SUCCESSION OF SCOFIELD DAVIS NO. 24-CA-388
FIFTH CIRCUIT
COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 815-612, DIVISION "H" HONORABLE DONALD L. FORET, JUDGE PRESIDING
January 29, 2025
JOHN J. MOLAISON, JR. JUDGE
Panel composed of Judges Susan M. Chehardy, John J. Molaison, Jr., and Timothy S. Marcel
AFFIRMED JJM SMC TSM COUNSEL FOR PLAINTIFF/APPELLEE, BARBARA DAVIS (DECEASED) AND ROBERT NARCISSE (VOLUNTARILY SUBSTITUTED) Rudy W. Gorrell, Jr.
COUNSEL FOR DEFENDANT/APPELLANT, NAOMI DAVIS William R. Penton, III James A. Harry MOLAISON, J.
The appellant, Naomi Davis, seeks review of the April 8, 2024 judgment of
the trial court that ordered her to vacate the separate property of her deceased
husband. For the following reasons, we affirm the judgment of the trial court.
FACTS AND PROCEDURAL HISTORY
In 1989, the decedent, Scofield Davis, purchased property located at 1001
Garden Road in Marrero Louisiana (hereinafter referred to as “the Property”). The
appellant married the decedent in 1995; he died on May 4, 2020. The Property
remained the separate property of the decedent during the marriage.
Shortly before his death, the decedent executed a will bequeathing the
Property to his daughter, Barbara Davis. The will bequeaths the appellant a two-
year usufruct of the Property. The will states that it is the appellant’s responsibility
to maintain insurance and pay taxes on the Property, and that the usufruct
terminates in the event she fails to do so. The will appoints Barbara as the
executrix of the decedent’s estate. The appellant is not Barbara’s mother.
On March 11, 2021, Barbara filed a petition seeking possession of the estate.
In this petition, she acknowledged the appellant’s usufruct over the Property. On
March 12, 2021, the trial court signed a judgment placing Barbara into possession
of the Property and recognizing the usufruct. On July 5, 2022, the appellant filed a
petition to re-open the succession and vacate the judgment of possession. On
September 14, 2023, Barbara filed a petition to remove the appellant from the
Property.
On October 31, 2023, the trial court vacated the judgment of possession.1
The appellant filed an opposition to Barbara’s petition arguing that because the
judgment of possession had been vacated, the usufruct did not begin “until there is
1 The trial court did not sign the written judgment vacating the judgment of possession until April 1, 2024. Barbara remained executrix of the estate.
24-CA-388 1 a judgment of possession placing the testamentary usufructuary in possession of
her usufruct.” The appellant argued that Barbara’s petition to remove her from the
Property should be denied on this basis. The appellant further argued that if
determined that the usufruct had terminated, she is entitled to remain in the
property because she is owed “reimbursement claims against the owner/decedent
and/or his heirs.” Barbara filed a reply to the appellant’s opposition arguing that
the usufruct started when the decedent died on May 4, 2020, and terminated two
years later, on May 4, 2022. Barbara further argued that because the requested
reimbursement is for expenses claimed before the usufruct began, she was not
entitled to retain possession of the Property. Barbara also argued that the appellant
failed to pay property taxes as required by the testamentary usufruct.
The trial court held a hearing on April 1, 2024, and ordered that the
appellant vacate the Property by May 1, 2024, and signed a written judgment to
that effect on April 8, 2024. On June 6, 2024, the trial court granted the
appellant’s motion for a devolutive appeal of the judgment.
LAW AND DISCUSSION
Absence of Oath
In her first assignment of error, the appellant argues that the motion to evict
her from the Property was not properly before the court. She reasons that at the
time Barbara filed the motion, a hearing was held, and the judgment was rendered,
Barbara had not taken the oath of office nor had letters testamentary been issued.
The appellant concludes that because Barbara had not yet qualified for the position
of executrix, she was unauthorized to file anything as a succession representative.
Although not specifically stated, the appellant attempts to raise the dilatory
exception of lack of procedural capacity in this assignment of error despite the
argument not being raised in the trial court proceedings. All objections which may
be raised through the dilatory exception are waived unless pleaded. La. C.C. art.
