In re Succession of Sylvester

• Decision Date: 09 December 2015
• Docket Number: No. 15–CA–125.,15–CA–125.
• Citation: 181 So.3d 250
• Court: Court of Appeal of Louisiana — District of US
• Parties: SUCCESSION OF Anthony SYLVESTER, Sr.

181 So.3d 250

SUCCESSION OF Anthony SYLVESTER, Sr.

No. 15–CA–125.

Court of Appeal of Louisiana, Fifth Circuit.

Dec. 9, 2015.
Rehearing Denied Jan. 25, 2016.

181 So.3d 251

Harold E. Molaison, Justin Molaison, Attorneys at Law, Metairie, LA, for Plaintiff/Appellee.

Sharon Sylvester, New Orleans, LA, Defendant/Appellant, In Proper Person.

Panel composed of Judges SUSAN M. CHEHARDY, ROBERT A. CHAISSON, and HANS J. LILJEBERG.

ROBERT A. CHAISSON, Judge.

The instant appeal arises from an amended final judgment from the 24^th Judicial District Court on a petition to partition properties in a decade-long succession dispute. Sharon Sylvester ("Sharon"), the decedent's surviving spouse, appeals the trial court's ruling which adopts the recommendations of the court-appointed special master regarding the denial of a usufruct in favor of Sharon, the classification of certain immovable property as separate or community, the inclusion of out-of-state immovable property in the design of lots for partition, and the calculation of reimbursements owed by Sharon to the estate for use of community funds. For the following reasons, we amend the decision of

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the trial court in part and, as amended, affirm. We further reverse the decision of the trial court in part and remand this case for proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

Anthony Sylvester, Sr. ("Anthony") died testate on January 9, 2005. At the time of his death, he was survived by his second wife, Sharon, to whom he was married from May 19, 2001, until his death. There were no children born of this marriage. Anthony was also survived by four natural born children from his first marriage, Anthony, Jr., Anita, Aaron, and Ashton, who are the sole legatees of his estate according to a notarial testament executed on March 17, 1997. His children have been represented in this succession dispute by their mother, Anthony's first wife, Joyce M. Sylvester ("Joyce"), from whom he was divorced by judgment of the Civil District Court for the Parish of Orleans dated October 19, 2000.¹

Anthony was a plumber by trade and owned a successful business, Anthony's Plumbing, LLC. At the time of his unexpected death in January of 2005, his estate consisted of multiple immovable and movable assets including the following contested assets:

• 2186 Daniels Road, Gretna, Louisiana—a residential property purchased by Anthony and Sharon on June 8, 2001, and valued at $112,500.

• 1212–1214 South Rampart Street, Square 278, Lot 17 or 18, First Municipal District, Orleans Parish, New Orleans, Louisiana—a lot with a double shotgun style residence purchased by Anthony on December 12, 2002, during his marriage to Sharon and valued at $105,100.

• 1216–1218 South Rampart Street, Square 278, Lot 17 or 18, First Municipal District, Orleans Parish, New Orleans, Louisiana—a lot purchased by Anthony on January 29, 2003, during his marriage to Sharon and valued at $13,200.

• 1208–1210 South Rampart Street, Square 278, Lot 17 or 18, First Municipal District, Orleans Parish, New Orleans, Louisiana—a lot with improvements purchased for $25,000 by Anthony's Plumbing, LLC, on December 6, 2002.

• Two adjacent lots located in Pass Christian, Mississippi: Lot 92, Pass Christian, Harrison County, Mississippi, purchased by Anthony and Sharon and valued at $12,500, and Lot 75, Pass Christian, Harrison County, Mississippi, purchased by Anthony and Sharon and valued at $15,000.

• Two timeshare condominiums located near Disney World in Kissimmee, Florida: Orange Lake Country Club, Week/Unit 47/86745, Kissimmee Florida, purchased by Anthony and Sharon on January 6, 2004, and valued at $8,867, and Orange Lake Country Club, Week/Unit 23/2567, Kissimmee, Florida, purchased by Anthony and Sharon on April 10, 2003, and valued at $11,517.²

• Two Hibernia Bank accounts for Anthony's Plumbing, LLC, with funds at

181 So.3d 253

the time of Anthony's death: $75,245.99 in a checking account and $116,991.22 in a savings account.

