Judgment rendered March 27, 2026. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
No. 56,771-CA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
SUCCESSION OF MIRIAM MANDEL SKLAR
Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 540,336-B
Honorable Brady D. O’Callaghan, Judge
HARGROVE, SMELLEY & STRICKLAND Counsel for Appellant, By: Parker W. Maxwell Howard F. Sklar, as Former Independent Executor of the Succession of Miriam Mandel Sklar and Legatee
KEAN MILLER, LLP Counsel for Appellee, By: William R. Huguet Argent Trust Company, J. Mark Miller as Independent Executor of the Succession of Miriam Mandel Sklar
JONES WALKER, LLP Counsel for Appellee, By: Miriam W. Henry Jonathan Simons Tyler J. Rench Casey L. Thibodeaux
Before STONE, COX, and ELLENDER, JJ.
COX, J., concurring in part and dissenting in part with written reasons. ELLENDER, J.
Howard Sklar, the former independent executor of the estate of his
late mother, Miriam Mandel Sklar, and a legatee under her will, appeals a
judgment that denied his petition for preliminary injunction to prevent
Argent Trust Co., the new independent executor, from liquidating,
transferring, or selling two high-value Impressionist paintings, important
assets of the estate. For the reasons expressed, we affirm.
FACTUAL BACKGROUND
Miriam was married to the late Albert Sklar, a pioneer oil producer in
northwest Louisiana and president of several businesses. The couple
amassed a substantial estate, including the two paintings at issue: Raoul
Dufy’s L’entrée du port and Maurice Utrillo’s Rue Saint Rustique à
Montmartre. Albert died in 1996; Miriam continued as a philanthropist and
important presence in cultural circles until her death in 2010.
Miriam had executed a will and codicil that named Howard
independent executor of her estate and left specific monetary bequests
($25,000 to $50,000) to named individuals, a large bequest to the Albert &
Miriam Sklar Foundation, defined contributions to their grandchildren,
and all her interest in an LLC, Sklar Exploration Co., to Howard.
She left the residue of her estate to her surviving children (Howard and a
daughter, Suzanne), including “household furniture, goods and effects and
pictures * * * intended for use or ornamentation of my residence or
homestead,” with the proviso that “paintings and other objects of art shall be
appraised.” EARLY PROCEDURAL HISTORY
Howard filed a petition for probate in April 2010 and was appointed
independent executor. In October 2010 and January 2011, he obtained
partial judgments of possession which gave the specific monetary bequests
to the named recipients and gave two of Miriam’s three vehicles to Howard
and the other to Suzanne (with Howard making an equalizing payment).
Howard testified that, without getting any similar court approval, he gave
Suzanne possession of most of Miriam’s jewelry and about seven less-
important paintings, while he retained possession of the Dufy and the
Utrillo. Howard also formally accepted a portion of his residual bequest,
involving certain securities, and renounced another portion. The record then
fell silent for almost nine years.
In May 2020, Jonathan Simons, one of Miriam’s grandchildren, filed
a request for notice and, later, a motion to compel. These argued that, since
becoming executor, Howard had never filed a formal accounting or a sworn
descriptive list and he, Jonathan, had never received his trust contribution.
(He alleged nobody even told him he was a legatee until 2019.) Howard,
who had by then relocated to Boulder, Colorado, opposed, but the district
court granted the motion to compel.
Howard eventually filed copies of accounting summaries showing the
estate was in the red some $459,301 for the year 2020, $362,285 for 2021,
and $2,028 for the first quarter of 2022. Jonathan responded with a motion
to place all legatees in possession, or for Howard to be removed as
executor.1
1 Jonathan estimated his share to be $926,322. 2 Howard conceded the estate suffered from “what can only be
described as poor estate planning,” and that Miriam’s will “did not match
her assets.” He catalogued many of Miriam’s poor financial decisions,
especially an “Agency Services Agreement” by which she had agreed to pay
a related company, Sklarco LLC, agency and management fees which, at the
time of her death, were in arrears of $7.1 million. Despite his initial
opposition, Howard voluntarily resigned as executor and, in March 2023, the
court appointed Argent the new independent executor.
