Succession of Leone Ittmann Flake

• Court: Louisiana Court of Appeal
• Decided: April 3, 2024
• Docket: 23-CA-310
• Status: Unknown

Opinion

SUCCESSION OF LEONE ITTMANN FLAKE NO. 23-CA-310

FIFTH CIRCUIT

COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 805-656, DIVISION "I" HONORABLE NANCY A. MILLER, JUDGE PRESIDING

April 03, 2024

SCOTT U. SCHLEGEL JUDGE

Panel composed of Judges Stephen J. Windhorst, Scott U. Schlegel, and Timothy S. Marcel

REVERSED IN PART AND REMANDED; MODIFIED IN PART; AFFIRMED IN PART SUS SJW TSM PLAINTIFF/APPELLANT, ALLAN MARK FLAKE, SR. IN HIS CAPACITY AS THE TESTAMENTARY EXECUTOR In Proper Person

COUNSEL FOR PLAINTIFF/APPELLEE, DIANA FLAKE BAKER Justin E. Molaison Harold E. Molaison

COUNSEL FOR PLAINTIFF/APPELLEE, WENDY FLAKE DEBRAM Jack A. Tittle, Jr. SCHLEGEL, J.

The executor in this succession, A. Mark Flake, who is also a legatee, seeks

review of the trial court’s March 1, 2023 judgment of possession. He also appeals

the trial court’s March 10, 2023 judgment, which denied his motion for sanctions

against legatee, Diana Flake Baker, and ordered him to pay $2,500 in attorney’s

fees to Ms. Baker and her counsel, Justin E. Molaison. For reasons stated more

fully below, we reverse and modify the disposition of the decedent’s Gator Trax

mud boat in the March 1, 2023 judgment of possession. We also reverse the

disposition placing the legatees into possession of certain banking and investment

accounts that were previously liquidated and remand for further proceedings as

instructed. Otherwise, we affirm the judgment of possession. With respect to the

March 10, 2023 judgment, we affirm the denial of Mr. Flake’s motion for

sanctions against Ms. Baker under La. C.C.P. art. 863, but we reverse the award of

attorney’s fees against Mr. Flake.

FACTS AND PROCEDURAL HISTORY

Though this succession does not involve a large or complex estate, it has an

extensive and convoluted procedural history. Leone Ittmann Flake passed away on

March 16, 2020 in Metairie, Louisiana. On April 1, 2020, Diana Flake Baker, one

of the decedent’s children and heirs, filed a petition requesting notice if anyone

filed an application to appoint a succession representative for the decedent’s estate.

Shortly thereafter, the decedent’s son and heir, A. Mark Flake, filed a petition

seeking to be appointed as an independent administrator and to probate Ms. Flake’s

notarial will executed on September 7, 2019. The September 2019 will left the

decedent’s property to her three adult children, Mr. Flake, Ms. Baker, and Wendy

Flake DeBram, and named Mr. Flake as the executor. Mr. Flake also submitted a

preliminary descriptive list of the estate’s assets and liabilities, which included

23-CA-310 1 three homes that the decedent owned at the time of her death: One-half interest in

3701 Wanda Lynn Drive;1 3713 Wanda Lynn Drive; and 433 Greenmount Drive.

On May 8, 2020, the trial court denied Mr. Flake’s request to be appointed

as an independent administrator.2 Instead, the trial court signed an alternative

order, provided by Mr. Flake, appointing him as an ordinary succession

administrator. The trial court also ordered Mr. Flake to file a detailed descriptive

list of the succession property and to post a security bond in the amount of

$46,000.

Ms. Baker then moved to file a prior will executed by the decedent in March

2019 into the record, which named her as independent executor. The primary

difference between the March and September 2019 wills is the manner in which

the decedent divided ownership of her three homes. The March 2019 will divided

the three homes equally between the three children as co-owners. By contrast, the

September 2019 will granted Mr. Flake full ownership of 3713 Wanda Lynn Drive

and Ms. DeBram full ownership of 433 Greenmount Drive. The disposition of

3701 Wanda Lynn Drive to Ms. Baker is the main source of controversy in these

proceedings and contains the following language, which Mr. Flake characterizes as

an equalization formula:

iii.) The percentage of ownership of 3701 Wanda Lynn Drive valued in the amount of the combined appraised values of 433 Greenmount Drive and 3713 Wanda Lynn Drive shall be given to Diana Flake Baker, or if she predeceases me, to her heirs. Diana Flake Baker, or her heirs, shall also be given one third of the remaining value exceeding those appraised amounts. Wendy Flake DeBram, or her heirs, shall be given the percentage of ownership representing one third of the value exceeding the appraised value of 433 Greenmount Drive. Alan Mark Flake, Sr., or his heirs, shall be given the percentage of ownership representing one third of the value exceeding the appraised value of 3713 Wanda Lynn Drive. 1 According to the parties, the decedent owned community property with her husband, who died prior to her, but his succession proceedings remained unresolved. 2 In written reasons issued by the trial court, it explained that language in the September 2019 will, indicating that the administration of the estate should be “as free as possible from any court supervision,” was not sufficient to change Mr. Flake’s designation in the will as an executor to an independent executor or administrator.

23-CA-310 2 Ms. Baker also filed a petition to revoke Mr. Flake’s letters of administration

due to his alleged failure to provide her with notice of his application for

appointment as an independent administrator. On May 27, 2020, the trial court

entered an order revoking its May 8, 2020 order appointing Mr. Flake as an

administrator and set the matter for hearing on July 30, 2020.

