In re Sylvester

• Decision Date: 14 December 2016
• Docket Number: NO. 16–CA–372,16–CA–372
• Citation: 215 So.3d 368
• Parties: SUCCESSION OF Anthony SYLVESTER, Sr.
• Court: Court of Appeal of Louisiana — District of US

215 So.3d 368

SUCCESSION OF Anthony SYLVESTER, Sr.

NO. 16–CA–372

Court of Appeal of Louisiana, Fifth Circuit.

December 14, 2016

PLAINTIFF/APPELLANT, SHARON SYLVESTER, In Proper Person

COUNSEL FOR DEFENDANT/APPELLEE, JOYCE SYLVESTER, Justin E. Molaison, Harold E. Molaison

Panel composed of Fredericka Homberg Wicker, Robert A. Chaisson, and Robert M. Murphy

MURPHY, J.

Appellant, Sharon Sylvester, proceeding in forma pauperis and appearing in proper person, appeals the trial court judgment granting the Exception of No Right of Action filed by the succession representative. For the reasons that follow, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

This seemingly simple succession has a long and contentious procedural history. While the succession litigation involved parsing decedent's interest in numerous pieces of property, the instant appeal concerns only two distinct pieces of property, 1208–1210 South Rampart Street and 1212–1214 South Rampart Street.

Sharon Sylvester ("Sharon") is the surviving spouse of Anthony Sylvester, Sr., who died testate on January 9, 2005. Decedent was survived by four major children, who were the sole legatees of his estate. Sharon opened the succession proceedings by filing a petition to be appointed administratrix of the estate on January 31, 2005. In March of 2005, decedent's first wife and mother of his children, Joyce M. Sylvester ("Joyce"), filed an opposition to Sharon's application to be appointed administratrix. In a consent judgment dated March 24, 2010, Sharon and Joyce were named co-independent administratrices of the estate. On November 19, 2010, Joyce filed a petition to partition the property held in co-ownership. On August 13, 2014, the district court signed a final partition judgment, which, among other things, (1) declared Sharon to be the full owner of 1212–1214 South Rampart Street, (2) determined that Sharon had no usufruct over decedent's share of the community property because decedent's testament disposed of decedent's share of the community property, and (3) adopted the special master's finding that the community did not include 1208–1210 South Rampart Street as decedent's business, Anthony's Plumbing, L.L.C—of which decedent was the only member—owned the property. These holdings were affirmed. Succession of Sylvester , 15–125 (La.App. 5 Cir. 12/9/15), 181 So.3d 250, writ denied , 16–350 (La. 5/20/16), 191 So.3d 1066.

On February 3, 2016, Sharon filed a pleading entitled "Rule to Show Cause why Joyce Sylvester, Sole Administrator herein Should Not Be Taxed with Fines and Damages for Neglect of Succession Property," seeking fines and other damages against Joyce for her alleged failure to maintain 1208–1210 South Rampart Street and 1212–1214 South Rampart Street and for her failure to appear at a November 2015 administrative hearing at which, Sharon represents, the City of New Orleans (the "City") levied fines against both of these properties. Joyce responded with Exceptions of No Cause of Action and No Right of Action. Following a hearing, the trial court issued a judgment granting Joyce's Exceptions of No Right of Action and of No Cause of Action and dismissing Sharon's Rule to Show Cause.

LAW AND DISCUSSION

The purpose of the peremptory exception of no right of action is to determine whether a plaintiff has a real and actual interest in an action or belongs to a particular class to which the law grants a remedy for a particular harm alleged. Dufrene v. Insurance Co. of State of Pennsylvania , 01–47 (La.App. 5 Cir. 5/30/01), 790 So.2d 660, 668. The burden of proof of establishing the exception of no right of action is on the exceptor. City of New Orleans v. Board of Directors of Louisiana State Museum , 98–1170 (La. 3/2/99), 739 So.2d 748, 755. The exception of no right of action tests whether the plaintiff has a "real and actual interest" in the action, but it does not raise questions of the plaintiff's ability to prevail on the merits or whether the defendant may have a valid defense. Lemmon Law Firm, LLC v. Sch. Bd. of St. Charles , 13–376 (La.App. 5 Cir. 12/12/13), 131 So.3d 231, 236. At the hearing on the exception of no right of action, the exception may be submitted on the pleadings, or evidence may be introduced either in support of or to controvert the objection raised when the grounds thereof do not appear from the petition. La. C.C.P. art. 931. An appellate court reviewing a lower court's ruling on an exception of no right of action should focus on whether the particular plaintiff has a right to bring the suit and is a member of the class of persons that has a legal interest in the subject matter of the litigation, assuming the petition states a valid cause of action for some person. Eagle Pipe & Supply, Inc. v. Amerada Hess Corp. , 10–2267 (La. 10/25/11), 79 So.3d 246, 256. The determination whether a plaintiff has a right to bring an action raises a question of law, which requires de novo review. Id .

Louisiana Code of Civil Procedure article 3191 provides in pertinent part: "A succession representative is a fiduciary with respect to the succession, and shall have the duty of collecting, preserving, and managing the property of the succession in accordance with law." This fiduciary duty extends to legatees, creditors, and heirs. Succession of Linder , 11–633 (La.App. 5 Cir. 5/22/12), 92 So.3d 1158, 1172.

In the pleading which is the subject of this appeal, Sharon alleged that:

1. Joyce as the succession representative had a fiduciary duty to preserve the property of the succession pursuant to La. C.C.P. art. 3191 ;

2. this duty includes the duty to repair pursuant to La. C.C.P. art. 3211 ;

3. the "Rampart properties," which are listed as "1208, 1210, 1212–1214 S. Rampart St.," were previously preserved during the joint administration of Sharon and Joyce, had deteriorated during the sole administration of Joyce;

4. code violations were found by the city of New Orleans on the "Rampart St." properties on January 28, 2015 and a judgment was issued on November 4, 2015 imposing fines for these violations;

5. the final partition judgment did not become final until October 23, 2015 when the Louisiana Supreme Court denied writs from the partition judgment.

In the Exception of No Cause of Action, Joyce argued that all causes of action Sharon had against Joyce should have been brought prior to the rendition of the partition judgment. Using this...