24-CA-388 2 926(B). Further, a party permitting a case to go to judgment without objecting to
the procedure or excepting to the pleadings cannot question, on appeal, the
propriety of the proceedings. Crescent City Cabinets & Flooring, L.L.C. v. Grace
Tama Dev. Co., L.L.C., 16-359 (La. App. 4 Cir. 10/19/16), 203 So.3d 408, 415.
Accordingly, the appellant has waived this objection, and this assignment of error
lacks merit.
Usufruct has not terminated
In her second assignment of error, the appellant argues that a judgment is
necessary to place a testamentary usufructary in possession. She contends that the
two-year term of usufruct has not commenced because there is no such judgment.
At the hearing on this motion to remove the appellant from the Property, the
trial judge stated, “Usufruct expired. It was two years. It’s over. The usufruct is
over.” Counsel for the appellant replied, “You’re right, Your Honor.” Counsel
then argued that the appellant was not reimbursed by the succession for the
community funds used to pay expenses of the decedent’s separate property, i.e., the
mortgage, improvements, and repairs to the house.
A judicial confession is a declaration made by a party in a judicial
proceeding and constitutes full proof against the party who made it. La. C.C. art.
1853. A counsel’s declaration has the same effect as if made by the party itself.
Sweet Lake Land & Oil Co., LLC v. Oleum Operating Co., L.C., 21-169 (La. App.
3 Cir. 12/1/21), 362 So.3d 486, 503, writ granted in part and remanded, 22-00497
(La. 9/20/22), 345 So.3d 1022. Appellant counsel’s agreement with the trial judge
that the two-year usufruct had terminated is a judicial confession. As such, she
cannot argue on appeal that the usufruct has not terminated because there is no
judgment of possession. This argument is without merit.
24-CA-388 3 Reimbursement claims not paid
In her final assignment of error, the appellant argues that the trial court erred
in ordering her removal from the Property because she has not been reimbursed by
the succession for the community funds used to pay the mortgage on the Property
and for repairs and improvements to the Property. In support of this position, the
appellant relies on La. C.C. art. 627, which states:
Upon termination of the usufruct, the usufructuary or his heirs have the right to retain possession of the property until reimbursed for all expenses and advances for which they have recourse against the owner or his heirs.
The appellant’s argument is misplaced. The right of retention pursuant to
La. C.C. art. 627 applies to expenses under La. C.C. art. 579 and art. 585. See, La.
C.C. art. 627 Revision comment (c). Article 579 provides that if the naked owner
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SUCCESSION OF SCOFIELD DAVIS NO. 24-CA-388
FIFTH CIRCUIT
COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 815-612, DIVISION "H" HONORABLE DONALD L. FORET, JUDGE PRESIDING
January 29, 2025
JOHN J. MOLAISON, JR. JUDGE
Panel composed of Judges Susan M. Chehardy, John J. Molaison, Jr., and Timothy S. Marcel
AFFIRMED JJM SMC TSM COUNSEL FOR PLAINTIFF/APPELLEE, BARBARA DAVIS (DECEASED) AND ROBERT NARCISSE (VOLUNTARILY SUBSTITUTED) Rudy W. Gorrell, Jr.
COUNSEL FOR DEFENDANT/APPELLANT, NAOMI DAVIS William R. Penton, III James A. Harry MOLAISON, J.
The appellant, Naomi Davis, seeks review of the April 8, 2024 judgment of
the trial court that ordered her to vacate the separate property of her deceased
husband. For the following reasons, we affirm the judgment of the trial court.
FACTS AND PROCEDURAL HISTORY
In 1989, the decedent, Scofield Davis, purchased property located at 1001
Garden Road in Marrero Louisiana (hereinafter referred to as “the Property”). The
appellant married the decedent in 1995; he died on May 4, 2020. The Property
remained the separate property of the decedent during the marriage.
Shortly before his death, the decedent executed a will bequeathing the
Property to his daughter, Barbara Davis. The will bequeaths the appellant a two-
year usufruct of the Property. The will states that it is the appellant’s responsibility
to maintain insurance and pay taxes on the Property, and that the usufruct
terminates in the event she fails to do so. The will appoints Barbara as the
executrix of the decedent’s estate. The appellant is not Barbara’s mother.
On March 11, 2021, Barbara filed a petition seeking possession of the estate.
