Succession of Silver Ever "Polly" Dees Newman Felker
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2010 CA 0561 1 I SUCCESSION OF SILVER EVER POLLY DEES NEWMAN FELKER On Appeal from the 21st Judicial District Court Parish of St Helena Louisiana Docket No 18625 Division B Honorable Bruce C Bennett Judge Presiding Shaan M Aucoin Cashe Coudrain Hammond LA William S Dykes Montpelier LA Attorney for Appellees Sandage Co Administrators of the Succession of Silver Ever Polly Dees Newman Felker Attorney for Appellant Kenneth Felker BEFORE PARRO GUIDRY AND HUGHES JJ Judgment rendered October 29 2010 PARRO 3 Kenneth Felker the surviving spouse of Silver Ever Polly Dees Newman Felker appeals a judgment that ordered him to reimburse the coadministrators of her succession 3 for attorney fees expended to evict him from a house that was her 750 separate property and to pay rent in the amount of 8 for ten months that he lived 500 in the house after the coadministrators demanded that he vacate the property but denied his claim for reimbursement for his portion of community funds used to pay the mortgage on the house For the following reasons we affirm in part and reverse in part FACTUAL AND PROCEDURAL BACKGROUND Mrs Felker died intestate on February 28 2003 survived by her spouse Kenneth Felker and six adult children from a previous marriage Two of her children Calvin Ray Newman and Judy Ann Newman were appointed coadministrators of the succession A sworn detailed descriptive list was filed by the coadministrators In August 2004 the coadministrators filed a motion seeking a judgment homologating the sworn detailed descriptive list ordering the return of the decedent separate property s to the succession fixing a bond for the surviving spouse usufruct over community s property and ordering the eviction of the surviving spouse from the home he had shared with the decedent which was her separate property Mr Felker filed a sworn detailed descriptive list and a traversal of the coadministrators sworn detailed descriptive list He also filed a petition seeking a periodic allowance from the succession representatives and the marital portion of his wife succession In March s 2007 the decedent children filed a petition for partial possession of her separate s immovable property and a judgment of partial possession concerning that property was rendered in their favor After numerous continuances a bench trial was held on all pending matters on August 3 2009 A judgment was rendered accepting the sworn detailed descriptive see LSAC arts 24322437 C 2 lists as to the valuation of community movables recognizing certain property as Mr s Felker separate property recognizing Mr Felker spousal usufruct over community s movables and ordering him to post bond within 30 days for the value of any movables over which he wished to exercise his usufruct The succession was ordered to reimburse Mr Felker 800 for funeral expenses and 600 for decking materials purchased to improve the separate property of the decedent his request for reimbursement of his portion of community funds used to pay the mortgage note on the house was denied The judgment ordered Mr Felker to reimburse the co administrators 3 for attorney fees and costs that they incurred in connection with 750 eviction proceedings to have him removed from the house which was his wife s separate property and to pay 8 for the fair rental value of that property for the 500 ten month period from March 2004 when demand was made on him to vacate the premises through January 2005 when he vacated the home Mr Felker has appealed the judgment alleging that the court erred by ordering him to reimburse the coadministrators 3 in attorney fees for the eviction 750 proceeding and 8 in fair rental value for staying in the house He also assigns as 500 error the court failure to award him reimbursement for his portion of mortgage s payments on his wife separate property that were made with community funds s DISCUSSION A court of appeal may not overturn a judgment of a trial court absent an error of law or a factual finding that is manifestly erroneous or clearly wrong Morris v Safeway Ins Co of Louisiana 031361 La App 1st Cir 9 897 So 616 617 writ 04 17 2d denied 042572 La 12 888 So 872 The supreme court has posited a two 04 17 2d part test for the appellate review of facts in order to affirm the factual findings of the trier of fact 1 the appellate court must find from the record that there is a reasonable factual basis for the finding of the trier of fad and 2 the appellate court must further determine that the record establishes that the finding is not clearly wrong manifestly erroneous Mart v Hill 505 So 1120 1127 La 1987 2d 3 Thus if there is no reasonable factual basis in the record for the trier of fact finding no additional inquiry s