Opinion
NO. 2011-CA-1256
03-21-2012
SUCCESSION OF CARLO J. DILEO
, J., DISSENTS WITH REASONS.
I respectfully dissent.
Mrs. Minvielle, in my view, is entitled to demonstrate that the amended judgment of possession obtained on her mother's ex parte petition without notice to Mrs. Minvielle, an indispensable party, is null for vices of form. Mrs. Minvielle is indispensable because she is a general legatee of her late father's testament, a naked owner in indivision of the property subject to her mother's usufruct, and one of the joint petitioners with her mother on the judgment of possession which her mother sought to amend.
Mrs. Minvielle has not sought review of the denial of her motion for summary judgment in this appeal of the final judgment granting Mrs. DiLeo's motion for summary judgment. She was entitled to seek review of the merits of the ruling of that interlocutory judgment at the same time she seeks review of the merits of the final judgment. See People of the Living God v. Chantilly Corp., 251 La. 943, 207 So. 2d 752 (1968). See also Roger A. Stetter, LOUISIANA CIVIL APPELLATE PROCEDURE, §3:32 (2010-2011 ed.) ("When an unrestricted appeal is taken from a final judgment, the appellant is entitled to seek review of all adverse interlocutory rulings adverse to him, in addition to review of the final judgment.") Mrs. Minvielle's failure to assign as error the denial of her motion ordinarily prevents us from considering the merits and granting her relief therefrom. See Rule 2-12.4, Uniform Rules - Courts of Appeal. But see also La. C.C.P. arts. 2124 and 2129, and Merrill v.Greyhound Lines, Inc., 10-2827 (La. 4/29/11), 60 So. 3d 600.
The majority opinion at p._, ante, avoids the nullity issue by maintaining that by operation of La. C.C.P. art. 3061 C, the amended judgment of possession only alters the "phraseology of the [original] judgment, but not the substance." Like the concurring opinion, I too disagree that the amendment is merely one of phraseology. The usufruct conferred by the judgment of possession and the usufruct conferred in the amended judgment of possession are substantively different. And Mrs. Minvielle had a vested right of naked ownership subject to the usufruct conferred in the original judgment of possession, which prevents both the retroactive application of La. C.C.P. art. 3061 C to this controversy and Mrs. DiLeo's ex parte attempt to amend the judgment of possession.
By custom I refer to Judge Lombard's opinion as the majority opinion although only the result and not the reasoning commands a majority.
The distinction between a usufruct with the right to dispose of nonconsumables or without that right is substantive. "Usufruct is a real right of limited duration on the property of another." La. Civil Code art. 535. "The features of the right vary with the nature of the things subject to it as consumables or nonconsumables." Id. See also La. Civil Code arts. 536 (defining consumables) and 537 (defining nonconsumables). The highlighted, and hopefully not misleadingly oversimplified, distinction between a usufructuary's substantive right depending upon whether the things subject to the usufruct are consumables or nonconsumables is if consumable, "the usufructuary becomes the owner of them," La. Civil Code art. 538, but if nonconsumable, "the usufructuary has [only] the right to possess them," La. Civil Code art. 539. The right to dispose of a nonconsumable, see La. Civil Code art. 568, is an attribute of ownership. See La. Civil Code art. 477 A ("The owner of a thing may use, enjoy and dispose of it within the limits and under the conditions established by law.") Thus, the right of a usufructuary of nonconsumables to dispose of them is different from the ordinary right of a usufructuary. Amending the judgment of possession substantively changed Mrs. Minvielle's naked ownership rights; Mrs. DiLeo, the usufructuary, would have a right to dispose of the property, including the naked interest.
Mrs. Minvielle's naked ownership rights, however, were vested by virtue of the original judgment of possession. Mrs. DiLeo herself joined with her five daughters in petitioning the court to place them in possession of the estate. The petition was verified by all six petitioners. They sought execution of Mr. DiLeo's testament, recognition of Mrs. DiLeo as surviving spouse in community entitled to one-half of the community property, recognition of Mrs. DiLeo as "the usufructuary for life over all the property of the succession," and recognition of the five daughters as "sole heirs of the decedent and as such, that they be entitled ... to be put into possession of an undivided one-fifth (1/5) interest" in decedent's property, "subject to the usufruct for life in favor of their mother." Because all of the general legatees joined in the petition as well as the surviving spouse in community, and no creditor demanded an administration, the court was authorized to render and sign a judgment of possession, which it did. See La. C.C.P. arts. 3031 and 3061 A. "The judgment of possession rendered in a succession proceeding shall be prima facie evidence of the relationship to the deceased of the parties recognized therein, as heir, legatee, surviving spouse in community, or usufructuary, as the case may be," provides La. C.C.P. art 3062, "and of their right to the possession of the estate of the deceased."
