In the Matter of the Succession of Geneva Ginn Himel

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NOT DESIGNAZ FOTt PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2011 CA 1638 IN THE MATTER OF THE SUCCESSI F N GENEVA GINN HiMEL VERSUS MARY TODD CYNTHIA GAULT AND MARTHA CUOPER TESTAMENTARY EXECUTRIX Judgment Rendered UL I 7 2012 On Appeal from the Twenty Judicial District Court First In and for the Parish af Tangipahoa Trial Caurt Number 20Q9 03Q479 Thc IIonorabl W Ray Chutz Judge s Charl A Schutte Jr Baton Rouge Louisiana Appellants Plaintiffs Mary Todd Cynthia Gault and IVlartha Cooper Testamentary cutrix Ex Duncan S Kemp III mond aYr Lauisiana Counsel for Plaintiff Appellee Herman Dennis Himel lIl BEFORE GAIDRY McDONALD AND HUGHES JJ C t arip v nLa GAIDRY J This is an appeal of a judgment declaring a will null and void For the i asons r that follow we deny the motion to dismiss the appeal and affirm the trial court judgment s FACTS AND PROCEDURAL HISTORY On December 23 2009 this suit was instituted by the fling of a Petition to File and Execute Statutory Testament by Martha Himel Cooper who alleged she was a cowith Mary Frances Himel Todd executor The petition alleged that the decedent Geneva Ginn Him Mrs Himel 1 died on December 6 2009 domiciled in Tangipahoa Parish leaving a statutory will ex in accordanc with LSA art 1577 on February cuted C 16 2001 and a codicil executed on June 2 2004 The statutory will and codicil were also alleged to be self pursuant to LSA art proving P GC 2891 On January 4 201 Q the trial court ord the February 16 2001 will red and June 28 2004 codicil be filed and executed in accordance with their terms The affidavit of death and heirship filed with the December 23 2009 petition indicated that Mrs Himel was married to H Dennis Himel Jr rman Mr Himel who predeceased her and that four surviving children were born of the marriage Herman Dennis Him III Dennis Martha Himel l Cooper Martha Cynthia Elain Himel Gault Cynthia and Mary Frances Himel Todd Mary The children all were above the age of three twenty and were competent In conjunction with the petition Martha and Mary filed a separate petition seeking to be appointed co being so named in 1VIrs executrixes For ease of discussion we will refer to the parties herein by their tirst names We note that Dennis was ed refer at various times in the trial court record as Denny and Cynthia was aiso referred to as Elaine s Himel will and asserting that the will dispensed with the posting of security An order was issued by the trial court on January 4 2010 contirming Martha and Ma as co of Mrs Himel succession ry executrixes s without th posting of security Mrs Himel s February 16 2001 will specially bequeathed to each of her four children between seventeen and twenty items of movable one property each consisting of items of china crystal silverware serving or pieces and jewelry She further bequeathed all her remaining property less and except the individual bequests to her residuary estate which she stated consisted of movable immovable corporeal incorporeal community or separate property and she specif cally bequeathed her residuary estate to Martha Cynthia and Mary only Martha and Mary were named co and they were relieved of the necessity of furnishing executrixes bond or security Mrs Himel June 28 2004 codicil stated her intent to delete her prior s special bequest as stated in her February 1 2001 will to Dennis ar to d reinove Dennis entirely from her will Mrs Himel in her codicil then queathed b the items of movable property previously bequeathed to Dennis to be evenly divided b her three daughters tween On February 19 2010 Dennis filed a to Annul Probate Petition naming as defendants Martha Cynthia and Mary and asserting that at the time of the execution of the February 16 2001 will and the June 28 2004 codicil Mrs Himel lacked the capacity to ex these documents that the cute Louisiana Code of Civil Procedural Article 2931 provides probated testament may be annulled only by a direct action brought in Che succession proceeding against the legatees the residuary heir if any and the executor if he has not been discharged The action shall be tried as a summary prnceeding Further Comment b to Article 2931 states Iaction to annul the probated testament is a new suit requiring he citation and service on all defendants who have the same delay for answering as in any other ordinary proceeding The requirement that ihe action be brought in ihe succession proceeding permits the who judge probated Che testament to try the nullity action Thus Dennis is the plaintift in the action to annul the led and executed will and his sisters are the defendants 3 I documents w procured by fraud and duress and were the products of re undue influence by the defendants that so impaired the volition of the testatrix so as to