Fielding Chadwick Phillips, Kay Phillips Elliott, Pamela Phillips Sulzer, James Garnet Genius, Albert Sidney Genius, Margaret Anita Genius, Laurie Genius Chapple and James Rodney Genius VS Herbert R. Witty (2008CA0111 Consolidated With 2008CA0966)
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2008 CA 0111 FIELDING CHADWICK PHILLIPS KAY PHILLIPS ELLIOTT PAMELA PHILLIPS SULZER JAMES GARNET GENIUS ALBERT SIDNEY GENIUS MARGARET ANITA GENIUS LAURIE GENIUS CHAPPLE AND JAMES RODNEY GENIUS VERSUS HERBERT R WITTY t u I fi Consolidated With 2008 CA 0966 SUCCESSION OF NITA MARIE LEBEAU Judgment Rendered On On Appeal June 6 2008 from the Appeal from the 18th Judicial District Court In and For the Parish ofPointe Coupee Trial Court No 39 853 B Trial Court Probate No 17 268 Honorable 1 Robin Free Judge Presiding Neal R Elliott Jr Baton J Rouge LA Peyton Parker Jr Baton Rouge LA Plaintiffs Appellants Phillips Fielding Chadwick Counsel for Defendant Herbert R et al Appellee Witty BEFORE WHIPPLE GUIDRY AND HUGHES JJ 2 HUGHES J This claims of against appeal challenges whether the district court dismissed properly improper procedure mismanagement and breach of fiduciary duty an executor in a succession For the that follow reasons we reverse and remand FACTS AND PROCEDURAL HISTORY On April April 18 1981 1981 a 1981 the succession of Nita Marie LeBeau who died 24 was petition to opened in the 18th Judicial District Court probate Miss LeBeau The will provided in pertinent part as s last will and On testament May was follows a been made by me bequeath all of my interests in all immovable property I I owned by me follows as 1 To my sister Alta LeBeau 2 To my nephew Murray LeBeau one 3 To my nephew Malcolm Genius 4 To my niece Shirley G Phillips 5 6 To my To my nephew nephew Winston Genius Garnet Genius II to sixth twenty fourths one twenty fourths one twenty fourths one twenty fourths one Should any of said legatees predecease him or her as stated above shall be inherited according thirds two Witty me by the bequest to my lawful heirs law I desire that all of my debts be paid out of the cash money which I leave at my death the balance of the cash money in banks or otherwise after the payment of my debts I bequeath to my Witty and bequeath to sister Alta LeBeau III I will all certificates of stock and money savings and loan associations IV I will and sister Alta LeBeau bequeath Alta LeBeau Witty in all homestead building and my sister the balance of my estate to my Witty Should my sister Alta LeBeau Witty predecease me all of the above bequeaths sic made to her shall go to my V nephew Herbert R Witty appoint Alta LeBeau Witty executrix she should predecease me or is unable to so serve nephew Herbert R Witty in the event VI I 3 I appoint 6 filed resident of lawful age of the Parish of Pointe Coupee State of Louisiana do hereby make this my last will and testament revoking all former wills which may have I Nita M LeBeau on my Alta LeBeau Witty succession of Miss LeBeau Mrs Witty filed succession a confirmed was on detailed mineral 23 335 00 and 49 892 00 and and certificates of 1 394 195 00 On district list at of land valued at May bank were 24 Annual Mrs I of Witty filed the Thereafter petition a and successIOn the court property belonging accounts 1983 April were filed The district signed estate to accounts assets totaled the detailed in for in the possession by Mrs Witty court issued an to the Jr and even legacy judgment sending her Mrs by decedent of 2 3rds l on September 16 1982 and judgments homologating respectively these 3 unconditional acceptance rendered the liable for the debts of the deceased See Frederick William Swaim accepting a decedent 24 1984 and March 16 1984 Under the law in effect at that time personally of The total value of the succession 74 240 00 1982 property of the immovable 1 listed amounts savings These 70 583 00 Witty into possession of the legacy bequeathed accounts on accounts the requesting that she be placed in possession of her share of the court July 11 in 1 319 955 00 unconditionally on tracts received of the succession totaling assets of the as of immovable property valued numerous valued at deposits Debts to immovable tracts royalty checks 1 184 576 00 amounted descriptive list showing the mineral interests in the three 65 809 00 descriptive testamentary executrix for the May 6 1981 interest in three an as accepting heir if those debts exceeded the assets of the Kathryn Venturatos Lorio in 10 La Civ L Treatise Successions and Dona ions S 7 2 2 petition for possession of her legacy Mrs Witty submitted a copy of the Department of Revenue showing inheritance and in the