In The Matter of the Succession of Jacqueline Anne Mullins Harrell
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2010 CA 0616 MATTER OF THE SUCCESSION OF JACQUELINE ANNE MULLINS HARRELL Judgment rendered OCT 2 9 2010 On Appeal from the 19 Judicial District Court Parish of East Baton Rouge State of Louisiana PROBATE Suit Number P84142 Division 23 The Honorable William A Morvant Judge Presiding Walton Joseph Barnes 11 Greenwell Springs Louisiana Counsel for PlaintiffAppellant Doherty Michael Jarreau Administrator of Succession of Jacqueline Harrell Robert V McAnelly Baton Rouge Louisiana Counsel for Defendant Appellee Robert C Harrell BEFORE KUHN PETTIGREW AND KLINE JJ 1 Judge William F Kline Jr retired is serving as judge pro lempore by special appointment of the Louisiana Supreme Court KLINE J Doherty Michael Jarreau the independent administrator of the Succession of Jacqueline Harrell Succession appeals a judgment in favor of the decedent s husband Robert Harrell that inter alia awarded to Mr Harrell some of his claims for reimbursement from the Succession and recognized other property as his separate property For the following reasons we amend the judgment of the trial court and as amended we affirm PERTINENT FACTS AND PROCEDURAL HISTORY Jacqueline Anne Mullins Harrell died on May 24 2005 leaving no will She was survived by two children from her first marriage and by her second husband Robert Harrell the appellee herein The decedent and Mr Harrell had executed a marriage contract in 1981 establishing regimes of separate property The home that Mr and Mrs Harrell lived in was her separate property In March 2006 Mrs Harrell children filed a petition for independent s administration and the appointment of an independent administrator upon which the trial court placed the decedent estate in independent administration and s appointed an independent administrator In June 2006 Mr Harrell filed a notice of proof of claim as the surviving spouse seeking reimbursement for liabilities allegedly incurred on mortgage loans credit card charges and personal loans that were Mrs Harrell separate s obligations Mrs Harrell medical expenses and other obligations that he paid s prior to her death including a large payment on Mrs Harrell mortgage made s from his separate funds and payments he had made for on her obligations after the date of her death including funeral expenses In March 2007 Mr Harrell filed a petition of intervention alleging that the Succession had rejected his proof of claim and seeking a judgment recognizing his 2 claims The Succession answered the petition and filed an exception of no right of action In March 2008 the Succession filed a reconventional demand contending that Mr Harrell was indebted to the Succession for damage to the home and the s home value funds held in joint bank accounts the fair market value of an automobile rental of the marital home fees and costs By a separate pleading the Succession also filed a supplemental answer to Mr Harrell petition of s intervention and reconventional demand in which the Succession claimed certain setoffs Mr Harrell answered these pleadings The Succession filed a second supplemental answer to the intervention and reconventional demand In November 2009 the matter came on for bench trial On the day of trial the Succession filed an exception of prescription asserting that Mr Harrell claims were prescribed s because they were not brought within one year of the date of Mrs Harrell death s On completion of the trial the trial court allowed both parties the opportunity to submit posttrial memoranda The trial court then issued written reasons It signed judgment in accordance with the written reasons in January 2010 in which it decreed in pertinent part as follows that there be judgment in favor of Mr Harrell and against the Succession in the amount of 53 on his claims for 47 322 reimbursement that there be judgment in favor of the Succession and against Mr Harrell in the amount of 386 representing onehalf of funds 00 jointly owned by Mr Harrell and the decedent that upon payment by the Succession to Mr Harrell of 7 Mr 00 726 Harrell is to deliver to the Succession physical possession and certificate of title to a certain automobile The sum stated represents 3 onehalf of the payoff by Mr Harrell of Mrs Harrell separate debt s with joint funds that remaining funds in a Chase Bank account designated as an annuity are Mr Harrell sole property against which the Succession s has no claim that all remaining claims for reimbursement of either party are denied that the exception of prescription is denied and that each party is to bear his or its own costs The Succession now appeals asserting five assignments of error 1 The trial court erred in finding that Mr Harrell Appellee proved his claim in intervention and thereby awarding him any sum in reimbursement or alternatively in failing to setoff Mr s Harrell claims against amounts owed by him to the estate or in the further alternative in failing to reduce the recovery by onehalf z of the total claimed since such sums were paid from a joint account 2 The trial court erred in granting Appellee claims in s contravention of LSAR 13 et seq S 3721 3 The trial court erred in conditioning the return of the vehicle to the estate by the payment of the sum of 7 representing 00 726 onehalf 1 of the 15 payoff of Mrs Harrell separate z 00 452 s property with joint proceeds 4 The trial court erred in denying the Administrator claim that s the estate was entitled to onehalf z of all of the consolidated accounts in the