Opinion
2017 CA 1511
06-01-2018
IN RE: THE REVOCABLE LIVING TRUST OF CHRISTINE McCORD BURKETTE BONURA v. CLARENCE WILLIAM BURKETTE
Robert W. Fenet Baton Rouge, LA Counsel for Plaintiff/Appellee Christina McCord Burkette Bonura Trust Seth M. Dornier Baton Rouge, LA Jennifer Aycock Motlow Baton Rouge, LA Counsel for Defendant/Appellant Clarence "Billy" Burkette
NOT DESIGNATED FOR PUBLICATION On Appeal from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana
No. C650312 Honorable Wilson E. Fields, Judge Presiding Robert W. Fenet
Baton Rouge, LA Counsel for Plaintiff/Appellee
Christina McCord Burkette Bonura Trust Seth M. Dornier
Baton Rouge, LA Jennifer Aycock Motlow
Baton Rouge, LA Counsel for Defendant/Appellant
Clarence "Billy" Burkette BEFORE: WHIPPLE, C.J., McDONALD, and CHUTZ, JJ.
WHIPPLE, C.J.
Defendant, Clarence "Billy" Burkette, seeks a reversal of the trial court's judgment which, in pertinent part, permanently enjoined defendant from taking any action whatsoever in relation to property owned by defendant's deceased mother, Christine McCord Burkette Bonura, or the Christine McCord Bonura Trust, and further enjoined defendant from attempting to exercise any legal rights related to such property in any other legal proceedings, For the following reasons, we affirm in part, amend in part, vacate in part, render, and remand to the trial court for further proceedings.
FACTS AND PROCEDURAL BACKGROUND
Clarence "Billy" Burkette's mother, Christine McCord Burkette Bonura, passed away on July 4, 2016. Following her death, counsel for the Revocable Trust of Christine McCord Burkette Bonura ("the Trust') filed a "Petition for Declaratory and Injunctive Relief and Cancellation of Power of Attorney and Accounting from Discharged Agent."
The petition alleged that prior to her death, Christine McCord Burkette Bonura signed a power of attorney, giving her son, Mr. Burkette, power of attorney to handle her affairs. Subsequently, Mrs. Bonura learned that the majority of her funds were withdrawn from her bank accounts by Mr. Burkette and that he was selling her timber for undisclosed cash payments. Upon learning of these "wrongful actions," Mrs. Bonura contacted counsel "to take the necessary action to cancel the power of attorney." Counsel prepared the Christine McCord Burkette Revocable Living Trust, naming Mrs. Bonura's brother, Glen Farrar, as the trustee upon her death and her grandchildren as beneficiaries. Additionally, counsel prepared a power of attorney, revoking all prior powers of attorney except those related to health care, and giving Mr. Farrar power of attorney to handle Mrs. Bonura's affairs.
In pertinent part, the petition sought: (1) a declaratory judgment declaring the Trust as valid and as the rightful owner and possessor of all property owned by Mrs. Bonura at the time of her death; (2) an order compelling Mr. Burkette to make an accounting of all funds withdrawn from Mrs. Bonura's bank accounts; and (3) a preliminary injunction enjoining and restraining Mr. Burkette from expending any funds or selling or encumbering any property belonging to Mrs. Bonura at the time of her death.
The petition was subsequently amended to state that the Trust was appearing through its trustee, Glenn Farrar, and attached thereto was an affidavit of acceptance signed by Mr. Farrar.
The trial court issued a temporary restraining order on September 13, 2016, enjoining Mr. Burkette from spending, alienating, mortgaging, encumbering, converting, or disposing of any property belonging to Mrs. Bonura at the time of her death. A hearing on the preliminary injunction was set for February 23, 2017. At this hearing, prior to any argument or testimony, the parties stipulated that the temporary restraining order would be converted to a preliminary injunction to remain in effect for ninety days until the matter could be mediated, and further, if the matter could not be resolved by mediation, the parties would return to the court in ninety days to litigate the pending issues.
