Walter J. Horrell VS Lisa C. Matthews
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2010 CA 1694 WALTER J HORRELL VERSUS LISA C MATTHEWS i J On Appeal from the 22nd Judicial District Court Parish of St Tammany Louisiana Docket No 2006 10962 Division G Honorable William J Crain Judge Presiding Walter J Horrell Plaintiff Appellant Covington LA In Proper Person Kathleen D Lambert Stephenson Matthews Chavarri New Orleans LA Attorney for Lambert L C Defendant Appellee Lisa C Matthews BEFORE PARRO GUIDRY AND HUGHES JJ Judgment rendered May 6 2011 PARRO 3 Walter J Horrell appeals a judgment granting a motion for summary judgment in favor of Lisa C Matthews the provisional administratrix of his father succession and s dismissing his possessory action concerning certain immovable property that was his s father separate property For the following reasons we affirm the judgment FACTUAL AND PROCEDURAL BACKGROUND Edward A Horrell Sr Mr Harrell died in New Orleans in 1993 leaving a surviving spouse and five adult children one of whom is the appellant in this case Walter J Horrell Walter Lisa C Matthews was appointed provisional administratrix of Mr Horrell intestate succession on July 3 1997 s This appeal is just the latest in a seemingly interminable series of legal skirmishes involving this succession The suit underlying this appeal is a possessory action filed by Waiter on March 7 2006 concerning immovable property at 711 West 19th Street in Covington Louisiana where he and his wife reside The petition alleged that he had been undisturbed in the actual physical corporeal possession of the property for many years had maintained the property and had paid taxes and insurance on it It further alleged that on or about August 11 2005 Matthews sent him a notice to vacate the property within five days He sought an injunction to prevent Matthews from instituting eviction proceedings against him recognition of his right to maintain possession of the immovable property reimbursement of all funds he had expended for maintenance of the property and damages In an amended petition he alleged another disturbance when on two occasions an individual working for Matthews came onto the enclosed fencedin 1 See Succession of Horrell 95 1598 La App 4th Cir 9 680 So 725 writ denied 962841 96 11 2d La 1 687 So 403 Succession of Horrell 97 2115 La App 4th Cir 3 709 So 97 31 2d 98 25 2d 1069 writ denied 981023 La 5 720 So 669 Horrell v Horrell 991093 La App 1st Cir 98 29 2d 01 15 8 on rehearing 808 So 363 writ denied 01 2546 La 12 803 So 971 In re 2d 01 7 2d Succession of Horrell 03 0482 La App 4th Cir 11 859 So 318 table writ denied 04 0477 03 12 2d La 4 870 So 273 Horrell v Matthews 061838 La App 1st Cir 8 962 So 512 04 8 2d 07 15 2d table 2007WL2318134 unpublished Matthews v Horrell 061973 La App 1st Cir 11 977 07 7 2d So 62 In re Succession of Horrell 07 1533 La App 4th Cir 10 993 So 354 writs denied 08 1 2d 08 2880 and 082889 La 3 3 So 482 Horrell v Barrios 09 2199 La App 1st Cir 7 09 6 3d 10 21 41 So 62 table 201OWL2844342 unpublished A detailed description of the history of this litigation 3d is provided in Matthews 977 So 62 2d z Matthews filed a Rule to Evict Occupants which was set for hearing on March 9 2006 and was temporarily halted by Walter petition in this case s 2 property and attempted to get into the house Matthews filed an answer admitting Walter possession of the property but s claiming he was only a precarious possessor because his possession was at all times with the permission of or on behalf of the owner Mr Horrell succession the s succession She acknowledged sending Walter a notice to vacate the premises She further contended that any claim for reimbursement of his expenses must be brought in the court with jurisdiction over the succession proceedings Matthews also filed a reconventional demand claiming the property was owned by the succession because Mr Horrell had obtained his ownership interest in the property through inheritance from his parents Matthews claimed that by sending the notice to vacate the property s Walter permission to possess the property had been revoked by and on behalf of the succession In a third party demand naming Walter wife Edna Horrell as defendant s Matthews claimed Edna was living with her husband on the property in question and was also a precarious possessor of the property whose permission to continue living there was revoked by the notice to vacate from and on behalf of the property owner the succession Following a hearing on May 17 2006 concerning Walter motion for a s preliminary injunction the district court denied the motion and ordered him to file any reimbursement claims he might have with the administratrix of the