substitute the will of the defendants or the will of the testatrix Dennis requested that the trial court declare the will and codicil null and void Thereafter on November 12 2010 Nita R Gorell a former attorney or Mrs Himel not the attorney before whom Mrs Himel executed th February 16 2001 will and th June 28 2004 codicil filed a motion to file a will pr executed b her on May l l 2000 into the trial court viously fore record it was so ordered by the trial court on November 17 2010 In the prior May 11 2000 wil excepting certain personal belongings to be addressed in a codicil which does not appear in the record Mrs Himel left her estate in qual shares to all four of her children Following a January 4 2011 hearing on the petition to annul 5 judgment was rendered on February 22 2011 and signed on May 2 2Q11 declaring th February 16 2001 will and June 28 2Q04 codicil to the will of Geneva G Himel previously probated by the trial court null and void The judgment was designated final and app with the trial court citing alable no just reason to delay an appeal in accordance with LSA art P C 191 S 1 B The defendants Mrs Himel daughters hav appealed this judgment s and urge the fol lowing assignments of error on appeal 1 the trial court failed to follow the law by requiring the def to prove why Mrs ndants Himel excluded Denrtis from the will and codicil 2 the trial court erred in determining that the circumstances and Dennis conduct did not justify the s execution of the will and codicil 3 the trial court erred in determining that 4 there was reliable medical evidence that Mrs Him executed the will and l codicil due to undue influence by the defendants and 4 the trial court erred because there is na evidence that the defendants conv any false or yed misleading information to unduly or improperly influence Mrs Himel and cause her to execute the will and codicil Dennis has filed a motion to dismiss his sisters appeal asserting the trial court granted them a suspensive appeal without the posting of an appeal bond contrary to the requirement ofLSA art 2124 P GC LAW AND ANALYSIS otion M to Dismiss A eal We first address Dennis contention that his sisters appeal should be s dismissed for failure of the trial court to require and failure of his sisters to post a suspensive appeal bond Dennis suggests to this court that since his sisters asserted to the trial court in their motion for appeal that they were not required to post a suspensive appeal bond under LSA art 2124 P C 3 The motion to dismiss the appeal was ref to this panel for disposition by the January 30 2012 order erred ofthis court a Article 2124 provides A No security is required for a devolutive appeal B The security to be furnished for a suspensive appeal is determined in accordance with the following rules I When the judgment is for a sum of money the amount of the security shall be equal to the amount of judgment including the interest allowed by the judgment to the the date the security is furnished exclusive of the costs a However in all cases except litigation related to the Tobacco Master Settlement Agreement or any litigation where the state is a jud creditor where the nent ount ait of the judgment exceeds one hundred fifty million dollars the trial court upon motion and after a hearing rnay in the exercise af its broad discretion tix the security in an amount sufficient to protect the rights of the judgment creditor while at the same time preserving the favored status of appeals in Louisiana b The time for taking the suspensive appeal under Article 2123 shall be interrupted for judgments pursuant to Article 2124 until the trial court fixes the a 1 B amount ofthe security and commences anew on the date the security rs fixed 2 When the judgment distributes a fund in custodia legis only security sufticient to secure the payrnent of costs is required 3 In all other cases tl security shall be xed by the trial court at an amount e sufficient to assure the satisfaction of the judgment together with damages for the delay lting rom resu fthe suspension of the execution 5 as the judgment granted only declaratory relief that the error of the trial cour in failing to require a bond is imputable to them and therefore LSA P C art 2161 authorizes the dismissal of their argument Dennis further cites Bonvzllian v appeal In support of his Lawyers Title Insurance Corporation 264 So 238 La App 4 Cir writ denied 262 La 1175 2d 266 So 450 1972 and Geisenheimer Realty Company v Board of 2d Commissioners of Port of New Orleans 204 So d28 La App 4 Cir 2d 1967 as holding that the timely furnishing of an appeal bond is an indispensable prerequisite to divest the trial court of jurisdiction and for appellate jurisdiction to attach and that the failure to post the required security within the delay allowed is not just a simple error irregularity or defect within the