is necessary to conclude there was manifest error However if a reasonable factual basis exists an appellate court may set aside a factual finding only if after reviewing the record in its entirety it determines the factual finding was clearly wrong See Stobart v State through Dep of Transp and Dev 617 So 880 882 La 1993 t 2d Moss v State 07 1686 La App 1st Cir 8 993 So 687 693 writ denied 08 08 2d 2166 La 11 996 So 1092 08 14 2d Reimbursement of Attorney Fees This court must review the trial court factual finding that 3 in attorney s 750 fees was spent by the coadministrators to evict Mr Felker from their mother separate s property and therefore Mr Felker should reimburse these costs to the co administrators The only evidence concerning these fees was from Calvin Ray Newman The trial transcript shows the following colloquy between Mr Newman and counsel representing the coadministrators Q Okay And then there another claim for attorney fees and s s costs related to the eviction proceedings Is it true that you did actually have to file official eviction proceedings to actually get the home A That is correct Q And what did you arrive at If the detailed descriptive list shows that the succession incurred attorney fees and costs at s approximately 3 does that sound about right 50 708 A Yes Q And how did you arrive at that Did you first A From bills from the attorneys Q And did you have to hire counsel A Yes Q And who did you first hire A We started with Clifton Speed Q And do you know about how much the attorney fees were s A Eleven hundred and twenty someodd dollars 10 Q And did that successfully get the eviction done A No Ma am Q And did you thereafter have to incur additional attorney fees s A Yes Ma am Q And the balance of the claim that you made then would have been related to the hiring of additional counsel A Yes Ma am Q And was that Cashe Coudrain Sandage A Yes Ma am On cross examination by Mr Felker attorney the following discussion ensued s Q Did you have to go to court and have Mr Felker removed A Yes Sir Q You actually went to a court and had an eviction hearing A No we didn make it that far t By the Court Q You heard Mr Speed say that he willing to waive his fees Is s that the 1120 you were talking about A m I not sure Q So you really haven incurred those fees if he willing to waive t s them and withdraw his claim A That would seem correct to me yes Sir Q Then that is something the estate has not incurred 750 3 is that what was paid to Cashe Lewis Moody Coudrain The A Yes Sir Q And you wrote a check for that A My sister taking care of the finances with them Your Honor I s t can tell you exactly Q All right But this is something that you or one of the other heirs paid in connection with running the estate A Yes Sir 5 Q And that why you call it a claim for reimbursement s A Yes Sir Q But at any rate you chose to use outside funds outside of the estate to hire counsel in the amount of 3 750 Now in your agreement with the attorney what did that cover just this eviction or did it cover A No Sir Q It covered everything the succession A Your Honor there a lot more than just 3 s 000and someodd dollars I think Judy maybe could give you a better estimate of that That was only the amount that we as a family the siblings themselves have spent just to do the eviction s There much more money Q Okay that was my question A Yes Sir Judy Newman was not called to verify or clarify the amounts paid in attorney fees by the coadministrators for the eviction or any other legal services There is no invoice from the law firm of Cashe Coudrain Sandage showing the amounts that may have been paid or the services that may have been rendered for those payments by the coadministrators Nor strangely does the record contain the amended sworn detailed descriptive list on which the reimbursement claims were detailed with specificity according to the co administrators brief to this court The record does include a claim filed by their former attorney Mr Speed for the balance of his attorney fees in the amount of 1 which were apparently waived 29 113 Mr s Speed claim was accompanied by a detailed description of the services rendered time spent and amounts charged from April 20 2004 through December 3 2004 Based on the evidence in the record we conclude that the trial court had some evidentiary basis to support the finding that attorney fees of 3 but not 3 50 708 750 may have been expended to evict Mr Felker from the decedent separate property s However after examining the record in its entirety we are forced to conclude that this 2 finding was clearly wrong The succession was opened on June 3 2004 with the filing of a petition for appointment of coadministrators Mr Speed was the attorney for the coadministrators at that time His billing records show that on August 11 2004 