After rendition of a judgment of possession, as here, "if other property is discovered, or for any other proper cause, upon the petition of any interested person, the court, without notice or upon such notice as it may direct, may order that the succession be ... reopened." La. C.C.P. 3393 B. Mrs. DiLeo did not expressly petition to reopen the succession, but she did file an ex parte petition to amend the judgment.
Because the basic purpose of reopening a succession is to deal with overlooked succession assets, the Louisiana Supreme Court surveyed the jurisprudence to determine the circumstances under which "proper cause" has been found to exist. See Succession of Villarubia, 95-2610, p. 6 (La. 9/5/96), 680 So. 2d 1147, 1150. The court concluded that "other proper cause" under Article 3393 exists only "under extremely limited circumstances." Id. Villarubia noted that reopening had been allowed in intestate successions when a valid will is discovered. Id. pp. 6-7 (citation omitted). But reopening had not been allowed for collation, to assert forced heirship rights, or for error of law. Id. p. 7 (citations omitted).
As the court examined the circumstances of cases in which the issue of "other proper cause" was treated, clear precepts emerge and a recurring theme is discernable. If the party seeking to reopen the succession for "other proper cause" had accepted the succession and consented to the original judgment of possession, there was no proper cause for him to reopen the succession and he was bound by the original judgment. Villarubia, pp. 7-8, at 1151.
Thus, when a son who had joined in a judgment of possession in a testate succession which did not recognize his forced heirship rights (which would have increased his share of property) sought to have such rights recognized by reopening the succession and amending the judgment, the court found no "proper cause." Succession of Lasseigne, 488 So. 2d 1303, 1306 (La. App. 3rd Cir. 1986). Similarly, when grandsons were seeking to claim the forced heirship rights of their father in their grandfather's succession, the court rejected their claim because their father "joined in the succession proceedings of his father ... and acquiesced in the manner in which the property was divided among the legatees." Averette v. Jordan, 457 So. 2d 691, 696 (La. App. 3rd Cir. 1984). Thus, "his heirs are now precluded from asserting any interest in this succession on his behalf." Id. The supporting rationale is that when "one makes a judicial declaration and judgment is rendered in accordance therewith, he cannot ordinarily revoke the declaration and attack the judgment under the pretense of having made an error of law." Id.
The theme resonates again in a case where a sister had joined in a judgment of possession with her niece and nephew and their father, her brother, who had "renounced" his share in a succession in his children's favor. See Succession of Williams, 418 So. 2d 1317 (La. 1982). The Supreme Court concluded that the sister's "representations in the succession pleading that she and her niece and nephew were the sole heirs of the decedent were instrumental in obtaining judgment on that basis and had the effect of renunciation of all rights in conflict with the judgment obtained." Id. at 1320.
Then, importantly, we have a sort of reversal of our situation. The testator bequeathed a usufruct in favor of his second wife over the property inherited by his three children, but the testament did not provide that it was a lifetime usufruct. See Succession of McCarthy, 583 So. 2d 140 (La. App. 1st Cir. 1991). The children and their step-mother joined in a petition and judgment of possession that, however, provided for a lifetime usufruct. Id. at 142 When the step-mother remarried, the children sought to reopen the succession, claiming that her usufruct had terminated. Id. at 141. The first circuit affirmed the trial court's sustaining of the exception of no cause of action because the children had not shown "proper cause" to reopen. Id. The court observed that "[t]he children did not seek to have the [original] judgment amended, they did not make application for new trial, they did not seek to have the judgment annulled nor did they appeal." Id. at 142 (emphasis supplied). And, the court concluded, "[t]he Judgment of Possession is final." Id.
I do note that Mrs. DiLeo has sought alternative relief to annul the original judgment in the event that the amended judgment was annulled.
This brings us to the facts of Villarubia, in which a grandson of the decedent had consented by written act to the judgment of possession which placed his uncles, but excluded him, into possession of the grandfather's testate estate. Villarubia, supra. After the judgment of possession, the Louisiana Supreme Court decided the disputed constitutionality of La. Civil Code art. 1493, and the grandson attempted to have the succession reopened. Id. p. 9, at 1151. The Supreme Court ruled that the grandson "cannot now have the succession reopened to assert his rights as a forced heir." Id. p. 11, at 1152.
