STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
19-91
SUCCESSION OF
BILLY DEAN CAMPBELL
**********
APPEAL FROM THE THIRTEENTH JUDICIAL DISTRICT COURT PARISH OF EVANGELINE, NO. 12273-A HONORABLE GARY J. ORTEGO, DISTRICT JUDGE
ELIZABETH A. PICKETT JUDGE
Court composed of Elizabeth A. Pickett, D. Kent Savoie, and Candyce G. Perret, Judges.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH INSTRUCTIONS.
C. Brent Coreil Attorney at Law Post Office Drawer 450 Ville Platte, LA 70586 (337) 363-5596 COUNSEL FOR APPELLANT: Jeremy Campbell Tara Lafleur Damian Campbell Marcus L. Fontenot Christopher Ludeau Fontenot & Ludeau, LLC Post Office Drawer 780 Ville Platte, LA 70586 (337) 363-3438 COUNSEL FOR APPELLEE: LB Johnson Properties, LLC LBJ Properties, LLC
Chad B. Guidry Attorney at Law Post Office Box 447 Kinder, LA 70648 (337) 738-2280 COUNSEL FOR APPELLEE: Amanda J. Campbell PICKETT, Judge.
The decedent’s three children from his first marriage appeal two judgments
rendered by the trial court regarding their motions to appoint an executor and to
traverse the detailed descriptive list filed by their father’s surviving spouse. For
the reasons discussed herein, we reverse in part, affirm in part, and remand this
matter to the trial court with instructions.
FACTS
Billy Dean Campbell died on June 2, 2016, after a battle with cancer. He
had three children during his first marriage: Jeremy Campbell, Tara LaFleur, and
Damian Campbell. After his first marriage ended, Billy had one child, John, with
Amanda Johnson Campbell whom he subsequently married on December 30,
2009. On April 27, 2017, Amanda filed a number of pleadings, including a
petition for probate of Billy’s last will and testament, his will, and a detailed
descriptive list. The petition requested that Amanda be placed in possession of the
legacies Billy made to her in his will and that Billy’s children as his
“heirs/legatees” “show cause why a judgment of possession should not be rendered
sending them and the surviving spouse into possession of [their legacies] in
accordance with his will.” The trial court probated the will but did not sign the
order for Billy’s children to show cause why a judgment of possession should not
be rendered. Thereafter, on May 12, 2017, Amanda filed a petition for possession
of unadminstered testate succession by surviving spouse and a corresponding
judgment of possession. The petition did not include a request for Billy’s legatees
to be ordered to show cause why the judgment should not be granted. On May 15,
2017, the trial court signed the judgment of possession. Jeremy filed a motion to have the judgment vacated because: (1) Billy’s will
designated him and Amanda as co-executors of the Estate; (2) no inventory was
conducted as indicated in Amanda’s petition; (3) the legatees did not accept the
estate as required by La.Code Civ.P. art. 3031; and (4) Amanda did not give him
notice of the filing as her attorney had previously agreed with his attorney. After a
hearing, the trial court annulled and vacated the “Judgment of Possession of Un-
Administered Testate Succession by Surviving Spouse.”
Thereafter, Jeremy filed a motion to be appointed independent executor,
asserting that Amanda had “administered the assets of the estate and continues to
operate business of the estate known as Campbell’s Trailer Park, L.L.C., without
the authority of being named as an Independent Executrix and without [c]ourt
authority.” Jeremy also filed a motion to traverse in which he asserted that
Amanda’s detailed descriptive list contained numerous errors with regard to assets
and three debts identified as being owned and/or owed by the Estate.
Amanda filed an answer and reconventional demand opposing Jeremy’s
motion to be appointed independent executor and requesting that she “be placed
into possession of (only) her bequest without the need for administration.” If the
trial court held that an administration was necessary, she sought to be named the
sole independent executor, or alternatively, to be named co-independent executor
with Jeremy.
Amanda’s detailed descriptive list included four debts. On July 20, 2017,
after the trial court vacated and annulled the judgment of possession, two of the
creditors listed in the detailed descriptive list, LB Johnson Properties, LLC and
LBJ Properties, LLC, filed proofs of claim. Larry B. Johnson, Amanda’s father,
filed the two proofs of claim on behalf of these two companies.