succession judgment was affirmed by this court on appeal That See Horrell 2007WL2318134 unpublished After the judgment was rendered at the May 17 hearing Matthews filed a motion to dismiss her reconventional and third party demands which by asserting the claim of ownership of the property would have converted the suit to a petitory action See LSA P C art 3657 Walter and his wife had never been served with these demands and the court granted the motion to dismiss by an order signed June 21 2006 On October 11 2006 Matthews filed a motion for summary judgment contending that as a matter of law Walter was not entitled to enjoin the separate eviction proceeding and that an 3 Matthews motion to evict Walter and his wife was granted by the trial court on June 13 2006 That judgment was reversed by this court on appeal See Matthews 977 So 62 2d 3 eviction proceeding is not a disturbance that forms a basis for a possessory action Walter opposed the motion and also filed a motion to recuse the district court judge who was handling the case Eventually the motion to recuse was heard before another judge and was denied on May 9 2007 By the time the motion for summary judgment was rescheduled for hearing this court judgments of August 15 2007 affirming the s denial of injunctive relief and November 7 2007 reversing the judgment of eviction had been rendered 2d So 62 4 See Horrell 2007WL2318134 unpublished and Matthews 977 A hearing on the motion for summary judgment was finally held on March 4 2010 and the court signed a judgment granting the motion and dismissing Walter s suit on March 19 2010 This appeal followed Walter contends the district court erred in failing to recognize that the former possessory action had been converted to a petitory action by the defendant assertion s of ownership in the answer a reconventional demand and a third party demand erred in treating this action as a possessory action rather than as a petitory action and in ruling that the assertions of ownership in the answer alone were insufficient to convert the possessory action to a petitory action and erred in granting the motion for summary judgment and dismissing his action APPLICABLE LAW Succession occurs at the death of a person LSAC art 934 Succession is the C transmission of the estate of the deceased to his successors LSAC art 871 In the C absence of a valid testamentary disposition the undisposed property of the deceased devolves by operation of law in favor of his descendants See LSA C arts 880 and 888 Immediately at the death of the decedent universal successors acquire ownership and possession of the estate LSA C arts 935 and 936 When a person at his decease leaves several heirs each of them becomes an undivided proprietor of the effects of the succession for the part or portion coming to him which forms among the C heirs a community of property See LSAC arts 797 and 888 see also Matthews 4 Another judgment had also been rendered while this motion was pending which among other things held Walter in contempt of court for refusing to allow Matthews agents to enter the house in order to inventory and appraise certain movable property belonging to the estate That portion of the judgment was affirmed on appeal See In re Horrell 993 So 354 Also pending was a suit brought by Edna 2d Horrell against the appraiser See Barrios 41 So 62 3d 4 977 So at 74 2d A succession 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 LSAC art 3191 A succession representative is deemed to P C have possession of all property of the succession LSAC art 3211 P C Prior to the qualification of a succession representative a successor may exercise rights of ownership with respect to his interests in a thing of the estate as well as his interest in the estate as a whole If a successor exercises his rights of ownership after the qualification of a succession representative the effect of that exercise is subordinate to the administration of the estate LSAC art 938 Matthews 977 So at 7475 C 2d The petitory action is one brought by a person who claims the ownership but who is not in possession of immovable property or of a real right therein against another who is in possession or who claims the ownership thereof adversely to obtain judgment recognizing the plaintiffs ownership LSAC art 3651 George M Murrell P C Planting 1079 Mfg Co v Dennis 061341 La App 1st Cir 9 970 So 1075 07 21 2d To obtain a judgment recognizing his ownership of immovable property the plaintiff in a petitory action shall prove that he has acquired ownership from a previous owner or by acquisitive prescription if the court finds that the defendant is in possession thereof LSA C art 3653 P 1 The possessory action is one brought by the possessor of