The Villarubia court stated that, "We realize this ruling is harsh, but if the law allowed judgments of possession to be overturned because of error of law or change in the law, the sanctity of such judgments would be seriously impaired." Id. p. 12, at 1152 (emphasis added).
Following Villarubia, we affirmed the trial's finding that there was no "proper cause" to reopen a succession in the circumstance where one brother who did not join in petitioning for the judgment of possession nonetheless accepted his share based upon the judgment. See Succession of Chatelain, 00-1267, p. 4 (La. App. 4 Cir. 5/16/01), 788 So. 2d 620, 622.
The second circuit rejected a wife's effort to reopen her husband's succession to claim her marital portion because she had joined in the petition for possession, verified her reading of the petition and the facts contained in it as true and correct, and acquiesced in the distribution of the estate. See Prine v. Prine, 34,749, p. 4 (La. App. 2 Cir. 9/17/01), 793 So. 2d 561, 564. "The trial court correctly concluded that the plaintiff's participation in the succession proceedings precluded her from subsequently asserting a claim contrary to the judgment of possession." Id.
The precepts which govern this matter from Mrs. DiLeo's perspective emerge clearly. She herself joined in a verified petition and obtained judgment as a result of that petition. See Averette, supra. A change in law is of no avail. See Villarubia, supra. Getting less than the law would allow is of no avail. See Williams, supr; Lasseigne, supra, and Prine, supra. Getting more than the testament would allow is of no avail. See McCarthy, supra.
We previously arrived at this same point in Yokum v. Van Calsem, 07-0676 (La. App. 4 Cir. 3/6/08), 981 So. 2d 725. There, the testamentary usufructuary attempted to sell the immovable property subject to his usufruct as described in the testament, which allowed, as here, disposition of nonconsumables, but which right of disposition was not provided in the resulting judgment of possession; we considered his claim "that he was given greater rights in the decedent's will than what appears in the judgment of possession." Id. p. 11, at 733. We rejected that claim, finding "for the same reasons in Succession of McCarthy, that the judgment binds the parties." Id. We then concluded that the "judgment of possession controlled the rights and obligations of the parties, specifically the naked ownership ... and the usufruct interest." Id. p. 12, at 733.
But, to the perspective of Mrs. Minvielle, these same precepts hold that her rights under the 2001 original judgment of possession as between her on the one hand (a general legatee, a co-naked owner in indivision of the property subject to the mother's usufruct, and a joint petitioner) and her mother (as the surviving spouse in community, a legatee of a usufruct under her father's testament, and a co-petitioner) as well as her sisters (as all of the other general legatees under her father's testament, the co-naked owners in indivision of the property subject to the mother's usufruct, and joint petitioners) were settled long before the effective date of Article 3061 C. The terms of Mrs. DiLeo's usufruct set forth in the original judgment of possession superseded the terms of her usufruct provided by the testament. Mrs. Minvielle's rights as a naked owner were only subject to her mother's ordinary usufruct for life. That is, because the judgment of possession did not expressly grant to Mrs. DiLeo the right to dispose of the nonconsumables, she enjoys no such right. See La. Civil Code art. 568 ("The usufructuary may not dispose of nonconsumable things unless the right to do so has been expressly granted to him.")
To retroactively apply the provisions of Article 3061 C, which was not even adopted until after the rendition of the amended judgment and thus provided no basis at the time of the amendment for the amendment, is insupportable. The original judgment was rendered on May 11, 2001. The amended judgment was rendered on February 10, 2010. Acts 2010, No. 226, which is now designated Article 3061 C, was adopted on June 17, 2010 and became effective August 15, 2010. To apply the automatic incorporation provisions of Article 3061 C to the original judgment of possession would divest Mrs. Minvielle of her vested rights acquired under that judgment. And, of course, that is not permitted.
In Succession of Lambert the Supreme Court addressed whether persons "who have taken title to succession property" relying on jurisprudential interpretations which were being overruled and answered that "[t]hey are protected under the law in effect at the time of the vesting of their interests." 210 La. 636, 660, 28 So. 2d 1, 9 (1946). "They have vested rights which cannot be disturbed." Id. A law too cannot be applied retroactively if to do so would divest a person of a vested right and would be "in violation of the due process guarantees under the state and federal constitutions." Lott v. Haley, 370 So. 2d 521, 524 (La. 1979).
Thus, in my view (as in the concurring opinion), the majority opinion mistakenly characterizes the amendment as simply one of phraseology. The amendment is one of substance.
