Jerome Winder VS Inez George, Elnora Harris, Hobart Pardue, Jr., Ashton Devan Pardue, XYZ Insurance Company and HCL Enterprises, Inc.

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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2007 CA 0314 JEROME WINDER VERSUS INEZ GEORGE ELNORA HARRIS HOBART PARDUE JR ASHTON DEVAN PARDUE XYZ INSURANCE CO AND HCL ENTERPRISES INC Judgment Rendered December 21 Appealed 2007 from the 21st Judicial District Court In and for the Parish of Livingston Louisiana Case No 106641 Th e Honorable Ernest G Drake Jr Al M Judge Presiding Counsel for Plaintiff Appellee Thompson New Orleans Louisiana Jerome Winder Peter D Coleman Counsel for Defendants New Orleans Appellants Peter D Coleman and Ralston Cole Louisiana James A Dukes Counsel for Defendant Hammond Louisiana Hobart O Mark S Gober Counsel for Defendant Tuscaloosa Alabama HCL Appellee Pardue Jr Enterprises Appellee Inc BEFORE GAIDRY McDONALD AND McCLENDON JJ IA t vndt v I crWd jtxJ lli7 4jens fJ GAIDRY J An heir of deceased Parish filed suit to rescind and two a cumulated petitory by the owners damages against the succession heir under the succession their attorney or s later were propeliy under same joined numerous action against the last also dismissed the first peremptory exception of of action and cause In no cause of the the Finally peremptory exceptions of prescription sustained the purchasers purported with remand the matter title judgment now in appeal the trial court dismissing part For the reverse the purported a the action heir and the succession administrator conflicting affirm and amend the on a The trial property property of action a combined judgment a prescription dismissing purchaser purchaser of quitclaim the trial court sustained and motions exceptions a in the additional defendants in as declaratory judgment action peremptory exception of no heir of the purchasers different seller of dispositive against action for an purpOlied Two earlier deed from comi sale of the property a Livingston subsequent consecutive purchasers of the property described succession plaintiff annul or successions cumulated with administrator another of immovable property in owners The earlier following it in all other as reasons we respects and for further proceedings FACTS AND PRIOR PROCEEDINGS The Winder Sr Rachel plaintiff Jerome Winder is tract Caleb of land had six children William Winder Sr and his wife of whom one was Eric Winder the At the time of his death William Winder Sr owned measuring about 7 5 children Arnette Winder owned adjoining great grandson and heir of William who died intestate in 1932 plaintiff s grandfather a a that of her father a acres tract Both tracts 2 in Livingston Parish One of his measuring approximately were 10 acres originally parts of a larger tract generally known to residential a The tracts the Carter Plantation as and resort Carter Plantation Dispute the over Arnette Winder died in 1960 ownership of those May two 5 1961 placing Ms nephews s Winder 7 5 acre s 1998 when the trial cOUli Inez 10 acre Winder to petition a heirs her four a Sr William Winder and was to open grandchildren Pardue defendant DeVan Pardue mother Ms s Jr signed bond same as the her of her possession opened daughter George an couple only one s until August was filed in of the defendant was one of Eric affidavit of death and verifying that fact six children child with petition Hobart Pardue as s excluding living descendants great grandchild The defendant attorney for Ms Harris son The and law partner executed surety date that Ms Harris filed the George filed was not W W Threeton an amended illegitimate daughter 3 foregoing petition petition for possession in succession of Arnette Winder In her amended that she in on the successions of Rachel Caleb Winder and the Inez supported by wife four of the s Hobart O On the signed surviving siblings and was Elnora Harris the Arnette Winder and Eric Winder the the administrator Sr petition alleged that petition also sought three of their was succession administrator heirship signed by Otis Richardson and The and her children or and her undivided interest in her tract appoint by the defendant three children s tracts tract The George spouse judgment of possession The succession of William Winder 13 no two as litigation of her brother Eric Winder sons including her property father the leaving A in 1961 opened was also known golf community development constitutes the basis of the claims asserted in this succession presently adjacent are petition Ms her the closed George alleged of Eric Winder and Helen Terrell With her amended heirship petition she filed affidavit filed in the other succession verified Ms George status s petition for possession the affiants in the Richardson and Threeton Messrs signed by affidavit of death and amended an as Eric Winder s supposedly The amended daughter Hobart Pardue signed by was The affiants proceeding as George Ms s attorney On in the 13 August 1998 an amended judgment of possession heir of Eric Winder and Alnette Winder and deceased brothers father in property On the 7 decedents consisting only of the two a detailed tracts at place as an her and her the Sr descriptive plaintiff s s list of the and the other listed issue with August 1998 Ms HalTis filed 21 an of William Winder Sr and the other decedents to DeVan Pardue for the proposed private sale of sum was a fair market value application in the succession 15 000 00 on since propeliy t authorized the judgment signed On February Harris sold both preamble was passed The on private sale of December 17 26 1999 tracts at two tracts at the stated grounds he property Following the advertisement of the application comi sell the to issue that the in the best interest of the succession and the administration of the act George 15 000 00 total On 1 signed interests in Arnette Winder 15 1 date Ms HalTis filed same to Sr and Lionel Winder Charles Winder possession of undivided purpOliing property in the succession of William Winder of Ms reopened succession of Arnette Winder recognizing was to sell the property the trial the two tracts to De V an Pardue by 1998 Winder through Ms the Estate of William issue be divided cannot to DeVan Pardue for the sum of 15 000 00 1 of the act of sale identified Hobart Pardue as the notary before whom the and bears no but the notary s appears to read A B Pardue resemblance to Mr Pardue s signature signatures on pleadings 4 and cOlTespondence in the record On April 22 1999 Hobart Pardue wrote enclosing proposed petition for possession another letter wrote April 29 worth about was would be a accounting telephone call Winder of Reno Nevada the Charles Winder other heirs and his plaintiff and the from Mr 1 000 00 per and Pardue Sr heirs advising them from the