Following the hearing, the trial court signed an order that probated the

September 2019 will, and appointed Mr. Flake as the testamentary executor in

accordance with the terms of the will. The trial court also ordered Mr. Flake to

provide an accounting within 30 days of the signing of the order. On September 4,

2020, Mr. Flake filed an Initial Interim Account. Approximately two months later,

on November 12, 2020, Mr. Flake filed a Supplemental and Amended Descriptive

List of Assets, outlining all of the decedent’s immovable and movable assets, with

appraised and estimated values for certain assets. This list indicated that the

appraised values for the decedent’s three residences as of the date of her death

were as follows: 1) one-half (1/2) interest in 3701 Wanda Lynn Drive - $185,000;

2) 3713 Wanda Lynn Drive - $190,000; and 3) 433 Greenmount Drive - $265,000.

A week later, Mr. Flake and Ms. DeBram filed a petition for partial partition

seeking to place the legatees into possession of the estate’s immovable property

only. They specifically asked the court to place Ms. DeBram into possession of

full ownership of 433 Greenmount Drive, Mr. Flake into possession of full

ownership of 3713 Wanda Lynn Drive, and for Ms. Baker to receive possession of

the decedent’s one-half interest in 3701 Wanda Lynn Drive. The petition did not

ask the trial court to apply any equalization formulas to 3701 Wanda Lynn Drive,

or any other home.

Shortly thereafter, Ms. Baker filed a petition to annul the September 2019

will, as well as an opposition to the petition for partial possession. In these filings,

Ms. Baker alleged that the will was the product of undue influence on the decedent

23-CA-310 3 by Mr. Flake and further challenged the testamentary capacity of the decedent at

the time she executed the will. After the parties completed discovery related to the

petition for nullity, the matter was set for trial on February 26, 2021. Following

the presentation of Ms. Baker’s case, Mr. Flake moved for a directed verdict,

which the trial court granted.

On April 1, 2021, the trial court signed a written judgment dismissing Ms.

Baker’s petition to annul the will with prejudice, and also issued reasons for

judgment. In its reasons, the trial court concluded that “[t]here was no evidence of

lack of testamentary capacity, and no direct evidence of undue influence” that rose

to the level of the required clear and convincing evidence standard. However, the

trial court observed that the language in the September 2019 will pertaining to the

disposition of the 3701 Wanda Lynn Drive to Ms. Baker was “poorly drafted and

awkwardly worded,” and reflected an incorrect presumption that this property was

worth more than the other two residences.

After the trial court denied the petition to annul, Mr. Flake filed a motion to

reset a hearing on the petition for partial possession of the immovable property that

he had previously filed. Ms. Baker responded by filing a petition for possession of

her own on April 5, 2021, requesting that the court place the legatees into

possession of all of the estate assets, immovable and movable, identified in the

detailed descriptive list and Initial Interim Account filed by Mr. Flake at the

infancy of the proceedings. Similar to Mr. Flake’s petition for possession, Ms.

Baker did not ask the trial court to employ any equalization formulas to divide

ownership of the residences. Both petitions for possession were set for hearing on

June 3, 2021.

Mr. Flake argued in opposition that Ms. Baker’s request to place the legatees

into possession of all estate assets was premature and designed to circumvent her

obligation to proportionally share in outstanding administrative expenses. He

23-CA-310 4 argued that the vast majority of the expenses incurred by the estate related to

maintaining the immovable property and for legal fees incurred to defend the

petition to annul the decedent’s testament filed by Ms. Baker. Therefore, he asked

the court to delay entry of a judgment of possession with respect to the movables

until the court determined how the administrative expenses should be divided

among the legatees.

The following day, Mr. Flake filed a petition to file a second tableau of

distribution seeking authorization to pay attorney’s fees, taxes, and administrative

costs. In response, Ms. Baker filed an opposition arguing that the court should

hold Mr. Flake personally responsible for attorney’s fees incurred to compel

discovery relevant to her petition to annul the will. Due to this opposition, the trial

court also set the petition seeking to homologate the second tableau of distribution

for hearing.

At the June 3, 2021 hearing, Mr. Flake indicated that the parties were in

agreement as to how to distribute the immovable property. Therefore, he asked

that the court place the parties in partial possession of the immovable property so

that the estate would no longer have to incur expenses such as taxes, insurance, and

utilities for these properties. But he requested additional time before placing the

legatees into possession of the movable property to allow him to file another

tableau of distribution to address additional outstanding expenses, including

attorney’s fees, taxes, and the executor’s fee. During oral argument, the trial court

indicated that it was not willing to enter a partial judgment of possession.

Therefore, the trial court ordered Mr. Flake to file a final tableau of distribution

including all expenses by July 6, 2021, and ordered any opposition to the final

tableau to be filed by July 21, 2021. The trial court reset all pending matters for

hearing on August 12, 2021.

23-CA-310 5 On July 6, 2021, Mr. Flake filed a petition to file the third and final tableau

of distribution. Unfortunately, the tableau did not include a schedule of proposed

distributions of the movable property or funds to the legatees. Moreover, while the

title of the filing indicated it was a final tableau, it included the following footnote

regarding the need to supplement the “final accounting” with additional expenses:

Executor notes and discloses that as there are Petitions for Possession and a Second Tableau of Distribution that remain pending in this proceeding, there will be additional administrative expenses in the form of attorney’s fees and court costs that will be incurred subsequent to the submission of this Third and Final Tableau of Distribution and may be additional maintenance costs incurred for 3701 Wanda Lynn Drive, which are subject to and may need to approval (sic) of the Court.

The following day, Mr. Flake filed a supplemental and amending petition for

possession, in which he argued for the first time that because the appraised value of

433 Greenmount significantly exceeded the value of the other two residences, the

trial court should divide ownership of this property among the three children to

equalize the distribution. He, therefore, proposed that the trial court reduce Ms.

DeBram’s percentage of ownership of 433 Greenmount to 81.4%, and award Ms.

Baker and himself ownership percentages of 8.4% and 10.2%, respectively. Mr.