Once we are clear that Mrs. DiLeo's amendment was one of substance and not phraseology, there can be no serious question that Mrs. Minvielle was an indispensable party requiring service of process of the petition to amend, and, in the absence of such service before the rendition of the amended judgment, is entitled to successfully maintain her nullity action for vices of form. Because Mrs. Minvielle's joinder was required to obtain the original judgment of possession without an administration of the succession, it seems elementary that her joinder in an action to amend the judgment is also necessary. See La. C.C.P. art. 3031 A (emphasis added) ("the court may send all of the legatees into possession of their respective legacies without an administration of the succession, on the ex parte petition of all of the general and universal legatees.")And Mrs. Minvielle is one of the general legatees. "A general legacy is a disposition by which the testator bequeaths a fraction or a certain proportion of the estate, or a fraction or certain proportion of the balance of the estate that remains after particular legacies." La. Civil Code art. 1586. Here, I note for our discussion that our testator bequeathed to his five daughters in equal proportions, the remainder of his estate; the five daughters, including Mrs. Minvielle, are the general legatees.
Because the testament contains a general legacy, "then by definition under this article there cannot also be a universal legacy. The two legacies are defined in such a way that they cannot exist in the same testament." Revision Comments - 1997 to La. Civil Code art. 1585. Thus, there are no universal legatees under Mr. DiLeo's testament.
Additionally, and importantly, Mrs. Minvielle was a naked owner in indivision of the nonconsumables for which Mrs. DiLeo sought the recognition to dispose of. The relief which Mrs. DiLeo sought could not be granted in the absence of Mrs. Minvielle, a general legatee and a naked owner. "A person shall be joined as a party in the action when ... in his absence complete relief cannot be accorded among those already parties." La. C.C.P. art. 641 A(1). Articles 641 through 646 were amended by 1995 La. Acts, No. 662, § 1. Prior to those amendments, the party described in Article 641 was referred to as an indispensable party, and there could be no adjudication unless all indispensable parties were joined in the action. See Matherne v. Guilliot, 544 So. 2d 723, 725 (La. App. 3rd Cir. 1989). While the latter provision no longer appears in Article 641, by using the word, "shall," the article still makes mandatory the joinder of the person described in Article 641 as a party to the suit. See Terrebonne Parish School Bd. v. Bass Enterprises Production Co., 02-2119 (La. App. 1 Cir. 8/8/03), 852 So. 2d 541.
And a final judgment rendered "[a]gainst a defendant who has not been served with process as required by law and who has not waived objection to jurisdiction" shall be annulled. La. C.C.P. art. 2002 A(2). An adjudication made, therefore, without making a person described in Article 641 a party to the litigation is an absolute nullity. See Frey v. American Quarter Horse Ass'n, 95-157 (La. App. 5 Cir. 7/25/95), 659 So. 2d 849. As noted in Terrebonne, 02-2119, p. 7, 852 So. 2d at 545-546, it is "axiomatic that courts are without power to adjudicate the rights of a person who is not a party to the litigation or appropriately represented."
Notably, the judgment to be annulled for vices of form need not name the indispensable party in the judgment itself. Article 641 provides that a person shall be joined as a party in the action when he claims an interest relating to the subject matter of the action and is so situated that the adjudication of the action in his absence may, as a practical matter, impair or impede his ability to protect that interest or may leave any of the persons already parties subject to a substantial risk of incurring multiple or inconsistent obligations. Thus, as here, a judgment rendered in the absence of an indispensable party can be annulled pursuant to La. C.C.P. art. 2002 A(2). For example, in Stephenson v. Nations Credit Financial Services Corp., 98-1689 (La. App. 1 Cir. 9/24/99), 754 So. 2d 1011, the owners of a dominant estate brought a declaratory judgment action to establish a public right of way and servitude of passage over a neighboring estate. The owner of the neighboring estate listed, and sold, the property prior to executing a consent judgment granting a servitude of passage to the dominant estate. After the consent judgment was executed, the purchasers filed a motion to nullify the consent judgment in the declaratory judgment action. The purchasers argued that they were indispensable parties to the declaratory judgment action and that the failure to name them constituted a vice of form under La. C.C.P. art. 2002. The trial court eventually nullified the consent judgment. On appeal, the defendants argued that the trial court erred in annulling the consent judgment pursuant to La. C.C.P. art. 2002 A(2) because the purchasers were never defendants against whom judgment was taken. The Court disagreed and held that La. C.C.P. art. 2002 A(2) encompasses a failure to join indispensable parties:
We do not read LSA-C.C.P. art. 2002A(2) as including only those persons who were named as defendants in lawsuits. To do so would leave unnamed persons who should have been joined pursuant to Article 641, but were not, without a means to attack a judgment that was rendered in the proceeding to which they were never made a party, unless they happened to learn of the judgment within the appeal delays. Therefore, because we find that the Hans should have been made defendants in the declaratory judgment action, we find that the ground for annulment of a judgment set forth in LSA-C.C.P. art. 2002A(2) is applicable herein.Stephenson, 98-1689, p. 12, 754 So. 2d at 1019.