2 Over the course of three days in April, May, and July 2018, the trial court
held hearings on the issues raised in Jeremy and Amanda’s motions regarding
administration of the Estate, the appointment of an executor, and traversal of the
detailed descriptive list. On September 11, 2018, the trial court signed a judgment
that recognized the three debts challenged in Jeremy’s motion to traverse as valid
and enforceable against the Estate and ordered that they “be paid from the funds of
the [E]state.” The judgment also ordered that the proceeds derived from a sale of
cattle made by Amanda be disbursed one-third to his four children, jointly, and
one-third each to Amanda and Mr. Johnson, individually. The judgment denied
Jeremy’s requests for an administration of the succession and the appointment of
an independent executor. The judgment then recognized Amanda as Billy’s
surviving spouse and legatee and 100% owner of the family home, owner of one-
half of all remaining community property of the Estate and the usufructuary of the
other remaining one-half of said community property, until she dies or remarries; it
also placed her in possession of said property. The judgment also recognized
Billy’s children “as his sole heirs and residual legatees” and as:
a. the naked owners in equal undivided shares of one-half of all the community property left by the decedent, subject to the aforementioned usufruct in favor of Amanda Campbell. . . . [T]he community property left by the decedent is more particularly described on the attached Exhibit A.
b. the owners in equal undivided shares of all the separate property left by the decedent. The separate property left by the decedent is more particularly described on the attached Exhibit B.
Jeremy filed a motion for suspensive appeal. Mr. Johnson sought to have
the appeal dismissed for Jeremy’s failure to timely file the motion for appeal and
pay court costs. Jeremy’s siblings, Tara and Damian, then joined him in his
appeal. (Jeremy, Tara, and Damian are hereafter referred to as “the Heirs.”) The
3 Heirs opposed the motion and filed a peremptory exception of prescription in
which they argued that Mr. Johnson’s businesses’ claims were prescribed. After a
hearing, the trial court held that the Heirs’ suspensive appeal would be maintained
if they paid the appeal costs it set; otherwise, it would be converted to a devolutive
appeal. The trial court denied the Heirs’ exception of prescription. The Heirs
posted the appeal costs and proceeded with their suspensive appeal.
ASSIGNMENTS OF ERROR
The Heirs now assign the following five errors with the trial court’s
judgment:
1. Does the Judgment of Possession granted by the [trial court] make rulings beyond the issues which had been scheduled for hearing?
2. Was the debt which was allegedly represented by the collateral mortgage and the “copy” of the collateral mortgage note a valid debt of the [E]state?
3. Were the loans made by the Amanda [L.] Johnson’s Children’s 2009 Trust to Campbell’s Trailer Park, L.L.C. a debt of the [E]state?
4. Did the proof of claim and checks filed in the record by LBJ Properties, LLC represent collectible loans made by the decedent and listed as debts of the [E]state?
5. Was the award of one-third (1/3) of the sale proceeds from the sale of cattle by appellee, without court authorization, properly awarded to Larry Johnson, a non-party to the litigation at the hearing?
DISCUSSION
Our determination of the merits of the last four assignments of error may
impact our findings with regard to the first assignment of error. Accordingly, we
review these assignments first.
Claims Against the Estate
The three debts listed in Amanda’s detailed descriptive list that the Heirs
have challenged are two debts awarded against the Estate in favor of Mr. Johnson’s
4 two businesses, LB Johnson Properties, LLC and LBJ Properties, LLC, in the
amount of $132,500.00 and $79,051.62, and a debt awarded in favor of the
Amanda L. Johnson’s Children’s 2009 Trust in the amount of $35,000.00.
For ease of discussion herein, we reference LB Johnson Properties, LLC’s
and LBJ Properties, LLC’s claims as being asserted by Mr. Johnson, noting that
Mr. Johnson testified that he set up these corporations at the instruction of his
accountant to keep the operation of his various businesses separate for accounting
purposes. In doing so, we are mindful that the Heirs argue the trial court erred in
awarding judgment to these two entities because discrepancies exist between the
creditor-debt associations identified in the detailed descriptive list and the evidence
presented at trial, e.g., the creditor for the debt on the promissory note identified in
the detailed descriptive list is LBJ Properties, LLC, not LB Johnson Properties,
LLC, the creditor who sought to prove the debt at trial. For reasons discussed
below, we need not address this issue at this time.