amount of 89 642 00 Also a receipt from the Department of Revenue estate taxes due 63 815 00 had been paid which was the amount of the tax due on showed that of this amount Mrs Witty s legacy In conjunction with her inheritance tax return filed with the Louisiana 3 initially filed by Shirley Genius Phillips Malcolm Stapleton and James Dale Genius who asserted that the partial judgment of possession in favor of Mrs Witty was improper and that the books and records upon which the account was based had not been examined by the parties in opposition The opposition was apparently later withdrawn An opposition to Genius the first annual account Garnet L Genius was Brenda Genius 4 On her duties 11 July executrix due as Witty petitioned the district 1983 Mrs to Witty joined in the motion seeking The motion Mrs was Witty died After his November 13 appointment for 1987 1991 for 1990 May 19 for 1995 and February 14 May 4 26 2007 to the for 1991 2000 to Herbert R the alternate executor of the executor estate 11 1990 1994 to place Murray 13 bequeathed for 1992 1993 January 14 1997 March 1997 2004 for 2000 2003 to court to possession of his be discharged one sixth him under Miss LeBeau one s the court 4 will and twenty fourth mineral interests While Miss LeBeau Mr Witty s motion was granted 4 into and the court In this 5 5 as legacy Shirley G Phillips Garnet Genius and Malcolm Genius registry of were accounts Witty petitioned the LeBeau in 13 May Judgments of homologation all of these on March 18 for 1989 February 6 1998 for July accounts for 1986 November 24 for 1999 place each of the three remaining bequeathed May for 2004 2005 in the immovable property to son Witty filed annual March 4 1987 1997 for 1996 On March 15 2005 Mr and as appointed February 17 1995 for signed by the district court as executor was for 1988 1992 for 1993 for 1998 1999 appointed executor Mr as 1989 June 9 January 18 Witty for 1983 1985 June 1 1994 be Witty s be relieved of shortly afterwards 1985 1988 Mr granted and to Mrs illness personal to pleading Mr Witty stated that of the original legatees under the will only Murray LeBeau was still living at that time Further it was asserted that Winston Genius who inherited a one twenty fourth interest in the immovable property under Miss LeBeau s will predeceased Miss LeBeau and that his lapsed legacy was inherited by Mrs Witty although it does not appear that any of the judgments of possession rendered by the district court disposed of this interest Because the heirs of the deceased legatees had not established to the satisfaction of the executor their right to inherit those interests were initially deposited in the registry ofthe court bequeathed an interest in three tracts of immovable property the executor found it necessary to petition the court for authority to sell the immovable property to in pay debts of the succession which was granted on February 28 1994 Miss LeBeau s interest the three tracts of land was stated as an 11 interest The entire parcel was appraised as having a value of 432 000 00 and thus the succession s interest had an approximate value of 47 520 00 s will 44 031 61 however the succession The district court authorized the property to be sold for retained the mineral rights after this sale the only rights to the immovable property Therefore left to be distributed to the heirs were the mineral 5 rights issued judgment placing Murray LeBeau in the judgment further Witty of all responsibility in Herbert R and relieved legacy and registry as depositing the remaining legacies in the discharged of his possession court s the succession upon payment of all court costs and executor attorney fees then Subsequently the heirs of Shirley G Phillips and Malcolm Genius due also filed for petitions and possession were placed in possession of their interests in the succession On March 14 2006 the plaintiffs Fielding Chadwick Phillips Kay Phillips Elliott Pamela Phillips Sulzer James Garnet Genius Albert Sidney Genius Margaret Anita Genius Laurie Genius Chapple and Genius as heirs of Genius filed a Shirley Genius Phillips Garnet Genius and Malcolm entitled Breach s the defendant Mr of Fiduciary Duty 3332 a failed means Mr file final to timely for account contest as a of the succession s Witty failed succession was to file Act an the naming annual to fund his was wrongly sold immovable property should not in Mr was or principal ofH for services with H account 1994 art W W estate Exploration Exploration for each and every year the Witty kept the succession under executor s fee with the mineral interests the immovable property of the for less than market value have been sold and that