Flake claimed this adjustment was necessary because at the time the decedent

executed the September 2019 will, she mistakenly believed the value of her

interests in 3701 Wanda Lynn exceeded the values of 433 Greenmount and 3713

Wanda Lynn. Therefore, Mr. Flake explained that he included an equalizing

formula in the will to adjust the ownership of 3701 Wanda Lynn. The property

appraisals he obtained after the decedent’s death revealed that the value of 433

Greenmount was actually substantially higher than the value of the other two

residences. And so he requested that the trial court award Ms. Baker and himself a

percentage of ownership of 433 Greenmount Drive in order to equalize the

23-CA-310 6 distribution of the residences by value in accordance with the decedent’s intentions

and with La. C.C. art. 1613.3

Finally, on that same day, Mr. Flake filed a “Current Account,” which

provided an updated list of the estate’s movable property. The account indicated

that the decedent’s checking accounts with Fidelity Bank and Gulf Coast Bank, as

well as an annuity with Lincoln Benefit Life and an investment account with

Avantax Investment Services, were either closed or liquidated, and the funds were

all deposited into a Regions Bank checking account opened for administration of

the decedent’s estate.

Ms. DeBram responded to Mr. Flake’s filings with an “Opposition to

Supplemental and Amended Petition, a Motion to Traverse Supplemental and

Amended Descriptive List of Assets, and Motion for Declaratory Judgment.” In

her motion, she asked the trial court to enter a declaratory judgment finding that

the September 2019 will awarded her full ownership of 433 Greenmount Drive,

regardless of the value. She alternatively argued that she obtained an appraisal of

433 Greenmount Drive that valued the property at $185,000, and thus the

properties were essentially equal in value.

Ms. Baker filed an “Opposition to Petition Filing Third and Final Tableau of

Distribution, Opposition to Supplemental and Amending Petition for Possession

and Supplemental Opposition to Petition Filing Second Tableau of Distribution.”

In her opposition, Ms. Baker objected to the third and final tableau of distribution

because it did not include a proposal to distribute any funds to the heirs and was

not final because the executor indicated that he would have to supplement the

tableau to add additional expenses. She complained that Mr. Flake should have

3 La C.C. art. 1613 provides that “[i]f the identification of an object given is unclear or erroneous, the disposition is nonetheless effective if it can be ascertained what object the testator intended to give. If it cannot be ascertained whether a greater or lesser quantity was intended, it must be decided for the lesser.”

23-CA-310 7 included all final and anticipated expenses to allow the court to homologate the

final tableau of distribution and enter the judgment of possession to close the

succession. Ms. Baker also objected to Mr. Flake’s request for an executor’s fee

and argued that he should be personally responsible for some or all of the

attorney’s fees incurred by the estate due to the breach of his fiduciary duty to

close the succession.

Finally, Ms. Baker filed a Supplemental and Amending Petition for

Possession asking that the trial court remove Mr. Flake as executor due to his

request to place himself into possession of a percentage of ownership of 433

Greenmount, contrary to the provisions of the probated testament.

On August 13, 2021, the following matters came for hearing before the trial

court: the Petition for Partial Possession filed by Mr. Flake and Ms. DeBram; the

Supplemental and Amending Petition for Possession filed by Mr. Flake; the

Petition for Possession filed by Ms. Baker; the objections to the Second and Third

Tableaus of Distribution filed by Ms. Baker; and Opposition and Rule to Traverse

Supplemental Detailed Descriptive List and Motion for Declaratory Judgment filed

by Ms. DeBram.

At the hearing, Ms. Baker’s counsel called Mr. Flake as a witness, but only

for the limited purpose of having Mr. Flake confirm that the decedent asked him to

revise her will in order to give Ms. DeBram full ownership of 433 Greenmount

Drive. After hearing this limited testimony and arguments from counsel, the trial

court ordered the second and third tableaus of distribution homologated and

overruled all objections. The trial court further ordered that any attorney’s fees

and costs associated with the administration of the succession that Mr. Flake failed

to include in the tableaus of distribution were to be paid personally by him.

The trial court then denied Mr. Flake’s supplemental and amending petition

for possession, and granted Ms. DeBram’s motion for declaratory judgment,

23-CA-310 8 thereby finding that Ms. DeBram should obtain full ownership of 433 Greenmount

Drive without any equalizing adjustments. Finally, the trial court granted Ms.

Baker’s petition for possession and placed the heirs into “possession of the

properties as listed in the supplemental and amending descriptive list filed on

November 12, 2020.”4 But the trial court failed to render a separate written

judgment of possession containing specific distributions of the immovable and

movable property. The court further stated on the record that it was a “partial

possession,” as there were other small items outstanding.

On August 16, 2021, the trial court signed a written judgment setting forth

its rulings. On October 12, 2021, Mr. Flake filed a motion for devolutive appeal,

which the trial court granted. This Court, however, dismissed the appeal, without

prejudice, for lack of appellate jurisdiction. Succession of Flake, 22-91 (La. App.

5 Cir. 11/30/22), 353 So.3d 1004, 1008-09. This Court determined that the August

16, 2021 judgment did not distribute all of the succession property, and therefore,

was not a final judgment. Id,

Following remand, Ms. Baker filed a motion asking the trial court to enter a

final judgment of possession and attached a proposed judgment. The trial court set

the motion for hearing on March 2, 2023.

Mr. Flake filed an opposition objecting to the proposed judgment of

possession on several grounds. He first argued that the proposed distribution of

movables was incorrect because it was based on the list of movables contained in

the initial interim account and supplemental and amended descriptive list he filed

earlier in the succession proceedings. As a result, the proposed judgment of

possession, if signed, would place the legatees in possession of financial accounts

4 The trial court stated in its oral ruling at the hearing that it granted “Wendy’s” petition for possession. However, Ms. DeBram did not file a separate petition for possession. Further, in its written judgment rendered on August 16, 2021, the trial court granted Ms. Baker’s petition for possession. When there is a conflict between a trial court’s oral rulings and written judgment, the written judgment controls. See Richard v. Bourgeois, 19-494 (La. App. 5 Cir. 3/18/20), 293 So.3d 790, 793.