purview of Article 21 fi 1 but rather strikes at the heart of this court jurisdictional right to hear the appeal and thus is governed by s P C LSA art 21 b2 and is a fundamental defect that can be made the basis for a valid motion to dismiss at any time C Where the party seeking to appeal from a judgment for a sum of money is aggrieved by the amount of the security fixed by the trial court the party so a grieved may seek supervisory writs to review the appropriateness of the determination of the trial court in fixing the security 1 application for supervisory writ shall be heard by the he court of appeal an a priority basis The time for taking a suspensive appeal under Article 2123 shall be interrupted until the appellate court acts on the supervisory writs to review the determination ofthe trial court in fixing the security and commences anew on the date the action is taken 7 For good cause shown the trial judge in the case of the appeal of a money ment jud to be secured by a surety bond may x the amount of the security at an amount not to exceed one hundred fifty percent of the amount of the judgment including the interest allowed by the judgment to the date the security is furnished exclusive of the costs E A suspensive appeal bond shall provide in substance that it is fumished as securrty that the appcllant will prosecute his appeal that any judgment against him will be paid or satisfied from the proceeds of sale of his property or fhat otherwise the the surety is liable for the amount of the judgment 5 Article 2161 provides An appeal shall not be dismissed because the trial record is missing incomplete or in error no matter who is responsible and the court may remand the case either for retrial or for correction of the record An appeal shall not be dismissed because of any other irregularity error or defcct unless it is imputable to the appellant Except as provided in Article 2162 a motion to dismiss an appeal because of any irregularity error ar defect which is imputable to the appellant must be filed within three days exclusive of holidays of the return day or the date on which the record on appeal is lodged in the appellate court whichever is later 6 The appellants oppose the motian to dismiss contending that the jurisprudence cited by Dennis applied a pre version of amendment 1977 Az 2124 which required a bond even for a devolutive appeal and is therefore inapplicable to this case Further the appellants point out that the judgment appealed was interlocutory not final appealed only pursuant to a P C LSA at 1915 designation and was therefore not subject to an B Article 2124 requirement for an appeal bond for the suspensive appeal of a final judgment Further the appellants assert that Iwas required to ennis contest the failure of the trial court to require a suspensive appeal bond in the trial court We agree witk the appellants insofar as they assert the cases cited by is t Det do not interpret the cur law Article 2124 was amended by 1977 ent La Acts No 176 1 ffectiv January 1 1978 and substituted th current Paragraph A language providing that n security is required for a o devolutive appeal for the prior language that had aread The security to be furnished for a devolutive appeal shall be fixed by the trial court at an amount sufficient to secure the payment of costs Thus we agree with the appellants that even if the trial court grant of a suspensive appeal to them s without bond was improper the a can nevertheless be maintained as a peal devolutive appeal We conclude that since our decision in this case is rendered today the issu with respect to whether a bond should now be required to maintain the appeal as suspensive is moot fore Ther we deny the motion to dismiss the appeal on this basis Validit of Will and Codicil A donation inter vivos or mortis causa shall be declared null upon proof that it is the product of influence by the danee or another person that so impaired the vo of the donor as to substitute the volition of the ition donee or other person for the volition of the donor LSA art 1479 A GC person who challenges a donation because of fraud duress or undue influence must prove it by clear and convrncing evrdence However if at the time the donation was made or the testament executed a relationship of confidence existed between th donor and the wrongdoer and the wrongdoer was not then related to the donor by affinity consanguinity or adoption the person who challenges the donation need only prove the fraud duress or undue influence by a preponderance ofthe evidence LSA art 1483 C In the instant case those alleged to have asserted the undue influence were related by consanguinity or blood the decedent daughters therefore s the cCear and convincing standard of proof applies Proof by clear and convincing evidence is a moare difticult and rigorous standard than proof by a