ORDER FOR PRODUCTION
In later 2023, Argent filed motions for contempt and production of
documents against Howard, urging his past compliance was “woefully
incomplete,” failed to identify succession property, revenues, and
disbursements, and impeded Argent from performing its duties. Argent
alleged Howard had declared the two paintings in his possession were
appraised at $1,170,000, but he had refused to deliver them to the estate.2
Howard responded that the “distribution of jewelry and artwork to
particular legatees” was lawful. He showed that the will named him
independent executor, the court approved him as such, and, under that
authority, he validly allocated the jewelry and paintings to Suzanne and
himself early in the succession. He argued the paintings no longer belonged
to the estate, but to him, so he did not have to deliver them.
The matter came to a hearing in November 2023, limited to argument.
The court found Howard’s failure to provide documents in sufficient detail
2 Argent also alleged Howard had declared the jewelry was appraised at $1,105,500 and demanded its delivery to the estate as well, but the jewelry is not at issue in this appeal. 3 constituted an invalid accounting; the court held Howard in contempt and
imposed a suspended sentence. (The finding of contempt is not at issue in
this appeal.) On the motion for production, the court asked, rhetorically,
why executors routinely seek a judgment of possession, “if they can just give
stuff away?” The property is “not like a set of spoons worth $100,” but
assets worth $2 million that “could pay off a lot of that $7 million debt.”
The court orally ordered Howard to return any property in his possession to
Argent “for safekeeping,” until the court could see a full accounting and
determine “if there is money and assets.”
The court rendered judgment, dated November 27, 2023, ordering
Howard to deliver to Argent all property of the estate, “including artwork
and jewelry,” within 30 days.
In May 2024, Howard filed an “asset distribution table,” listing the
artwork as valued at $1,170,000. This table stated the paintings had been
“distributed to” Howard and Suzanne shortly after the sale of Miriam’s
house. At some point, not shown in the record, Howard delivered the Dufy
and the Utrillo paintings to Argent.
PETITION FOR PRELIMINARY INJUNCTION
In early 2025, Argent’s attorneys advised Howard’s attorney that
Argent “is moving forward with the liquidation of the two pieces of art that
are in its possession” and offering Howard the right of first refusal to buy
them. The letter listed Argent’s appraised value of the Dufy as $250,000
and, of the Utrillo, $150,000, considerably less than Howard’s estimates.
After receiving this notice Howard filed, in February 2025, the instant
petition for temporary restraining order and preliminary injunction. He
alleged Argent was attempting to liquidate the paintings for $350,000 4 despite the pending issues of their ownership; the order of production
specified their return was “for safekeeping” only, not for sale; the executor
owed a fiduciary duty to preserve and manage succession property; a sale
created a risk of undervaluation; no evidence had yet been presented to show
that liquidation was required to satisfy the estate’s debts; and irreparable
harm would result if the paintings were sold. The court granted a TRO and
set the matter for hearing. Argent filed an exception of res judicata.
At the hearing, in March 2025, the court quickly rejected Argent’s
exception of res judicata. On the merits, Howard testified he filed this
petition because the paintings were irreplaceable, a family legacy, in the
family’s collection for 30-40 years, by very famous Impressionist artists,
intended to be kept in the family, and had been kept safely in his house until
Argent asked for them. He insisted he was not trying to delay the
administration of the estate, only to keep the paintings in the estate until the
court decided who their rightful owners were.
Questioned by the court, Howard admitted he had sought and obtained
judgments of possession to distribute certain cash legacies, Miriam’s
vehicles, and portions of her securities; however, “on the advice of counsel,”
he felt no legal authorization was needed to distribute the paintings.
Argent’s chief legal counsel, Christopher Holtzclaw, described the
“cash flow challenges” facing the estate, with hundreds of thousands of
dollars of debt and only $21,000 cash on hand. He confirmed he had given
Howard and Suzanne right of first refusal, but it was now Argent’s intent to
sell the paintings, thereby saving money on storage fees and insurance.