23-CA-310 9 that had been closed and consolidated into a single estate account. He argued that

the trial court should instead use the Current Account he filed on July 7, 2021, to

distribute the remaining estate funds as it contained the updated and final list of

assets following the satisfaction of the estate’s debts. Specifically, he proposed

that the trial court distribute the remaining funds as follows:

The Current Account, which was updated and filed prior to the final hearing should be used in order to determine the final corrected lists of assets and expenses of the estate. In this regard, following the satisfaction of the estate’s debts, the remaining $1,373.26 should be ordered to be dispersed as follows: $457.75 to Mrs. DeBram, $457.75 to Mr. James Baker and $457.75 to Mr. Flake.5

Second, he complained that the proposed judgment of possession provided

for joint possession of the decedent’s vehicles, rather than dividing the vehicles

among the legatees following appraisal as provided for in the September 2019 will.

He argued that the decedent had three vehicles, which he estimated to be of equal

value as set forth in the Current Account, and therefore, each legatee should

receive a vehicle. Finally, he claimed that will left him all hunting equipment and

that he should receive sole possession of the Gator Trax mud boat because it is

hunting equipment.

Mr. Flake also filed a motion for sanctions against Ms. Baker under La.

C.C.P. art. 863, arguing that Ms. Baker’s frivolous filings, made throughout the

proceedings, delayed the matter and caused the estate to incur attorney’s fees,

expenses, and costs that consumed the assets. The specific filings addressed in the

motion for sanctions included: Ms. Baker’s rule to revoke seeking to revoke Mr.

Flake’s appointment as administrator; the petition to annul the September 2019

will; the petition for possession filed after the trial court denied the petition to

5 The September 2019 will states that with respect to the estate’s “[b]ank accounts, stocks, cash” that “[a]fter all bills have been paid and bank accounts closed, I want remaining funds divided equally among my three children, . . . However, the first $20,000 of my daughter’s, Diana Flake Baker’s, share shall be given to her son, James Michael Baker.”

23-CA-310 10 annul; and the supplemental petition for possession asking the trial court to remove

Mr. Flake as executor.

On February 24, 2023, Ms. Baker filed an opposition to the motion for

sanctions arguing that her filings outlined above did not violate Article 863. She

further urged the trial court to strike Mr. Flake’s motion for sanctions as frivolous

and award her costs incurred to defend his baseless motion.

On March 1, 2023, the trial court signed the judgment of possession

proposed by Ms. Baker. At the March 2, 2023 hearing, the trial court denied Mr.

Flake’s request to introduce exhibits attached to various pleadings previously filed

in the record and also denied his request to introduce an affidavit from the

appraiser who valued the decedent’s homes at the time of death. Following brief

argument, the trial court indicated that it was not going to relitigate the issues

decided in the August 16, 2021 judgment and thus, granted Ms. Baker’s proposed

judgment of possession. The trial court denied Mr. Flake’s motion for sanctions,

and instead awarded $2,500 in attorney’s fees to Ms. Baker and her counsel, Justin

Molaison, finding that Mr. Flake’s motion for sanctions was frivolous.

The trial court signed a written judgment on March 10, 2023. Mr. Flake

moved for a devolutive appeal on March 24, 2023, which the trial court granted.

DISCUSSION

On appeal, Mr. Flake contends that the trial court erred on several different

grounds. He argues that the trial court erred by placing the heirs into possession of

the decedent’s homes without equalizing ownership pursuant to the value of the

homes. He contends that Louisiana law permits the adjustment based on the

decedent’s mistake as to the value of the homes. He also argues that the trial court

erred by excluding evidence of the property appraisals. With respect to the

movable assets, he argues that the trial court erred with respect to the distribution

of certain movables, including the estate’s remaining funds following the

23-CA-310 11 satisfaction of the estate’s debts, the decedent’s three vehicles, and the Gator Trax

mud boat.

Mr. Flake next argues that the trial court erred by denying his motion for

sanctions and failing to require Ms. Baker to repay the estate for expenses caused

by her frivolous pleadings. Finally, he argues that the trial court’s award of

sanctions against him must be reversed because he did not receive notice and a

hearing in accordance with the requirements of La. C.C.P. art. 863.

Immovable Property – Decedent’s Three Residences

We first address Mr. Flake’s assignments of error relating to the immovable

property ‒ the decedent’s three residences. The dispute on appeal is whether the

September 2019 will provided for Ms. DeBram to receive full ownership of the

433 Greenmount Drive residence or whether Mr. Flake and Ms. Baker should

receive a percentage of ownership of this property to equalize the distribution of

the decedent’s three homes by their appraised values.

The September 2019 will provides for the disposition of the three residences

as follows:

a.) Immovable property

The houses and property located at 433 Greenmount Drive, 3701 Wanda Lynn Drive and 3713 Wanda Lynn Drive located in Metairie shall be appraised by a certified property appraiser and divided as follows:

i) Full ownership of 433 Greenmount shall be given to my daughter, Wendy Flake DeBram, or if she predeceases me, to her heirs.

ii) Full ownership of 3713 Wanda Lynn Drive shall be given to my son, Alan Mark Flake, Sr., or if he predeceases me, to his heirs.

iii) The percentage of ownership of 3701 Wanda Lynn Drive valued in the amount of the combined appraised values of 433 Greenmount Drive and 3713 Wanda Lynn Drive shall be given to Diana Flake Baker, or if she predeceases me, to her heirs. Diana Flake Baker, or her heirs, shall also be given one third of the remaining value exceeding the appraised amounts. Wendy Flake DeBram, or her heirs, shall be given the percentage of ownership representing one third of the value exceeding the appraised value of 433 Greenmount

23-CA-310 12 Drive. Alan Mark Flake, Sr., or his heirs, shall be given the percentage of ownership representing one third of the value exceeding the appraised value of 3713 Wanda Lynn Drive.