The parties did not attend the mediation, and they returned to the trial court on May 24, 2017 for a hearing. Mr. Burkette was late for the hearing, prompting counsel for the Trust to move to hold Mr. Burkette in contempt of court for not timely appearing and for allegedly refusing to mediate the matter despite the court-ordered mediation. Following testimony and argument, the trial court stated that it would issue a ruling on May 31, 2017 and there would also be a contempt hearing on this date for Mr. Burkette to show evidence as to why he was late for the hearing. The trial court further stated that on May 31, 2017, it would determine if Mr. Burkette was in contempt of court for opening a succession proceeding (pending in another division of the court), as this action may constitute a violation of the court's order that he was not to alienate, encumber, or disturb any assets belonging to Mrs. Bonura at the time of her death or to the Trust.
On May 31, 2017, this matter came before the trial court for a contempt hearing on the above-stated issues. Following argument, the trial court ordered the parties to submit briefs, further stating that it would issue a ruling on the contempt hearing on June 20, 2017, and the preliminary injunction would be extended until June 20, 2017.
On June 20, 2017, the trial court issued a ruling in open court, finding that Mr. Burkette was not in contempt of court. However, the trial court further found that Mr. Burkette "violated his fiduciary duty as an agent to [Mrs. Bonura] ... and therefore[,]...the preliminary injunction previously issued by [the] court [would be] made permanent."
Thereafter, the trial court signed a judgment on July 10, 2017, stating, in pertinent part, that Mr. Burkette is permanently enjoined "from interfering with, tampering with, taking, removing, or in any way disturbing or attempting to take or exercise any control, or take any action whatsoever, in relation to any property owned by Christine McCord Bonura, and/or attempting to exercise any legal rights to the property being owned by the Christine McCord Bonura Trust." The judgment further provided that Mr. Burkette is "prohibited, enjoined and restrained from attempting to exercise any legal rights to the property of the [Trust or Mrs. Bonura] in any other legal proceedings." The judgment also ordered Mr. Burkette to vacate all property owned by Mrs. Bonura at the time of her death, granted occupancy of Mrs. Bonura's principal residence to the Trust, and ordered Mr. Burkette to produce various documents pertaining to his alleged use of Mrs. Bonura's bank account funds, insurance proceeds, and timber sale proceeds.
Mr. Burkette then filed the instant appeal from the July 10, 2017 judgment, raising the following assignments of error:
(1) The trial court signed and issued a facially invalid judgment on July 10, 2017;
(2) The trial court erred, abused its discretion, and unlawfully ordered sua sponte that a previously issued preliminary injunction be made permanent when there was no agreement on the record or otherwise by any counsel of record that the preliminary injunction hearing would also serve as the hearing for the permanent injunction; and
(3) The trial court lacked subject matter jurisdiction when the trial court enjoined and restrained Mr. Burkette from performing his court appointed duties as administrator of the Succession of [Mrs.] Bonura.
DISCUSSION OF THE MERITS
Validity of the Judgment
(Assignment of Error No. 1)
In his first assignment of error, Mr. Burkette argues that the July 10, 2017 judgment is invalid because the judgment is rendered in favor of the Trust, not the trustee. Mr. Burkette contends that the Trust is not a legally viable party to the suit and, therefore, the judgment is null in ab initio. In support of this argument, Mr. Burkette relies on LSA-C.C.P. art. 699 and LSA-R.S. 9:2222, which provide, in pertinent part, that a trustee is the proper plaintiff to sue to enforce rights of the trust.
Louisiana Code of Civil Procedure 699 provides:
Except as otherwise provided by law, the trustee of an express trust is the proper plaintiff to sue to enforce a right of the trust estate.
Louisiana Revised Statue 9:2222 provides:
A trustee is the proper plaintiff to sue to enforce a right of the trust estate, except that a beneficiary may sue to enforce such a right, in order to protect his own interest, in an action against:
(1) A trustee and an obligor, if the trustee improperly refuses, neglects, or is unable for any reason, to bring an action against the obligor; or
(2) An obligor, if there is no trustee or the trustee cannot be subjected to the jurisdiction of the proper court.
We disagree with Mr. Burkette's contention that the judgment herein is facially invalid in its entirety because it is granted in favor of the Trust. As he correctly notes, one provision of the judgment states that occupancy of the house is granted to the Trust. However, this single provision does not render the entirety of the judgment null in ab initio.