In this petition, she acknowledged the appellant’s usufruct over the Property. On
March 12, 2021, the trial court signed a judgment placing Barbara into possession
of the Property and recognizing the usufruct. On July 5, 2022, the appellant filed a
petition to re-open the succession and vacate the judgment of possession. On
September 14, 2023, Barbara filed a petition to remove the appellant from the
Property.
On October 31, 2023, the trial court vacated the judgment of possession.1
The appellant filed an opposition to Barbara’s petition arguing that because the
judgment of possession had been vacated, the usufruct did not begin “until there is
1 The trial court did not sign the written judgment vacating the judgment of possession until April 1, 2024. Barbara remained executrix of the estate.
24-CA-388 1 a judgment of possession placing the testamentary usufructuary in possession of
her usufruct.” The appellant argued that Barbara’s petition to remove her from the
Property should be denied on this basis. The appellant further argued that if
determined that the usufruct had terminated, she is entitled to remain in the
property because she is owed “reimbursement claims against the owner/decedent
and/or his heirs.” Barbara filed a reply to the appellant’s opposition arguing that
the usufruct started when the decedent died on May 4, 2020, and terminated two
years later, on May 4, 2022. Barbara further argued that because the requested
reimbursement is for expenses claimed before the usufruct began, she was not
entitled to retain possession of the Property. Barbara also argued that the appellant
failed to pay property taxes as required by the testamentary usufruct.
The trial court held a hearing on April 1, 2024, and ordered that the
appellant vacate the Property by May 1, 2024, and signed a written judgment to
that effect on April 8, 2024. On June 6, 2024, the trial court granted the
appellant’s motion for a devolutive appeal of the judgment.
LAW AND DISCUSSION
Absence of Oath
In her first assignment of error, the appellant argues that the motion to evict
her from the Property was not properly before the court. She reasons that at the
time Barbara filed the motion, a hearing was held, and the judgment was rendered,
Barbara had not taken the oath of office nor had letters testamentary been issued.
The appellant concludes that because Barbara had not yet qualified for the position
of executrix, she was unauthorized to file anything as a succession representative.
Although not specifically stated, the appellant attempts to raise the dilatory
exception of lack of procedural capacity in this assignment of error despite the
argument not being raised in the trial court proceedings. All objections which may
be raised through the dilatory exception are waived unless pleaded. La. C.C. art.
24-CA-388 2 926(B). Further, a party permitting a case to go to judgment without objecting to
the procedure or excepting to the pleadings cannot question, on appeal, the
propriety of the proceedings. Crescent City Cabinets & Flooring, L.L.C. v. Grace
Tama Dev. Co., L.L.C., 16-359 (La. App. 4 Cir. 10/19/16), 203 So.3d 408, 415.
Accordingly, the appellant has waived this objection, and this assignment of error
lacks merit.
Usufruct has not terminated
In her second assignment of error, the appellant argues that a judgment is
necessary to place a testamentary usufructary in possession. She contends that the
two-year term of usufruct has not commenced because there is no such judgment.
At the hearing on this motion to remove the appellant from the Property, the
trial judge stated, “Usufruct expired. It was two years. It’s over. The usufruct is
over.” Counsel for the appellant replied, “You’re right, Your Honor.” Counsel
then argued that the appellant was not reimbursed by the succession for the
community funds used to pay expenses of the decedent’s separate property, i.e., the
mortgage, improvements, and repairs to the house.
A judicial confession is a declaration made by a party in a judicial
proceeding and constitutes full proof against the party who made it. La. C.C. art.
1853. A counsel’s declaration has the same effect as if made by the party itself.
Sweet Lake Land & Oil Co., LLC v. Oleum Operating Co., L.C., 21-169 (La. App.
3 Cir. 12/1/21), 362 So.3d 486, 503, writ granted in part and remanded, 22-00497
(La. 9/20/22), 345 So.3d 1022. Appellant counsel’s agreement with the trial judge
that the two-year usufruct had terminated is a judicial confession. As such, she
cannot argue on appeal that the usufruct has not terminated because there is no
judgment of possession. This argument is without merit.