rather 6 Witty unwarranted overpayment of inheritance and accompanying royalty payments succession Prudent in accordance with LSA C C P shareholder contract a as damages the plaintiffs alleged that under administration Mr administration in order and a Witty profited taxes Mr by to petition to Close Succession to Duty Failure twenty four year administration of the succession Witty Mr In their Witty failed Damages Arising from Testamentary Petition for Administrator and Breach of as Rodney separate action in the 18th Judicial District Court under suit number 39 853 Executor James the they should have been in placed fiduciary duty collect to and breach of fiduciary duties Witty the district to arisen during filed overpayment of Mr ie and the Witty damaged the plaintiffs the suit owing to the succession was to problems In brief that had first attorney who s was Witty and the to Mrs Witty asserted that the extended Mr Further estate allegations attributed many of the Witty owing in part to 1984 claim a 240 to by 44 284 Amoco to Mr Witty his efforts and those of his attorneys he obtained the 118 000 00 in remission of the denying previously overpaid royalties amounting claimed that imprudent administration early distribution of legacy taxes administration of the recoup to the administration in 1993 replaced Mr by an answer court 3191 art Witty breached his Mr property and manage succession property in preserve accordance with LSA C C P Mr of the possession overpayments through a 1992 compromise with Amoco On February Annual and Final December 31 26 2007 the Accounting 2005 executor for the Period of On March 5 2007 court sought January of approval 1 2004 an through Fielding Chadwick Phillips Kay Phillips Elliott Pamela Phillips Sulzer Albert Sidney Genius Margaret Anita Genius Opposition Laurie Genius to 2004 Consolidate Chapple and 2005 Annual and Final asserting their rights as in compliance account a account with the LSA C C P in that there breakdown of the borne annual and final was no art filed listing of all of the proportionate by each respective legatee to legatees Shirley Genius The 3332 an Accounting and Motion heirs of Phillips Garnet Genius and Malcolm Genius the 2004 and 2005 Rodney Genius filed and James opposition alleged that by the executor requirements for estate debts and was a not final legacies or shares of administrative expenses to be The 7 opposition further claimed that there was full and no for erroneous succession account complete final a The account to opposition of the administration contain LSA C C required by consolidation of the succession Mr damages against March 6 consolidating the 2007 of assets failed a to prove of his The legacies or otherwise also opposition sought proceeding with the separately filed suit for An order Witty out 1424 art executor was proportionate share of the total a administrative expenses of the succession as only part of the further asserted that the that he had contributed his payment of and that it was two cases signed by the district and court on setting the opposition for contradictory hearing Prior to the scheduled judicata Following judgment on all accounts a executor to file 2004 a last and final through March 5 The trial Accounting plaintiffs court on Plaintiffs have court On granting appeal the signed 15 new executor s an exception the district court court further ruled that res signed a as to The to a s these executor was accounting for the period beginning January 6 a Judgment Homologating Annual and Final 2007 The district court thereafter denied the trial from the assignment of error is urged exception of res judicata on judgment of the trial The trial court erred in the basis that plaintiffs fiduciary duty and breach of duty to close the succession accounting that had previously February encompassed period ending on December 31 2005 final accounting appears in the record on appeal We note that the 2004 2005 26 2007 of Witty in the record that have been devolutively appealed one claims of breach of 6 2005 May motion for hearing suit is dismissed with prejudice judgments plaintiff s ordered Herbert R The district duly homologated 2007 filed granting the exception ofres judicata 26 2007 February of the January 29 Witty Mr hearing annual and final this time 8 been filed no on additional by the judgments homologating the interim annual barred were accounts filed in the succession LAW AND ANALYSIS Judgment Appealed At the outset we note desire plaintiffs states defendant Herbert This district court motion for rendered new into the record exception of February 26 read and on new signed 10 was was 2007 signed 10 2007 August an