In re Succession of Hendrix

CourtCourt of Appeal of Louisiana (US)
Citation990 So.2d 742
Docket NumberNo. 08-CA-86.,08-CA-86.
PartiesIn re SUCCESSION OF Harvel George HENDRIX.
Decision Date19 August 2008
990 So.2d 742
No. 08-CA-86.
Court of Appeal of Louisiana, Fifth Circuit.
August 19, 2008.
Rehearing Denied September 22, 2008.

[990 So.2d 744]

Gary J. Raphael, Attorney at Law, Gretna, LA, for Plaintiff/Appellee.

Nelson J. Cantrelle, Jr., Attorney at Law, Gretna, LA, for Defendant/Appellant.

Ronald W. Morrison, Attorney at Law, Metairie, LA, for Defendant/Appellee.



The Defendant, Mary Catherine Tingle, appeals from a judgment finding Amma Dell Wactor to be the putative spouse of the deceased, Harvel George Hendrix, and awarding an undivided one-half interest in immovable property to her assignees, Mildred Ann Crooks, Patsy Jean Rawle, and Donna Kay Bergeron. We affirm.

The case was initiated in 2002 in a petition to appoint an administrator for the succession of the deceased. Nelson Cantrelle, Jr. has represented Tingle in the proceedings from its inception.

On September 19, 2004, the Plaintiffs intervened in the succession of Hendrix, filing a Petition to Rescind the Donation and Sale [of the property] and for Declaratory Judgment. The intervention was filed by Bergeron, Hendrix's biological daughter, and Crooks and Rawle, two of three adopted daughters from his third marriage to Mildred Pevey (Pevey-Hendrix). The Petition claims that Hendrix and Wactor were married in 1951 in Mississippi, legally separated in the late 1950's in Mississippi, and divorced in 1984 in Louisiana. During that time, while still legally married to Wactor, Hendrix purchased immovable property in Louisiana with Pevey-Hendrix, prior to their marriage. The interveners claim that Hendrix subsequently donated his property interest to Pevey-Hendrix, who in turn donated the property to Mary Catherine Tingle, Hendrix's third adopted daughter from his marriage with Pevey-Hendrix. The interveners claim that the sales and donations made by Hendrix and Pevey-Hendrix, are absolute nullities, should be declared as such, and the Wactor assignees awarded Wactor's one-half undivided interest in Hendrix's interest in the property.

The case was heard in March of 2007. On July 13, 2007, the trial judge rendered a judgment in favor of the Plaintiffs. He determined that Wactor was the putative spouse of Hendrix, granted the petition to rescind the donation and the sale of the property, declared the sale of Hendrix's interest in the property an absolute nullity, and found any subsequent transfers made by Pevey-Hendrix to be absolute nullities. He further declared Wactor owner of an undivided one-half interest in Hendrix's interest in the property.

Notices of the judgment were mailed on July 18, 2007. The notice mailed to Cantrell was returned by the post office as undeliverable. The clerk contacted counsel to obtain his correct mailing address on August 8, 2007. On that day, Cantrell sent his son to pick up a copy of the judgment, and filed a motion for new trial. The clerk

990 So.2d 745

then sent counsel a copy of the judgment on August 17, 2007.

The Plaintiffs objected to the motion for new trial arguing that it was filed untimely. Following a hearing in which the clerk and Cantrell testified, the trial judge ruled in favor of the Plaintiffs, finding that the clerk complied with her obligations, and that it was Cantrell's responsibility to notify the clerk of his change of address. He noted that Cantrell testified that he still receives mail at the address used by the clerk and that he is considering moving back to that office.

On appeal, the Defendant contends that the motion for new trial was not untimely, because Cantrell did not receive the notice of judgment until after the seven-day delay had run. She further contends that Cantrell's correct address was on pleadings in the record and could have been found by the clerk.

On the merits, the Defendant, Tingle, argues that the trial judge erred in finding Wactor to be the putative spouse of the deceased, as she was not in good faith. She claims that when Wactor married Hendrix in 1952, she knew Hendrix was not divorced from his first wife whom he married in 1932, and thus is not entitled to the benefits of community property.


The delay for applying for a new trial shall be seven days, exclusive of legal holidays. La.C.C.P. art. 1974. The delay for applying for a new trial commences to run on the day after the clerk has mailed, or the sheriff has served, the notice of judgment as required by Article 1913. Id.

A review of the record shows that Cantrell's first pleading in the record declares that his address is on Huey P. Long Avenue in Gretna, the address used by the clerk to notify counsel of the judgment. That address is on all of the pleadings until February 5, 2007. In a motion for continuance on that date, counsel changed his address from Huey P. Long Avenue to a Post Office Box in Gretna. Then, on April 11, 2007, in a Joint Pre-Trial Order, Cantrell uses a Cedar Lawn Street address in Marrero, which is apparently his current office address. In his post-trial memorandum filed June 1, 2007, he reverts to the P.O. Box address. He then changed his address again in his motion for new trial filed August 8, 2007. In that pleading he utilizes the Cedar Lawn address.