24-CA-388 3 Reimbursement claims not paid
In her final assignment of error, the appellant argues that the trial court erred
in ordering her removal from the Property because she has not been reimbursed by
the succession for the community funds used to pay the mortgage on the Property
and for repairs and improvements to the Property. In support of this position, the
appellant relies on La. C.C. art. 627, which states:
Upon termination of the usufruct, the usufructuary or his heirs have the right to retain possession of the property until reimbursed for all expenses and advances for which they have recourse against the owner or his heirs.
The appellant’s argument is misplaced. The right of retention pursuant to
La. C.C. art. 627 applies to expenses under La. C.C. art. 579 and art. 585. See, La.
C.C. art. 627 Revision comment (c). Article 579 provides that if the naked owner
refuses to make extraordinary repairs, the usufructuary may, and he shall be
reimbursed without interest by the naked owner at the end of the usufruct. Repairs
for the reconstruction of the whole or of a substantial part of the property subject to
the usufruct are extraordinary repairs. La. C.C. art. 578. If extraordinary charges
are “of a nature to augment the value of the property subject to the usufruct, the
naked owner shall reimburse the usufructary at the end of the usufruct only for the
capital expended.” La. C.C. art. 585. In the proceedings below and on appeal, the
appellant claims she is entitled to retain possession of the Property because she is
owed reimbursement for community funds used to pay the mortgage on the
Property, and to make repairs and improvements to the property. We disagree.
Reimbursement for these expenses do not entitle the appellant to retain possession
of the Property pursuant to article 627. See Barnes v. Cloud, 46,685 (La. App. 2
Cir. 12/14/11), 82 So.3d 463, 466. Accordingly, this assignment of error is without
merit.
24-CA-388 4 Voluntary substitution
According to the briefs filed in this matter, Barbara Davis died on July 14,
2022. In the appellee brief, it is requested that Barbara’s brother be substituted in
her place for the filing of the brief and “for all pending matters.”
The Uniform Rules for the Courts of Appeal state that the rules and
procedures for substitution of parties provided by La. C.C.P. arts. 801-807 shall
regulate the substitution of parties. Article 801 provides:
When a party dies during the pendency of an action which is not extinguished by his death, his legal successor may have himself substituted for the deceased party, on ex parte written motion supported by proof of his quality. As used in Articles 801 through 804, “legal successor” means: (1) The survivors designated in Article 2315.1 of the Civil Code, if the action survives in their favor; and (2) Otherwise, it means the succession representative of the deceased appointed by a court of this state, if the succession is under administration therein; or the heirs and legatees of the deceased, if the deceased’s succession is not under administration therein.
There has been no motion for substitution accompanied by proof filed in this
Court; therefore, this Court is without authority to grant the relief requested. See,
Konneker v. Sewerage & Water Bd. of New Orleans, 96-2197 (La. App. 4 Cir.
11/19/97), 703 So.2d 1341, 1343, writ denied, 97-3137 (La. 2/13/98), 709 So.2d
760.
Attorney fees
In her brief the appellee has requested attorney fees. However, an appellee
is not entitled to attorney fees for legal services rendered on appeal when the
appellee neither answers an appeal nor appeals from the trial court’s judgment. La.
C.C.P. art. 2133. An assertion in a brief does not serve as an answer to appeal.
Clover v. Redfish Rentals, Inc., 22-470 (La. App. 3 Cir. 2/2/23), 357 So.3d 522,
532. For these reasons, we deny the appellee’s request for attorney fees.
24-CA-388 5 CONCLUSION
For the preceding reasons, we affirm the April 8, 2024 judgment of the trial
court.
AFFIRMED
24-CA-388 6 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
(504) 376-1498 FAX www.fifthcircuit.org
NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY JANUARY 29, 2025 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
24-CA-388 E-NOTIFIED 24TH JUDICIAL DISTRICT COURT (CLERK) HONORABLE DONALD L. FORET (DISTRICT JUDGE) RUDY W. GORRELL, JR. (APPELLEE) GEORGE M. MCGREGOR (APPELLANT) JAMES A. HARRY (APPELLANT) ROBERT J. DAIGRE (APPELLANT)
MAILED CESAR R. BURGOS (APPELLANT) LEILA M. BONILLA (APPELLANT) WILLIAM R. PENTON, III (APPELLANT) ATTORNEYS AT LAW 3535 CANAL STREET SUITE 200 NEW ORLEANS, LA 70119