The trial court explained in its October 14, 2021 reasons for judgment that it

awarded full ownership of 433 Greenmount to Ms. DeBram based on the clear and

unambiguous language of the September 2019 will as follows: “Nothing is unclear

about this provision of the testament, and nothing in the language surrounding the

provision implies that it should be interpreted differently. Therefore, the direct

testamentary language controls.”

Ms. DeBram and Ms. Baker argue on appeal that this Court should uphold

the trial court’s ruling on this issue. Mr. Flake argues that while the decedent

intended to give Ms. DeBram full ownership of her home, she also intended for her

residences to be divided among her children by equal value, as evidenced by the

“equalization formula” contained in Section (a)(iii). As a result, he claims the trial

court erred when it placed the legatees into possession of the three homes without

equalizing the ownership percentages based on the properties’ values. Mr. Flake

argues that because the Greenmount property has the highest appraised value, the

trial court should have adjusted the ownership percentages of that property, and

then provide Ms. DeBram with a lifetime usufruct so she could remain in her

home. He also argues that the trial court erred by denying his request to introduce

an affidavit from his appraiser establishing the appraised values of the three homes.

The intent of the testator controls the interpretation of her testament. If the

language of the testament is clear, its letter is not to be disregarded under the

pretext of pursing its spirit. La. C.C. art. 1611(A). Therefore, when interpreting a

testament, the reviewing court must determine the testator’s intent without

departing from the terms of the will. Estate of Rick, 23-391, p. 2 (La. App. 4 Cir.

2/5/24), 2024 WL 412253. The court’s function is to construe the will as written,

without adding words to any controversial parts under the guise of interpreting the

23-CA-310 13 testator's intent. Succession of Laborde, 17-1334 (La. App. 1 Cir. 5/31/18), 251

So.3d 461, 464. It is well-established that in interpreting wills, the first and natural

impression conveyed to the mind on reading the will as a whole is entitled to great

weight. Id.

When a will is free of ambiguity, it must be carried out according to its

written terms, without reference to extrinsic evidence of the testator’s intent.

Succession of Williams, 608 So.2d 973, 975 (La. 1992). In other words, while the

court must endeavor to give all legacies of a testament effect, the court cannot

ignore the testament as written. When a provision in a will is subject to more than

one equally reasonable interpretation, then the court may consider all

circumstances existing at the time of the execution of the will which may aid in

determining the intent of the testator. Succession of Arseneaux, 22-638 (La. App. 1

Cir. 12/29/22), 360 So.3d 868, 873, writ denied, 23-135 (La. 4/4/23), 358 So.3d

873. However, courts use extrinsic evidence to resolve ambiguity and determine

what the testator’s written words actually mean, not to rewrite the will. Succession

of Burguieres, 612 So.2d 864, 865 (La. App. 5 Cir. 1992), writ denied, 614 So.2d

1256 (La. 1993).

As demonstrated by the complex procedural history outlined above,

throughout these proceedings the parties have shifted their positions as to how they

believe the court should divide the decedent’s three residences. The result is this

convoluted and prolonged litigation. However, the issue of whether or not Ms.

DeBram should receive full ownership of 433 Greenmount Drive is not complex

because the plain and unambiguous language of the September 2019 will provides

that Ms. DeBram “shall” receive full ownership of 433 Greenmount Drive without

any condition depending on the value of the home.

Mr. Flake argues that this interpretation gives no effect to Section (a)(iii),

which he characterizes as an equalization formula. He contends that he added this

23-CA-310 14 provision to the will based on the decedent’s wish to ensure the properties were

divided equally by value. He further contends that the formula was included in the

disposition for 3701 Wanda Lynn based on the mistaken belief of the decedent and

all parties that this property had the greatest value because it had the largest square

footage. The appraisals Mr. Flake obtained, however, revealed that 433

Greenmount Drive had the highest value. Therefore, he argues that the trial court

should have adjusted the ownership of this property as follows: Ms. DeBram –

81.4%, Ms. Baker – 8.4%, and Mr. Flake 10.2%, with a lifetime usufruct for Ms.

DeBram, in order to equally distribute the properties.

Mr. Flake further argues that La. C.C. art. 1613 supplies legal authority for

this Court to rewrite the will in accordance with his proposal based on the

decedent’s alleged mistake regarding the value of 3701 Wanda Lynn Drive.

However, Article 1611 explains that Article 1613 applies only if the decedent’s

intent cannot be ascertained from the language of the testament.6 La. C.C. art.

1613 is not applicable here because it is apparent from the plain language of the

will that Ms. DeBram is to receive full ownership of 433 Greenmount Drive,

without any conditions or reductions in ownership depending on its appraised

value. This Court cannot rewrite the will to divide ownership of this property

among the legatees and then award Ms. DeBram a usufruct as requested by Mr.

Flake.

Finally, we do not agree with Mr. Flake’s characterization of the language in

Section (a)(iii) as an equalization formula. Though the language is confusing and

contradictory, the first sentence of the “equalization formula” appears to indicate

that it is not triggered unless the combined value of the two other properties

exceeded the value of 3701 Wanda Lynn Drive. Thus, this language does not

6 La. C.C. art. 1611 provides in pertinent part that “[t]he following rules for interpretation apply only when the testator’s intent cannot be ascertained from the language of the testament.”

23-CA-310 15 evidence an intent by the decedent to equally divide the three residences based on

value.