immovable property or of a real right therein to be maintained in his possession of the property or enjoyment of the right when he has been disturbed or to be restored to the possession or enjoyment thereof when he has been evicted LSA C art 3655 Poirrier v Dale P s Dozer Service Inc 992593 La App 1st Cir 11 770 So 531 535 Although 00 3 2d an actual eviction is a disturbance in fact that gives rise to a possessory action an eviction proceeding is a disturbance in law that asserts the right of ownership in an action or proceeding which is an exception to the right to institute a possessory action See LSA C art 3659 Therefore an eviction proceeding is not a disturbance that P will serve as a basis for a possessory action Jackson v Cam co of Monroe Inc 623 k 2d So 1380 1383 La App 2nd Cir 1993 A precarious possessorone whose exercise of possession is with the permission of or on behalf of the ownermay not bring the possessory action against the person for whom he possesses See LSA C arts 3437 and 3440 Hirschfeld v St Pierre 577 So 747 750 La App 1st Cir 2d 1991 Nor may a precarious possessor acquire the property by acquisitive prescription See LSA C art 3477 When the defendant in a possessory action asserts title in himself he thereby converts the suit into a petitory action and judicially confesses the P C possession of the plaintiff in the possessory action See LSAC art 3657 see also McCurley v Burton 03 1001 La App 1st Cir 4 879 So 186 191 04 21 2d A co owner cannot prevent other coowners from making use of property owned in indivision Therefore that coowner possession cannot divest other coowners of s C their rights of use and ownership See LSAC art 802 see also Hart v Weinstein 98 1398 La App 3rd Cir 3 737 So 72 74 writ denied 990939 La 99 2d 99 14 5 745 So 11 Succession of Miller 95 1272 La App 4th Cir 5 674 2d 96 8 2d So 441 44344 writ denied 961717 La 10 679 So 1390 Furthermore 96 4 2d the possession by a coowner inures to the benefit of the other coowners as owners in indivision cannot acquire title by prescription against one another Lee v Jones 224 La 231 237 69 So 26 28 1953 Towles v Heirs of Morrison 428 So 1029 2d 2d 1031 La App 1st Cir 1983 One exception to the general coowner rule is allowed Louisiana Civil Code article 3439 states in pertinent part that A co owner or his universal successor commences to possess for himself when he demonstrates this intent by overt and unambiguous acts sufficient to give notice to his co owner See Southern Natural Gas Co v Naquin 167 So 434 438 La App 1st Cir 1964 2d I 1 C 1 I Walter filed this possessory action alleging that he had been in actual physical corporeal possession of the property at issue for many years and had been disturbed in his quiet and peaceful possession by a notice to vacate sent to him by Matthews as provisional administratrix of his father succession s A supplemental and amending petition alleged that an agent of Matthews had disturbed his peaceable possession of All the property by coming onto the enclosed fenced property and attempting to enter his home on two occasions This court may notice sua sponte the peremptory exception raising the objection of the failure to disclose a cause of action See LSAC art 927 P C The possessory action is brought by the possessor of immovable property to be maintained in his possession of the property when he has been disturbed See LSA C art 3655 To P maintain the possessory action the possessor must allege that he had possession of the immovable property at the time a disturbance occurred that he or his ancestors in title had such possession quietly and without interruption for more than a year immediately prior to the disturbance unless evicted by force or fraud that the disturbance was one in fact or in law as defined in Article 3659 and that the possessory action was instituted within a year of the disturbance LSA C art 3658 P A disturbance in fact is an eviction or any other physical act that prevents the possessor of immovable property from enjoying his possession quietly or throws any obstacle in the way of that enjoyment A disturbance in law is the execution recordation registry or continuing existence of record of any instrument that asserts or implies a right of ownership or to the possession of immovable property or any claim or pretension of ownership or right to the possession thereof except in an action or proceeding adversely to the possessor of such property or right LSAC art 3659 P C When Walter filed this possessory action there had been no disturbance in fact or in law that would serve as a basis for such an action An eviction proceeding is not a P C 3 disturbance that would give rise to a possessory action See LSAC arts 3658 and 