Yokum v. Van Calsem

935 So. 2d 736, 2006 La. App. LEXIS 1466, 2006 WL 1756700
CourtLouisiana Court of Appeal
DecidedJune 21, 2006
DocketNo. 2005-CA-0797
StatusPublished
Cited by4 cases

This text of 935 So. 2d 736 (Yokum v. Van Calsem) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Yokum v. Van Calsem, 935 So. 2d 736, 2006 La. App. LEXIS 1466, 2006 WL 1756700 (La. Ct. App. 2006).

Opinion

CHARLES R. JONES, Judge.

hThe Appellant, William van Calsem, seeks review of the district court’s judgment granting the Appellees’ (Peterson M. Yokum, Nicholas H.K. Yokum, and Kenneth van Calsem) Application for Preliminary Injunction. We amend the judgement and affirm as amended.

Statement of Facts:

Mr. van Calsem’s late wife, Julie Gay de Fazande Yokum van Calsem (“Julie”), drafted a will which she later signed on May 30, 1989. In the will she left naked ownership of a parcel of property at 824 Royal Street in the French Quarter to the Appellees, namely, her two brothers, Peterson Yokum and Nicholas Yokum, and her stepson, Kenneth van Calsem. In the same will, she also left a usufruct to her husband, William (“Bill”) van Calsem. The provision reads:

3.5 824 Royal Street Property. Subject to usufruct in favor of Bill, which I hereby grant for life, I give equal shares to my stepson Kenneth van Calsem, my brother Peterson M. Yokum, and my brother Nicholas H.K. Yokum, by roots in being at my death, my real property at 824 Royal Street, New Orleans, Louisiana. Bill, as my usu-fructuary, shall have the fullest right to deal with this property as he may see fit, with the greatest freedom to act that can be Rgiven to a usufructuary under the Louisiana Civil Code including, particularly, but not exclusively, the right to dispose of nonconsumable things pursuant to Article 568 of the Louisiana Civil Code and to enjoy the proceeds of any deposition. Bill shall not be required to give bond as usufructuary.

Julie died on May 31, 1989, and her will was subsequently probated in the Civil District Court for the Parish of Orleans. On January 23, 1990, the district court rendered a judgment of possession recognizing Peterson Yokum, Nicholas Yokum, and Kenneth van Calsem as the legatees and owners of the subject property, subject to Bill van Calsem’s usufruct. Subsequently, the succession was closed.

About thirteen (13) years later, in 2003, Bill van Calsem consulted the law firm of Jones, Walker, Waechter, Poitevent, Car-rere, & Denegre, L.L.P. (Jones, Walker), for a legal opinion concerning his respective rights (1) to dispose of the Royal Street property without permission of the naked owners, (2) his right to use the proceeds, (3) when he would have to account for the proceeds, and (4) whether the naked owners would have any claim against an insurance policy that he owned [738]*738on which his new wife,1 Barbara Ann Downs van Calsem, was the beneficiary of the life insurance proceeds.

Jones, Walker later advised Bill van Cal-sem, via letter dated June 4, 2004, that: (1) the usufruct would terminate at his death; (2) based upon the authority conferred to him in the will, he could sell the property without the consent of the naked owners; (3) if Bill van Calsem sold the property, then his usufruct would attach to the proceeds of the sale, and his usufruct would then become a usufruct of | amoney, and he would be bound to pay to the naked owners at the end of the usufruct, the value that the property had at the time he sold it; (4) if his usufruct became a usu-fruct of money, that Bill van Calsem could do with the money as he saw fit; (5) the naked owners of the property would become creditors of his estate with a claim against his estate generally for the value the property was at the time Bill van Calsem sold it; and (6) the claim against Bill van Calsem’s estate would not lie against any life insurance proceeds.

After receiving the written response from Jones, Walker, Bill van Calsem sold the property to his niece, Wendy van Cal-sem, and her husband Bill W. Wendel via cash sale, for $650,000.2 The sale3 was made without the consent of the naked owners.

On or about September 23, 2004, the naked owners discovered4 that the sale of the subject property was made without their consent, and the naked owners, Peterson Yokum, Nicholas Yokum, and Kenneth van Calsem, petitioned the Civil District Court for injunctive and declaratory relief on October 19, 2004. The Appellees alleged that Bill van Calsem had no authority to sell the property, but that he may have had rights to sell his usufruct. They also alleged that Bill van Calsem sold the property for far less than its fair market value and that the buyers, Bill van Calsem’s niece and her husband, knew that the sale price was below fair market value. Based upon the reasons alleged in their petition, the Appellees |4claimed that the sale should be rescinded and Bill van Cal-sem’s usufruct terminated, and that they should be declared the owners of the subject property.

On December 1, 2004, the Appellees subsequently filed a Petition for Preliminary Injunction to enjoin Bill van Calsem from using the proceeds of the sale while the sale and ownership dispute were pending. After hearings on the preliminary injunction and affidavits were completed on January 10, 2005, the district court took the matter under advisement. On February 23, 2005, the district court granted the Appellees’ preliminary injunction, but did not issue a separate writ of injunction served on Bill van Calsem. No written reasons were given. Bill van Calsem timely perfected his appeal.

In the instant appeal, Bill van Calsem alleges that the district court erred as a matter of law by failing to require the Appellees to furnish security in connection with issuing the preliminary injunction. He further alleges that the district court [739]*739committed legal error by failing to specify, in sufficient detail, what acts are prohibited by Bill van Calsem pursuant to La.Code Civ. Pro. Art. 3605. The Appellant’s brief asserts that both of these legal errors trigger de novo review before this Court.

Discussion:

The Louisiana Supreme Court reiterated the standard of review for legal errors, in Landry v. Bellanger, 02-1443, (La.5/20/03), 851 So.2d 943, 955, rehearing denied, 9/5/03, and opined that “[wjhere one or more trial court legal errors interdict the fact-finding process, the manifest error standard is no longer applicable, and, if the record is otherwise complete, the appellate court should make its own independent de novo review of the record and determine which party should prevail by a preponderance of the evidence.” citing Ferrell v. Fireman’s Fund Ins. Co., 94-1252 (La.2/20/95), 650 So.2d 742, 747; McLean v. Hunter, 495 So.2d 1298, 1304 (La.1986).

In his first assignment of error, Mr. van Calsem argues that the district court erred as a matter of law by failing to require the Appellees to furnish security in connection with issuing the preliminary induction.

Louisiana Code Civ. Proc. Art. 3610, titled Security for Temporary Restraining Order or Preliminary injunction, provides that:

A temporary restraining order or preliminary injunction shall not issue unless the applicant furnishes security in the amount fixed by the court, except where security is dispensed with by law. The security shall indemnify the person wrongfully restrained or enjoined for the payment of costs incurred and damages sustained. However, no security is required when the applicant for a temporary restraining order or preliminary or permanent injunction is seeking protection from domestic abuse, dating violence, stalking, or sexual assault.

This Court has strictly construed La. C.C.P. Art.

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Related

Yokum v. Van Calsem
981 So. 2d 725 (Louisiana Court of Appeal, 2008)
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946 So. 2d 671 (Louisiana Court of Appeal, 2006)

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Bluebook (online)
935 So. 2d 736, 2006 La. App. LEXIS 1466, 2006 WL 1756700, Counsel Stack Legal Research, https://law.counselstack.com/opinion/yokum-v-van-calsem-lactapp-2006.