Indeed, there are other provisions of the judgment rendered in favor of the trustee. Specifically, the judgment provides that "the [t]rustee, Glenn Farrar[,] be empowered to conduct an inventory and an accounting to recover all of the items in the Trust."
Accordingly, to the extent that this single provision in the judgment may not clearly or fully express the relief granted, we amend that portion of the judgment, to provide that Glenn Farrar, in his capacity as trustee, is granted control of the house and 100 acres of land at 705 Highway 409 and 699 Highway 409 in Slaughter, LA and is to determine occupancy in accordance with his duties owed as trustee.
Sua Sponte Permanent Injunction
(Assignment of Error No. 2)
In Mr. Burkette's second assignment of error, he contends that the trial court erred by sua sponte ordering that the previously issued preliminary injunction was converted to a permanent injunction without a trial on the permanent injunction or an agreement by the parties.
A preliminary injunction is essentially an interlocutory order issued in summary proceedings incidental to the main demand for permanent injunctive relief. Adler v. Williams, 2016-0103 (La. App. 1st Cir. 9/16/16), 203 So. 3d 504, 513. The principal demand, as opposed to the preliminary injunction, is determined on its merits only after a full trial under ordinary process, even though the hearing on the summary proceedings to obtain the injunction may touch upon or decide issues regarding the merits of the principal demand. Zachary Mitigation Area, LLC v. Tangipahoa Parish Council, 2016-1675 (La. App. 1st Cir. 9/21/17), 231 So. 3d 687, 692; see also Brehm v. Amacker, 2015-1531 (La. App. 1st Cir. 12/7/17), 236 So. 3d 621, 630. While in some cases the merits of an action may be decided during an interlocutory proceeding, this is only where the parties have expressly agreed to submit the case for final decision at the hearing on the rule for a preliminary injunction. Zachary Mitigation Area, 231 So. 3d at 692; see also Adler, 203 So. 3d at 514. Absent an express agreement by the parties, a permanent injunction may issue only after a trial on the merits at which the burden of proof is a preponderance of the evidence. Adler, 203 So. 3d at 514; see also Brehm, 236 So. 3d at 630.
In the instant matter, although there were apparently some discussions in chambers and some agreements by the parties in the course of the litigation, the record does not clearly establish that there was an agreement by the parties to submit the case for a final decision on the request for a permanent injunction at the hearing on the preliminary injunction.
The Trust contends that a hearing on the permanent injunction was in fact held on June 20, 2017. However, this is not borne out by the record. The record reveals that there was not a hearing, or a trial, on June 20, 2017. Rather, the transcript and minute entry indicates that the parties appeared before the court on June 20, 2017 for a "ruling" on the contempt hearing previously held on May 31, 2017. Notably, on May 31, 2017, the trial court stated, "[O]n June 20th, the court will issue its ruling on the contempt hearing that we had this morning ... I will take no further argument from either side ...." Accordingly, testimony or evidence was not presented to the trial court on June 20, 2017. Thus, despite appellee's contention, on the record before us, it is readily apparent that no hearing or trial on the permanent injunction was held on June 20, 2017.
Moreover, while the trial court's reasons for judgment refer to testimony presented to the court on May 31, 2017, the May 31, 2017 hearing was a hearing on the contempt issues and was not a trial on the permanent injunction. The minute entry and transcript refer to the May 31, 2017 hearing as a contempt hearing and testimony was not presented during this hearing, only argument of counsel.
The trial court did hear testimony as related to the requested injunctive relief on May 24, 2017; however, this was noticed as a hearing on the request for a preliminary injunction, not a trial on the request for a permanent injunction. Indeed, on February 23, 2017, the parties stipulated that they would mediate the matter as to the amounts that were allegedly withdrawn from Mrs. Bonura's checking accounts, and the temporary restraining order would be converted to a preliminary injunction for ninety days or until mediated, enjoining, restraining, and prohibiting Mr. Burkette from encumbering or transferring, mortgaging, alienating, or encumbering any financial documents of interest to the Trust. The parties further stipulated on February 23, 2017, that if the matter could not be resolved by mediation, the parties would return to court in ninety days "to litigate the issues which [were] pending before the court, which [were] a petition for a preliminary injunction and for cancellation of the power of attorney." This oral stipulation is the only notice of the May 24, 2017 hearing borne out by the record before us. Accordingly, although there was confusion as to what matters were before the court on this date, we must conclude that the May 24, 2017 hearing was on the request for preliminary injunctive relief only.
