Hollier v. Fontenot, 2449

• Decision Date: 05 December 1968
• Docket Number: No. 2449,2449
• Citation: 216 So.2d 842
• Parties: Dea Aucoin HOLLIER, Plaintiff-Appellant, v. Dorothy Hollier FONTENOT et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 842

216 So.2d 842

Dea Aucoin HOLLIER, Plaintiff-Appellant, v. Dorothy Hollier FONTENOT et al., Defendants-Appellees.

No. 2449.

Court of Appeal of Louisiana, Third Circuit.

Dec. 5, 1968.

Rehearing Denied Jan. 14, 1969.

Preston N. Aucoin, Ville Platte, for plaintiff-appellant.

Guillory, Guillory & Guillory, by Isom J. Guillory, Jr., Eunice, for defendants-appellees.

En Banc.

HOOD, Judge.

This is a petitory action instituted by Mrs. Dea Aucoin Hollier, widow of Edese Hollier, deceased, against the heirs of that decedent . Plaintiff demands judgment recognizing her as the owner of an undivided interest in two tracts of land, with improvements, located in Evangeline Parish, Louisiana. Judgment on the merits was rendered by the trial court rejecting plaintiff's demands, and plaintiff has appealed.

The present suit is a sequel to several other related matters which have been litigated recently in this court and in the Louisiana Supreme Court. See Succession of Hollier, 158 So.2d 351 (La.App.3d Cir. 1963); Succession of Hollier, 247 La. 384, 171 So.2d 656 (1965); Succession of Hollier, 184 So.2d 790 (La.App.3d Cir. 1966, writs denied, 249 La. 203, 186 So.2d 160); and Hollier v. Fontenot, 199 So.2d 600 (La.App.3d Cir. 1967; writs denied, 251 La. 30, 202 So.2d 650).

The pertinent facts, briefly, are that in 1928 a commercial partnership known as F. Hollier & Sons was organized by oral agreement, with Felix Hollier, Rene Hollier and the decedent, Edese Hollier, as the sole partners.

At the time this partnership was formed the decedent, Edese Hollier, was married to Mrs. Mercedes Couvillion Hollier, who died on May 6, 1935, leaving two children as the sole issue of that union . One of these children and the sole surviving heir of the other, now deceased, are the defendants in the instant suit. Edese Hollier married Mrs. Dea Aucoin Hollier, the plaintiff in the instant suit, in June, 1936, and they continued to live together until the death of Edese Hollier, which occurred on September 25, 1961. No children were born of this second marriage.

The succession of Edese Hollier was opened shortly after his death . The inventory filed in that proceeding classified all of the property left by the decedent as being 'community property,' except one item, designated as 'Item 141,' which was listed as being 'separate property.' Item 141 was described in the inventory as follows:

'ITEM 141. A certain undivided interest, say, a 20% Interest in and to the partnership of F. Hollier & Sons, which partnership is domiciled at 204 Northwest Railroad Avenue in the Town of Ville Platte, Evangeline Parish, Louisiana. That, among the assets of said partnership is contained, but not limited to, the following real estate, to-wit:

'TRACT A. Two (2) certain lots or parcels of ground located in Evangeline Parish, Louisiana in the Northwest Quarter (N.W. 1/4) of Section 27, Township Four (4) South, Range Two (2) East, in the Alcius Fuselier Subdivision No. 1 as per plat made by A. J. Curole, C. E. and Surveyor on November 7, 1955. (Formerly Lot 45--11.7 acres of Plat D to Subdivision of Estate of Ernest E. Ortego dated August 29, 1951.

'Being more particularly described as Lots Nos. 1 and 2 of Block 6 of said Alcius Fuselier Subdivision No. 1.

'Lot No. 1 is described as beginning at a point at the intersection of Phyllis and Etienne Streets, thence 67.5 feet in a Southeasterly direction along Etienne Street; thence South 142 feet; thence West 60 feet; thence North 171.7 feet to point of beginning.

'Lot No. 2 is described as beginning at a point 67.5 feet along Etienne Street from the intersection of Etienne Street and Phyllis Street, thence in a Southeasterly direction 67.5 feet; thence South 112 feet; thence West 60 feet, thence North (along Lot No. 1) a distance of 142 feet to point of beginning.

'Being part of the same property acquired by Alcius Fuselier on November 24, 1951, from Estate of Ernest E. Ortego by deed filed in Conveyance Book B--116 page 75 et seq., records of Evangeline Parish, Louisiana. Being the same property which F. Hollier & Sons acquired from Alcius Fuselier on November 30, 1956 by act recorded as Original Act No. 170960, in Conveyance Book B--140 at page 315 of the records of the Clerk of Court of Evangeline Parish, Louisiana.