Accordingly, we find that based on the plain and unambiguous language of

the September 2019 will, the trial court did not err by awarding Ms. DeBram full

ownership of 433 Greenmount Drive.

We further find that the trial court did not abuse its discretion by denying

Mr. Flake’s request to enter the affidavit regarding the appraised values of the

property into evidence. Generally, an affidavit is inadmissible as hearsay. We also

find that the appraised values of the residences are irrelevant for purposes of this

appeal based on our finding that the September 2019 will awarded full ownership

to Ms. DeBram regardless of its value. Accordingly, Mr. Flake’s assignments of

error relating to the division of the three residences are without merit.

Movable Property

Mr. Flake also argues on appeal that the trial court failed to distribute

certain movable property in accordance with the decedent’s intent as stated in the

September 2019 will.

Automobiles

First, we address Mr. Flake’s arguments contesting the distribution of the

decedent’s automobiles in the March 1, 2023 judgment of possession. The

September 2019 will provides for the automobiles to be divided as follows:

iv.) Automobiles Any and all automobiles shall be appraised and divided equally by value among my three children. . . .

The judgment of possession placed the three heirs “into possession of an

undivided one-third (1/3) interest in and all of the decedent’s vehicles, including

the 2008 GMC Denali SUV, 1952 Red MG TD and 1951 Cream MG TD.” Mr.

Flake argues that the trial court erred by placing the heirs into undivided

23-CA-310 16 possession of the three vehicles because they can be divided equally by their

estimated value as follows:

2008 GMC Denali SUV Est. Value $17,000 Mr. Flake

1952 Red MG TD Est. Value $18,000 Ms. DeBram

1951 Cream MG TD Est. Value $18,000 Ms. Baker

On appeal, Ms. Baker argues that Mr. Flake’s proposed distribution does not

divide the vehicles equally by value because the decedent possessed full ownership

of the 2008 GMC Denali SUV, but only half ownership in the other two vehicles

as they were community property owned with her deceased husband. Mr. Flake

contends that no evidence exists in the record to support Ms. Baker’s assertion that

the decedent did not possess full ownership of the automobiles.

However, we find this representation by Mr. Flake to be inaccurate. The

supplemental and amended descriptive list of assets filed by Mr. Flake on

November 12, 2020, indicated that the decedent owned only a one-half interest in

all three vehicles.7 Mr. Flake did not amend this list, but instead argues that this

Court should look to the Current Account he filed on July 7, 2021, which provides

estimated values that appear to indicate the decedent possessed full ownership of

all three vehicles.

Considering the language of the September 2019 will and the contradictions

in the record regarding the decedent’s ownership interests in the automobiles, we

cannot find that the trial court erred by awarding the legatees each a one-third

interest.

Checking and Investment Accounts

We next address whether the trial court erred by placing the legatees into

possession of checking and investment accounts, which Mr. Flake contends were

7 La. C.C.P. art. 3137 provides that the detailed descriptive list of succession property “shall be accepted as prima facie proof of all matters shown therein, unless amended or traversed successfully.”

23-CA-310 17 closed and deposited into the estate’s checking account at Regions Bank. The

relevant portion of the March 1, 2023 judgment of possession states:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Diana Flake Baker, Alan Mark Flake, Sr. and Wendy Flake Debram be and are hereby placed into possession of an undivided one-third (1/3) interest each in Avantax Investment Services Account HVT - XXX893, Fidelity Bank Account in the names of Leone Ittmann Flake and James M. Baker, Gulf Coast Bank and Trust Account in the names of Leone Ittmann Flake and James M. Baker, and Lincoln Benefit Life Annuity Account# XXXXXX543.

The September will provides as follows with respect to “[b]ank accounts,

stocks, cash”:

After all bills have been paid and bank accounts closed, I want the remaining funds divided equally among my three children . . . However, the first $20,000.00 of my daughter’s, Diana Flake Baker’s, share shall be given to her son, James Michael Baker.

Mr. Flake claims that after paying the estate’s debts, the remaining funds

total $1,373.26, and should be awarded as follows: $457.75 to Ms. DeBram;

$457.75 to Mr. James Baker; and $457.75 to Mr. Flake.

We find that the trial court erred by placing the legatees into possession of

the closed accounts, including the Avantax Investment Services Account HVT,

Fidelity Bank Account, Gulf Coast Bank and Trust Account, and Lincoln Benefit

Life Annuity Account. The accountings and the tableaus of distribution filed by

Mr. Flake, as executor, and homologated by the trial court, indicate that all four of

these accounts were closed and the funds were deposited into the succession

account. It is no longer possible to place the legatees in possession of these

accounts.

However, the accountings and third and final tableau of distribution do not

contain any explanations as to how Mr. Flake calculated the amount of the

remaining funds to be distributed to the legatees, or even request the distributions

now proposed by Mr. Flake. Thus, we cannot modify the judgment of possession

23-CA-310 18 to distribute the remaining funds as requested and must remand this issue to the

trial court for further consideration.

Accordingly, we reverse the portion of the March 1, 2023 judgment of

possession that placed the legatees into possession of the Avantax Investment

Services Account HVT, Fidelity Bank Account, Gulf Coast Bank and Trust

Account, and Lincoln Benefit Life Annuity Account, and remand for further

proceedings.

Gator Trax Mud Boat

Finally, Mr. Flake argues that the trial court erred by awarding each legatee

a one-third interest in the decedent’s Gator Trax mud boat because the will left all

hunting equipment to him as follows:

ii.) Tools, guns, animal mounts and hunting equipment Any and all tools, guns, animal mounts and/or hunting equipment shall be given to my son, Alan Mark Flake, Sr. . . .