The ambiguity August 2 2007 and filed appeal on signed March 7 2007 appears to granting The on plain denial of appeal the of the Witty s Mr January 29 2007 on trial rather than the on judgment granting The rendered motion for on July 17 2007 denying the plaintiffs and filed into the record language of the plaintiffs the motion for was judgment judicata 2007 the judgment in favor of devolutively appeal judgment August on plaintiffs motion for devolutive appeal judgment appealed presents trial this res to Witty which of the description that the exception of res judicata A judgment which is C C P denying appealable only art McClure 2083 v C motion for a new actually intended when new trial is amended motion for trial to an interlocutory order expressly provided by law pursuant it is writ denied 807 944 So 2d 805 motion for not a final appeal 2007 0043 refers La to from the final judgment the judgment on the being taken from the judgment showing such an intent include the briefed issues the merits of the final parties 9 on appellant s on a appellant appeal the merits as effect whether the denying the merits the should be maintained Factors See 949 So 2d 446 but the circumstances indicate that appeal LSA App 3 Cir 12 6 06 3 9 07 La by date to appealable judgment of Pineville 2005 1460 p 3 City However when as a assertion to that judgment and whether the from the judgment was to the judgment judgment 1048 on La App 2007 motion for Dural the was judgment under LSA C C P court s v art on granted the parties leave designation of finality 2007 court recalled the rule to art August judgment the judgment as on the to 10 the plaintiffs intended for being App res taken from this 449 So 2d at 1049 192 La 190 Fuqua v 3 Cir 1988 court issued a rule to finality of the judgment appealed account On of the failure of the trial court to appeal This court s supplement the record with the trial February judgment 1915 B show on to be otherwise identified in the final for purposes of as sought judgment granting the exception of questioning accordance with LSA C C P to the January 25 2008 this on 1915 B 29 signed Notwithstanding City of Morgan City case designated its January this was not appeal should be maintained designate the partial judgment rule also and make it clear that the Company 525 So 2d in this the 2005 City of PineviIle v court 449 So 2d 1047 Morgan City Witty appeal 26 2007 We further note that cause judgment for court February See Dural a appeal from to identified the judgment plaintiffs trial but the Thus the GulfInsurance show of See also McClure the case arguments before this judicata City v August 2007 date could only have applied new inadvertency to at 807 2d So language of the motion appeal merely due that rendered in favor of Mr as The was appellant actually intended an 1 Cir 1984 In the instant When it is clear that reference trial a new trial a new the merits 1460 at p 3 944 appealed denying denying conclude that may that it language of the order granting the appeal indicated cause Exception of Res Judicata 10 as 1 20 2008 the district court final for purposes of Thereafter on and maintained the appeal in March 5 2008 appeal In the consolidated two exception of executor s annual and final plaintiffs action res the district matters judicata as executor for damages support of the exception of res judicata the precluded subsequent re 7 in accordance with LSA C C P art 3337 In his amended was This Act shall become effective actions filed of a on or after January 1 January prior by the law to January 1 1991 1990 Transportation and is A in effect a prior to January apply s which provided to effect and 1 all civil authority governed by LSA RS 13 4231 State v an as action filed it read prior Department La 9 6 94 Act Thus the 1991 judgment rendered in Development 94 0111 p 3 any account other than of the correctness of the account 8 preclusive accounts to of 642 So 2d 159 judgment homologating as a agreed by the 13 4231 1991 and shall 1 McClendon amendment 7 of those Section 5 of Act 521 1991 The preclusive effect and authority of 157 filed prior judgment rendered in an action filed before the effective date of this shall be determined the validity The district court 1990 La Acts No 521 by argument accounts is set forth in LSA R S judicata The doctrine ofres improper executor contended that of the litigation 2 of on account judgments in the succession homologating annual executor and LeBeau procedure mismanagement and breach of fiduciary duties in to the 1 plaintiffs opposition to accounting in the succession of Miss against the sustained the court final judgment in an The reasons given by Based on