Succession of Sadie Ricks McCoy
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST R CIRCUIT 2010 CA 0453 SUCCESSION OF 41 x SADIE RICKS McCOY On Appeal from the 21st Judicial District Court Parish of Tangipahoa Louisiana Docket No 0000 9730261 Division F Honorable Elizabeth P Wolfe Judge Presiding Joseph H Simpson William Paul Simpson Simpson Simpson Attorneys for PlaintiffAppellant James Timothy McCoy Sr Amite LA Russell C Monroe Greensburg LA Attorney for Defendants Appellees Joyce Jackson and Holly Harvey BEFORE PARRO GUIDRY AND HUGHES JJ Judgment rendered September 10 2010 PARRO J James Timothy McCoy Sr the dative testamentary executor of the succession of his mother Sadie Ricks McCoy appeals a judgment disallowing certain legal fees and expenses he incurred and splitting the fee for administration of the succession equally between him and the original executrix his sister Joyce McCoy Jackson For the following reasons we affirm the judgment FACTUAL AND PROCEDURAL BACKGROUND Sadie Ricks McCoy died testate on April 9 1997 survived by five adopted children She and her deceased husband had adopted two boys during their marriage and she adopted three girls after her husband death Her will designated one of her s daughters Joyce McCoy Jackson as executrix to serve without bond The will did not provide for compensation for administering the succession The decedent left all of her property whether separate or community in equal undivided interests to her five children and ordered that all of the immovable property remain undivided and unpartitioned for a period of five years from the opening of the succession unless all of the heirs agreed to a division or partition or unless the interest was being conveyed to a coheir Jackson performed a number of acts on behalf of the succession after being confirmed as executrix in July 1997 but did not file annual accounts and took no steps over a number of years to divide the property or conclude the succession In December 2005 her brother James Timothy McCoy Sr McCoy filed an action to remove her as executrix for failure to perform her duties The trial court denied this request in a judgment signed on March 17 2006 this court denied a writ application on the basis that this decision was within the trial court discretion and the supreme court also s denied a writ application Jackson took some steps toward administering the succession including filing an accounting covering the period she had served as executrix However at a subsequent monitoring hearing the trial court removed Jackson as executrix and appointed McCoy as executor Two months after being appointed McCoy filed a suit for damages against Jackson and another sister Holly McCoy Harvey In the petition he claimed that 2 Jackson had done nothing to preserve the succession assets allowing some immovable property to deteriorate and allowing other properties to be occupied rentfree Harvey was alleged to be one of the persons occupying a house belonging to the succession without paying rent McCoy also claimed that two certificates of deposit totaling over 000 41 that were property of the succession had been cashed in by Jackson andor Harvey without accounting for the proceeds to the succession after their mother died The lawsuit sought unspecified damages from Jackson and Harvey for mismanagement and conversion Most of the claims against Harvey were dismissed on motion for summary judgment on March 26 2008 The remaining claims against her and Jackson were dismissed May 1 2008 on a motion for involuntary dismissal of the suit based on s McCoy failure to prove his case at trial by a preponderance of the evidence No motion for new trial or appeal was filed with respect to these two judgments McCoy eventually prepared a final accounting which was opposed by Jackson and Harvey After a hearing on February 2 2009 the court ruled that attorney fees and expenses incurred by McCoy in his action to remove Jackson as executrix were not to be paid out of the succession nor were the attorney fees and expenses that he incurred in the unsuccessful lawsuit against his two sisters On April 17 2009 the court denied McCoy motion requesting payment to him of 4 as the executor s 375 s fee On April 29 2009 the court signed an order granting a motion filed by Jackson to apportion the executor fee equally between herself and McCoy McCoy moved for a s new trial concerning this ruling On July 15 2009 the court signed a judgment prepared and submitted by McCoy attorney that purportedly reflected the court oral s s reasons for judgment concerning McCoy attorney fees in the February 2 2009 s hearing Jackson and Harvey moved for a new trial andor modification of the judgment on the grounds that the judgment did not accurately summarize the court s rulings In a hearing on August 24 2009 the court denied McCoy motion for s reconsideration of the equal division of the executor fee between him and Jackson s The court also reiterated its earlier ruling that 3 for attorney fees incurred by 825 3 McCoy before he was established as dative executor was not to be paid out of the succession and that 5 for attorney fees he incurred in litigating claims against 025 Jackson and Harvey was also not to be paid out of the succession A judgment to this effect was signed August 24 2009 McCoy motion for a new trial was denied in a s judgment signed September 28 2009 In this appeal McCoy contests both of these judgments assigning as error the court disallowance of attorney fees incurred before s he was established as executor the disallowance of attorney fees incurred in pursuit of claims against Jackson and