3659 see also Jackson 623 So at 1383 The later amendment of his petition 2d also did not allege a disturbance justifying a possessory action because the attempted entry onto the property by Matthews agent was the result of a judicial action or proceeding in which the court handling the succession had appointed a special process server to serve Walter and had ordered Matthews to inventory and appraise certain movables in Walter home that belonged to his father estate s s 3659 See LSAC art P C Also this court ruled that eviction was not available to Matthews in this case II Matthews 977 So 62 Therefore we conclude as did the trial court that Walter 2d failed to allege facts that would form the basis of a possessory action Walter argues that these observations concerning the possessory action are no longer relevant because Matthews converted the matter to a petitory action by asserting in her answer reconventional demand and third party demand that the succession owned the property See LSAC art 3657 P C Therefore he claims the possessory action was abated and a new action the petitory action was initiated by Matthews Consequently he contends Matthews had the burden of proving that the succession had prescription acquired ownership from a previous owner Matthews however argues that the mention or of by the acquisitive s succession ownership in the answer was only to establish that Walter was a precarious possessor whose possession was at all times with the permission of or on behalf of the owner the succession See LSAC arts 3437 and 3438 C She also contends that since she dismissed her reconventional demand and third party demand before Walter had been served with these pleadings the matter was never converted to a petitory action The trial court found that Matthews answer to the possessory action was not sufficient to convert this matter to a petitory action because it was a general denial with the exception of the allegations concerning his precarious possession The court further stated that the statements regarding the succession ownership were necessary s assertions as part of Matthews general denial We agree with this conclusion Louisiana Code of Civil Procedure article 3656 states that a plaintiff in a possessory A action must be one who possesses for himself A precarious possessor whose exercise of possession is with the permission of or on behalf of the owner may not bring the possessory action against the person for whom he possesses See LSAC arts 3437 C and 3440 Hirschfeld 577 So at 750 The statements in Matthews answer relative 2d to the succession ownership of the property at issue were necessary to assert that s Walter was a precarious possessor whose possession of the property was with the permission of and on behalf of the succession If those statements were borne out by the evidence he could not bring the possessory action against the succession Gua However even if Walter were correct and this matter had been converted to a petitory action it is still the law of this case that the late Mr Horrell succession is s intestate and that Walter is one of his father five adult children all of whom are the s heirs to and coowners in indivision of the Covington property that was their father s separate property See LSAC arts 880 and 888 Matthews 977 So at 72 73 C 2d Horrell 808 So at 369 Although it is not owned by the succession the property 2d was part of Mr Horrell estate and is now part of the succession proceeding to be s administered by the administratrix See LSA C arts 871 872 and 938 6 Matthews 977 So at 74 The sworn detailed descriptive lists filed in the succession 2d proceeding establish that Mr Horrell owned the property before his death and because it was his separate property and he died intestate ownership of the property passed immediately to his heirs See LSAC art 3653 Until the property is partitioned or P C a judgment of possession is executed it remains in the succession and is co owned in indivision by Mr Horrell five children Therefore even if we were to accept Walter s s claim that this matter was converted to a petitory action by Matthews pleadings there is nothing further to prove in order to establish ownership of the property under the current factual evidence in the record Based on the undisputed facts that are the law of the case Matthews was entitled to judgment as a matter of law Accordingly we find no error in the district s court judgment granting Matthews motion for summary judgment and dismissing s Walter case CONCLUSION For the above stated reasons we affirm the judgment of the district court and assess all costs of this appeal against Walter J Harrell AFFIRMED oil
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