mere preponderance of the evidence See LSA GC art 1483 1991 Revision Comment b To prove a matter by clear ar convincing evidence d means to demonstrate that the existence ofa disputed fact is highly probable that is much more probable than its nonexistence see In re Succession of Fisher 2006 p 9 App 1 Cir 9970 So 1048 1054 In 2493 La 07 19 2d re Successzon of C 2004 p 8 App 1 Cir 9 923 awford 0977 La pS 23 2d So 642 647 writ denied 2005 La 4 926 So 511 2407 06 17 2d though it is less burdensome than the beyand a reasonable doubt standard of a criminal prosecution see Renter v Willis Medical Center Knighton 9 5 La 28 p 7 App 2 Cir 8 679 So b03 607 citing Mztchell v 96 23 2d s T 290 ATc 27 La App 2 Cir 8 660 So 204 writ denicd 95 95 28 2d 2474 La 12 E64 So 456 95 15 2d Article 1479 describes the kind of influence that would cause the of invalidity within the a gift or disposition proscription Physical coercion and dur clearly fall ss of the article The more subtle influences such as creating resentment toward a natural object of a testator bounty by false s statements may constitute the kind of influence that is reprobated by Article 1479 but will still call for evaluation by the trier Since the ways of fact of influencing another person are infinite the definition given in Article 1479 is used in an attempt to place a limit on the kind of influence that is deemed offensive Mere advice or persuasion or kindness and assistance should not constitute influence that would destroy the free agency of a donor and substitute someone s else volition for his own C LSA art 1479 1991 vision R Comment b Article 1479 intentionally defines the influence as being that of the donee or some other person It seems obvious that the influence has to be xercised with the object of procuring a particular gift or bequest While the influence may be exerted by the donee himself the Article covers the situation where the donee takes no part in the activities and may even b ignorant of them so long as some person does exercise control over the donor presumably one who is interested in the fortunes of the danee LSA C art 1479 1991 Revision Comment c It is implicit in Article 1479 The clear and convincing standard of proof is imposed when strong policy considerations are also involved as when testamentary capacity is disputed The supreme court has explained the rationale behind this more stringent burden c proof as follows f To wrest a man property from the person to whom he has given it and to divert s it to others from whotn he has d to withhold it is a most violent injusCice sired amounting to nothin less than post robbery which no court should sanction mortem unless thoroughly saCis ed that the testator was Iegally incapable of making a will Succession fLynns 452 So 1161 1 165 I 1984 2d a 9 that the influence must be operative at the time of the execution of the inter vzvos donation testament or Obviously it should not be necessary that the acts themselves be done at that time or that the person xercising the pressure be present then LSA art 1479 1991 Revision Comment d C Clearly a court should distinguish between a willful deception by a donee or successor as to the character or contents of the instrument or as to certain facts that are material to the disposition and an innocent misrepresentation which would not invalidate a gift or testamentary disposition There is no intent to create a right to challenge donations based on mistake alone LSA C art 1479 1991 Revision Comment e In finding Mrs Himel will and codicil invalid the trial issued the s following written reasons on February 22 2011 After careful consideration of all evidence testimony arguments of counsel and all applicable law the court now issues the following for reasons judgment The instant proceeding is a petition filed by Herman Dennis Himel III to annul the probate of a statutory will executed by his mother neva G Ginn Himel and a subsequent codicil on the grounds of incapacity of the testator and undue influence under LSA C art 1479 Evidence introduced into these proceedings indicates Mrs Geneva Him prepared two wills and a codicil The first l will was a statutory will prepared by Nita Gorrell on May 11 20Q0 That will basically indicated the desire of Mrs Himel was for her children Dennis Himel III Martha Cooper Mary Todd and Cynthia Gault to share equally her estate The second will was prepared by Douglas Curet on February l6 2001 That will basically reduced the bequest to Dennis Himel to only a few movable objects with the bulk of Mrs Himel s estate being equally divided among her three daughters The Codicil was executed before Douglas Curet on June 28 2004 and ffectively served to disinherit Dennis Himel It is apparent from the evidence introduced that Mrs Himel was legally competent when each of the two wills and codicil cuted ex either will were