ordinary A judgment final account shall be homologating LSA C C P art action the trial court for a sustaining the conversations that we the a prima facie evidence final account has the same 3337 exception of res judicata had in chambers and my were looking at the record in this matter this is the decision ofthe court It appears that there was a Motion and Order to Homologate an Annual Accounting that was filed on March the 9 2005 and there was a there was a m on March 15 of2005 is what I reading here May of 2005 that s the two dates I m looking at of the last distribution From the time ofthe Homologation of the Final Discharge ofthe Executor 15of 2004 to March 15 h actually discharged thats the so if anything is owed during Other than that everything else is I should say the last accounting 2004 until he time we re at That s the time was period looking period that s what I will entertain res judicata under the case law as best 1 can read that time 11 it effect In the instant the case executor asserts that the judgments of homologation rendered in the succession proceeding preclude the plaintiffs opposition the to Since the succession damages accounting and their separate suit for annual and final proceeding was filed in 1991 effective date of the 1990 amendment 13 4231 must be applied to demanded the must prior to the 1990 amendment be the the demand same and formed must be founded must be between of action the demand same cause parties it read LSA R S 13 4231 LSA RS authority of the thing adjudged takes place only with what was the object of the judgment The thing The respect as to 1981 well before the the by them against each other in the on same same quality The McClendon The should theory of civilian res judicata is that finally adjudged are be contradicted in a and not legislative authority of LSA R S former 13 4231 m follows as litigated discussed court supreme and correctness presumed matters correct subsequent suit actually and thus Louisiana judicata establishes a presumption precludes re litigation of the object of the for res judgment only when there is 1 an identity of the parties 2 an identity of cause and 3 an identity of the thing demanded this Court held that Under former Section 4231 in order for apply the thing demanded in the second action must be the same as the thing demanded in the first action which has been concluded by a definitive judgment the res judicata to demand must demand must be founded v the be between the against each other in the McClendon on State same Department same cause same of action and the parties formed by them quality of Transportation and Development 94 0111 at p 4 642 So 2d at 159 citations omitted The party urging the exception of proving each essential element by doubt exists as to its a application res judicata only as to judicata has the burden of preponderance of the evidence the exception of overruled and the second suit maintained authority of res Further those issues 12 a res final judicata If any must be judgment presented in the has the pleadings and conclusively adjudicated by the So 2d 919 922 La 13 4231 accounting asserted that the C C P damages With succession and respect filed in the succession executor did not 33329 in that he failed art principles we do not find that former precludes either the opposition filed in the succession the separate action for final 610 1 Cir 1992 App After due consideration of these LSA R S Succession of Turner court pursuant administrative expenses to to the proceeding annual and executor s the or plaintiffs in effect comply with the requirements of LSA list all of the to LSA C C art 1424 proportionally against 10 assets and debts of the he failed all of the to legatees apportion I In the representative may file a final account of his administration at any time after ofthe final tableau of distribution and the payment ofall estate debts and legacies homologation The court shall order the filing of a final account upon the application as set forth in the tableau A succession residuary legatee who has been sent into possession or upon judgment ordering the removal of a succession representative LSA C C P art of an heir or the rendition of a 3332 to Administration expenses are charged ratably to the fruits and products of property that is the object of the general or universal legacies and property that devolves by intestacy When the fruits and products do not suffice to discharge the administration expenses the remaining is expenses are charged first to the property itself next to the fruits and products of property that the II object of particular legacies and then to the property itself LSA C C