joint names of the parties with Chase Bank particularly and specifically 87 and in not awarding 28 294 judgment against Appellee for onehalf thereof 5 The trial court erred in not rendering judgment in favor of the estate and against Robert C Harrell in reimbursement for the payment by the estate of Mr Harrell debt s DISCUSSION Mr Harrell Claims for Reimbursement s On appeal the Succession argues that the trial court erred in awarding three of Mr Harrell reimbursement claims 3 for his claim for cemetery s 00 243 expenses at Resthaven Gardens 7 in funeral home expenses at Rabenhorst 46 061 2 Funeral Home and reimbursement of 43 which were separate funds used 01 018 to pay off a mortgage loan on Mrs Harrell separate property The Succession s contends that La R 13 and 3722 preclude Mr Harrell evidence that S 3721 s supported these claims for reimbursement These statutes provide in pertinent part as follows 3721 Parol evidence to prove debt or liability of deceased person objections not waivable Parol evidence shall not be received to prove any debt or liability of a deceased person against his succession representative heirs or legatees when no suit to enforce it has been brought against the deceased prior to his death unless within one year of the death of the deceased 1 A suit to enforce the debt or liability is brought against the succession representative heirs or legatees of the deceased 2 The debt or liability is acknowledged by the succession representative as provided in Article 3242 of the Code of Civil Procedure or by his placing it on a tableau of distribution or petitioning for authority to pay it 3 The claimant has opposed a petition for authority to pay debts or a tableau of distribution filed by the succession representative on the ground that it did not include the debt or liability in question or 4 The claimant has submitted to the succession representative a formal proof of his claim against the succession as provided in Article 3245 of the Code of Civil Procedure 3722 Same evidence required when parol evidence admissible When parol evidence is admissible under the provisions of R S 3721 13 the debt or liability of the deceased must be proved by the testimony of at least one creditable witness other than the claimant and other corroborating circumstances The Succession argues that these statutes are prescriptive or that they require proof of a debt by the testimony of at least one creditable witness other than the claimant and other corroborating circumstances as required under La R S 3722 13 5 The trial court however correctly observed that documentation supported the existence of the three reimbursements awarded and that Mr Harrell parol s evidence merely established the amounts Louisiana law distinguishes between parol evidence used to establish the existence of a debt and parol evidence used to establish the debt value and extent See Adams v Carter 393 So 253 255 s 2d 56 La 1 Cir 1980 La R 13 and 13 do not preclude parol App S 3721 3722 evidence to prove the latter See Adams 393 So at 256 3d Here Mr Harrell established the existence of the Resthaven debt and the Rabenhorst debt by proper invoices The separate character of Mr Harrell s payment of Mrs Harrell mortgage debt from separate property was established s by documentation showing that these funds were retirement funds provided by his employer Accordingly we conclude the trial court did not err in finding that these debts were sufficiently proven Succession Claims against Mr Harrell On appeal the Succession argues the trial court erred in four respects in failing to recognize its claims against Mr Harrell It argues that the trial court failed to recognize its interest in a joint account that the trial court erred in ordering it to pay Mr Harrell onehalf the value of an automobile before he is required to return it that the trial court failed to recognize Mr Harrell s responsibility for onehalf the mortgage debt on Mrs Harrell immovable s property and that the trial court erred in failing to credit the Succession with one half the costs of the funeral and cemetery expenses allegedly paid from joint funds Joint Account The Succession contends that Mr Harrell should be ordered to return half the balance of an account that was held jointly in both his and Mrs Harrell s names The trial court ruled that Mr Harrell was indebted to the Succession for 2 00 386 which represented onehalf of the funds that were jointly held Mr Harrell does not contest the award of 386 00 In opposition to the Succession contentions however Mr Harrell testified s that the remaining sums held in the bank account were his retirement proceeds and his separate property A bank statement introduced into evidence by the Succession shows that the remaining 84 was being held as an annuity 62 581 Accordingly the trial court denied the Succession claim for reimbursement s finding that the evidence clearly reflects that this sum was Mr Harrell s retirement annuity from Dow that constituted his separate property We cannot conclude the trial court was manifestly erroneous in this finding Mrs Harrell Automobile s The Succession argues that the trial court erred in conditioning the return of a Toyota to the Succession on reimbursing Mr Harrell 7 representing 00 726 onehalf of the 15 payoff of Mrs Harrell separate property with joint 00 452 s proceeds Mr Harrell testified that the source of the payoff money was a joint loan to him and Mrs Harrell His statement of expenditures in connection with this loan and a bank check to Toyota Financial corroborate this expense Lexus