In a closely similar case, the Louisiana Fourth Circuit found that the new trial delays had not commenced where the notice of the judgment was sent to the wrong address. JCM Const. Co., Inc. v. Orleans Parish School Bd., 02-0824, pgs. 48-49 (La.App. 4 Cir. 11/17/03), 860 So.2d 610, 638. There, the notice was sent to the Orleans Parish School Board instead of the School Board's attorney. The court reviewed the record and determined that counsel's correct mailing address was on all of the pleadings he filed into the record, and that it was not counsel's fault that the clerk mistakenly sent the notice to the School Board.1

According to the record in this case, counsel for the Defendant used three different mailing addresses in his pleadings. The clerk testified that she used the mailing address on Huey P. Long Avenue,

990 So.2d 746

which was on the pleadings filed by counsel from 2002 until 2007 (five years). She did not examine the record for other addresses. Nevertheless, counsel argues that he performed his duty of notifying the clerk of his address, because he completed a change of address form with the post office. Further, he contends the clerk should have known from the record that he was no longer using the Huey P. Long Avenue mailing address.

The record reflects that the clerk complied with her duties under the statute. She sent notice of the judgment and certified the date in the record. When the post office was unable to deliver the copy of the judgment, she telephoned counsel to obtain his correct mailing address, at which time she notified him of the judgment, and he filed the motion for new trial. Unfortunately, by that time, the new trial delays had passed.

Under the circumstances, we find that the mistake is not attributable to counsel or the clerk, but to an unfortunate series of events. Thus, as appeals are favored in the law, we find that the motion for new trial was timely, and thus, this appeal is timely. Since the motion for new trial was timely, the motion for written reasons was also timely. Rather than remand however, we will address the merits of the appeal in the interest of judicial economy.


The Defendant asserts that the trial judge manifestly erred in finding that Wactor to be the putative spouse of Hendrix, in granting the Petition to Rescind Donation and Sale and Petition for Declaratory Judgment, in declaring the sale by the decedent an absolute nullity, and in declaring Wactor to be the owner of an undivided one-half interest of all the rights, titles, and interests that Hendrix had or may have.

When Hendrix married Wactor in January of 1951 in Columbia Mississippi, Hendrix was not yet divorced from his first wife. He did not obtain that divorce until December of 1952. Hendrix and Wactor had a son in 1955. In 1959, Wactor obtained a legal separation in Mississippi from Hendrix, custody of, and child support of the minor child.2 Hendrix was notified of the separation decree.

From 1968 through 1978, Hendrix and Mildred Pevey acquired, immovable property together in Louisiana. On September 13, 1983, Hendrix sold his interest in the property to Pevey. On April 11, 1984, Hendrix obtained a divorce from Wactor in Gretna, Louisiana. Harvey then married Pevey in Louisiana approximately two weeks later.3

Eighteen years later, in 2002, Hendrix died.4

Shortly after his death, Pevey-Hendrix donated the property to her daughter, the actual Defendant herein, Mary Catherine Tingle.5 Pevey-Hendrix also executed a will near that time, leaving her estate to Tingle.

Wactor subsequently discovered the existence of the property at issue here when contacted by the attorney for the Plaintiffs relative to the succession proceedings.

In August of 2004, Wactor sold to the Plaintiffs her claims against the Hendrix estate and Pevey-Hendrix.6

990 So.2d 747

On September 9, 2004, Pevey-Hendrix died.

Ten days later, the Plaintiffs filed this intervention in the Hendrix's succession proceedings to recover Wactor's interest in the immovable property. They named as Defendants, Peggy Hendrix Flanders and Margaret Hendrix Sanders, in their capacity as co-administratrixs of the Hendrix...

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2 cases
  • Smith v. Raymond Felton, JR & Xyz Ins. Co.
    • United States
    • Court of Appeal of Louisiana (US)
    • 6 Abril 2017
    ...the plaintiff, the motion for new trial is deemed timely. See In re Succession of Hendrix, 08-86, pp. 5-6 (La. App. 5th Cir. 8/19/08), 990 So. 2d 742, 746, writ denied, 08-2498 (La. 1/9/09), 998 So. 2d 729. Thus, the plaintiffs' motion for devolutive appeal, filed well within the 60-day tim......
  • Smith v. Felton, NUMBER 2016 CA 0451
    • United States
    • Court of Appeal of Louisiana (US)
    • 6 Abril 2017
    ...the plaintiff, the motion for new trial is deemed timely. See In re Succession of Hendrix , 08–86, pp. 5–6 (La. App. 5th Cir. 8/19/08), 990 So.2d 742, 746, writ denied , 08-2498 (La. 1/9/09), 998 So.2d 729. Thus, the plaintiffs' motion for devolutive appeal, filed well within the 60–day tim......

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