The court ruled orally that Howard met the first requirement for
injunctive relief, irreparable harm, but not the second, a prima facie showing 5 that he would prevail on the merits. The court rejected Howard’s position
that his “acceptance” of the paintings from himself, as executor, resolved the
ownership issue. The court further found “no other resources available” for
Argent to satisfy the estate’s debts. The court rendered judgment, dated
March 13, 2025, denying the preliminary injunction. The judgment also
dissolved the TRO it had issued previously.
Howard appealed devolutively, designating four assignments of error,
the third of which was withdrawn at oral argument.
APPLICABLE LAW
A preliminary injunction “shall be issued in cases where irreparable
injury, loss, or damage may otherwise result to the applicant, or in other
cases specifically provided by law[.]” La. C.C.P. art. 3601 (A). The only
issue to be considered at a hearing on a preliminary injunction is whether the
moving party has met its burden of proving that it will suffer irreparable
injury, loss, or damage if the injunction is not issued, that it is entitled to the
relief sought as a matter of law, and that it will likely prevail on the merits of
the case. Conwill v. Cantrell, 25-00941 (La. 7/30/25), 415 So. 3d 358;
Chesapeake La. LP v. Bonchasse Land & Timber LLC, 56,287 (La. App. 2
Cir. 5/21/25), writ denied, 25-00788 (La. 10/1/25), 417 So. 3d 573. A writ
of injunction is a harsh, drastic, and extraordinary remedy which should
issue only where the party seeking it is threatened with irreparable loss or
injury without an adequate remedy at law. Dauphine v. Carencro High Sch.,
02-2005 (La. 4/21/03), 843 So. 2d 1096; Terral v. AG Res. Holdings LLC,
54,156 (La. App. 2 Cir. 3/9/22), 335 So. 3d 1009. The decision to grant or
deny a preliminary injunction will not be disturbed absent an abuse of
6 discretion. Chotin Transp. Inc. v. Harbor Towing & Fleeting Inc., 02-0485
(La. 4/24/02), 814 So. 2d 1289; Terral v. AG Res. Holdings, supra.
Immediately at the death of the decedent, universal successors acquire
ownership of the estate and particular successors acquire ownership of the
things bequeathed to them. La. C.C. art. 935. However, heirs and legatees
do not enjoy full ownership or possession rights during the administration of
a succession; during administration, those rights are subject to the executor’s
superior “seizin” rights. La. C.C. art. 938 (B); Succession of Aymond, 25-
01101 (La. 11/25/25), 422 So. 3d 288. The succession representative “is a
fiduciary with respect to the succession, and shall have the duty of
collecting, preserving, and managing the property of the succession in
accordance with law.” La. C.C.P. art. 3191 (A). Further, he must act as a
prudent administrator and shall be personally responsible for all damages
resulting from his failure so to act. Id.; Succession of Tripp, 55,496 (La.
App. 2 Cir. 5/29/24), 387 So. 3d 939.
The powers and duties of the succession administrator are incidental
to the primary purpose of the administration for the payment of debts of the
succession. Robinson v. Nunly, 46,053 (La. App. 2 Cir. 6/10/11), 69 So. 3d
631; Smith v. Williams, 535 So. 2d 959 (La. App. 2 Cir. 1988). A succession
representative may sell succession property to pay debts and legacies, or for
any other purpose. La. C.C.P. art. 3261.
Under the rules of independent administration, an “independent
administrator” means and includes an “independent executor.” La. C.C.P.
art. 3396 (2). Two provisions of the independent administration law are
especially germane to this case. La. C.C.P. art. 3396.15 states:
7 Except as expressly provided in this Chapter, an independent administrator shall have all the rights, powers, authorities, privileges, and duties of a succession representative provided in Chapters 4 through 12 of this Title, but without the necessity of delay for objection, or application to, or any action in or by, the court.