he prepared an eviction letter to Mr Felker and sent the letter by certified mail On August 18 2004 he drafted pleadings to bring a rule against Mr Felker On August 26 2004 a pleading was filed that included a Motion to Evict Surviving Spouse from the Separate Immovable Property of the Decedent Estate and Succession On October 6 s 2004 Mr Speed records show that he attended court for the eviction etc rule The s s court minutes show that the case was on the docket and Mr Speed was present but the matter was continued subject to reassignment On November 17 2004 Mr Speed withdrew from representation and in December a motion to reset the hearing on the eviction rule and other pending matters was filed on behalf of the coadministrators by their new attorneys the Cashe Coudrain Sandage law firm According to Mr Newman Mr Felker left the home in January 2005 before any hearing was held on the motion to evict Other than the motion to reset the hearing date there were no other pleadings filed by the coadministrators new counsel before Mr Felker vacated the premises Virtually all of the legal work concerning the eviction was done by Mr Speed who waived the balance of his fee Mr Felker left the home within one month after the new attorneys entered the litigation In light of the fact that only one pleading concerning the eviction was filed by the Cashe Coudrain Sandage firm plus the fact that neither the amended sworn descriptive list nor an invoice from the firm are in the record we conclude that the record in its entirety demonstrates that the court was manifestly erroneous in ordering Mr Felker to pay the coadministrators 3 for 750 attorney fees incurred to evict him from his wife separate property That portion of s the judgment will be reversed Rental Payment Mr Newman testified that ten months of rental payments were due because the 7 coadministrators had told Mr Felker to vacate the house in March or April 2004 and he did not leave until January 2005 Mr Newman said he arrived at the rental amount of 850 per month by checking the classified advertisements in the local newspaper a few days before the August 2009 trial There were very few rentals listed but he did find advertisements for a twobedroom onebath home and a three bedroom onebath home in the area One of those rented for 650 per month and the other for 350 per month Because the decedent property included a four bedroom house plus two s acres and a shop he increased the estimated rental to 850 per month This testimony does not provide a reasonable factual basis for the finding of the trial court There was no testimony or other evidence concerning rental values in the area five years before trial which was when Mr Felker was occupying the residence Therefore this award will also be reversed Reimbursement of Mortaaae Payments Mr Felker sought reimbursement of a portion of the mortgage payments that were made with community funds from the date of the couple marriage in 1991 until s April 2002 when the mortgage note on Mrs Felker separate property was paid off s He testified that they paid about 200 per month and identified six cancelled checks for 200 each that were paid on the mortgage note to the Bank of America However he stated that he had no idea how much of the 200 paid each month was for principal and how much was for interest nor did he know the interest rate on the loan With regard to this issue the applicable version of Louisiana Civil Code article 2364 provided If community property has been used to satisfy a separate obligation of a spouse the other spouse is entitled to reimbursement upon termination of the community property regime for onehalf of the amount or value that the property had at the time it was used Under this provision Mr Felker was entitled to reimbursement to the extent that the mortgage payments reduced the principal balance on the mortgage note but was not entitled to reimbursement of onehalf of the community funds used to pay the interest on the mortgage note See Loyacono v Loyacono 618 So 896 898 La App 5th 2d M Cir 1993 Parker v Parker 517 So 264 266 La App 1st Cir 1987 However 2d because Mr Felker did not establish what portion of the monthly payments were payments on the principal balance he did not meet his burden of proof for this claim Therefore we find no error in the court denial of reimbursement to Mr Felker for his s share of community funds used to pay the mortgage note on his wife separate s property CONCLUSION Based on the foregoing we reverse the portions of the judgment ordering Mr Felker to pay the coadministrators 3 in attorney fees and 8 in rental 750 500 payments In all other aspects the judgment is affirmed Each party is to bear its own costs for this appeal REVERSED IN PART AFFIRMED IN PART
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