Harvey and the split of the executor fee equally between s him and Jackson APPLICABLE LAW Succession occurs at the death of a person LSAC art 934 A succession C representative is a fiduciary with respect to the succession and has the duty of collecting preserving and managing the property of the succession in accordance with law See LSAC art 3191 P C An executor of a succession may obtain an attorney to aid in carrying out the s executor duties and to defend the succession against adverse claims made against it See Succession of Jenkins 481 So 607 609 La 1986 The costs of such legal 2d representation may be charged to the succession See Atkins v Roberts 561 So 2d 837 841 La App 2nd Cir 1990 However where the legal representation is primarily for the personal benefit of the executor and not the succession such fees may not be paid from the property of the succession See Succession of Haydel 606 So 42 45 2d La App 4th Cir 1992 Whether or not an attorney work was for the benefit of the s succession is a question of fact that cannot be set aside absent manifest error Id at 4546 In re Succession of Brazan 070566 La App 5th Cir 12 975 So 53 07 27 2d 57 In a succession proceeding an attorney representing particular heirs or claimants When an appellant has appealed from a final judgment it is permissible for him to raise and the court to consider in connection with the appeal complaints relating to the denial of a motion for a new trial Dural v City of Morgan City 449 So 1047 1048 n La App 1st Cir 1984 However if the 2d 2 assignments of error address only the merits of the substantive judgment and not the denial of the motion for a new trial the court does not separately review the denial of the motion for a new trial See Uniform Rules of Louisiana Courts of Appeal Rule 212 Since McCoy has only addressed the merits of 4 the substantive judgment we do not adjudicate the denial of the motion for a new trial 0 has no claim against the estate for his services even though such services benefited the other heirs Succession of Meier 204 So 793 797 La App 4th Cir 1967 2d Fees incurred by an heir attempting to hold the executor of the succession to the standard of care owed by the executor to the succession are not to be paid out of the succession See Succession of Demarest 418 So 1368 1375 La App 4th Cir writ 2d denied 422 So 158 La 1982 Brazan 975 So at 58 2d 2d As compensation for his services an executor shall be allowed such reasonable amount as is provided in the testament in which he is appointed In the absence of a provision in the testament or an agreement between the parties the executor shall be allowed a sum equal to two and onehalf percent of the amount of the inventory as compensation for his services in administering the succession See LSAC art P C 3351 If there is more than one succession representative the compensation provided by Article 3351 shall be apportioned among them as the court shall direct LSAC P C art 3352 The court may remove any succession representative who has mismanaged the estate or has failed to perform any duty imposed by law or by order of the court See LSAC art 3182 Succession of Crain 450 So 1372 137475 La App 1st Cir P C 2d 1984 Comment h of the official revision comments to LSAC art 3351 points P C out that there is no statutory provision dealing with forfeiture of compensation where the administrator has been guilty of maladministration The supreme court has ruled that where an administrator has been guilty of gross negligence in handling the succession he is not entitled to his compensation Succession of Liles 24 La Ann 490 491 1872 Succession of Touzanne 36 La Ann 420 1884 see also Succession of Vasquez 070816 La App 4th Cir 1 976 So 209 215 However the 08 16 2d imposition of this penalty is left to the sound discretion of the court See Succession of Gandolfo 173 La 190 203 136 So 561 565 1931 DISCUSSION In his first assignment of error McCoy contends that the court erred in disallowing the 3 in attorney fees he incurred in his ultimately successful attempt 825 5 to have Jackson removed as executrix In refusing to order these fees to be paid out of the succession the court noted that although the replacement of Jackson with McCoy did benefit the estate McCoy had incurred these fees before he was executor therefore these fees were not properly charged to the succession The record shows that McCoy initial attempt to have Jackson removed as s executrix was unsuccessful After a hearing on his allegations in February 2006 the court declined to remove her from her position and dismissed the petition for removal providing written reasons for the decision This court denied McCoy application for s supervisory writS stating that the trial court did not abuse its discretion in denying s McCoy request to remove Jackson as executrix in this matter and noting also that nothing precluded McCoy from reurging her removal if she did not comply with the trial s court order3 The trial court reasons for judgment show that the court ordered s Jackson to file an accounting of all revenues andor expenses of the succession since April 9 1997 and to comply with her other duties as executrix with a monitoring hearing date of December 11 2006 According to the record Jackson filed a petition for private sale of two vehicles and an accounting covering the period from the death of the decedent through December 6 2006 A monitoring hearing was held on December 11 2006 Jackson did not appear at this hearing but was represented by counsel 4 After hearing testimony from McCoy and another witness the court found in favor of McCoy removed Jackson as executrix and