invalidat incompetency Therefore or the of the testatrix this codicil declines the basis court on of The second alleged basis for invalidation is undue influence under LSA art 1479 C 10 to A donatian inter vivos or mortis causa shall be declared null upon proo that it is the product of f influence by the don or another person that so e impaired the volition ot the donor as to substitute the volition of the donee or other person for the volition of the donor Louisiana Civil Code Article 14 sets forth the 3 standard for the burden of proof A person who challenges a donation because of fraud duress or undue influence must prove it by clear and convincing evidence However if at the time the donation was made or the testament executed a relationship of confidence existed between the donor and the wrongdoer and the wrongdoer was not then related to the donor by affinity consanguir or adoption the person who ity challenges the donation ne only prove the fraud d duress or undue influence by a preponderance of the evid nce From the evidence it is clear that on May 11 2400 Mrs s Himel intent was to treat all her children equally It is also clear that by February 16 2001 Mrs Himel donative intent s had begun to chang The challenged testament cannot be set aside unless this court finds by clear and convincing evidence Mrs Himel second will and codicil were the products of s influence that so impaired her volition so as to substitute the volition of another in place of her own Dennis Himel contends his sist isolated his mother from him and poisoned her rs against him Dr Alan Coe Mrs Himel treating physician s Mrs Himel as a paranoid diagnosed schizophrenic As such Dr Coe opined Mrs Himel would be very suspicious and susceptible of su that someone was trying to harm her gestion Dennis Himel received a letter dated March 30 2000 from an attorney retained by Mrs Himel advising Dennis to refrain from contacting Mrs Himel However on April 8 2000 Mrs Himel contacted Dennis and invited him and his wife to her home During that visit a fight ensued between Mary Todd Mrs Him daughter and Dennis Himel and his wife s l Two days later Mrs Himel called her son and advised it would be best if he did not visit her until the succession of his father was settled However approximately one month later on May 11 2000 Mrs Himel executed a will which basically divided her estate equally between all her children On Mother D s ay Denny Himel sent his mother a fruit basket the next day he found the basket thrown in the back of his truck He contacted the owner of the shop and requested him to prepare another fruit basket and deliver it to his moth who accepted it very r appreciatively A few days lat that basket was found thrown r in the back of his pickup truck 11 These actions suggest to this court Mrs Himel was very conflicted torn between choosing sides in a brewing legal battle being waged between her daughters and her son This opinion is supported by the findings made by Dr Coe as stated in his deposition And she t didn certainly she didn want the fighting but I think that t she I speculate but I would say that she wa probably ll coerced Dr Alan Coe deposition p 42 line 20 Referring s to a session on October 3 2000 Dr Coe states This is certainly a quote Mrs Him took the girl side I l s t didn want to Dr Coe further stated that by November 6 2004 he was not even sure if Mrs Him could understand the l meaning of taking an oath When all the evidence is taken as a whole it is clear to this caurt there existed obvious animosity between the sisters Martha Cooper Mary Todd and Cynthia Gault and their brother Dennis Himel Wh asked to explain n the basis of Mrs Himel change of donative intent towards her s Dennis various son reasons were suggested improper handling of Mr H Himel succession conversion of Mrs D s s Himel personal bank account closing of the Ponchatoula auto parts store the failure of Dennis to carry out the wishes of his father by buying out the family interest in the auto parts stores This court is in agreement with the argument advanced by counsel for Dennis Himel in his post trial memorandum that there exist little or no evidence to support the reasons s advanced by the sisters as to why Mrs Himel decided to change r h May 11 20Q0 will The focus of this court inquiry as to s the cause of Mrs Himel decision to change her will is limited s solely to whether undue influence was exerted by one or more of hez daughters It is apparent that influence was always exerted After carefully considering all the evidence it is clear to this court the plaintiff Dennis Himel has satisfied by clear and convincing evidence the changes in Mrs Himel February s l6 2001 will and Jun 28 2004 codicil was due to excessive nce influ by her daughters sufficient to substitute their volition for that of Mrs Himel Accordingly the February 