distribution 554 18 receiving acre of one enclosing certain succession pleadings representing that 1999 propeliy to the copy of the final In response to M presumably Danny the heirs a the advising them of the sale of brother Eris Winder the Lionel Winder heirs the succession property and to on the that each of the sale of the succession propeliy On July Enterprises sum of Inc HCL represented by its president Loretta Pardue for the 15 000 00 On July that claiming 25 filed and Cole a 2003 they declaring them judgment on were s the owners in declaratory judgment against possession private of the sale of the propeliy to De V an Pardue Coleman De V an Pardue at issue and to be a seeking nullity and property That separate litigation proceeded to October 20 2004 when the trial court ruled in favor of DeVan declaring and Cole for Cole Coleman and Ralston P Peter D petition judgment declaring Pardue DeVan Pardue sold the two tracts at issue to HCL 24 2003 him the petition of the owner property and dismissing Coleman Coleman and Cole filed a motion for new trial and a peremptory exception of nonjoinder of patiies needed for just adjudication One of those matter his parties claimed to be Jerome Winder who also ownership rights exception and refused The trial to a necessary sought comi patiy the plaintiff in this to intervene in that matter to assert denied the motion grant leave for Mr Winder 5 was to overruled the intervene Coleman and Cole appealed In unpublished opinion an judgment and remanded the The Named Pardue and defendants were affidavits of death and by in those fiduciary duties Ms George and Ms He as HalTis in naming George Ms Pardue to DeV an two On of which HCL March 4 2005 Ms nonjoinder of parties claiming were parties needed for ownership of the propeliy similar exception On April prescription On and April on 7 res 8 the See Coleman v at George filed April He an heir and in prayed for the in the peremptory exception of a of the as adverse claimants plaintiff s claims to 4 2005 DeVan Pardue filed a grounds Hobart Pardue filed judicata 2005 On as sales of the property and that Coleman and Cole issue same 2005 Pardue and breach of record was owner just adjudication prescription asserting that 2 in the procedural ownership rights recognition of his and the other legitimate heirs two described tracts and alleged unethical conduct rescinding of the the substantive George the part of the Pardues and breach of fiduciary duties property sold well as the DeVan underlying facts Ms HalTis and Ms other alleged proceedings on the undervaluing damages and s 2005 challenged the truth and authenticity of heirship filed by proceedings ilTegularities of he family relationships 18 January on Ms HalTis Hobart Pardue George court 2 In addition to detailed recitation of the and HCL succession Ms tria1 a new reversed the trial present litigation instituted the plaintiff as for matter we and Ms a peremptory exceptions of declinatory exception HalTis any claim 2005 CA 1071 filed peremptory exception of a against her La App of lis pendens was prescribed 1st Cir 21 6 06 under the unpublished opinion A copy of our decision in that case is attached as an appendix to this opinion As the trial comi correctly observed in its written reasons for judgment in this action in understand these proceedings an understanding of the cOllilected case is order to properly necessary as the underlying dispute first arose therein 6 two year prescriptive period of La R S peremptory exception of prescription claim against her prescribed was on 9 5621 April 11 Ms 2005 under the two year George filed asserting prescription a that any of La R S 9 5622 On action the on negligence or 18 April earlier 14 April of the no grounds motions for sanctions heard action exceptions Hobart Pardue ovelTuled the s s 3 its the by pmiies including cross on 30 January 2006 on 31 Evidence of the 2006 the trial comi filed and issued exceptions and prepared signed was the trial court took all of the hearing the various was were on its motions rulings on the and submitted to the court July 17 2006 by The trial comi peremptory exceptions of nonjoinder of parties noting that all pmiies had cause Prior to the reasserting of action that may have been original judgment incorporating counsel and defendant The trial no May and motions peremptory exception of On for judgment reasons necessary On pending exceptions and motions At the conclusion of the The trial comi various filed were All of the matters under advisement its written plaintiff including the plaintiffs deposition and the entire record introduced prior act of any asserting the objection of and cause of cause La R S 9 5622 the trial comi by the to peremptory exception that any prescribed under forth to set alleged liability of action cause Various other motions eventually petition failed HCL filed another on was the peremptory exception of no a other factual basis for its objection asselied that grounds 2005 prescription HCL filed 2005 been on court the 3 both of its The by trial court a and dismissed him plaintiff filed an amended petition adding 7 as s a purported peremptory exception De V an Pardue additional defendants sustained HCL grounds and dismissed HCL also sustained of action filed hearing joined as Coleman and Cole a as defendant The peremptory sustained dismissing them the appeal a signed by the trial after being counsel This second judgment differed by Coleman and Cole motion for new not s appeal trial for On new trial for DeVan Pardue provide hearing on September At that time the The trial court August on In an recognized effort July judgment However combined judgment same effect another as petition to its elTor a 31 2006 the a devolutive plaintiff filed granting Coleman date it same in dismissing of action rectify its elTor set the motion for on he had as the trial court De V an Pardue trial on a never filed such orally ruled that the annulled in its or new an entirety and of July 26 2006 would constitute the court September the various 28 devolutive 2006 the trial court October 17 2006 and the trial on a s third to the Coleman and Cole filed judgment appeal of the September on signed exceptions and motions essentially the second combined for petition for 4 18 2006 no cause judgment on dismissal a the order signed first combined judgment would be invalidated the second combined s 2006 the trial court heard the motion for peremptory exception of exception On On the 2 2006 September 18 com1 26 2006 another judgment July Coleman and Cole filed 28 2006 July s were was were of the judgment of July 17 2006 and Cole exceptions On from the first in that it did On were exceptions and motions same submitted All other defendants as Ms HalTis denied overruled and all motions on exceptions of Ms George and judgment