Ms. Baker and Ms. DeBram did not respond or take a position with respect

to this argument in their appellee briefs. We agree that a mud boat is hunting

equipment and therefore, the trial court erred by placing all of the heirs in

possession of this property. Accordingly, we vacate the relevant paragraph of the

trial court’s March 1, 2023 judgment of possession and order that Mr. Flake be

placed into sole possession of the Gator Trax mud boat.

Mr. Flake’s Motion for Sanctions Against Ms. Baker

Mr. Flake next argues that the trial court erred by denying his motion for

sanctions under La. C.C.P. art. 863 against Ms. Baker. Mr. Flake contends that

Ms. Baker and her counsel filed several pleadings, including the petition to annul

the September 2019 will, with the intent to harass, cause delay, and to needlessly

increase the costs of the succession proceedings. He argues that the trial court

erred by failing to order Ms. Baker to repay the estate for the increased expenses

caused by her frivolous pleadings.

23-CA-310 19 The relevant portions of La. C.C.P. art. 863 provide as follows:

B. Pleadings need not be verified or accompanied by affidavit or certificate, except as otherwise provided by law, but the signature of an attorney or party shall constitute a certification by him that he has read the pleading, and that to the best of his knowledge, information, and belief formed after reasonable inquiry, he certifies all of the following:

(1) The pleading is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation.

(2) Each claim, defense, or other legal assertion in the pleading is warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law.

(3) Each allegation or other factual assertion in the pleading has evidentiary support or, for a specifically identified allegation or factual assertion, is likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.

* * *

D. If, upon motion of any party or upon its own motion, the court determines that a certification has been made in violation of the provisions of this Article, the court shall impose upon the person who made the certification or the represented party, or both, an appropriate sanction which may include an order to pay to the other party the amount of the reasonable expenses incurred because of the filing of the pleading, including reasonable attorney fees.

Under La. C.C.P. art. 863, litigants and their attorneys have an affirmative

duty to make an objectively reasonable inquiry into the facts and the law. The

trial court should test the signer’s conduct by inquiring what was reasonable to

believe at the time the pleading was submitted. Marks v. Marks, 21-741 (La. App.

5 Cir. 9/28/22), 349 So.3d 1071, 1076. In determining whether sanctions are

appropriate under La. C.C.P. art. 863, a court considers these factors to evaluate

whether a litigant and his counsel made the required reasonable factual inquiry

before signing: (1) the time available to the signor for investigation; (2) the extent

of the attorney’s reliance on the client for factual support for the document; (3) the

feasibility of a prefiling investigation; (4) whether the signing attorney accepted

the case from another attorney; (5) the complexity of the factual and legal issues;

23-CA-310 20 and (6) the extent to which development of the factual circumstances underlying

the claim requires discovery. Alombro v. Alfortish, 02-1082 (La. App. 5 Cir.

4/29/03), 845 So.2d 1171, 1175, writ denied, 03-1946 (La. 10/31/03), 857 So.2d

485.

La. C.C.P. art. 863 is penal in nature and should be strictly construed. Voitier

v. Guidry, 14-276 (La. App. 5 Cir. 12/16/14), 166 So.3d 262, 271, writ denied, 15-

0118 (La. 4/10/15), 176 So.3d 1032. On review, a trial court’s determination of

whether to impose sanctions will not be reversed unless it is manifestly erroneous

or clearly wrong. Id. at 269.

Mr. Flake moved for sanctions against Ms. Baker on February 1, 2023, after

this Court remanded his appeal for lack of jurisdiction. In his motion, Mr. Flake

lists four pleadings which he alleges are sanctionable: 1) Rule to Revoke Letters of

Administration for Failure to Provide Notice Pursuant to La. C.C.P. art. 3091 filed

May 26, 2020; 2) Petition to Annul Probated Testament filed December 14, 2020;

3) Petition for Possession filed April 5, 2021; and 4) Supplemental Petition for

Possession filed on July 21, 2021.

1) Rule to Revoke

Mr. Flake argues that at the outset of the succession proceedings, Ms. Baker

filed a motion to revoke his letters of administration under La. C.C.P. art. 3091 for

failure to provide notice. He argues that this pleading is sanctionable because

Article 3091 only applies to intestate successions, not testamentary executors or

independent administrators named in a testament. He claims Ms. Baker filed the

rule to revoke solely to harass him, delay proceedings, and increase litigation costs.

He also complains that Ms. Baker slandered him by alleging he was of bad moral

character and stole from the estate.

As explained above, though the September 2019 will appointed Mr. Flake

as an executor, he initially filed a petition to be appointed as an independent

23-CA-310 21 administrator. When the trial court found that the will did not authorize an

independent administration, Mr. Flake then submitted an alternative order to be

appointed as an ordinary administrator. Ms. Baker then filed the rule to revoke the

letters of administration issued to Mr. Flake arguing that Mr. Flake failed to

provide her notice of his filing to be appointed as an administrator and further

complained that Mr. Flake had not posted security. As a result, the trial court

vacated its order appointing Mr. Flake as an administrator, and following a

hearing, probated the testament and appointed Mr. Flake as executor in accordance

with the terms of the will. Considering Mr. Flake’s initial request to be appointed

as an independent administrator and the alternative order he provided to the trial

court appointing him as an ordinary administrator, as opposed to a testamentary

executor, we do not find that the trial court was manifestly erroneous in denying

his request for sanctions on these grounds.

2) Petition to Annul September 2019 Will

Mr. Flake claims that Ms. Baker initially threatened to file the petition to

annul after they received the property appraisals and she demanded that the

siblings divide the estate into equal portions. He claims that Ms. Baker did not

have any evidence to support her undue influence claims and that she used the

filing to increase the costs of litigation and impugn his character. He also argues

that the trial court’s dismissal of the petition to annul by directed verdict supports

his request for sanctions.

