In re LeBouef
| Decision Date | 09 September 2014 |
| Docket Number | No. 2013 CA 0209.,2013 CA 0209. |
| Citation | 153 So.3d 527 |
| Parties | SUCCESSION OF Edward J. LeBOUEF. |
| Court | Court of Appeal of Louisiana — District of US |
Bradley A. Doyle, Houma, Louisiana, Counsel for Plaintiffs–Appellees Willard J. LeBouef, Sr., Mary Lou Lambas, Brenda Lee Rodrigue, Wiley LeBouef, Gillis LeBouef, Jimmie LeBouef and Betty Marie Mills.
Paul A. Lapeyrouse, Chauvin, Louisiana, Counsel for Defendants–Appellants Linda Ann L. Naquin, Mary Ann L. Billiot and Jerry J. LeBouef.
Before PARRO, KUHN, GUIDRY, PETTIGREW, McDONALD, McCLENDON, WELCH, HIGGINBOTHAM, CRAIN, THERIOT, and DRAKE, JJ.1
The defendants-appellants, Linda Ann L. Naquin, Mary Ann L. Billiot and Jerry J. LeBouef (the defendants), appeal a judgment removing them as co-administrators of their father's succession and holding them in contempt of court. For the following reasons, we affirm the defendants' removal as co-administrators, reverse the portion of the judgment holding them in contempt, and remand this matter.
The parties are several of the sixteen surviving, major children of decedent, Edward J. LeBouef, who died on July 15, 2011. In accordance with a petition filed by the defendants, the district court signed an order on August 19, 2011, appointing them co-administrators of their father's succession for the purpose “of maintaining decedents' [sic] house ... and gathering a list of decedent's assets and liabilities.” Each defendant signed an oath to discharge faithfully the duties of a co-administrator.
In November 2011, seven of the defendants' siblings, Willard J. LeBouef, Sr., Gillis LeBouef, Mary Lou L. Lambas, Jimmie J. LeBouef, Brenda Lee L. Rodrigue, Betty Marie L. Mills, and Wiley LeBouef (the plaintiffs), filed a motion to remove the defendants as co-administrators and to appoint Willard LeBouef, Sr., as succession administrator. The plaintiffs alleged that the defendants mismanaged the succession, failed to file an accounting or list of assets and liabilities, withheld information regarding the decedent's last will and testament, exceeded the authority granted to them in the August 2011 order appointing them co-administrators, and acted without necessary court approval on multiple occasions. The plaintiffs requested that the defendants be held in contempt of court for failing to comply with the August 2011 order and for violating their oaths of office.
At the motion hearing, the defendants admitted to performing various acts beyond the scope of maintaining the decedent's house and gathering a list of his assets and liabilities. They also failed to file a written list of succession assets and liabilities. Additionally, although several of the defendants' actions were of the type requiring court approval, they failed to obtain such approval. These acts included the sale of succession assets, distribution of succession assets, and the payment of compensation to themselves as co-administrators.
In explanation of their conduct, the defendants testified that they consulted with their attorney, Paul Lapeyrouse, and relied upon his advice in their actions as co-administrators. They denied having knowledge that court approval was required for any of their actions. Jerry LeBouef testified that the reason they hired an attorney was so that he could “let us know the legal process.” Regarding the plaintiffs' allegation that the defendants withheld information concerning the decedent's last will and testament, Mary Ann Billiot testified that she delivered the will to their attorney, who then decided what to do with it.
The district court took the matter under advisement, and on February 9, 2012, signed judgment in favor of the plaintiffs ordering the defendants' removal as co-administrators and the appointment of Willard LeBouef, Sr., as administrator of the decedent's succession. The defendants' attorney was also removed as the succession's attorney of record. Additionally, the district court held the defendants in contempt of court “for their wilful disobedience to the judgment of August 19th, 2011 and for their failure to follow their oath of office....” The defendants were each sentenced to thirty days in parish jail, suspended on condition that they meet several requirements, including the return of all succession assets taken or dispersed by them without court approval and the payment of $3,000.00 for Willard LeBouef, Sr.'s attorney fees. The defendants took a suspensive appeal, contending that the district court erred in removing them as co-administrators, in holding them in contempt, and in imposing criminal penalties for their alleged civil contempt.2 The plaintiffs filed a motion in this Court for summary disposition of the appeal.
