In re Panepinto

Decision Date13 September 2022
Docket Number21-CA-709
Citation349 So.3d 1014
Parties SUCCESSION OF Frank Joseph PANEPINTO, Sr.
CourtCourt of Appeal of Louisiana — District of US

COUNSEL FOR PLAINTIFF/APPELLEE, CECILE LAURIE PANEPINTO, Willard O. Lape, III, Covington

COUNSEL FOR DEFENDANT/APPELLANT, FRANK JOSEPH PANEPINTO, SR. AND JOHN A. PANEPINTO, Harold E. Molaison, Metairie, Justin E. Molaison, Jack E. Morris, Fort Wayne

Panel composed of Judges Marc E. Johnson, Stephen J. Windhorst, and Hans J. Liljeberg

LILJEBERG, J.

In this succession proceeding, the decedent's children seek review of the judgment of possession signed by the trial court recognizing the surviving spouse as the sole legatee under the decedent's will and sending her into possession of the decedent's entire estate in full ownership. The decedent's children have also filed a "Peremptory Exception of Nonjoinder of Parties Needed for Just Adjudication" in this Court. For the following reasons, we grant the exception of nonjoinder of parties, vacate the judgment of possession, and remand to the trial court for further proceedings.

FACTS AND PROCEDURAL HISTORY

On March 14, 2021, Frank Panepinto, Sr. ("Frank, Sr.") passed away. At the time of his death, he was married to Cecile Laurie Panepinto and was survived by two children from a previous marriage, Frank Panepinto, Jr. ("Frank, Jr.") and John Panepinto.

On September 23, 2021, Cecile filed a "Petition to File and Execute Notarial Testament and for Possession," asking to be recognized as the sole legatee of Frank, Sr.’s estate and to be placed into possession of the entirety of the estate in full ownership. Cecile noted in her petition that Frank, Sr.’s statutory will, dated June 28, 2004, provided:

To my wife, Cecile Laurie Panepinto, I give and bequeath my entire estate, of whatever nature it consists, whether separate or community, movable or immovable.
It is made clear that I bequeath unto my wife, Cecile Laurie Panepinto, all funds on deposit and certificates of deposit in any and all bank accounts, as well as our two vehicles and household furnishings in our home at 1709 Lake Salvador Drive, Harvey, Louisiana 70058."

Although the will was attached to the petition, Cecile did not mention in her petition that the will also contained the following provision:

If my wife, Cecile Laurie Panepinto, sells the family home at 1709 Lake Salvadro Drive, Harvey, Louisiana, she is to pay my children, Frank J. Panepinto, Jr. and John A. Panepinto, one-half (1/2) of the net proceeds.

On September 27, 2021, the trial court signed an order providing that the will shall be filed and given the effect of probate. The trial court also signed a judgment of possession on this same date, ordering that Cecile be recognized as the only legatee named in Frank, Sr.’s will and sending her into possession of the entirety of Frank, Sr.’s estate, including the immovable property located at 1709 Lake Salvador Drive, in full ownership. The record does not reflect that Frank Jr. or John was served with any pleadings or the judgment of possession in this matter.

On October 29, 2021, Frank, Jr. and John filed a motion for suspensive appeal from the judgment of possession, which was granted by the trial court on November 2, 2021. On January 24, 2022, Frank, Jr. and John filed "Peremptory Exception of Nonjoinder of Parties Needed for Just Adjudication on Behalf of Third-Party-Appellants Frank J. Panepinto, Jr. and John A. Panepinto" in this Court.

LAW AND DISCUSSION

We first address the exception of nonjoinder of parties needed for just adjudication. La. C.C.P. art. 2163 provides that an appellate court may consider a peremptory exception filed for the first time in that court, if it is pleaded prior to submission of the case for decision, and if proof of the ground for the exception appears on the record. Succession of Pedescleaux , 19-250 (La. App. 5 Cir. 2/7/20), 290 So.3d 749, 751 ; Rourke v. Estate of Dretar , 17-672 (La. App. 5 Cir. 5/23/18), 248 So.3d 653, 658.

Frank, Jr. and John contend that, as conditional joint legatees named in Frank, Sr.’s will, they are parties needed for the just adjudication of this proceeding. They assert that Frank, Sr. had the right to bequeath his one-half community property interest in the property at 1709 Lake Salvador Drive in any manner he pleased, including with the suspensive condition that his children receive one-half of the net proceeds in the event Cecile sells the property. They argue that as conditional joint legatees, they must be joined as parties in this action in order to protect their interest in Frank, Sr.’s estate. Frank, Jr. and John further contend that Cecile did not challenge the conditional bequest when she filed the petition for possession; rather, she accepted the terms of the will unconditionally, thereby waiving any objection to the validity of the conditional bequest.

Cecile responds that the conditional bequest to Frank, Jr. and John, of "one-half (1/2) of the net proceeds" in the event that Cecile should sell the house at 1709 Lake Salvador Dr., is null, because it is a prohibited substitution pursuant to La. C.C. art. 1520.1 She argues that because the conditional bequest is null, Frank, Jr. and John have no justiciable interest in the property and are not, therefore, necessary parties. Cecile further asserts that if this Court finds the conditional bequest to have effect, the matter should be remanded to the trial court for evidentiary proceedings regarding the testator's intent and the nature of the property at issue.

Parties needed for just adjudication in an action are those who have an interest relating to the subject...

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