The Heirs argue that parol evidence cannot be used to prove claims against a
decedent’s estate except under specific conditions and that when parol evidence is
admissible, the claims cannot be proved by the parol evidence of someone who has
a pecuniary interest in the claim.
The Dead Man Statute governs the proof claims against a decedent’s estate.
La.R.S. 13:3721-3722. The purpose of this statute “is to prevent stale and
unfounded claims from being filed against the succession which could have been
refuted by the deceased had he been alive.” Succession of Otts, 400 So.2d 1175,
1177 (La.App. 1 Cir. 1981) (citing Succession of DeLoach, 204 La. 805, 16 So.2d
361 (1943); Taylor v. Bocock, 276 So.2d 347 (La.App. 2 Cir.), writ denied, 279
So.2d 205 (La.1973)).
5 Louisiana Revised Statutes 13:3721 (emphasis added) provides:
Parol evidence shall not be received to prove any debt or liability of a deceased person against his succession representative, heirs, or legatees when no suit to enforce it has been brought against the deceased prior to his death, unless within one year of the death of the deceased:
(1) A suit to enforce the debt or liability is brought against the succession representative, heirs, or legatees of the deceased;
(2) The debt or liability is acknowledged by the succession representative as provided in Article 3242 of the Code of Civil Procedure, or by his placing it on a tableau of distribution, or petitioning for authority to pay it;
(3) The claimant has opposed a petition for authority to pay debts, or a tableau of distribution, filed by the succession representative, on the ground that it did not include the debt or liability in question; or
(4) The claimant has submitted to the succession representative a formal proof of his claim against the succession, as provided in Article 3245 of the Code of Civil Procedure.
The provisions of this section cannot be waived impliedly through the failure of a litigant to object to the admission of evidence which is inadmissible thereunder.
When parol evidence is admissible, La.R.S. 13:3722 (emphasis added)
requires that “the debt or liability of the deceased must be proved by the testimony
of at least one creditable witness other than the claimant, and other corroborating
circumstances.” In Savoie v. Estate of Rogers, 410 So.2d 683, 687 (La.1981), the
supreme court held:
This provision implies that the witness whose testimony is necessary for proof of the claim against the deceased cannot be a co-owner of the claim. The purpose of the requirement is to eliminate the possibility of fraud and perjury by witnesses who have a direct pecuniary or proprietary interest in the claim. If the statute were construed to allow the co-owner of a claim to supply a necessary element of proof, the purpose of the requirement would be defeated. Accordingly, we now hold that a person who has a direct pecuniary or proprietary interest in the plaintiff’s claim against the deceased person may not serve as his one creditable witness.
6 Moreover, if the claimant is a corporation, the testimony of its officers does not
satisfy this requirement. Fin. Corp. v. Estate of Cooley, 447 So.2d 594 (La.App. 3
Cir. 1984).
Mr. Johnson and Amanda assert that the Heirs explicitly waived La.R.S.
13:3721’s prohibition against parol evidence because they elicited parol evidence
in support of their arguments at trial. They point to La.R.S. 13:3721’s use of the
phrase “waived impliedly.” The limitation provided in La.R.S. 13:3722 also
addresses the Heirs’ complaints; therefore, we need not address this issue.
(1) Debt on Promissory Note
Mr. Johnson’s first claim is that on November 5, 2009, Billy executed a
promissory note made payable to bearer in conjunction with a $265,000.00 loan
that he made to Billy for his purchase of a family home. Pursuant to a subpoena
issued by the Heirs, Mr. Johnson produced a copy of a collateral mortgage note
dated November 5, 2009, in the amount of $350,000.00 executed by Billy and a
copy of a check on the account of LB Johnson Properties dated November 6, 2009,
made payable to Billy Campbell in the amount of $265,000.00 signed by Mr.
Johnson. Mr. Johnson did not produce the original collateral mortgage note, the
original promissory note, or a copy of the promissory note, and he testified at trial
that he did not have possession of either note.
Mr. Johnson and the attorney, who prepared the collateral mortgage, the
collateral mortgage note, and alleged promissory note, testified regarding the facts
surrounding the loan, the preparation of the documents, and the execution of the
documents evidencing the debt. The attorney also testified that he did not have
possession of the original collateral mortgage note or the promissory note. In
7 conjunction with this testimony, Mr. Johnson introduced certified copies of the
collateral mortgage in the amount of $500,000.00 executed by Billy and the act of
sale by which Billy purchased the family home.