art 1424 legacy to Mrs Witty was distributed to her by judgment of possession dated May 24 1982 prior to the date that the first annual account was filed by Mrs Witty on September 16 1982 Upon review ofthis annual account and the eighteen that followed it would all mineral interest appear that though the record does not conclusively establish the fact due Mrs Witty on her share of the immovable property were paid directly to Mrs royalties Witty or her successor the record reflects that Mrs Witty sold her interest in the immovable The annual accounts indicated that W Exploration in 1982 property of the succession to H over 800 000 00 was collected in assets and income by the succession The record does not clearly demonstrate whether these funds were exclusively derived from the one third share of the estate s immovable property remaining in the succession following the judgment of possession in favor of Mrs Witty or whether they were also generated in part from Mrs Witty s share of the estate though it appears that the former is more likely What is clear is that from these assets and 7 564 22 in expenses directly related to the income the following expenses were deducted We note that the deceased s last illness and death the Louisiana Department W of Revenue and 481 122 Exploration preparation fees appraisal to H on no 665 072 75 in payments to the Internal Revenue Service and 68 090 13 in executor s fees and expenses and 23 in attorney fees public litigation certified accountant payments fees tax fees bank fees and other miscellaneous expenses Although the second annual account it was stated that 48 000 00 was received from Mrs Witty there is indication on any of the other annual accounts that either Mrs Witty or her successor in interest and current executor W than Exploration ever Herbert R Witty either in his individual capacity or as owner of H contributed to the payment of the administration expenses If the more royalty income collected by the succession after Mrs Witty was 700 000 00 in mineral placed in possession of her two thirds share of the estate s immovable property was produced W exclusively by the other heirs one third share then Mrs Witty or her designee H would have been paid separately more than 1 400 000 00 Mrs Witty s co heirs Exploration plaintiffs herein ostensibly maintain that all of the legal and other expenses related to preserving therein all of the heirs were charged interests in the estate against only their s immovable property and mineral interests remained under which exclusively interests administration 13 action for plaintiffs separate executor damages the administration of the employed improper procedures during succession that he breached fiduciary duties his that the they allege basically administration of the succession and that either he or the mismanaged his company H W Exploration impermissibly profited from the lengthy administration of the successIOn Clearly the thing demanded by the upon which his judgments of homologation was not the same thing as time the executor s rendered were accounts on The annual CASH ON HAND list any debts that might and to the succession as the immovable property of the mishandling the Plaintiffs judicata rests The on account to of the filed by of any executor such as plaintiffs claimed Witty s two s the executor they did the succession expenses the or particular period a accounts the heir of Mrs estate motion for executor s EXPENDITURES have been owed proportionate share of administration Witty owed res the of succession funds while the receipt and disbursement alleged mishandling of the estate only the which itemized for plaintiffs have demanded damages and relief itemized of exception subsequently demanded by the plaintiffs judgments of homologation approval of his annual in procurtng executor not the Mr thirds share of damages he might owe for 12 estate statements made m brief to this court illustrate this distinction Plaintiffs do not oppose any of the amounts in simply using them as the only evidence in the succession record memorializing the amount of these annual accounts and expenditure are administrative expenses incurred during the administration Although the 1986 through 1991 annual accounts included a section entitled Outstanding Obligations to be Paid this section included only one debt i e the amount of attorney s fees owed by the succession to the succession attorney None ofthe annual accounts ever listed debts owed by anyone to the succession 14 In the matter present plaintiffs are attacking the validity not of fees and expenses listed on any annual or interim account but are claiming that Mr Witty