that appeal October 25 2006 Coleman and Cole sustaining 4 For an HCL example than the confusion by opposing s court signed appeal contending peremptory exception of no of the procedural disarray resulting in this an 1916 B and La Dist Ct R 9 5 See evidently our cause 8 of action and litigation without discussion granting that the trial court elTed in from the submission of the counsel to the trial court order 28 2006 one dismissing need look conflicting judgments compliance infi a 1 no further submitted with La C C P mi it as a defendant and prescription George 2 Ms sustaining her dismissing as Harris peremptory exception of s defendant a sustaining 3 and Ms peremptory exception of prescription and dismissing her s as a judgments at defendant PRELIMINARY PROCEDURAL CONSIDERATIONS The It is first necessary for issue in this us are essentially similar provides for the dismissal of judgment as an issue in this on the first the final various as on So 2d 686 at some point although the trial court had motions timely filed motions for concluded that the 31 s continued not formally judgment of July no already signed the on July 98 1624 17 4 p 2006 La If status raised 26 2006 substantive effect first judgment See La C C P on App on the art 1951 1st Cir 9 24 99 757 premature if granted before the new trial La C C P effective upon the denial of such motions plaintiff s motion for timely thereby making premature judgment 689 An order of appeal is was the exceptions dismissing the four the peremptory Superfresh v on additional defendant De V an Pardue We conclude it had be determined exceptions and and Strawn judgments s the first combined the effect of the second combined must or appeal judgments defendants judgment remains valid the issue of DeV an Pardue Initially all one party necessarily will arise as a determine the to all three of the trial court appeal Although exceptions and motions that Judgment Appealed the order of But the motion for 2006 ten new trial Id new art 2087 D trial filed not disposes timely on on it July obviously 31 August was of It becomes The trial court appeal signed was court filed 2006 2 2006 on July days exclusive of legal holidays after the mailing of the notice 9 of the July 17 2006 judgment that Thus upon the court was combined Before the trial 28 of judgment appeal over new judgment of September in this us jurisdiction the motion for uncorrected original before divested of to hear authority of the order of signing on or 2006 the trial issue and had at to issue the See La CC P undeliaking our review of the issues raised trial court in order to achieve dismissing a oppOliunity and 2164 portion of the judgment to be heard 2006 and as reasons judgment defendant a we are a obviously September 28 on we cOlTection just and a nonexistent proper exception and meaningful any is violative of due process the nonexistent absolutely null and further vacate the combined La C CP art exception dismissing vacate 6 it judgments F or the of July 26 2006 Similarly the subsequent motion judgment have no legal effect We sustaining the issue on 5 6 Its judgment appeal same Accordingly under the authority of declare that DeV an Pardue foregoing to party without affording the opposing parties absolutely null we issue make the valiantly attempted by the at this by judgment That 5 appeal will amend the combined result 2088 art no third subsequent 2006 is therefore the 17 1974 art 2 August matters 2006 July C CP See La day same and order of appeal required to render appeal La C C P art authorized and indeed proper upon the record on Kennedy Fagan 03 0054 p 5 a from the judgment September which is 2164 Jackson 28 2006 just legal and l Nat Life Ins Co v 2d So 44 48 writ denied 1st Cir 2 6 04 873 The purpose of La C C P art 2164 is to give an 04 0600 La 4 23 04 870 2d So 307 comi complete freedom to do justice on the record in espective of whether a appellate patiicular legal point 03 0054 at p 8 relatively null it v George 424 or theory 6 can only 2d So was 2d So 873 n La App made at 50 be attacked 1200 1201 n 6 n by at a 1 La gued or passed on by the Cf La C C P art 2006 comi below If a judgment direct action in the comi of rendition App 10 1st Cir 1982 Id is Pittman Standing ofAppellants The Jerome Winder has not plaintiff appealed the adverse judgments sustaining the exceptions and dismissing his claims against Ms George Hanis and HCL issue appeal the judgments have justiciable interest a of the contested at against owners The object of correction of Bd not C C P is only to App the pmiies true issue and the and Cole as In our we as to ownership identity of the actual property possession aggrieved party an Inc v recourse even to a See also La s right to instituted case interest and expressly recognized the justiciable Coleman and Cole right third person when Id Jerome Winder title for the This 547 decision in the connected plaintiff or Gaming Control La 903 So 2d 545 the action but previous therein of the Here the converse appeal the judgments principle applies with more force due to the at of Coleman status pmiies Review In his of Judgments Overruling Exceptions appellate brief Hobart Pardue the merits of each of his 7 give 1st Cir 5 6 05 to to the as allegedly aggrieved by the judgment to intervene equally dispute they clearly as may properly validity of the succession proceedings and Mike M Marcello La by Coleman and Cole right is to judgment 2086 art The issue bear upon the at appeal an person is a 7 they whom Coleman and Cole claim adverse 04 0488 p 4 extends such a We conclude that in the resolution of the propeliy the sale of the property Coleman and Cole the other defendants May Ms exceptions oven as uled appellee urges by the trial us comi to review In the first parties we address this issue because it relates to our ofthe controversy A justiciable interest is defined as the right of a party to seek redress or a remedy against either the plaintiff or defendant in the original action or both and where those parties have a real interest in opposing it In re Succession of Although jurisdiction not raised by Walker 02 625 p 6 La 0110 La 3 28 03 840 or object impact ofthe on the principal rights the App 2d So 5th Cir 572 right 02 836 So 2d 274 277 writ denied 03 if it exists must be so a on 11 the related to the facts action will have judgment principal party or intervenor asseliing the justiciable action that of the The 11 12 interest Id a direct place the judgments overruling those exceptions and not See Fleniken appealable 1990 App 2nd Cir and La C C P Mr Pardue did not place separate appeal C C P mis review or a 2133 A 2201 App Thus 2d So present appeal we 1106 1111 12 have no See Bennett v jurisdiction In the second to a See La undertake the with those dealing Arkansas Blue Cross Blue