Sharon opened succession proceedings on January 31, 2005, by filing in the 24th Judicial District Court of Jefferson Parish a petition to be appointed administratrix of the estate, a sworn descriptive list of assets, and an affidavit of death, heirship, and domicile. A few months later, in March of 2005, Joyce filed an opposition to Sharon's application to be appointed administratrix, a petition for probate of the statutory testament, and Anthony's last will and testament.³

The case remained inactive for many years, and was not taken up again until October of 2009, when Joyce obtained a Judgment of Possession. Subsequently, recognizing that there were procedural defects in obtaining this judgment, Joyce moved to reopen the succession. On March 24, 2010, the parties reached a Consent Judgment whereby the Judgment of Possession was rescinded and Joyce and Sharon were named co-independent administratrices of the estate.

On November 19, 2010, Joyce, acting on behalf of her children and the estate, filed a petition to partition property held in co-ownership, the judgments on which form the basis for the instant appeal.

Due to the complexity of the legal and factual issues presented in this case, on February 17, 2011, the trial court appointed a special master, Mr. Beau Sagona, under La. R.S. 13:1465, to facilitate its resolution. Pursuant to this Special Master Order (to which the parties consented), the parties met with the special master and provided him with evidence to substantiate their claims. The special master submitted three process verbals to the court which detailed his findings of fact and conclusions of law together with evidence to support his conclusions. The third process verbal was subsequently amended.

The first process verbal filed into the record on January 5, 2012, limited the partition demand to the assets of the second community, denied Sharon a usufruct over the property that may have arisen under La. C.C. art. 890, made initial classification of the immovable properties as community or separate, and recommended these properties be partitioned by licitation. The first process verbal also identified a potential reimbursement claim owed by Sharon to the estate for funds withdrawn from the Anthony's Plumbing, LLC checking and savings accounts, and gave the parties time to submit additional evidence regarding the issue of reimbursements.

The second process verbal issued on June 14, 2012, addressed only the issue of reimbursements. At that time, neither party had submitted additional evidence with regard to reimbursement claims. The special master noted that while Anthony's Plumbing, LLC was separate property of the estate because Anthony organized it prior to his marriage to Sharon, the funds in the Anthony's Plumbing accounts were presumed community funds.⁴ The special master also found that Sharon, who had access to and signatory authority for these accounts, made substantial withdrawals from them, and because the accounts had no present value, Sharon owed the estate for its share of the community funds withdrawn. Following this second

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process verbal, the trial court issued a judgment on August 2, 2012, removing Sharon as a succession representative of the estate, appointing Joyce as sole executrix, and probating Anthony's will.

On June 20, 2013, the special master submitted a third process verbal addressing classification of community and separate property and reimbursement claims. In it, he proposed partition-in-kind pursuant to La. C.C.P. art. 4606. Under this partition method, the co-owned assets are placed into an active mass, divided into groups of equal value, and then the parties draw lots for them. The third process verbal also recognized certain reimbursements owed by the estate to Sharon for expenses incurred on the estate's behalf.

This third process verbal was amended on June 28, 2013, to clarify that the net reimbursement claim owed by Sharon to the estate should not be included in the design of the lots for partition. It also corrected the equalizing payment between the lots and redesigned the lots to include the Florida timeshares. Under the amended third process verbal, Lot A includes the Daniels Road property and the two Mississippi lots, plus an equalizing payment to Lot B of $658. Lot B includes 1212 and 1216 South Rampart Street as well as the two Florida timeshares.

The court issued a final judgment on April 30, 2014, which adopted all of the recommendations of the special master's amended third process verbal and ordered Sharon and Joyce to draw lots. The judgment specified that each party remained obligated to execute any document required to perfect transfer of title in accordance with the partition, and rendered a judgment in favor of the estate against Sharon in the amount of $65,354.17 for all reimbursement claims between the parties other than two claims: reimbursement of any amounts paid to obtain removal of a Sworn Proof of Claim filed by Mollere, Flanagan, and Landry, LLC, and reimbursement of one party's share of any special master's charges paid by the other party.⁵

The trial court subsequently...