Robinson v. Nunly

• Decision Date: 15 June 2011
• Docket Number: No. 46,053–CA.,46,053–CA.
• Citation: 69 So.3d 631
• Parties: Otis ROBINSON, Jr., Reassie McDowell, Leona McDowell Donnell and the Other Heirs of Willie Mae Terrell Jeter, Plaintiffs–Appellantsv.Inez T. NUNLY, Administrator of the Succession of Joanna “Joe” Bias, Isaac Dwayne Morris and Annette Hausey Morris, Defendants–Appellees.
• Court: Court of Appeal of Louisiana — District of US

69 So.3d 631

Otis ROBINSON, Jr., Reassie McDowell, Leona McDowell Donnell and the Other Heirs of Willie Mae Terrell Jeter, Plaintiffs–Appellants

v.Inez T. NUNLY, Administrator of the Succession of Joanna “Joe” Bias, Isaac Dwayne Morris and Annette Hausey Morris, Defendants–Appellees.

No. 46,053–CA.

Court of Appeal of Louisiana, Second Circuit.

June 10, 2011.Dissenting Opinion of Judge Moore, June 15, 2011.

H. Russell Davis, Arcadia, LA, for Plaintiffs–Appellants.Mixon & Carroll, PLC, Columbia, LA, by James E. Mixon, James L. Carroll Brian E. Frazier, for Defendants–Appellees, Inez Nunly, Administratrix of the Succession of Joanna “Joe” Bias.Stewart & Stewart, by Jonathan M. Stewart, for Defendants–Appellees, Isaac Dwayne Morris and Annette Hausey Morris.Before BROWN, GASKINS, CARAWAY, PEATROSS and MOORE, JJ.BROWN, Chief Judge.

[2 Cir. 1] Plaintiffs, Otis Robinson, Jr., and the Succession of Willie Mae Terrell Jeter, filed this action to annul the private sale of succession property executed between defendants, Inez Nunly, as administratrix of the Succession of Joanna Bias, and Isaac Dwayne Morris and Annette Hausey Morris, the purchasers of the property, a 250–acre tract in Bienville Parish, Louisiana. The trial court granted a peremptory exception of no cause of action filed by Nunly and dismissed plaintiffs' lawsuit. Plaintiffs appealed. Defendants answered the appeal asserting that, should the judgment of the trial court be reversed, then the trial court's denial of their exceptions of lis pendens, res judicata, and prescription should also be reversed. In addition, the Morrises filed in this court an exception of no cause of action. We reverse in part the granting of Nunly's exception of no cause of action, deny in part Morrises' exception of no cause of action, affirm the denial of defendants' exceptions of lis pendens, res judicata and prescription, and remand for further proceedings to include the amending of the petition.

Discussion

The Parties

Joanna Bias died intestate on March 12, 1946. She was survived by five children from her (first) marriage to Adolphus Terrell. One child, Monroe Terrell, died without issue. The other four children, Earnest Terrell, A.B. Terrell, Willie Mae Terrell Jeter and Cora Terrell Munson, all [2 Cir. 2] of whom are deceased, left descendants.¹ Joanna Bias's second husband was Lacy Bias. No children were born of this marriage.²

Plaintiffs are Otis Robinson, Jr. (“Robinson”), and the Succession of Willie Mae Terrell Jeter. Robinson is a resident of California and the sole heir of Cora Terrell Munson's one-fourth share of the estate. The Succession of Willie Mae Terrell Jeter, through its co-executrixes, Reassie McDowell and Regina McDowell (“The McDowells”), who live in Illinois and Nevada respectively, also has a one-fourth interest in the estate.³

Defendants are the Succession of Joanna Bias through Inez Nunly, its administratrix, and Isaac Dwayne Morris and Annette Hausey Morris (“the Morrises”), the purchasers of the 250 acres at the private sale.

Proceedings

On April 28, 2003, over 57 years after Joanna Bias's death, Nunly opened Mrs. Bias's succession by filing a petition to appoint herself administratrix. In the petition, Nunly alleged that the succession's only expenses were attorney fees and court costs pertaining to the succession. With Isaac Morris signing as surety, Nunly posted a bond of $156,250. [2 Cir. 3] Thereafter, Nunly filed a petition for the private sale of the succession's only asset, the 250 acre tract. No purchaser was named in this petition but the price was stated to be $125,000 or $500 per acre. Notice of the sale was published in the Bienville Democrat, a local weekly newspaper out of Arcadia, Louisiana. The pleadings allege that no notice was sent to plaintiffs, nor was an attorney appointed to represent any absentee heirs. Regardless, the district court approved the sale and, on June 18, 2003, Nunly conveyed the 250–acre tract to the Morrises for $500 per acre. In late July, Nunly obtained a court order to amend the legal description of the property. This amendment was not published in the local newspaper. In August 2003, the Morrises directed the Bienville Tax Assessor to send them the property tax notices. On May 21, 2004, Nunly filed a petition to approve the final accounting of the succession. At this time, 12 other heirs signed a waiver of notice and consent to the final accounting. At this point in the proceedings, an attorney was appointed to represent Robinson and “all unknown heirs.”