These rights attach “without the necessity of obtaining court approval
to exercise them” and include the power to “sell or exchange movable and
immovable property upon such terms and conditions * * * as the
independent executor, in his discretion, determines to be proper.” La. C.C.P.
art. 3396.15, Revision Comments – 2001, Comment (d). In short, under
independent administration there is no “requirement of court oversight of his
every move as independent administrator.” Succession of Martin, 56,115
(La. App. 2 Cir. 4/9/25), 408 So. 3d 1200.
Another provision, La. C.C.P. art. 3396.18 (A), states:
Before the succession can be closed, a judgment of possession rendered, and the independent administrator discharged, there shall be filed an inventory or sworn detailed descriptive list of assets and liabilities of the estate verified by the independent administrator.
A 2020 amendment to Art. 3396.18 (A) added the reference to a
“judgment of possession” with the intent to clarify the law “by definitively
stating that the rendition of a judgment of possession is still necessary” even
when a succession is under independent administration. La. C.C.P. art.
3396.18, Comment – 2020; 2020 La. Acts 19 (effective August 1, 2020).
Another comment reinforces the notion of certain requirements – a sworn
descriptive list, proof of payment of inheritance taxes, and a judgment of
possession, must be satisfied “before the succession representative may
make distribution.” La. C.C.P. art. 3396.18, Revision comments – 2001,
Comment (e).
8 DISCUSSION
We will first address Howard’s fourth assignment of error, which can
be quickly considered and rejected. He urges the court erred in permitting
the TRO to be dissolved “by operation of law” and in refusing to maintain
the status quo pending adjudication of the underlying ownership and
distribution issues. A TRO serves as only a temporary restraint on the
defendant until the propriety of granting a preliminary injunction may be
decided. Dauphine v. Carencro High Sch., supra. By its nature, a TRO is
dissolved by operation of law once the trial court grants or denies the
preliminary injunction requested by the party in whose favor the TRO was
issued. Id.; Powell v. Cox, 228 La. 703, 83 So. 2d 908 (1955); Gaumnitz v.
Williamson, 36,177 (La. App. 2 Cir. 8/14/02), 824 So. 2d 531. After the
hearing disclosed no basis for injunctive relief, the TRO was indeed
dissolved by operation of law. This assignment of error lacks merit.3
In his two remaining assignments of error, Howard first urges the
court abused its discretion in denying his request for a preliminary injunction
by misapplying the legal standard of La. C.C.P. arts. 3601 et seq. and related
Louisiana jurisprudence. Second, he urges the court abused its discretion in
concluding that Argent, the new independent executor, was free to liquidate
the paintings notwithstanding the unresolved question of ownership and
prior distribution, and without any evidentiary showing that a sale was
necessary to satisfy succession debts or administration expenses.
3 As noted earlier, at oral argument counsel withdrew Howard’s third assignment of error, which mistakenly alleged the district court rejected his showing of irreparable injury. 9 He contends the November 2023 judgment – the order for production
– did not resolve the ownership of the paintings. It merely ordered that they
be returned to the estate, for safekeeping, not that the independent executor
had unrestricted authority to sell them. Hence, there was no finding the
paintings belonged to the estate; however, the March 2025 judgment – the
denial of preliminary injunction – “acted as if” they were finally adjudicated
part of the estate. He further argues he established a substantial likelihood
of success on the merits in that Miriam’s will gave her children “household
furniture, goods and effects and pictures”; as independent executor, he had
authority to carry out those bequests in the ordinary course of administration
without prior court approval, under La. C.C.P. arts. 3396.1-3396.15. He
submits that Argent made no showing of financial necessity to sell the
paintings and suggests that neither of the judgments negated his “informal”
distribution of succession property. Finally, he argues injunctive relief is
necessary to preserve the status quo, given the unique and irreplaceable
quality of the paintings and the prospect that selling them would moot the
controversy.4
On close examination, we find no merit to Howard’s well-constructed
argument. The best evidence of ownership would have been a judgment of
possession distributing the paintings to Howard; however, in his nearly 12
years as independent executor, Howard never sought or obtained such a
judgment. He was fully aware of the necessity for a judgment of possession,
4 In his jurisdictional statement, Howard asserts, “Argent proceeded to liquidate and sell the Raoul Dufy[.]” This fact is not in the record, but, once the act sought to be enjoined has occurred, there is no longer any ground for injunction. Verdun v. Scallon Bros. Contractors, 263 La. 1073, 270 So. 2d 512 (1972); Caddo Fed’n of Teachers v. Caddo Parish Sch. Bd., 47,489 (La. App. 2 Cir. 9/26/12), 106 So. 3d 603. He asserts, however, that Argent still has the Utrillo but is now contending it is a counterfeit. 10 as he obtained three of them early in the proceedings for much less valuable
assets. A judgment of possession is clearly required before distribution. La.