In their exception of prescription, the Heirs asserted that Mr. Johnson’s
claim on the alleged promissory note is prescribed. Mr. Johnson contends that he
proved by parol evidence that Billy executed a promissory note in the amount of
$265,000.00 and that prescription on the promissory note was interrupted by the
pledge of the collateral mortgage note. The trial court denied the Heirs’ exception.
McGill v. Thigpen, 34,386, pp. 3-4 (La.App. 2 Cir. 2/28/01), 780 So.2d
1224, 1227-28 (citations omitted), explained the use of collateral mortgages and
mortgage notes as security for a debt:
A collateral mortgage is a form of conventional mortgage which developed in Louisiana’s jurisprudence through the recognition that one can pledge a note secured by a mortgage to secure another debt. The collateral mortgage is comprised of three documents. First, there is a promissory note, referred to also as a collateral mortgage note or a ne varietur note. Second, there is an act of mortgage, also referred to as the collateral mortgage, which secures the collateral mortgage note. Third, there is an indebtedness evidenced by a promissory note, also referred to as the hand note, for which the collateral mortgage note is pledged as security. No money is directly advanced on the collateral mortgage note which is paraphed to identify it with the act of mortgage. Instead, the collateral mortgage note and the mortgage securing it are pledged to secure a debt evidenced by the hand note.
Since the collateral mortgage note and hand note are promissory notes, they are subject to a prescriptive period of five years as provided in La. C.C. art. 3498. Both collateral mortgage notes at issue in the instant case are demand notes. Prescription on a note payable on demand runs from the date of execution of the note. The collateral mortgage notes in the instant case were executed on May 26, 1982 and February 29, 1984, respectively. As such, these notes appear to be prescribed. Similarly, the hand note which was payable on April 27, 1987, also appears to be prescribed.
The party pleading the peremptory exception of prescription bears the burden of proof. However, where the [creditor’s] cause of
8 action is prescribed on the face of the petition, the [creditor] bears the burden of rebutting the plea of prescription. In the instant case, the [creditor’s] cause of action appears to be prescribed on the face of their petition. Accordingly, the burden is on the [creditor] to overcome the [] plea of prescription.
When a collateral mortgage and collateral mortgage note are used to secure
repayment of a promissory note, “[i]t is not the act of pledge that interrupts
prescription. Rather, it is the retention by the pledgee of the thing pledged which
serves as a constant acknowledgment of the debt and a renunciation of
prescription.” McGill, 780 So.2d at 1229. Prescription is not interrupted,
however, if the original collateral mortgage note is not in the creditor’s possession.
Id. In McGill, both the promissory note and the collateral mortgage note had been
lost; therefore, the court held that prescription on the promissory note was not
interrupted by constant acknowledgement.
The same is true here. Even assuming that Mr. Johnson proved the existence
of the $265,000.00 promissory note, he does not have the collateral mortgage note
in his possession. Therefore, he failed to prove that prescription on the promissory
note was interrupted. Under these facts, the promissory note prescribed on
November 5, 2014. Id.
At best, Mr. Johnson’s check payable to Billy proved that he loaned Billy
$265,000.00 on November 6, 2009. Claims for money loaned prescribe in three
years. La.Civ.Code art. 3494(3). Mr. Johnson acknowledged that Billy had not
made any payments on the loan and did not establish with other evidence that
prescription on the loan was otherwise interrupted. Accordingly, prescription on
this debt was not interrupted, and the trial court erred in denying the exception of
prescription and awarding judgment in favor of LB Johnson Properties, LLC for
$132,500.00 against the Estate.
9 (2) Debt for Payments Made to Others
Mr. Johnson’s second claim is based on monies paid by LBJ Properties,
LLC to Billy as loans and payments made to various vendors, suppliers, and
workmen to sustain Billy and Amanda’s personal and business enterprises during
Billy’s illness and shortly after his death.
To prove this claim, Mr. Johnson presented his testimony and the testimony
of others and copies of checks made payable to Billy, various individuals, and
businesses. He produced copies of the fronts of more than 130 checks to prove his
claim. The dates of the checks range from January 31, 2012, through September
28, 2016. Mr. Johnson’s testimony was the only evidence submitted to prove the
agreement he had with Billy that he would fund Billy and Amanda’s personal and
business expenses while Billy was sick. His testimony was the only testimony that
established each check was written for the benefit of Billy, the expense each check
paid, and the need or purpose for each expense paid.