Shield 943 So 2d 1124 1st Cir 9 15 06 La did he institute nor consider any issues cannot interlocutory judgments La 566 1841 and 2083 arts the answer interlocutory judgments timely application for supervisory review he requests and 05 1714 p 5 Albritton v are 1127 ANALYSIS No Cause A trial comi cause the of action is 845 So 2d 518 The of the subject Stroscher exception by judgment sustaining the peremptory exception of to de novo v a peremptory exception peremptory exception of to anyone under the peremptory exception plaintiff s right Everything 1238 La on court appellate court fails to state petition employing determination of the s 1st Cir App no to A means judicially cause IDS tel of action is the 14 2 03 The purpose to detennine the of whether the law extends allegations of action the as action 12 a Stroscher 01 used in the context of rise to the against the defendant Subaru South Inc 1993 properly 4 operative facts which give assert v of action is factual s cause Wheels Subaru Inc a cause La C C P ali 927 A petition 2769 at p 3 845 So 2d at 523 the an no 523 sufficiency in law of the petition in remedy by Stroscher 01 2769 p 3 La objection that the review to the trial principles applicable same raised s of Action 616 So 2d 1234 Generally evidence may be introduced no objection that the petition fails to However Louisiana state a cause jurisprudence recognizes 523 as accepted plaintiff the of a of action the well no cause as and the true and distinct transactions causes or of action of no occunences cause 616 2d So out to determined that the its conclusions the merits written allege allegations relating resolved in favor of on several separate operative involves two cumulated the comi may sustain one action while Everything reasons for to state any facts an leaving On Wheels Subaru to the the judgment cause constituting of action fraud nullity of the a misrepresentation or a made with the intention either to obtain pmiy or to cause a may result from silence circumstances La C C P are on sales loss or or suppression an trial against the as HCL only legal follows of the truth unjust advantage inconvenience court part of HCL were Louisiana Civil Code article 1953 defines fraud Fraud is Any must petition of separate and distinct part and dismiss petition failed that it failed to and that its one facts in the is based brought separately on peremptory a at 1239 According reasoning petition a by by the determine if the law affords the in other words or of action in the other actions to be tried If arising actions that could have been exception pleaded court must Id this rule 845 So 2d at 3 at p raised remedy under those facts Id Any doubts sufficiency of the petition to the art 931 may be considered the issues determining controvert exception Stroscher 01 2769 pleadings of For purposes exception be the enlarging an or La C C P of action whereby evidence admitted without objection comi support to to the other for Fraud inaction constituting fraud must mi 856 13 be alleged with particularity The Winder purported one child of Charles Winder Sr that Ms petition and alleged William Winder Sr as George Jr served Pardue succession proceedings long prior to the filing world class after the notarized and later refuted under oath effectually both were Pardue s said The property shacks per than that were Hobart Pardue forgery in signing by being Ms George that in the letter to his cutover land was allegations to the was alleged heirship a sworn was ofthe affiants depositions were son with of the 14 in Hobart simply sent to the Charles Winder Hobart Pardue described the no merchantable timber having a value of with 1 000 00 more petition were supplemented by petition as were alleged to then and earlier worth much attached the to have that were including the In his Copies on a deposition and petition the plaintiff alleged that Janice Winder a child of Charles named in the original affidavit ofdeath and heirship did not actually exist 9 son 9 basically uninhabitable The detailed built being was Both affiants testified that documents voluminous exhibits attached 8 he and his signing the respective affidavits when in fact the property sum establishing her the Pardues knew that community a that Plaintiff alleged that times affidavits of death and following the private sale as for expired and that pertinent of attorney in instituting the s proceedings signature plaintiff also alleged at issue had in his plaintiff also alleged by the purported affiants One affiant have denied them for that acre to all resort faulty false heirs as illegitimate descendant an The George property declared his presence presented to Sr heirs and course incorrect have at of the succession golf 8 George and Janice peremptive period art 209 law partners Carter Plantation adjacent Inez as filiation under former La C C were not was she claimed to be Hobart O DeV an Pardue Ms characterized plaintiff specifically exhibits to the petition succession Winder Sr pleadings printed a Internet document Carter Plantation real estate disavowing their affidavits fiduciary duties owed the and the depositions of the affiants plaintiff alleged that the described development 1O Finally the George and Harris constituted breaches of ethical and of the Pardues acts describing the grand opening of the to him as well unfair and as meaning of the Unfair Trade Practices and Consumer La R S 51 1401 entitling him et seq pursuant to La R S 51 1409 the Accepting state knowing bring of the allegations untrue UnSWOlTI one petition HCL s as well and true and DeV an Pardue s an possibly forged the successions of a to involvement in that they are affidavits grand opening April development Emphasis supplied estate development proceedings by exhibit to a Ms to ly em months 1998 by promote status thereby as scheme is Hobart Pardue as s only wife that of the Pardue development more prior to the institution of the succession Harris and Ms pleading George A copy of any written instrument which is thereof for all purposes La C C P art 853 Thus for pmi the peremptory exception of no cause of action the content of is a purposes of detelmining the mmexed exhibits must also be considered What constitutes to than six years ofplanning aJfter This would date the initial plmming of the real 26 2004 on Ms action for unfair and The Internet document stated that the Carter Plantation real estate and against corresponding portion of mother and its corporate address celebrated its sufficient to duties broadly described implied through allegations of its president s II as false heir to the successions at issue and to deprive the legitimate heirs their propeliy damages the Pardues based upon those defendants practices against of use for 11 as trade within acts Protection Law private action fiduciary