C.C.P. art. 3396.18 (A). In the absence of this, we cannot accept Howard’s
factual assertion that he has already been vested with full ownership of the
paintings.
Further, the district court easily found the first element for an
injunction, a risk of irreparable injury, loss, or damage, but did not find the
second, a likelihood that Howard would succeed on the merits. On this
record, we perceive no abuse of discretion. During his 12 years as
independent executor, Howard complied only superficially with his duties,
failing to identify succession property, revenues, and disbursements; he
conceded that Miriam’s will “did not match her assets.” His accounting
summaries showed estate debts of over $800,000 for the years 2020, 2021,
and early 2021; he also showed the estate owed Sklarco LLC some $7.1
million under the Agency Service Agreement.
At the hearing, Mr. Holtzclaw graphically described the estate’s dire
financial situation, including costs incurred during Howard’s tenure, with
payments made to Sklarco under the Agency Services Agreement instead of
to the estate to cover its expenses, application of mineral payments to
Sklarco instead of to the estate, costs involved in several bankruptcy
proceedings, and costs of insuring and storing the paintings. Mr. Holtzclaw
testified without contradiction that the estate had only $21,000 on hand.
These numbers fully support his professional conclusion that selling the
paintings was the best way to generate income. On this record, the district
court did not abuse its discretion in finding that Howard was unlikely to
11 prove that it was in the best interest of the estate for him, Howard, to retain
the paintings as his own.
Further, we are constrained to agree that, as independent
administrator, Argent can exercise the rights, powers, authorities, privileges,
and duties of a succession representative “without the necessity of delay for
objection, or application to or any action in or by, the court.” La. C.C.P. art.
3396.15; Succession of Martin, supra. We are familiar with the traditional
rule allowing the succession representative to sell succession property for
“any other purpose,” under La. C.C.P. art. 3261; this did not give the
representative carte blanche to sell succession property for any purpose or
reason he may deem sufficient.5 However, under the provisions for
independent administration, the independent executor has the greater powers
conferred by Art. 3396.15.
At oral argument, much was made of the perception that Argent was
treating Howard unfairly: it was badgering him for special assets of his
mother’s estate to which he had become especially attached but making no
similar effort to dislodge valuable jewelry and other paintings from his
sister, Suzanne. The implication is that the independent administrator
should first pool all the available assets before taking action on the Dufy and
the Utrillo. While we recognize the potential for unequal treatment, we
cannot overlook the scale of the estate’s debts and the large contribution that
these two items would make toward stabilizing its finances. Given the ready
liquidity of these paintings, we cannot say Argent is breaching its fiduciary
duty by pursuing them first, before collecting, preserving, and managing the
5 Succession of Pipitone, 204 La. 391, 15 So. 2d 801 (1943); Succession of Chisholm, 53,771 (La. App. 2 Cir. 3/3/21), 314 So. 3d 1056. 12 assorted jewelry and other paintings. Considering the undisputed debt of the
estate, these items may very well need to be liquidated as well, but they,
along with other potential assets, are simply not yet before the court.