Before considering the issues raised by the defendants on appeal, we must first consider the plaintiffs' motion for summary disposition, since the motion raises an issue as to our appellate jurisdiction. See State in Interest of J.C., 13–0776 (La.App. 1st Cir.9/13/13), 134 So.3d 611, 614. In their motion, the plaintiffs contend that this Court's prior decision in In re Succession of Graves, 07–2180 (La.App. 1st Cir.3/12/08), 985 So.2d 140, 141 (per curiam ), writ denied, 08–0799 (La.6/6/08), 983 So.2d 919, establishes that the defendants' appeal must be dismissed on the grounds that a judgment removing a succession administrator is a nonappealable interlocutory judgment.3
Conflicting pronouncements by this Court have created uncertainty concerning whether a judgment appointing or removing a succession administrator is appealable or is reviewable by supervisory writ. For this reason, although this matter originally was heard before a three-judge panel, this Court subsequently elected to hear it en banc in order to resolve the conflict and clarify the law of this circuit.4
In Succession of Schneider v. Schneider, 371 So.2d 1380, 1382 (La.App. 1st Cir.1979), this Court held it was apparent that La. C.C.P. arts. 2122 and 2974 contemplated that review of judgments appointing or removing succession representatives5 would be by appeal. This holding was based on the express language of Articles 2122 and 2974, which this Court concluded authorized such appeals, and not on the fact that La. C.C.P. art. 2083 at that time allowed the appeal of an interlocutory judgment that “may cause irreparable injury[.]”
Louisiana Code of Civil Procedure article 2122 provides:
[Emphasis added.]
Louisiana Code of Civil Procedure article 2974 provides:
[Emphasis added.]
Subsequent to the decision in Schneider, a different panel of this Court reached a contrary result in Graves, 985 So.2d at 141, stating in a published per curiam action denying a supervisory writ that “no appeal lies from a judgment appointing or removing a succession administrator[.]” In reaching this result, the Graves court specifically rejected the argument that La. C.C.P. arts. 2122 and 2974 authorized an appeal of a judgment appointing or removing a succession representative, reasoning that the current version of La. C.C.P. art. 2083 ( 2005 La. Acts, No. 205, § 1) now allows appeals of interlocutory judgments “only when expressly provided by law.” Graves, 985 So.2d at 141. The Graves court opined that, while Articles 2122 and 2974 addressed matters pertinent to the review of judgments appointing or removing a succession representative, they did not expressly provide for the review to be by appeal. Graves, 985 So.2d at 141. On that basis, the Graves court declared that no appeal lies from such judgments, which were reviewable only under this Court's supervisory jurisdiction. The Graves opinion was silent as to this Court's prior holding in Schneider.
More recently, still another panel of this Court cited the Schneider decision with approval, reaffirming the holding of Schneider that a judgment appointing or removing a succession representative is an appealable judgment under La. C.C.P. art. 2974. See In re Succession of Sharp, 11–1984 (La.App. 1st Cir.5/14/12), 2012 WL 1744467 (unpublished). A conclusion that the language of Article 2974 satisfies the requirements of Article 2083(C) is implicit in the Sharp holding, since the Court expressly recognized that this Article provides that interlocutory judgments are appealable only when “expressly provided by law.” Sharp, 11–1984 at p. 4, 2012 WL 1744467. The Sharp opinion makes no reference to the Graves case.
Thus, different panels of this Court have reached conflicting conclusions regarding the appealability of judgments appointing or removing succession representatives. After reviewing the law and the conflicting jurisprudence, we conclude the rationale adopted by this Court in Schneider and Sharp is well founded and, accordingly, we adhere to the holdings of those cases and overrule the per curiam decision rendered in Graves. The primary consideration leading to our conclusion is the express language of La. C.C.P. arts. 2122 and 2974.
The rules of statutory construction require that in examining codal articles, a court must read the language, words and phrases used in context and accord them their generally prevailing...
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