Notably, at the hearing, counsel for the Trust requested that the preliminary injunction be made permanent and counsel for Mr. Burkette made a countervailing request for the preliminary injunction to be denied.
Accordingly, we find that the trial court committed legal error and exceeded the parameters of its authority in converting the previously issued preliminary injunction into a permanent injunction, as the record does not establish that a properly noticed trial on the merits of the permanent injunction took place-Therefore, we vacate that portion of the judgment and reinstate the preliminary injunction.
Because of the confusion as to what issues were before the trial court at the various hearings, we hereby render judgment, specifically clarifying that the preliminary injunction is maintained and that Mr. Burkette is prohibited from interfering with, tampering with, taking, removing, or disturbing any property owned by Mrs. Bonura or belonging to the Trust until a trial on the request for permanent injunctive relief can be conducted.
Restraint on Other Legal Proceedings
(Assignment of Error No. 3)
In his third assignment of error, Mr. Burkette contends that the provision of the judgment prohibiting him from "attempting to exercise any legal rights to the [disputed] property ... in any other legal proceedings" is unenforceable. Mr. Burkette has opened a succession proceeding in another division of the trial court and has been issued letters of administration in this separate succession proceeding. Accordingly, Mr. Burkette argues that this provision of the judgment is improper and prohibits him from performing his lawfully appointed duties as administrator of the succession of Mrs. Bonura.
The record from the succession proceeding is not included in the record. However, appellee's brief sets forth that all action in the succession proceeding has been stayed by the trial court judge presiding over this separate proceeding.
It is well settled that, as a general rule, a pending action cannot be enjoined in a separate action. Karst v. Ward-Steinman, 469 So. 2d 440, 442 (La. App. 3rd Cir. 1995) (finding that a temporary restraining order was wrongfully issued where it enjoined an eviction proceeding that was pending in the city court); see also Horrell v. Matthews, 2006-1838 (La. App. 1st Cir. 8/15/07) (unpublished) (concluding that the trial court did not err in denying a preliminary injunction in a possessory action that would have halted judicial actions in pending succession and eviction proceedings). Applying this well-established rule in the instant case, we set aside that portion of the judgment prohibiting Mr. Burkette from exercising any legal rights to the property in any other legal proceedings, as this portion of the judgment in effect enjoins the pending succession proceeding. Recognizing the confusion that may be caused by these separate legal proceedings, this can be adequately addressed through other procedural means, such as a motion to consolidate or motion to stay, and therefore, injunctive relief in this form is not warranted.
CONCLUSION
For the above and foregoing reasons, we hereby amend that portion of the July 10, 2017 judgment, granting the Trust occupancy of the houses and 100 acres of land at 705 Highway 409 and 699 Highway 409, Slaughter, LA, to instead provide that Glenn Farrar, in his capacity as trustee of the Christine McCord Burkette Bonura Revocable Living Trust, is granted control of the house and 100 acres of land at 705 Highway 409 and 699 Highway 409 in Slaughter, LA and is to determine occupancy in accordance with his duties as trustee. Further, we hereby vacate that portion of the July 10, 2017 judgment that converted the preliminary injunction into a permanent injunction, and we hereby issue a preliminary injunction, prohibiting Mr. Burkette from interfering with, tampering with, taking, removing, or disturbing any property owned by Mrs. Bonura or belonging to the Trust until a trial on the request for permanent injunctive relief can be conducted. Additionally, that portion of the judgment which prohibits, enjoins, and restrains Billy Burkette from attempting to exercise any legal rights to the property of the Christine McCord Burkette Bonura Trust or Christine McCord Bonura in any other legal proceeding is hereby vacated. The matter is remanded to the trial court for further proceedings consistent with our views expressed herein. Costs of this appeal are assessed equally between the parties.
AFFIRMED IN PART; AMENDED IN PART; VACATED IN PART; RENDERED; AND REMANDED.