the claim of at least ml a Harris and the Pardues Ms deceptive to of action for fraud and breach of a cause George 10 deceptive an unfair trade as true practice under La RS 51 1401 et seq is determined Copeland v Treasure Chest Casino 1 1 c 01 basis the courts by 2d So 68 71 However it is well settled that a 1122 p 4 La App 1st Cir 6 2102 822 is considered unfair when it offends established public policy and when the practice practice on a case is unethical business competitors practices Dixie Sav 751 So 2d 911 case oppressive unscrupulous Id Fraud deceit or mld substmltially injurious to consumers or misrepresentation constitute deceptive Pitre 99 154 p 21 La App 5th Cir 7 27 99 2d So 855 923 writ denied 99 2867 La 12110 99 751 Loan Ass n v 15 12 Law Firm state the trial to failing La in to relating 04 to state cause in pmi 869 So 2d 114 it sustains the as provide or plaintiff s that the does not conclude our error affirm the no cause to amend or in 03 1299 pp of action HCL against HCL and amend his the petition another delictual of the date of this decision in HCL shall be dismissed procedural a to grounds of deceptive practices against against brought by legal the DeCaire v deceptive practices of action one remove plaintiff is ordered or insufficient We therefore action consideration of this petitory action is to exception of against HCL within thirty days cause presently deceptive practices against Ramey 119 20 of action for fraud default of which that A 934 and of action for fraud a cause of action to are abuse of its discretion and an art but vacate the dismissal of the judgment for fraud and damages CC P part insofar a cause allegations plaintiff to amend his petition See La 19 3 judgment agree that the committed court allow the objection 9 10 we of action in a cause HCL the While person This issue however claiming the ownership of immovable property but without possession of it against another in possession claiming or adverse ownership for the purpose of judgment recognizing the plaintiff s ownership See petitory action only an may be the action its allegations it 13 of Not incorporated not alleged to for 13 In a as one state a be BCL s for art 3652 a petitory petitory just adjudication contending registered agent A ownership of action filing their peremptory exceptions of that Coleman for service of process since in 2000 having affirmatively alleged possession not be considered sufficiently art 3651 La C C P fOlmally styled and the relief sought parties needed DeVan Pardue is also was is plaintiff s petition HCL Coleman and Cole nonjoinder 12 person who claims the a undivided interest in the immovable property Although against brought by La C C P obtaining possessory action of the property See La C C P art 3658 16 the plaintiffs action may and Cole that the recognized of his the purpOlied George and plaintiff was asserting litigation in pmi cunent In that 744 court the 05 2548 ened in dismissing judgment sustaining as the of the construe 4 La 349214 statutes against extinguished that is said to be p HCL at issue strictly comis declaration of action and reverse explicitly exception raising the objection peremptory a a petitory action directed against of the prope1iy appellate Onstott 1st Cir App 11 3 06 950 747 The trial court prescribed pursuant period for no cause accordingly to the Certified Capital Corp 2d So petitory action for a respect therefore the trial prescription and in favor of the claim v De V an Pardue Under La R S 9 5622 and La c c Art reviewing prescription We as owner Prescription In Ms peremptory exception of HCL from the exception parties interest ownership sustaining the such were ruled that any to La R S alleged cause of action against HCL 9 5622 claims of informalities of of property The trial Inez George was 3536 The court prescribed language of La establishing two year legal procedure relating 1uled that the plaintiffs under both La RS a RS cause to prescriptive private sales of action 9 5622 and La 9 5622 relevant for our was against C C art purposes reads as follows All informalities of legal procedure connected with or growing out of any sale at public auction or at private sale of real or personal property made by any sheriff of the Parishes of this State licensed auctioneer or other persons authorized by to sell at public auction or at an order of the courts of this State private sale shall be prescribed against by those claiming 14 as The trial comi an s refelTed to judgment additional basis for its prescription ruling one year prescription under La C C mi 3536 in favor of Ms George and BCL on the issue of The version of La C C mi 3536 in effect since Jmmary 1 1992 does not address any type of liberative prescription but rather conflict of laws relating to real rights in corporeal movables This was an inadvertent elTor as the trial court s reasons referred to the substance of present La C c art 3492 which was contained in obviously former La C C art 1 3536 lmti1 January 1 1984 17 This prescription is nullities such Dileo as 110 11 informalities interest in the 1965 App 2nd Cir La purchasers in of substance of action to that rights of the parties with Loan Ass n of Winnfield 857 La App 3rd in good faith La R S 9 5622 cannot serve to of which address the essential plainly patiy purchasers in good faith third prescription under that the sale at 859 was subject Neither BCL 9 5622 9 5622 RS La not nor to an absent absolute George Ms or a issue Thus of even may not claim the benefit of proof nullity at an evidentiary hearing See Bordelon 180 So 2d is entitled to the benefit of La RS given the pleadings and the evidence in the record It is well settled that a petitory property is imprescriptible La C C c defeat annul the fraudulent sale of immovable property both v writ denied 469 So 2d 984 ownership and the substantive rights of the involved parties subsequent go to legal bad faith Id prescription established by petitory action only relative nullities 180 So 2d 855 Bordelon v cure v In other words prescriptive period only benefits purchasers This and is not available to a cause First Fed Sav property sold citing Bordelon 1985 The matters See Dileo nullity 1950 La is intended to absolute nullities not Blake 465 So 2d 914 918 Cir 55 6 involving radical matters absolute an 53 2d So in of the sale and affect the substantive essence La 46 La R S 9 5622 prescription under the appropriate sheriffs sale that is a 103 217 La not of time after the lapse of two years fi om the Emphasis supplied making said sale under such sale For this sustained BCL reason s alone it was action for the recovery of immovable art improper for the trial peremptory exception of prescription petitory action asserted at comi to least Additionally it should be noted that 18 1983 3502 Revision