TRACT B. A certain tract or parcel of land, together with all buildings and improvements thereon, situated in the Town of Ville Platte, in Evangeline Parish, Louisiana; said tract of land being more particularly described as being Lots 1, 2, 3, 4, 5, and 6 of Block 15 of the W. D. Haas Addition to the Town of Ville Platte in Evangeline Parish, Louisiana; said lots constituting all of Block 15 of said subdivision; said lots being bounded, now or formerly, as follows, to-wit: On the North by Second North Street, on the South by First North Street, on the East by West Railroad Avenue, and on the West by the Estate of Joseph Labas and the property of Mrs. J. W . Landreneau, each of said lots having a frontage of 50 feet on West Railroad Avenue by a depth of 150 feet running between parallel lines; said property being the same property which was acquired by F . Hollier & Sons from the Louisiana Central and Improvements Co. Ltd . on August 31, 1944, by act recorded as Original Act. No. 85279 in Conveyance Book B--70 at page 150 of the records of the Clerk of Court of Evangeline Parish, Louisiana.'

The plaintiff in this suit, Mrs. Dea Aucoin Hollier, filed an opposition to that inventory, contending that Item 141 belonged to the community and not to the separate estate of the decedent. The trial court rendered judgment decreeing that Item 141 belonged to the community, and on appeal we affirmed the trial court. (La.App., 158 So.2d 351). The Supreme Court reversed that judgment, however, and remanded the case to the district court for additional evidence (247 La. 384, 171 so.2d 656).

Additional evidence was introduced, as directed, and the trial court then rendered judgment dismissing plaintiff's opposition to the inventory. On appeal a majority of this court affirmed that judgment. (La.App., 184 So.2d 290). The Supreme Court refused plaintiff's application for writs, assigning as reasons for such refusal that 'On the facts found by the Court of Appeal, the result is correct.' (249 La. 203, 186 So.2d 160).

The effect of the judgment dismissing plaintiff's opposition to the inventory, which judgment has now become final, is to decree that the interest which the decedent, Edese Hollier, owned in the F. Hollier & Sons partnership at the time of his death belonged to his separate estate.

The instant suit was filed shortly after the last mentioned judgment became final. Plaintiff here contends that the two tracts of land, designated as 'Tract A' and 'Tract B' in Item 141 of the inventory, were never owned by the partnership at all, but that instead, both tracts were owned by the partners individually. She alleges that the interest which the decedent owned in each of said tracts was acquired by him while the community of acquents and gains existed between him and plaintiff, that the deeds by which these interests were acquired do not recite that they were purchased with the decedent's separate funds or for his separate account, and that the decedent's interest in each tract thus belonged to the community. She alleges that the decedent owned a 20 percent interest in Tract A and Tract B at the time of his death, and she demands judgment recognizing her as the owner of one-half of a 20 percent interest in said tracts of land.

The defendants, joined by the administrator of the Succession of Edese Hollier, filed an exception of res judicata in the instant suit, and that exception was maintained by the trial court. On appeal, we reversed the judgment of the district court and remanded the case for trial. (La.App., 199 So.2d 600). Writs were refused by the Supreme Court for the reason that 'The judgment complained of is not final. The rights of the applicant, if any, are reserved in the event of an adverse judgment.' (251 La. 30, 202 So.2d 650).

An answer was filed by the original defendants and by Philip Hollier, in his capacity as administrator of the Succession of Edese Hollier. The instant suit was then tried on its merits, and judgment was rendered by the trial court rejecting plaintiff's demands. Plaintiff appealed from that judgment, and that appeal is before us at this time.

On this appeal defendants again argue that the judgments heretofore rendered, dismissing plaintiff's opposition to the inventory which was filed in the Succession of Edese Hollier, have the effect of finally determining and decreeing that 'Tract A' and 'Tract B,' which are described in Item 141 of that inventory, belong to the decedent's separate estate. They contend that the exception of res judicata which they filed in this suit, and which we concluded was without merit, should be maintained. They take the position that they can now reurge that exception, since any rights which they may have were reserved to them by the Supreme Court (251 La. 30, 202 So.2d 650).

The same argument was made when the instant suit was before us originally. We concluded at that time that the litigation which took place prior to the filing of the instant suit concerned only the decedent's interest in the partnership, that no issue was raised by pleadings or otherwise and no determination was made as to the ownership of the two tracts of land which are in dispute here, and that the issues presented in the instant suit thus are not res judicata. For the reasons which we assigned at that time (La.App., See 199 So.2d 600), we reaffirm our original judgment that the exception of res judicata filed by defendants is without merit.

The evidence shows that by deed dated August 31, 1944, Louisiana Central Land and Improvement Company, Ltd., sold and conveyed to 'F Hollier & Sons, a commercial copartnership, domiciled and doing business in the...