Notably, Howard has not requested a period accounting from the
independent administrator, as he could under La. C.C.P. art. 3396.17, or its
removal for cause, as he could under Art. 3396.20. This court will not rule
on issues that have not been pled and litigated.
We finally note that the March 2025 judgment did not explicitly
authorize Argent to sell the paintings. The purpose of the requested
injunction was to prevent their sale, but when this was rejected, the sale
could move forward. Given the authority of Art. 3396.15, the testimony of
Mr. Holtzclaw at the hearing, and the state of the estate’s finances presented
in the record as a whole, such authorization would not be an abuse of
discretion. If any further emphasis were needed, we would note that
Howard did not appeal the judgment suspensively; in short, there was no
impediment to the sale of the paintings.
These assignments of error lack merit.
CONCLUSION
For the reasons expressed, the judgment denying the petition for
preliminary injunction and dissolving the TRO previously issued is affirmed.
All costs are to be paid by the appellant, Howard F. Sklar.
AFFIRMED.
13 COX, J., concurs in part and dissents in part with written reasons.
This case has proceeded at a snail’s pace for over 16 years. It is
undisputed that the original executor, Howard Sklar, did very little to move
this case forward, and neglected to exercise his duties as an executor with
due diligence and care. As a result, Howard voluntarily resigned and was
replaced as executor by Argent Trust Company, which was appointed as the
new executor over the estate in March 2023. Because of Howard’s failure to
provide the necessary accounting, Argent attempted to gain possession of
those assets in Howard’s control; namely, the two paintings, the Dufy and
the Utrillo.
The will in this case, written by Miriam Sklar, however, specifically
bequeathed the paintings, among other assets, to Howard and Suzanne,
which would at least make Howard co-owner of the paintings. Howard filed
a temporary restraining order and preliminary injunction to prevent the sale
of the paintings. He argued that the paintings were invaluable and their sale
would result in irreparable injury to the family because the paintings have
been in the family’s possession for approximately 40 years. The trial court
agreed with Howard in this regard; yet, determined he would not be able to
make a prima facie showing that he would prevail in his claim and be
declared the owner of the paintings. Howard took a devolutive appeal of
the judgment.
During oral argument, it was discovered that despite the devolutive
appeal, the Dufy was nevertheless sold to satisfy the debts of the estate,
including Argent’s fees and costs. The parties agreed that the original
appraisal of the Dufy in 2010 listed its value as a little over a million dollars.
Moreover, it became clear during oral arguments that at least seven other 1 paintings were given to Howard’s sister, Suzanne, and those paintings
remain in her possession.
I agree with the majority as it pertains to the Dufy, as it has already
been sold. That cow has left the barn, and there is no recourse at this time
where this Court can address something that has already happened.
However, I must respectfully dissent as it pertains to the remaining unsold
painting, the Utrillo, as well as any other paintings or assets of the estate
which were distributed without a judgment of possession. One of the
primary functions of an executor is to collect all assets of the estate and pay
all debts before distributing any monetary or physical assets to the legatees
of the estate in accordance with the decedent’s will.
In this case, Argent has not collected what could potentially be
valuable assets that were distributed without a judgment of possession to
satisfy debts of the estate without a proper appraisal of the remaining
paintings and assets in Suzanne’s possession. Argent, as the executor, was
responsible for collecting all assets distributed without a judgment of
possession and should not cherry-pick which assets would best satisfy the
debts of the estate without an appraisal of any other assets, which could
arguably be highly valued. Argent has not done this and I believe the
restraining order should have remained in place until at least all other
remaining assets distributed without a judgment of possession could be
collected and appraised before determining if a sale of those assets was
necessary to satisfy the debts of the estate.
As the trial court correctly noted, irreparable injury would occur if
these invaluable family heirlooms were needlessly sold. In this case, one
painting has been sold before resolution of this matter could be decided on 2 appeal. Because of this, I must respectfully dissent as to the portion of the
majority’s opinion that does not grant the restraining order as to the
remaining paintings and assets improperly distributed without a judgment of
possession.