Similarly, in Hernandez v. State, Through Department of Transportation and Development, we considered whether DOTD was an indispensable party to a declaratory action in which the natural daughter of the decedent was seeking to set aside her adoption in order to maintain a wrongful death action against DOTD. Hernandez v. State, Through Department of Transportation and Development, 02-0162 (La. App. 4 Cir. 10/16/02), 841 So. 2d 808 (on rehearing). We adopted the three-judge panel's conclusion that "when both the existence and the claim of a person who would be affected by a declaratory judgment are evident, that person must be joined in the petition for declaratory judgment." Id. p. 13, at 818. This is comparable to our situation because Mrs. DiLeo, when all is said and done, was seeking a declaration of her rights under the testamentary usufruct.
Thus, the failure to join any indispensable party can be used as grounds to nullify a judgment. And failing to join as a defendant a general legatee and naked owner in indivision of the property subject to the usufruct is ground to annul the so-called amended judgment of possession which was rendered in these proceedings.
Up to this point, I believe, the concurring opinion and my view are in accord. Where we diverge is whether the ultimate cross-motions for summary judgment satisfied the requirement of joinder of or notice and opportunity to be heard to Mrs. Minvielle. I think not.
Mrs. DiLeo only sought a nullity of the original judgment of possession for vices of substance if the amended judgment was annulled. An action for nullity for vices of substance requires a different kind of proof than an action for nullity for vices of form. "A final judgment obtained by fraud or ill practices may be annulled." La. C.C.P. art. 2004. Mrs. DiLeo's reconventional demand implies that there was ill-practice on the part of the attorney who represented Mrs. DiLeo and her daughters in the original petition for possession. She alleges that the attorney is the husband of one of her daughters (not Mrs. Minvielle) and that the judgment prepared by him accords greater rights of naked ownership to his wife and her sisters than was intended by the decedent in his will.
Mrs. DiLeo also filed a supplemental reconventional demand in which she specially pleads Article 3061 C, about which enough has been set forth.
In her affidavit filed in support of her motion for summary judgment, Mrs. DiLeo makes no mention of the ill-practice. In the unsworn attached copy of Mrs. DiLeo's letter to her daughters (filed without objection), Mrs. DiLeo relates that she, her lawyer son-in-law, and his wife have been trying to obtain release of the funds and that she does not require her daughter's consent. Her son-in-law's affidavit merely verifies that he prepared the pleadings and that he was married to the daughter at that time and is still married to her. There is not a single word of explanation about how or why the original succession pleadings were drafted and filed.
Mrs. DiLeo may have established that if the original judgment is not annulled the result to her is harsh, but it is no more harsh than to any of the other litigants who joined in the rendition of judgments of possession; she has not, however, shown the original judgment to be an injustice. See Belle Pass Terminal, Inc. v. Jolin, Inc., 01-0149 (La. 10/16/01), 800 So. 2d 762.
I, however, am not foreclosing that Mrs. DiLeo might be able to prove the injustice at a trial of her nullity action. But in the meantime, I am certain that Mrs. Minvielle is entitled to establish that the amended judgment is null for vices of form, which seems fairly simple at this point.
Therefore, I would reverse the summary judgment and remand for a trial on the merits of the nullity action. We make a mistake in not insisting upon procedural rectitude in succession proceedings. Much mischief can result from permitting a single heir or legatee the opportunity to revise judgments of possession without the consent of, or proper notice to, other heirs, legatees, and indispensable parties. While Mrs. DiLeo may at the end of the day be entitled to the modification she seeks and Mrs. Minvielle may rue the day she withheld her consent to the plain provisions of her late father's testament, I cannot overlook the critical procedural deficiencies in Mrs. DiLeo's actions to change the judgment of possession. I therefore respectfully dissent.
On remand, Mrs. Minvielle could re-file her motion for summary judgment.
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