Opinion
No. CA 1468.
May 10, 1984.
APPEAL FROM THIRTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF ST. BERNARD, STATE OF LOUISIANA, HONORABLE RICHARD H. GAUTHIER, J.
Richard M. Olsen, Duplechin Associates, Belle Chasse, for petitioner-appellant.
Manuel A. Fernandez, Fernandez Dysart, Chalmette, for defendants-appellees.
Before SCHOTT, BYRNES, and WARD, JJ.
Plaintiff, Samuel Evagnac, filed a "Petition for Authority to Perform Executory Contract of Deceased" against the administrator of this succession seeking an order from the court authorizing and directing the administrator to convey title to immovable property. Plaintiff bases his claim on a written agreement entered into between himself and the decedent Newton Charles Degelos, and invokes the provisions of LSA C.C.P. Arts. 3227 and 3229 as authority for his claim. An answer in the form of a general denial was filed by Althea Kramer Degelos, Elizabeth Degelos Alexander, Newton Charles Degelos, Jr., and Noelle Degelos Gioe, and upon their motion for summary judgment plaintiff's petition was dismissed. In this appeal by plaintiff both sides argue the validity velnon of the agreement, but we have resolved to affirm dismissal of plaintiff's suit on other grounds and do not reach the question of the agreement's validity.
Plaintiff's suit was filed on February 14, 1983. He claimed to have an executory agreement to purchase immovable property from decedent confected on December 5, 1981, but decedent's untimely death prevented him from purchasing the property. Alleging that he was desirous of consummating the agreement and that "it would be in the best interest of all the parties to authorize the administrator of decedent's estate to perform said contract of sale in accordance with [C.C.P. Arts.] 3227 and 3229," he prayed that the administrator of the succession "be authorized and directed to perform the contract." Simultaneously with the filing of his petition plaintiff caused a notice to be published in the local newspaper of his suit advising that an order authorizing the administrator to sell the property "may" be issued within ten days of publication and that any opposition may be filed in the meantime.
Art. 3227 provides that the court may authorize a succession representative to perform an executory contract evidenced by writing after compliance with Art. 3229's requirement that notice of the application be published. These articles and their companion articles, 3198, 3224, 3226, and 3228, are designed for use by a succession representative to conduct the business of a succession smoothly and without undue complications. They are not designed for an adversary to force the succession representative to take some action which the third party deems beneficial to his interest. The proper remedy available to plaintiff was a suit for specific performance against the administrator if there was one.
These succession proceedings are on file in this court under our docket number CA 1131 involving other litigation unrelated to the instant case. The record shows that a judgment of possession was signed on May 7, 1982, recognizing Althea Kramer Degelos as surviving spouse of decedent and as legatee; Elizabeth Degelos Alexander, Newton Charles Degelos, Jr. and Noelle Degelos Gioe as heirs and legatees; and Ivey Marie Degelos Lalanne as forced heir; and the judgment sends these individuals into possession of all of defendant's property.
Thus, when plaintiff filed his suit the administration of the succession had been completed. There was no administrator or executor by whom or against whom the provision of C.C.P. Arts. 3227 and 3229 could be invoked. Assuming that we could consider plaintiff's petition as one for specific performance and the answer of defendants as sufficient to join issue, Ivey Marie Degelos Lalanne did not join in the answer and ostensibly was never made aware of the suit even though she was an owner of an undivided interest in the property.
The trial court held that the agreement was insufficient to provide plaintiff with a basis to require title to be transferred. Because of the procedural difficulties we have outlined we do not reach the question of the agreement's validity but we affirm dismissal of the suit reserving plaintiff's right to bring a proper suit against all the proper parties.
AFFIRMED.
BYRNES, J., concurs.
I concur in the result reached by the majority.
The record in NO. CA 1131 of this court's docket reveals that Althea Kramer Degelos prayed for an order confirming her as testamentary executrix and for the issuance of letters testamentary. However, no such order or letters testamentary were ever issued. Thus, there was no administrator or executor against whom the plaintiff could have brought suit. Nonetheless, an answer was filed by four of the five heirs of the deceased. In my opinion, this answer waived any objections to the plaintiff's improper designation of the party defendant.
The majority correctly points out that plaintiff's reliance on CC. Arts. 3227 and 3229 was misplaced and that his proper remedy was to seek specific performance from the heirs themselves. However, even when viewed as an action for specific performance, plaintiffs suit is procedurally defective because not all the heirs to the property in question were made defendants. This failure of plaintiff to join all of the heirs subjected his suit to a peremptory exception of non joinder of an indispensable party. See Edmonson v. Abell, 423 So.2d 100 (La.App. 1st Cir. 1982). This exception may be noticed by an appellate court on its own motion, CCP Art. 927.
It is on the basis of this procedural defect that I concur in the majority opinion.