Comments an as have to the action for recovery of the whole that the to part of a succession is year delictual one prescription of the affidavits of death and under La C C plaintiff s petition state heirship disavowed the December 2 on to subject a liberative La C C art 3502 allegations depositions a years prescription of thirty As or art that the affiants we note to the two of their affidavits in content The record of the 2004 3492 prior action by Coleman and Cole filed in evidence in this action shows that the affiants previously executed affidavits plaintiff Mr Winder basis November 4 on evidence at the hearing late 2004 that the fraud to as Not Ms 3492 The on September 2 prior exceptions is equivocal or was as 2004 action on The that introduced into plaintiffs deposition first discovered to the exact date in informed of the alleged the understated value of the property and the claimed false the George alleged having adequately refuted false heir well within the application one of contra year of that date non valentem Ms did not meet her burden of proof of prescription under La C C Art George 19 9 the plaintiff effect motion to intervene in the a 2004 on same Neveliheless the evidence indicates that he instituted this action affidavits against filed the to See 97 Dev Paragon Group 700 So 2d 1279 trial court prescription concluding v sustained Ms that the was La App 1st Cir Under La R S 9 5621 Harris plaintiffs administrator of the William Winder related successions Skeins 96 2125 Neither did HCL Prescription The Inc prescribed Sr peremptory exception s claims against her as succession succession and the nine other under La RS 9 5621 That statute provides Actions a any person who has served as curator of administrator testamentary executor dative testamentary executor of a succession in this state or vacant or against succession or as 19 of against the surety such may have done or failed to years reckoning from the day of the succession do are ansmg out of any act the his bond on representative prescribed by two as judgment homologating the final account This prescription shall not be suspended or intenupted because of the incapacity of the person who might bring the action reserving to him his recourse against his tutor or curator apply to actions for the recovery of any funds or other property misappropriated by the succession representative nor to actions for any amount not paid This prescription in accordance with the does not shown proposed payments the final on account A succession succession representative must act at all times personally responsible for See La C C P the best art 3191 13 p A succession denied 03 2076 La constitute fiduciary duties prescription often a sale of a so to duty be act obtain Fuller asset v 847 So 2d 26 34 writ Actions based actions that personal has the succession 03 6 5 857 So 2d 498 7 11 03 from his failure to representative App 2nd Cir La the to respect prudent administrator and shall damages resulting in with fiduciary a as a price reasonably obtainable Baggette 36 952 are years under La C C art 3499 subject Id on breaches of to a liberative 36 952 at p 14 847 We conclude that Ms Ranis failed to meet her burden of proof So 2d at 34 of all IS prescription under The judgment La R S given 9 5621 the pleadings and the evidence sustaining her exception is reversed CONCLUSION A oven court uling the should resolve doubts about exception or refening the affording the litigant his day 645 La v Inc La St that all doubt 623 2d So Employees as to a Ret Sys peremptory exception by exception to the merits Woodlawn Park Ltd P in court Constr Co a 648 La 1993 456 So 2d 594 peremptory exception of 20 no ship In Teachers 597 La v Ret 1984 and Doster Sys of holding right of action should be resolved in favor of the the supreme court plaintiff the lack of additional which would evidence pointedly took note of contribute to better a understanding of the intentions of the parties concerning their relationships It concluded that u status of each of the ntil those parties dismiss any of the the present to observed opinion in our 5 Considering confused and to confusing we series of with matter complicated state it would be Ms George otherwise and its The or Ms judgments judgment HCL Enterprises to vacate Winder Inc as HalTis The trial regard exception of to any are supplement or cause court amend his petition opinion in default of which that defendant shall be dismissed no cause 15 the trial comi the The are in insufficient prescribed against elTed in concluding to in part insofar damages order the as it Inc any such but amended plaintiff Jerome a cause of action for within to state thirty days of cause of action against judgment sustaining the peremptory of action of the defendant HCL exception of facts of action of the defendant of action for damages against the defendant HCL Enterprises the date of this aptly reversed no cause the dismissal of that defendant and to we are underlying was of the trial court is affirmed sustained the peremptory As general ilTegularities and the evidence pleadings in that same to pleadings and the evidence presently of the conclude that the nature of the precipitous force t he case alTangements The even more support the conclusion that the plaintiff s action HCL financial Emphasis supplied in the connected the determined and the are complex all evidence Id parties reasoning applies the record to this after presentation of established legion legal relationships Enterprises Inc is judgment and remanding the prior cOlmected case we the validity of the plaintiff s claims in the present action should be detenllined before Miher adjudication of ownership of the property in that connected case If the connected case is still active we would also strongly suggest that these cases should appropriately be consolidated for trial reversing suggested that In s 21 reversed in part insofar defendant and the of exception as it relates judgment sustaining to the is reversed prescription action Enterprises HCL petitory Inc The against s that peremptory judgments sustaining the peremptory exceptions of prescription of the defendants Inez George and Elnora Harris 2164 the trial reversed court De V an Pardue accordingly vacated The trial September All 28 2006 costs are of this Elnora HalTis and HCL authority of Pursuant to the court s La C CP art the nonexistent peremptory judgment sustaining s of the defendant exception and is are is declared an absolute judgments of July nullity 26 2006 and also declared absolute nullities and vacated appeal are assessed Enterprises Inc in to the defendants Inez equal proportions AFFIRMED AND AMENDED IN PART REVERSED IN PART AND REMANDED VACATED IN PART JUDGMENTS OF JULY 26 2006 AND SEPTEMBER 28 2006 VACATED 22 George NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2005 CA 1071 PETER D COLEMAN AND RALSTON P COLE VS DEVAN PARDUE JUDGMENT RENDERED w JUN 2 1 2006 f I ON APPEAL FROM THE t TWENTY FIRST JUDICIAL DISTRICT COURT ff DOCKET NUMBER 100891 DIVISION B PARISH OF LIVINGSTON STATE OF LOUISIANA HONORABLE BRUCE C BENNETT JUDGE PETER D COLEMAN COUNSEL FOR PLAINTIFFS APPELLANTS NEW ORLEANS LA PETER D COLEMAN AND RALSTON P COLE AND BRUCE BROWN NEW ORLEANS LA HOBART O PARDUE JR COUNSEL FOR DEFENDANT APPELLEE SPRINGFIELD LA DEVAN PARDUE AND JAMES A DUKES HAMMOND LA COUNSEL FOR INTERVENORAPPELLANT AL M THOMPSON JR JEROME WINDER BEFORE PARRO MCDONALD AND HUGHES n f Y 1A 6 J1 j J 07 C l GNVI4 7 u APPENDIX MCDONALD J Plaintiffs Coleman and judgment against DeVan Pardue tract of land disputed Cole filed a Pardue motion for a new title filed motion a deposition post and ownership of the the motion for Cole of his motion to intervene to be declared Thereafter located what Louisiana acres was at against Coleman a were for denied noticing following matter is Cmier Plantation the judgments of the reasons a new approximately in the acknowledged and to the denial appealed parish In tract carry out a trial seventeen of acres Livingston seven and a half July 1951 legacy number of Carter heirs transferred of land purpOliedly 10 assigned acres described as follows Livingston State of Louisiana in HR 46 T 7 SR 6E particularly designated and described as commencing at the Northeast comer of the 7 50 Wm Winder estate tract of land in the Southeast HR 46 and from said Northeast chs to the South 45 6 chs comer measure boundary line of a 100 thence South 15 51 chs 2 a and delivered to Arnette Winder A celiain tract of land in the Parish of acre for in favor of Arnette Winder contained in the last will and testament of Lillie Carter a tract a judgment granting Winder 500 00 to Pardue For the the appealed part of the Thomas Freeman valuable consideration Coleman and subsequent judgment denying In 1895 Amanda Carter sold to William Winder being the original judgment awarding the Coleman issue in this the of a owners declaling intervene all of which trial comi are reversed and the matter is remanded for property declaratory granted appealed trial new to to Pardue and the sanctions in the amount of The for petition trial and Jerome Winder Winder and Horace was property a seeking for sanctions trial which Coleman a successors Brumfield Bmmfield filed motions Pardue filed After trial the judge rendered judgment to be Pardue and his owner Cole acre portion of NOlih 15 51 tract thence West thence East 45 6 chs To point of beginning as per Surveyor on May 18th 1946 Arnette Winder died and was rendered May 5 1961 judgment a Bertha Winder of possession Netter Winder one descIibed Winder by decedent as as of her sons deceased brother an The other tract ofland described Livingston as side of said lot COIner and as a in about 1893 said The two tracts of it was acquired entry 16 303 of the records decedent in her father s five acre and and described tract owned lot being Amanda Mrs formerly surveyed by W B additional 212 an by as acres on the East property being located in the Southeast of Thomas Freeman HR No 46 T 7 SR 6 E in said Parish State Prior to the 1961 Winder there Wm acquired by conveyance book 48 Parish family EIic was designated pm1 of the Thomas Freeman Rownd by to her A nother tract of land in the Parish of Sate of Louisiana Carter and known were additionally indicating that undivided interest inherited estate a above and per act recorded in COB 74 page of Livingston Palish in her succession and 1 10 each to Charles immovable property in the succession of Alnette Winder land Moore Anita Winder Goldstein Kelly and William Winder Jr Winder and Lionel by C M delivering 15 of all of her property Olivia Winder Stewm1 siblings survey made were no judgment as per act recorded in of the records of Livingston of possession in the succession of Arnette successions William Winder Jr Winder page 117 opened by the last any members of the Winder living of Arnette s siblings died in 1986 In 1988 Coleman and Cole possession 3 of two tracts of land allegedly included the 17 5 of the acquired The acres from Carter Heirs Inc portion of that owned land designated by the Winders On the acquisition of the property Coleman and Cole granted of habitation and occupancy to Horace children to the residence a to as tract same life time and Idella Brumfield occupied by the Brumfields and 3 and took day right and their approximately five surrounding the residence acres agreement was filed in the In the late 1990 Livingston The document Parish conveyance records Jerome Winder demanded that Bmmfield pay rent s to live in the house that Coleman and Cole had inhabit Inez George Winder Sr also demands Pardue Pardue succession attempted to Inez Bmmfield who remove as an In Thereafter with Hobart Pardue opened for William Winder Sr was August 1998 Elnora before Hobart O continued with the Harris Pardue same judgment to a of include Inez George Inez Pardue Jr on including same of possession in Arnette Winder obtaining purported daughter which was Judicial District Court and the 24 2003 Pardue sold the and to sell the agreed A cash deed for the sale of two FebmaIY to DeVan Pardue 26 1999 the language s was description on The was property and that as the recordation The originally acquired by that recited in the judgment succession title to the property Pardue filed in the Justice of Peace Court for Ward Six of Bmmfield s description of the property acquired by Arnette William Winder Sr had the against to parcel of Winder property which proceeding counsel A certain tract of land in the Parish of Livingston Winder from the Carters After to of William legal amended property from the Estate of William Winder description recited second right heir property owned by the Winders passed as and the administratrix of the succession of William Winder Sr tracts of the George sought legal advice from Hobart o possession in the succession of Arnette Winder George family ultimately refused the father s was his given allegedly illegitimate granddaughter an pay rent to memorializing this subsequently petition was subject property 4 an Livingston transferred to the Enterprises Palish Twenty first amended in June 2002 to HCL eviction Inc On July On July 25 judgment in this November 16 2003 Coleman and Cole filed the matter that alleging refelTed to 1988 petition for declaratory they purchased immovable property the as Winder Tract and described on as follows Tract 3 Beginning 46 at the corner common T7S R6E Parish of East 667 89 feet Sections 25 26 and State of Louisiana thence Livingston thence North 13 to deg 27 min 16 sec 1840 33 feet thence East 425 70 feet thence South 13 min 16 South 25 33 