On the tax rolls of Bienville Parish prior to the private sale, the subject property was assessed as follows: (1) an undivided one-fourth interest to Jo Ann Munson, and later to Otis Robinson, Sr.; (2) an undivided one-fourth interest to Willie Mae Jeter c/o Reassie McDowell; and, (3) an undivided one-half interest to the estate of Joanna Bias c/o Inez Nunly. Each year, the tax notices were sent to these parties, and each paid their share of the taxes as listed on the tax roll. Thus, when Robinson did not receive a tax notice in December 2003, he contacted the assessor and learned of the sale to the Morrises.

[2 Cir. 4] Plaintiffs filed an opposition to the final accounting on September 10, 2004. On November 29, 2004, while the succession matter was still pending, plaintiffs filed the instant suit to annul the cash sale from Nunly to the Morrises and to recognize Robinson and the heirs of Willie Mae Terrell Jeter each as owners of an undivided one-fourth interest in the property.⁴

In response defendants filed several exceptions, including vagueness (later withdrawn), lis pendens, res judicata, and prescription. A hearing on the exceptions, held in September 2006, focused on what (if any) notice plaintiffs received. Robinson and Nunly's attorney, James Mixon, testified, and the trial court took the matter under advisement.

Thereafter, in March 2010, Nunly filed an exception of no cause of action. In essence, she argued that plaintiffs' remedy was to be asserted in the succession proceedings. She also contended that under La. C.C.P. art. 2004(B) (fraud and ill practices), any action in nullity prescribes after one year. The Morrises filed a separate memorandum in support of their exceptions.

Plaintiffs responded by filing over 300 pages of documents, including the depositions of Nunly, Reassie McDowell and a timber agent, Floyd Smith, as well as a sheaf of letters, leases and other documents.

The hearing on the exceptions in April 2010 was limited to argument. The trial court orally denied the exceptions of lis pendens and res judicata because “it may not be the same parties in the same capacity” in the two suits, and it overruled the exception of prescription since Robinson did not [2 Cir. 5] have actual knowledge of the judicial sale until after he failed to receive a tax notice in December 2003. However, the trial court granted Nunly's exception of no cause of action, finding that Robinson obstructed any attempts at actual notice by refusing to give Attorney Mixon any addresses.

The instant appeal was taken by plaintiffs. Defendants answered the appeal asking that the denial of their exceptions of lis pendens, res judicata, and prescription be reversed. Morris also filed an exception of no cause of action in this court.

No Cause of Action

Plaintiffs contend that: (1) they are absentees and had no notice of the private sale and no curator or attorney was appointed to represent them until after the sale was concluded; (2) an administration and sale of the succession's only asset was unnecessary and constituted deprivation of property without due process; and, (3) any effort to sell the property should have been done contradictorily by a petition to partition by licitation.

The purpose of the exception of no cause of action is not to determine whether the plaintiff will prevail at trial, but is to ascertain if a cause of action exists. “ We The People” Paralegal Services, L.L.C. v. Watley, 33,480 (La.App.2d Cir.08/25/00), 766 So.2d 744. The peremptory exception of no cause of action tests the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the petition. Gipson v. Fortune, 45,021 (La.App.2d Cir.01/27/10), 30 So.3d 1076, writ denied, 10–0432 (La.04/30/10), 34 So.3d 298. As an exception to the rule that no evidence may be admitted to support or controvert an exception of no cause of action, a court is allowed to consider evidence which is admitted without [2 Cir. 6] objection to enlarge the pleadings. Sullivan v. Sullivan, 42,923 (La.App.2d Cir.02/13/08), 976 So.2d 329, writ denied, 08–0816 (La.06/06/08), 983 So.2d 921.

The burden of demonstrating that the petition states no cause of action is upon the mover. Scheffler v. Adams and Reese, LLP, 06–1774 (La.02/22/07), 950 So.2d 641; Wright v. Louisiana Power & Light, 06–1181 (La.03/09/07), 951 So.2d 1058. A reviewing court considers de novo a trial court's ruling on an exception of no cause of action. Gipson, supra. The essential question is whether, in the light most favorable to plaintiffs and with every doubt resolved in plaintiffs' favor, the petition states any valid cause of action for relief. Wright, supra. When the grounds upon which an exception of no cause of action is based may be removed by amendment of the petition, the judgment sustaining the exception must order an amendment within a specified delay. “ We The People” Paralegal Services, L.L.C., supra.

Nunly filed her exception of no cause of action after the district court had held a hearing and received testimony on the previously filed exceptions. In addition, plaintiffs filed over 300 pages of documents in response to Nunly's exception of no cause of action and no one objected to this evidence. This may be considered as an enlargement of the pleadings, and an exception of no cause of action is decided on the “four corners” of petitioners' pleadings/enlarged...