committed misfeasance in his position as fiduciary by charging plaintiffs a disproportionate failing to pay share of debts and administrative expenses and large proportionate share and claiming waste for the unnecessary administrative expenses resulting from the failure his close the Succession to The means the of Turner term legal obligation 610 upon which the accounts of action cause was 2d So upon which the action is founded In the instant at 921 22 judgments approving based on Mr used in former LSA R S as Witty s or homologating obligation Succession legal obligation the case 4231 13 Witty Mr annual s show the money and other to property received by and in the possession of the succession representative at the of the beginning period covered by the account the other revenue receipts disbursements and disposition of property during the period and the remainder in his LSA C C P art of the district this possession on respect to motion of the executor has fulfilled his executor the succession as well as who In contrast the actions and the executor s as required by approved by judgment was seeking to satisfy brought by the plaintiffs duty as a fiduciary with duty of collecting preserving and his managing the property of the succession 3191 period accounts were reporting requirement question whether the the end of the These annual 3333 court at duty 15 as required by to close the LSA C C P succession as soon art as advisable as The district which accounts amounts by LSA C directed issued court arguably C P art 3197 judgments approving forecloses received and disbursed 13 as litigation re of the currently being raised by the plaintiffs whether the for his mismanagement of the estate foreclosed from have not previously of the correctness However the issues executor owes share of administrative expenses andor proportionate cannot be 4 itemized therein Witty s annual Mr been the estate damages for litigated and thus litigation by the principles of res judicata set forth in former LSA R S 13 4231 Accordingly not properly the bases of serve as 13 4231 LSA RS to plaintiffs against the 13 of res judicata We note that in executor and the for reasons succession s exception of res homologation could judicata under former arising from his alleged mishandling of the the district court erred in sustaining Mr Witty s 15 judgment resolving a 1993 attorney s fee dispute between the first attorney of record the district court stated including mineral rights has already been distributed to Alta LeBeau Witty Mr Witty s mother by Judgment of Possession Although that portion of the property is no longer in the Succession the Estate of Alta LeBeau Witty and Mr Witty as her sole heir and legatee is responsible for a pro rata share of debts and charges of the Succession of Nita LeBeau including Federal Estate Taxes attorneys fees and costs ofcourt in a brief filed before the district court Mr Witty stated There is no question under Louisiana law that the heirs in a succession bear their proportionate share of the expenses both administrative and otherwise in a succession This matter was determined judicially previously by Judge Claiborne when he decided the case concerning the attorney fees of Two thirds of the Further an of judgments preclude the subsequent demands made by the executor Therefore successIOn exception conclude that the we D Amico and immovable property Cure These statements of record present at the least a reasonable basis for the Wittys co heirs to believe that the proportionate share of expenses owed by the Wittys would be contributed prior to the close of the succession 14 judicata lacking in the instant case we find it unnecessary to address the argument made by Mr Witty that his plea of resjudicata is warranted by LSA C C P art 3337 which provides that a judgment homologating any account other than a final account shall be prima facie evidence ofthe correctness ofthe account 15 Because we Although find the essential elements of the res plaintiffs have requested that judgment in their favor contentions and render issues in the district court this court conduct no 16 de evidentiary hearing Since the record before this court is matter to the district court a novo was incomplete review of their conducted we on these must remand the CONCLUSION For the Herbert R remanded foregoing reasons Witty to s assigned the judgment ofthe district exception of the trial court All costs of this res sustaining judicata is reversed and the for further appeal court are proceedings to be borne REVERSED AND REMANDED 17 matter is in accordance with the by Herbert R Witty
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