Bobby Nacio worked for Billy and for Mr. Johnson and testified on behalf of
Mr. Johnson. He testified that most of the time, he was contacted by Mr. Johnson
to work on Billy and Amanda’s rental properties and farm. He also testified that
sometimes he asked Mr. Johnson for money to pay expenses associated with work
he performed for Billy, but other times he just charged the expenses to Mr.
Johnson. Mr. Nacio acknowledged that he and others who worked for Billy ate at
local eateries on occasion and charged the meals to Mr. Johnson. He further
testified that other workers who performed work for Billy and Amanda were paid
by Mr. Johnson. Mr. Nacio also explained that sometimes Mr. Johnson paid him
with one check for work he performed on Mr. Johnson’s properties and on Billy
10 and Amanda’s properties and that sometimes Amanda paid him for work he
performed on her and Billy’s properties and on Mr. Johnson’s properties.
As an owner of LBJ Properties, LLC, Mr. Johnson’s testimony cannot be
considered to prove this claim. Savoie, 410 So.2d 683. The testimony of his other
witnesses substantiated that Mr. Johnson wrote some checks to pay expenses on
Billy and Amanda’s behalf but does not establish with any specificity the dates,
amounts, or necessity of the specific expenditures he made on their behalf. Mr.
Nacio’s and Mr. Johnson’s testimony further shows that Mr. Johnson made lump
sum payments for expenses and work performed on properties owned by Billy and
Amanda and by him. Moreover, Mr. Johnson testified that he kept cattle on Billy
and Amanda’s farm such that some of the many expenses he claimed with regard
to the farm were his expenses. He further explained that he also had rental
properties and that some of the many expenses he claimed with regard to rental
properties were his expenses.
In Succession of Moore, 96-1268 (La.App. 1 Cir. 6/20/97), 696 So.2d 1040,
the court considered whether the documentary evidence that consisted of numerous
checks, photocopies of checks, and carbon copies of checks was sufficient to prove
a creditor’s claim for reimbursement of monies paid on behalf of the decedent.
The court observed that the memo sections on most of the checks referenced the
decedent by name or various insurance policy numbers and concluded that without
the creditor’s testimony this evidence was insufficient to prove her claim because
she failed to produce “coordinating insurance policies, bills, invoices or other
documents to substantiate that these checks were actually written to pay the debts
of Effie Moore.” Succession of Moore, 696 So.2d at 1043. The same is true here.
Because the admissible testimonial evidence and the documentary evidence do not
11 “substantiate the alleged payments and explain the checks, there is insufficient
evidence in the record to prove the extent of the alleged debt.” Id.
Moreover, the first fifty-nine checks were dated more than three years before
Mr. Johnson filed his proof of claim on behalf of LBJ Properties, LLC. The time
for filing a proof of claim is governed by La.Code Civ.P. art. 3245(A), which
provides:
A creditor may suspend the running of prescription against his claim for up to ten years:
(1) By delivering personally or by certified or registered mail to the succession representative, or his attorney of record, a formal written proof of the claim.
(2) By filing a formal written proof of the claim in the record of the succession proceeding, if the succession has been opened and no person has been appointed or confirmed as succession representative and no judgment of possession has been signed.
(3) By filing a formal written proof of the claim in the mortgage records of the appropriate parish as provided in Article 2811, in the absence of a proceeding to open the succession.
No succession representative had been appointed before Mr. Johnson filed a
formal written proof of claim in the record of this matter on July 20, 2017. See
La.Code Civ.P. arts. 2826, 1 3245; Successions of Marcotte, 449 So.2d 732
(La.App. 3 Cir. 1984).
Mr. Johnson contends prescription on these checks was interrupted by an
agreement between him and Billy by which Billy would not charge him rent for the
house or houses Mr. Johnson placed in a trailer park owned by Billy and Amanda.
The only evidence on this issue is Mr. Johnson’s testimony, which fails to meet the
requirements of La.R.S. 13:3722.
1 Louisiana Code of Civil Procedure Article 2826 defines succession representative as including “an administrator, provisional administrator, administrator of a vacant succession, executor, and dative testamentary executor.”
12 The trial court erred in awarding judgment in the amount of $70,051.62 to in
favor of LBJ Properties, LLC against the Estate, and it is reversed.