1 2001 will and the June 2 2004 codicil should be set aside as nullities The standard for appellate r of factual determinations by the trial court view is the manifest 118 2008 p clearly error wrong standard In re Succession of Greer La 6 App 3 Cir 6 987 So 305 309 2d 08 S Under the manifest error standard the reviewing court is to assess not whether the fact s finder decision was right but rather whether the decision was a reasonable one in light of the r Henderson v Nzssan Motor Corp 2003 La cord 60b 04 b 2 869 2d So 62 69 The trial court conclusions based on a live s 12 presentation of testimony and a personal observation of the respondent are entitled to great weight See 1 the Matter ofL 476 So 934 937 n S M 2d La App 2 Cir 19 In evaluating a trial court ruling based on a 5 s clear and convincing standard of proof an appellate court must balance the facts militating agait such proof against the facts militating in favor of such st proof and determin if the ruling of the trial court is clearly wrong See State v Johnson 4S8 So 937 943 944 La App 1 Cir 1984 2d In th instant case the trial court applied the correct standard of proof ln doing the so court weighed evidence presented by the plaintiff attempting to establish that the defendants placed their own volition in the place of Mrs s Himel against evidence presented by the defendants attempting to establish that Mrs Himel executed her will under her own volition Specifically the court noted that Mrs Him physician Dr Alan s l Coe had diagnosed her as a paranoid schizophrenic making her susceptible to suggestion influence Dr Coe in fact testified that he suspected that such an exerted was on Mr Himel Despite a letter received by Dennis trom Mrs Himel attorney advising him not to contact her she soor after s invited him to her home for dinner At that dinner an altercation arose between Dennis and his sister Mary After that incident Mrs Himel advised Dennis to estate not equally visit her Sh then executed her first will which divided her among all her children Dennis included The court cited the two attempts by Dennis to send his mother two flower baskets for Mother s Day one of which was witnessed as being accepted very appreciatively by Mrs Himel only for Dennis to find both baskets thrown into the back of his pickup truck The court opined that this evidence as a whole displayed 13 obvious animosi between Dennis and his sisters but not between Dennis y and his mother The court then evaluated the evidence put forth by the defendants to establish that Mrs Himel exclud Dennis from her will on her own d volition Specifically the court noted that the defendants claimed Dennis mishartdled the succession of their father that he misappropriated funds from their mother personal bank account and that he mishandled the s family businesses supporting supporting the It was the apinion of the trial court that the evidence s ument plaintiff ar clearly outweighed the defendants opposing argument the evidertce The defendants claim an error was made by the cou requiring them to put forth evidence to prove rtin why Mrs Himel excluded Dennis from the will The defendants were not required to submit any evidence as the burden rested on the plaintiff to prov his case LSA art 1483 However once the plaintiff did present GC evidence sufficient to carry his burden of proof the defendants had the opportunity to present whatever evidence they might have had to disprove the s plaintif evidence It was the opinion of th trial court based on the evidence presented that it was highly prabable that the volition of the defendants was put in place of Mrs Himel own volition when the 2001 s will was executed and that the existence of this circumstance was more probable than its nonexistence See In re Successzon ofFisher 970 So at 2d 1054 The trial court judgment is not clearly wrong and should not be s dby this appeal disturb CONCLUSION For the reasons assigned the judgment of the trial court declaring the will the February 16 2001 will and June 2 2004 codicil of Geneva Ginn sa Himel null and void is affrrmed All costs of this appeal are assessed to the appellants defendants Mary Todd Cynthia Gault and Martha Cooper MOTION TO DISMISS APPEAL AFFIRMED 15 DENIED JUDGMENT I STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2011 CA 1638 IN THE MATTER OF THE SUCCESSION OF GENEVA GINN HIMEL VERSUS MARY TODD CYNTHIA GAULT AND MARTHA COOPER TESTAMENTARY EXECUTRIX HUGHES J dissenting I proof respectfully dissent has been met do not believe the clear and convincing standard of The history of disagreement and litigation regarding the handling of the succession of Mr Hime1 is as likely a motive as any undue influence which is not a civilian concept The higher burden of proof should be required to protect the will of the testatar

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