Accordingly we cannot conclude the trial court erred in ordering that he be reimbursed prior to his returning the automobile to the Succession Mortgage Payoffs The Succession further argues that the trial court erred in failing to charge Mr Harrell with onehalf the payoff amounts for two mortgage loans the Succession paid when it sold Mrs Harrell home The Succession contends that s these were joint debts The trial court however disallowed these claims against Mr Harrell stating in its written reasons that w the exception of the amounts ith fhe bank statement in evidence shows that the actual amount of joint funds equals 772 Onehalf of this 03 amount is 386 or 386 No one challenges this minor discrepancy 01 02 Mr llarrelrs evidence and icstimony show that the actual payoff was 15 Onehalf of this sum equals 56 451 78 225 7 No one challenges this minor discrepancy 7 set forth above all other claims for reimbursement by either intervenor or the estate are denied based upon failure to meet the appropriate burden of proving entitlement to same The trial court was not erroneous in this finding The Succession asserts that four of its exhibits establish its entitlement to recover onehalf of these mortgage debts as joint obligations of both Mr and Mrs Harrell Included in these exhibits is a settlement statement to which Mr Harrell is not a party and is signed by counsel for the Succession as agent an act of cash sale from the Succession to the purchaser a copy of a Multiple Indebtedness Mortgage Home Equity Line of Credit and a Cancellation of Encumbrance The settlement statement reflects that two mortgages were paid off But little if any evidence connects these sums to any obligation incurred by Mr Harrell or clearly establishes what he might owe Accordingly we cannot conclude the trial court was manifestly erroneous in finding that the Succession failed to meet its burden of proof in these regards Cemetery and Funeral Expense s The Succession argues that it should be credited with onehalf of the expenses to Resthaven Gardens and Rabenhorst Funeral Home since these bills were allegedly paid with joint funds from Mr and Mrs Harrell joint checking s account The trial court did not expressly rule on these claims but did deny them when it dismissed all other claims for reimbursement for failure to meet its burden of proof We find no error in the trial court disposition of the Rabenhorst Funeral s Home expense Those expenses belong to the estate Mr Harrell produced evidence showing that he deposited into the joint checking account which ceased to actually be joint as of May 25 2005 when Mrs Harrell died the total sum of 91 402 11 subsequent to Mrs Harrell death This sum consists of six deposits s two online transfers to checking Dow Employees Payroll check The Dow 8 Chemical payroll check and a miscellaneous deposit of 7 The check to 46 061 Rabenhorst in the amount of 7 which coincides with the miscellaneous 46 061 deposit of the same amount on June 1 2005 was dated May 25 2005 but did not clear the bank until June 3 2005 Accordingly the trial court was not manifestly erroneous in concluding that the moneys deposited into the former joint checking account were Mr Harrell separate property funds Thus we affirm that portion s of the trial court judgment s Regarding the inclusion of 3 in the trial court award to Mr Harrell 00 243 s as burial expenses associated with Resthaven Gardens we conclude the award to Mr Harrell should be reduced by 820 Mr Harrell evidence shows that he 45 s paid 985 on May 25 2005 00 Importantly the remainder of the 3 00 243 balance was paid subsequent to that date in other words after Mrs Harrell death s On June 23 2005 Mr Harrell paid 333 of the outstanding balance of 95 95 333 1 and financed the remaining 1 The bank records show that Mr 00 000 Harrell paid subsequent to May 25 2005 on a nearly monthly basis the total sum of 1 apparently the financed 1 along with interest Thus the total 60 103 00 000 payments Mr Harrell paid subsequent to Mrs Harrell death were in fact s 55 422 e 00 2 i 985 95 333 60 1103 Accordingly the judgment should be modified to reduce Mr Harrell award by the full difference between s 00 243 3 and 2 which is 820 This is because there is no error in the 55 422 45 trial court determination that Mr Harrell is entitled to reimbursement for the s separate property moneys he used to pay for the estate obligation for cemetery s and funeral expenses the error is simply one of quantum We find partial merit in the Succession first assignment of error s Otherwise the Succession assignments of error are without merit s DECREE We amend the decree that rendered judgment in favor of Mr Harrell and against the Succession to decrease the quantum awarded by 820 45 Thus we vacate the judgment insofar as it awarded 53 in favor of Mr Harrell and 47 322 against the Succession and amend that decree as follows IT IS HEREBY ORDERED ADJUDGED AND DECREED that there be judgment herein in favor of the intervenor Robert C Harrell and against the estate of the decedent Jacqueline Anne Mullins Harrell on the intervenor claims for reimbursement of s personal funds used by intervenor for the benefit of the decedent or s and decedent estate in the amount of Fiftytwo Thousand Five Hundred Two and 02100 52 Dollars 02 502 As amended we affirm the judgment of the trial court Costs of this appeal are assessed to the appellant Doherty Michael Jarreau the independent administrator of the Succession of Jacqueline Harrell AMENDED AFFIRMED AS AMENDED 10
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