(3) Debt for Loans by the Amanda L. Johnson’s Children’s 2009 Trust
The last debt the Heirs traverse is the claim by the Trust in the amount of
$70,000.00 total, with one-half being owed by the Estate. At the traversal hearing,
Amanda testified on behalf of the Trust that the Trust made four loans to
Campbell’s Trailer Park to improve rental property she and Billy owned and that
the original balance owed thereon had been reduced by a donation of real estate
that she and Billy made to the Trust.
In conjunction with her testimony, Amanda introduced copies of four checks
in the amount of $25,000.00 dated March 6, 2014, April 4, 2014, May 28, 2014,
and October 22, 2014. Copies of the front and back of each check were introduced
into evidence. Two of the checks were made payable to Campbell’s Trailer Park,
and two were made payable to Campbell’s Trailer Park, LLC. Notations on each
check indicate that they represented loans. A statement written by the bank on
which the checks were drawn was attached to each copy of the checks and shows
that the checks were negotiated and the dates on which they cleared the account.
The statement reads: “This is written to verify that the temporary check that was
written to Campbell’s Trailer Park on . . . for $25,000.00 from the Amanda L.
Johnson’s Children’s 2009 Trust cleared on . . . .” Additional information included
for each check shows that Amanda is the trustee of the Trust.
In Succession of Kilpatrick, 356 So.2d 1083 (La.App. 2 Cir.), writ denied
sub nom. Kilpatrick v. Kilpatrick, 359 So.2d 198 (La.1978), the court held that a
trustee has a pecuniary interest in a claim asserted on behalf of the trust because
13 pursuant to La.R.S. 9:2181, she is entitled to reasonable compensation from the
trust estate for services she rendered as trustee.
The documentary evidence, exclusive of Amanda’s testimony, established
that the Trust loaned Campbell Trailer Park $100,000.00. Amanda testified that
she and Billy donated a piece of property valued at $30,000.00 to the Trust in
partial payment of the debt. Louisiana law distinguishes between parol evidence
used to establish the existence of a debt and parol evidence used to establish the
debt’s value and allows the use of parol evidence to prove the balance owed on a
debt. Succession of Bonnette, 188 La. 297, 176 So. 397 (La.1937); Adams v.
Carter, 393 So.2d 253 (La.App. 1 Cir. 1980), writ denied, 398 So.2d 531
(La.1981).
The Heirs sought to have this claim invalidated on the basis that this debt is
owed by Campbell’s Trailer Park, LLC, not Billy and Amanda personally.
Amanda counters that she and Billy did not operate the LLC independently of their
personal finances but as an extension of their personal finances for accounting
purposes. She explained that they used the LLC for the collection of rents and the
payment of expenses. Amanda supported her testimony with copies of tax returns
she and Billy filed for the years 2014 and 2015 and a copy of their 2016 return that
had been prepared but not yet filed.2 These returns show that Amanda and Billy
included all income, losses, and expenses for their rental properties on their
personal tax returns. Additionally, annual property tax statements for the rental
properties show that they are assessed as the property of Billy and Amanda.
2 Amanda explained in her August 2017 deposition that she and Billy filed their tax returns in October of each year.
14 For these reasons, the trial court did not err in finding that the Trust’s claim
against the Estate is valid, and that Amanda’s testimony established the balance
owed on the debt. Accordingly, the trial court’s award against the Estate for
$35,000.00 in favor of the Amanda L. Johnson’s Children’s 2009 Trust Fund is
affirmed.
Award of Cattle Sale Proceeds to Larry Johnson
In their last assignment of error, the Heirs contend the trial court erred in
awarding Mr. Johnson one-third of the proceeds derived from Amanda’s sale of the
cattle because he did not make a claim for any portion of the cattle proceeds. Mr.
Johnson does not address this issue in his appellate brief, and Amanda admits in
her appellate brief that the issue was not before the trial court for determination.
Amanda argues, however, that the trial court did not err in ordering
disbursement of the proceeds because the issue of whether an administration of the
Estate is needed was before the trial court. She reasons, therefore, that the
disbursement of the proceeds was an issue for the trial court to address but argues
the trial court’s disbursement allocations are wrong and seeks reapportionment of
the proceeds. As noted by the Heirs, Amanda did not file an appeal, nor did she
file an answer to their appeal. An appellee cannot “have the judgment modified,
revised, or reversed in part” unless he files a cross-appeal or an answer to the
appellants’ appeal. La.Code Civ.P. art. 2133. As a result, Amanda’s request is not
properly before this court.