appointed McCoy as dative testamentary executors The court provided no written reasons for this judgment As noted by the district court at the time McCoy incurred these attorney fees he was not the executor but was simply one of the heirs An attorney representing particular heirs has no claim against the estate for his services even though such Z Succession of Sadie Ricks McCoy 060714 La App 1st Cir 7 unpublished writ action 06 24 3So 43 The supreme court also denied writs Succession of Sadie Ricks McCoy 061966 La 11 941 06 9 2d 4 In designating the record for appeal McCoy did not include a transcript of the monitoring hearing so this court cannot review the evidence or the court oral reasons for its decision s 5 The designated record does not show when or whether McCoy had refiled a petition to remove Jackson as executrix 6 services may have benefited the other heirs Meier 204 So at 797 2d s McCoy litigation to remove Jackson as executor was an attempt by an heir to hold the executor to the standard of care owed by the executor to the succession It was not an action by the executor to defend the succession from attack or to administer the succession As such the attorney fees incurred in such action were not chargeable to the succession and we find no error in the court decision concerning these fees s s McCoy second assignment of error challenges the court decision not to tax the s succession with 5 in attorney fees incurred by McCoy in his suit against Jackson 205 and Harvey He contends that as a fiduciary he had a mandatory duty to take all reasonable steps to collect preserve and manage the property of the succession He restates in his brief to this court all of the allegations and arguments upon which his suit against his sisters was based even though some of those claims were dismissed on summary judgment as legally groundless and the rest were dismissed at trial for his failure to provide proof of the allegations McCoy avers in his brief that his only actual failing in this case was his inability to realize that the trial judge would ignore mandatory provisions of the Louisiana law and jurisprudence and then punish him for not knowing this before filing the suit against Jackson and Harvey We are compelled to note that this insulting comment is wholly inappropriate and approaches constructive contempt of court by indicating disrespect for the dignity and authority of the court See LSAC art 224 P C 10 McCoy was afforded several opportunities to present his case concerning mismanagement and conversion of succession assets by his two sisters Obviously under the facts presented there was either no remedy as a matter of law or he simply failed to provide sufficient evidentiary support to prove his allegations If McCoy was so convinced that the trial court had erred in dismissing his claims against his sisters he could have appealed those judgments However he chose not to do so offering instead offensive comments in this appeal concerning the trial court decision on this matter Having reviewed the s record we note that the estate reaped absolutely no benefit from this litigation and the pursuit of these claims occupied an inordinate amount of the court time not to s 7 mention the legal expenses incurred by Jackson and Harvey in defending against these claims The decision not to charge the succession with McCoy attorney fees for this s unsuccessful litigation was within the discretion of the district court and we find no error and no abuse of discretion in that decision Finally McCoy protests the court decision to split the administrative fee equally s between him and Jackson He alleges again that she was guilty of gross neglect and mismanagement of the succession and for that reason she should not share in any of the administrative fees However even though the court removed Jackson as executrix the record does not indicate the reasons for that decision and the court later found that McCoy failed to prove his allegations against her The record shows that Jackson took a number of steps in the year following her appointment as executrix including paying inheritance and property taxes and filing suit to rescind a verbal agreement her mother had entered into to sell certain immovable property She was prevented from managing some of the properties by another brother Willie McCoy who physically assaulted anyone who entered the property to maintain it and obtained an injunction to stop his threats and harassment of her and her agents Despite the injunction Willie McCoy continued to refuse access to the property Jackson testified that on the advice of her former attorney she took no steps to divide the succession property because she had been told that the Social Security Administration had a large claim against her mother succession s She eventually obtained the services of a different attorney and following the court decision not to remove her as executrix s she attempted to follow the court order by filing an accounting and petitioning for the s private sale of some succession property The court ultimately has discretion in deciding whether an executor should be denied compensation as a penalty for gross negligence Based on our review of the record since there was no finding of gross negligence or malfeasance on Jackson part we find no abuse of the trial court s s discretion in allowing her to share in onehalf of the executor fee See LSAC art s P C 3352 M CONCLUSION Based on the foregoing the judgment of August 24 2009 is affirmed All costs of this appeal are assessed against James Timothy McCoy Sr AFFIRMED N
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