In response, Ms. Baker argues that at the time she filed the petition to annul,

she had not yet had the opportunity to conduct discovery and that she obtained

audio recordings which indicated the decedent may not have understood the

September 2019 will. She notes that Mr. Flake, a licensed attorney, drafted the

September 2019 will, while the decedent’s two prior wills were drafted by other

attorneys. She argues that the prior wills provided for the heirs to share ownership

23-CA-310 22 of the properties equally and that they did not name Mr. Flake as executor. Ms.

Baker also argues that while the trial court found that she did not prove undue

influence sufficient to invalidate the will, the trial court stated at trial and in its

reasons for judgment that the September 2019 will was poorly worded and that it

did not adequately represent the decedent’s wishes. After considering the relevant

factors applicable to a request for sanctions under Article 863, we do not find that

the trial court was manifestly erroneous by denying Mr. Flake’s request for

sanctions against Ms. Baker for filing the petition to annul the September 2019

will.

3) Petition for Possession of Entire Estate

Mr. Flake also seeks sanctions for Ms. Baker’s petition for possession filed

shortly after the trial court denied her petition to annul. He contends that she filed

this petition as retaliation for the denial of her petition to annul and that she knew

the request to place the parties in possession of the entire estate was premature. In

response, Ms. Baker argues that the emails she introduced at the hearing on the

motion for sanctions show that she tried to join in Mr. Flake’s petition for

possession, but Mr. Flake refused. Therefore, she explains that she filed her own

petition for possession and requested a show cause hearing. Based on the

foregoing, we do not find the trial court was manifestly erroneous by denying

sanctions for this filing.

4) Supplemental Petition for Possession

Finally, Mr. Flake complains that Ms. Baker should be sanctioned for filing

her supplemental petition for possession, which requested his removal as executor.

Ms. Baker contends that she requested Mr. Flake’s removal based on his failure to

follow the trial court’s court order to file a final tableau of distribution and close

the estate. As explained above, Mr. Flake did not follow the trial court’s

instructions following the June 3, 2021 hearing. Instead, he filed the third and final

23-CA-310 23 tableau of distribution that did not include any proposed distributions to the

legatees and which indicated that it would be updated with additional outstanding

expenses. As a result, the trial court ordered that Mr. Flake would be personally

liable for all outstanding expenses. Accordingly, we do not find that the trial court

was manifestly erroneous by denying sanctions for Ms. Baker’s filing that

requested Mr. Flake’s removal as executor.

Sanctions Awarded Against Mr. Flake for Filing Motion for Sanctions

In this assignment of error, Mr. Flake argues that the trial court erred by

awarding $2,500 in attorney’s fees against him based on its finding that his motion

for sanctions filed against Ms. Baker was frivolous. Mr. Flake argues that the trial

court erred in granting the sanctions because it failed to follow the procedures

required under La. C.C.P. art. 863(E).

Article 863(E) provides that a “sanction authorized in Paragraph D shall be

imposed only after a hearing at which any party or his counsel may present any

evidence or argument relevant to the issue of imposition of the sanction.” This

Court has previously held that La. C.C.P. art. 863(E) and due process require that a

party be given reasonable notice of an Article 863 hearing at which sanctions are to

be considered. Division of Administration, Office of Community Development -

Disaster Recovery Unit v. Joseph, 22-65 (La. App. 5 Cir. 12/21/22), 355 So.3d

144, 150; Alombro, 845 So.2d at 1169; see also Mother of Eden, LLC v. Thomas,

11-1303 (La. App. 3 Cir. 3/7/12), 86 So.3d 760, 765-66 (finding that the trial court

erred by awarding sanctions and attorney’s fees without first holding a hearing and

allowing the party the opportunity to present arguments regarding the issue).

Our review of the record indicates that Ms. Baker complained in her

opposition to Mr. Flake’s motion for sanctions that the trial court should strike his

motion and award sanctions against him. However, she did not move to set a

hearing on a motion for sanctions under La. C.C.P. art. 863 against Mr. Flake.

23-CA-310 24 Further, the trial court did not indicate that it was considering a motion for

sanctions against Mr. Flake during oral argument and did not grant him the

opportunity to present argument or evidence prior to awarding the sanctions.

Thus, we vacate the portion of the trial court’s March 10, 2023 judgment

awarding $2,500 of attorney’s fees and costs in favor of Ms. Baker and Mr. Justin

E. Molaison against Mr. Flake.

Evidence Excluded By Trial Court

Mr. Flake finally complains that the trial court refused to admit the

following additional items into evidence at the March 2, 2023 hearing: 1) his

responses to Ms. Baker’s requests for admission; 2) his affidavit concerning his

qualifications as succession representative; and 3) letters between counsel. Mr.

Flake fails to explain how these documents are relevant or necessary to any of the

issues he raises on appeal. Accordingly, we find that this assignment of error is

without merit.

CONCLUSION

Considering the forgoing, we reverse and modify the disposition of the

decedent’s Gator Trax mud boat in the March 1, 2023 judgment of possession to

provide Mr. Flake sole possession of this property. We also reverse the disposition

placing the legatees into possession of the decedent’s banking and investment

accounts that were liquidated during the administration of the succession and

remand for further proceedings to determine the remaining funds to be distributed

to the heirs. We affirm the March 1, 2023 judgment of possession in all other

respects.

23-CA-310 25 Regarding the March 10, 2023 judgment, we affirm the denial of Mr. Flake’s

motion for sanctions against Ms. Baker under La. C.C.P. art. 863, but reverse the

award of attorney’s fees against Mr. Flake.

REVERSED IN PART AND REMANDED; MODIFIED IN PART; AFFIRMED IN PART

23-CA-310 26 SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON STEPHEN J. WINDHORST LINDA M. WISEMAN JOHN J. MOLAISON, JR. FIRST DEPUTY CLERK SCOTT U. SCHLEGEL TIMOTHY S. MARCEL FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400

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