1840 East sec deg West deg 27 feet thence East 1130 61 feet thence 55 min 44 East 577 95 feet sec 2641 20 feet thence North 00 deg 15 min 00 feet back to the Point of Beginning Said tract thence West sec East 402 00 containing 39 94 acres All that certain survey by Wallace Adams Engineering Company 2368 dated November 10 1988 a copy of said map being of record in the Office of the Clerk of Court as shown on Parish of Livingston State of Louisiana Plaintiffs evidenced alleged that they by various acquired ownership for ownership was not the of the owner to Winder Tract of the be the Pardue court only a because the Estate Winder Tract owners They prayed of the Winder Tract In original petition at Coleman and Cole amended their issue before the as and that ownership that of the property from the Succession of William Winder et al judgment declaring them October 2003 possession to have Pardue did not receive of William Winder in claimed acts of were portion of the Winder to put Tract described as follows 46 Commencing at the corner common to Sec 25 26 T7S R6E of Livingston Parish State of Louisiana thence E 667 89 East of the Point of Beginning proceed thence East 425 70 thence North 712degree27 16 West 1840 99 thence West 425 70 thence South 13degree27 16 east 1840 33 too the Point of Beginning The matter assigned and was judgment hied was on August rendered 5 on 11 2004 October 20 Written 2004 reasons were dismissing the claims of Coleman and Cole of the owner The judgment declared that Pardue following described was the immovable property 46 Commencing at the corner common to Sec 25 26 T7S R6E of Livingston Parish State of Louisiana thence E 667 89 to true point of continue East 425 70 beginning feet and thence corner of point thence from said beginning North 13 degrees 27 minutes 16 seconds West 1840 33 feet and corner thence West 425 70 thence South 13 degrees 27 minutes 16 seconds East 1840 33 feet to true point of beginning being the northern portion of Tract 3 L Adams as per survey of Wallace dated 11 10 88 and revised and R P L S RP C E 11 30 88 and filed in these proceedings as Coleman timely filed a and Cole then for of motion for peremptOlY exception alleged that since the tlial the plaintiffs discovered that Inez an heir that non joinder Plaintiffs Exhibit 4 indispensable parties Danny Winder were Horace Brumfield not included in the trial trial and not Devan Pardue and that George was not Jerome Winder and that HCL was trial and The motion indispensable party indispensable party in that HCL Enterprises ownership new Enterprises was an the proper party to assert plaintiffs were As noted the trial court denied these motions entitled to and this a new appeal was lodged We have carefully reviewed the entire record in this proceeding with considerable constenlation these matters will be appropriate find as The in thoroughly investigated forum and time However on are and We trust that legion fairly adjudicated the issues properly before in the us we follows Coleman and Cole filed to La egularities C C P provides that institute an art 3654 a a petition ownership against for a declaratory judgment pursuant Louisiana Code of Civil Procedure article 3654 person who is in action for possession declaratory judgment person who claims 6 of immovable for the ownership of property may recognition the same of his propelty Mt Everett App 18t C C P Cir 97 29 12 party claims one party and the the second possession court finds as a In this matter of fact that in order for Pardue case one to party had possession not the to the be declared the to prove his title one owner owner needed for just of the property HCL adjudication and provides A person shall be joined as a of the At the time of proof Enterprises Inc Louisiana Code of Civil Procedure article 641 addresses the parties pleading good against the world Pardue did not and could not meet this burden of was proof good against the world Id property he would have had trial Pardue question of of one year to the exclusion of the other party pleads his title Then the burden shifts title to make out his title La 1181 Under the provisions of La Possession determines who has the burden of possession current 705 So 2d 1179 Carter 96 2591 v 3654 the first issue that must be detennined is the art When African Methodist Episcopal Church as was joinder of follows party in the action when either 1 In his absence those 2 complete relief cannot be accorded among already parties He claims action and is so interest an relating to the subject matter of the adjudication of the action in his situated that the absence may either a As a practical matter impair or impede his ability to protect that interest b Leave any of the persons already parties subject to substantial risk of incurring multiple or inconsistent obligations This issue may be brought before the trial court by a party filing peremptory exception raising the objection of nonjoinder of accordance with La C C P art 927 A be noticed by either the trial court or 3 Nonjoinder appellate C C P art 927 7 comi on of its a a a a party in party may also own motion La Considering the above of the adjudication record before HCL us Enterprises matter we parties propeliyl of the ownership we find that must be Inc must be joined as a party for just adjudication in this efficiency and justice the validity of the Division G Docket Number 106 641 or The cOUli ownership of the subject property for trial The a new granting dated October 20 is reversed judgment of the trial Costs proceeding 2004 decreeing and the matter is remanded court dated October 21 2005 500 00 to DeVan Pardue is reversed sanctions in the amount of and that matter is dismissed Inez of this adjudication Winder should be allowed to intervene in this judgment of the trial versus Twenty First Judicial District Court should be determined before further propeliy just find that Pardue did not meet his burden of proof and In the interest of judicial et aI a On the joined claims of Winder set f01ih in the matter entitled Jerome Winder George for necessary are assessed half to plaintiffs and half to defendant REVERSED AND REMANDED Further the trial court must have sufficient the identity ofthe property being adjudicated 8 legal description and evidence to establish STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2007 CA 0314 JEROME WINDER VERSUS INEZ GEORGE ELNORA HARRIS HOBART PARDUE JR ASHTON DEVAN PARDUE XYZ INSURANCE CO AND HCL ENTERPRISES INC McCLENDON J I respectfully However in this period applicable to concur case to the merits and concurs the as to assigns reasons with the result the dates of alleged reached by the majority commencement of the prescriptive delictual actions I would have referred those

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