept of an "interested person" must be determined within the scope of La. C.C.P Article 3393. Article 3393(B) allows for the reopening of a succession, after rendition of a judgment of possession, "if other property is discovered, or for any other proper cause, upon the petition of any interested person."⁶ Whether a succession will be reopened or not is within the sound discretion of the trial court. Succession of Villarrubia, 95-2610 (La. 9/5/96), 680 So.2d 1147, 1150. The Louisiana Supreme Court stated "[t]he basic purpose of C.C.P. Art. 3393 is to provide a method for dealing with overlooked succession assets...Courts have found ‘other proper cause’ under La. C.C.P. art. 3393 to exist under extremely limited circumstances." Id.⁷

The appellants’ petition raised the argument of standing/right of action by virtue of their position as creditors of the decedent's usufructuary debt. The appellees assert that "[t]he deceased herein further attested to the fact that there were community bank accounts with balances totaling $49,545.69." This was the listed total value of the accounts listed as community movable property in the Sworn Descriptive List of Assets and Liabilities for the Succession of Andres Rivera signed by the decedent, Andres Rivera Jr. and Lopez. The judgement of possession in the Succession of Andres Rivera stated that Andres Rivera, Jr. and Carmen Lopez were "entitled to and hereby sent into possession of the naked ownership of the balance of all of the property of which decedent died possessed in equal portion, subject to the usufruct for life in favor of Teresa."

The decedent became the owner of the consumables and was free to dispose of or consume them as she wished, but this would have not destroyed her obligation to Andres Jr. and Lopez to "pay the naked owner either the value of the consumables at the time [s]he began the usufruct, or deliver things of the same quantity and quality" at the termination of the usufruct. La. C.C. art. 538. This obligation is in the nature of a debt owed by the succession to the owners. Succession of Majoue , 97-710 (La. App. 5 Cir. 11/25/97), 705 So.2d 225, 228-29. Therefore, upon the decedent's death and the termination of her usufruct, the naked owners of the bank account were creditors of the usufructuary debt.

The jurisprudence does not provide a controlling principle for whether creditors have been deemed "interested parties" and whether a belated claim by an alleged creditor is "proper cause" for reopening a succession. § 5.23. Reopening of successions, 1A La. Civ. L. Treatise, Civ. Proc. - Special Proceed.⁸ Some cases have specifically mentioned creditors as part of a group of interested persons. In Succession of Lasseigne , the court found no proper cause was shown to reopen succession, specifically noting that "[n]o creditor was appearing to demand payment of a debt." 488 So.2d 1303, 1306 (La. App. 3d Cir. 1986), writ denied , 494 So.2d 327 (La. 1986).

The Fourth Circuit declined to find proper cause after "discovery, made approximately 7 years after the closing of the succession, of facts showing that the succession inventory may have incorrectly allocated property to an allegedly nonexistent community of acquets and gains." Succession of Yancovich, 289 So.2d 855, 858 (La. App. 4th Cir. 1974). However, a concurring opinion in Succession of Anderson , distinguished Yancovich , noting:

Presumably, in Yancovich, publication of the

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