The Heirs contend that the proceeds represent community property and
separate property and that they are entitled to one-half the proceeds awarded to Mr.
Johnson. The record does not contain sufficient evidence for us to decide this
issue. Accordingly, we remand this issue to the trial court and instruct it to hold a
15 hearing to determine the classification of the cattle sold and the proceeds derived
from those sales as separate property or community property and properly
apportion the one-third of the proceeds erroneously awarded to Mr. Johnson.
Judgment of Possession
The Heirs contend that the trial court’s September 11, 2018 judgment
addressed issues that the parties’ pleadings did not present for determination and
improperly granted a judgment of possession placing Billy’s children in possession
of their legacies. They do not challenge the trial court’s granting judgment in favor
of Amanda and placing her in possession of her legacies.
The Heirs further argue the trial court erred in ordering that the monetary
awards made therein be paid with “funds of the [E]state” because (1) their motion
to traverse presented only the issue of whether the debts identified in the
descriptive list were valid, not the payment of the debts; (2) the Estate does not
have sufficient funds to pay the debts awarded; (3) the judgment does not name a
person responsible for paying the debts; and (4) it did not rule on Jeremy and
Amanda’s motions to be appointed executor; therefore, no party was designated to
pay debts; and (5) in some instances, the judgment’s grant to Amanda of the use,
control, and management of the Estate’s community property entails the Heirs’
undivided separate property without her being accountable to them.
We first consider whether the trial court erred in rendering a judgment of
possession without requiring an administration of the Estate. The Heirs argue that
because all of Billy’s legatees did not accept the succession as required by La.Code
Civ. P. art. 3031, the trial court’s judgment improperly sent them into possession of
their legacies without an administration of the estate. The Heirs contend that the
trial court did not follow the mandate of La.Code Civ.P. art. 3031(A), which only
16 allows “all the legatees” in a testate succession to be put “into possession of their
respective legacies without an administration of the succession . . . if each of them
is . . . competent . . . and accepts the succession, and none of the creditors of the
succession has demanded its administration.” (Emphasis added.) Louisiana Code
of Civil Procedure Article 3033 further provides, in pertinent part: “the legatees
may be sent into possession only if the person named in the testament as executor
joins in the petition thereof.” Amanda’s petition for possession and the evidence
presented at the hearing do not satisfy these requirements.
The trial court has authority to issue a judgment of possession “only when an
examination of the petition and review of the entire record clearly reveals
entitlement to possession.” Succession of Johnson, 97-1238, p. 5 (La.App. 5 Cir.
5/27/98), 712 So.2d 1054, 1056. Amanda argues the trial court properly exercised
its discretion in denying the Heirs’ claim that Billy’s succession should be placed
under administration. See Succession of Alstock, 230 La. 167, 88 So.2d 14 (1956).
Such discretion is not unlimited, however, and a trial court cannot place legatees in
possession of their legacies if all legatees do not join in the ex parte petition and
unconditionally accept the succession. Succession of Choplin, 94-37 (La.App. 3
Cir. 10/5/94), 643 So.2d 890; Succession of Browne, 142 So.2d 494, (La.App. 2
Cir.1962), aff’d, 244 La. 36, 150 So.2d 555 (1963).
The trial court’s judgment is reversed with regard to its placement of Billy’s
children in possession of their legacies and denial of the Heirs’ request for
administration.
DISPOSITION
For the reasons discussed herein, we reverse the trial court’s monetary
awards in favor of LB Johnson Properties, LLC; LBJ Properties, LLC; and Larry
17 B. Johnson. We also reverse the placement of Billy’s children in possession of
their legacies and the denial of the Heirs’ request for administration. The award in
favor of the Amanda L. Campbell’s Children’s 2009 Trust is affirmed.
This matter is remanded to the trial court for a hearing to determine the
classification and award of that portion of the proceeds derived from the cattle
sales as separate property or community property formerly awarded to Larry B.
Johnson. The trial court is further instructed to order an administration of the
Estate and to appoint Amanda and Jeremy co-executors as provided in Billy’s will.
Court costs are assessed one-quarter each to LB Johnson Properties, LLC
and LBJ Properties, LLC and one-half to Amanda Campbell, individually.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH INSTRUCTIONS.