Opinion
NO. 2017-CA-0592 C/W: NO. 2017-CA-0593
12-13-2017
SUCCESSION OF OLEE PRITCHETT CONSOLIDATED WITH: WILBERT LYNN PRITCHETT v. CARL FARNO, ET AL.
Andrew W. Horstmyer 3014 Dauphine Street, Suite H New Orleans, LA 70117 COUNSEL FOR PLAINTIFF/APPELLANT Stephen D. Marx CHEHARDY, SHERMAN, WILLIAMS, MURRAY, RECILE, STAKELUM & HAYES, LLP One Galleria Boulevard, Suite 1100 Metairie, LA 70001 COUNSEL FOR DEFENDANT/APPELLEE
APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2016-07269 C\W 2016-10813, DIVISION "L-6"
Honorable Kern A. Reese, Judge Judge Marion F. Edwards, Pro Tempore (Court composed of Chief Judge James F. McKay, III, Judge Paula A. Brown, Judge Marion F. Edwards, Pro Tempore) Andrew W. Horstmyer
3014 Dauphine Street, Suite H
New Orleans, LA 70117
COUNSEL FOR PLAINTIFF/APPELLANT Stephen D. Marx
CHEHARDY, SHERMAN, WILLIAMS, MURRAY, RECILE,
STAKELUM & HAYES, LLP
One Galleria Boulevard, Suite 1100
Metairie, LA 70001
COUNSEL FOR DEFENDANT/APPELLEE AFFRIMED
Appellant, Wilbert Lynn Pritchett, appeals two judgments of the trial court in these consolidated matters relating to the succession of his father, Olee Pritchett. For reasons that follow, we affirm both judgments.
Olee Pritchett died intestate in New Orleans on September 12, 2001. At the time of his death, Mr. Pritchett owned immovable property located at 1011 Treme Street in New Orleans (the property), which was the only asset of the succession. Mr. Pritchett's sister, who lived out of state, paid the property taxes on the property until her death a few years later. No maintenance was done on the property since Mr. Pritchett's death, and the property fell into disrepair.
Sometime in 2013, Carl Fanaro, the sole member and manager of Oyster Ventures, LLC (Oyster), a Louisiana limited liability company involved in property preservation and rehabilitation, became interested in the home. By this time the property was blighted and uninhabitable. It had no door, no electricity, and no water or gas connections. It was severely damaged by termites, and extensive vegetation covered the roof. Mr. Fanaro began researching the ownership of the property. He learned that the property was owned by Olee Pritchett, who was deceased. He also learned from relatives that Mr. Pritchett had a surviving son who was still living somewhere in Louisiana. That son was reportedly indigent and spent some time in prison, and relatives had lost contact with him.
Photos introduced into evidence at the hearing support this assertion.
The record shows that an "Affidavit of Intent to Possess" was filed by adjoining property owners pursuant to La. R.S. 9:5633 in November of 2015 seeking to acquire the property by acquisitive prescription. However, it does not appear the neighbors were successful in their attempt at acquisition of the property. Subsequently, the property was transferred to Jean Marcel St. Jacques, LLC in a tax sale on May 5, 2016. The property had several blight liens and was the subject of a foreclosure for code enforcement liens by the City of New Orleans in the amount of $17,235. A notice of seizure in that foreclosure action was issued as a prelude to a sheriff's sale as evidenced by a "Request for Issuance of Writ of Fieri Facias" filed by the city.
R.S. 9:5633 allows adjacent property owners to acquire blighted property under certain circumstances.
In May of 2016, Oyster redeemed the property by paying the tax redemption cost of $10,408.90 to the City of New Orleans. Oyster was also able to prevent the sheriff's sale in the foreclosure proceeding by paying the blight liens.
In July of 2016, Oyster filed a "Petition for Administration" seeking to be appointed administrator of the succession of Olee Pritchett as a creditor of the succession pursuant to La. C.C.P. art. 3098A(3). The sworn descriptive list attached to the petition values the property at $40,000, subject to $30,000 in encumbrances. Oyster furnished the required security and was appointed administrator of the succession.
A. When the appointment as administrator or dative testamentary executor is claimed by more than one qualified person, except as otherwise provided by law, preference in the appointment shall be given by the court in the following order to: (3) The best qualified of the creditors of the deceased or a creditor of the estate of the deceased, or a co-owner of immovable property with the deceased.
The following day, Oyster filed a "Petition for Private Sale" of the property. The petition alleged that no effort has been made to satisfy the succession debts or maintain the property and that the property is in "substantial disrepair". The petition sought to sell the interest in the property to Deep South Home Buyers, LLC (Deep South) for $40,000. An appraisal for that amount is attached to the petition and signed by Keith Toso, a licensed appraiser. Also attached is a document from the Orleans Parish Assessor's Office verifying the assessed value of the property. The sale was advertised, and on August 9, 2016, the court authorized the sale as prayed for in the petition. Since the purchase, Deep South has obtained a permit from the City to begin restoration of the property.
The deceased's son, Wilbert Lynn Pritchett, learned of the tax sale from a neighbor. He consulted an attorney, and on September 26, 2016, filed a petition to be substituted for Oyster as administrator of the succession. The petition also requests the return of the proceeds of the sale of the property to the succession. Oyster opposed the petition and filed an exception of no cause of action, as well as a motion to disqualify Mr. Pritchett based, on multiple felony convictions.
It is not certain from the record that Wilbert Lynn Pritchett is the sole surviving heir. Wilbert Pritchett testified that he knew that two of his three siblings were deceased, but had not spoken to, or heard from one of his brothers for over 26 years. There is also some testimony to indicate that at least one of the siblings had a child.
On November 2, 2016, Wilbert Pritchett filed a separate action against several defendants including Oyster and Deep South, seeking to nullify the judgment homologating the tableau of distribution and to cancel the sale of the property to Deep South.
Carl Fanaro, the sole member and manager of Oyster, Christopher Genard, Angela Rodriguez and Big Easy Investments, LLC were also named as defendants in this action.
The two matters were consolidated in the district court, but were heard separately and decided in two separate judgments. The trial court denied Wilbert Pritchett's petition to be substituted for Oyster as administrator of the succession in a judgment dated December 27, 2016, and denied the exception of no cause of action and the motion to disqualify (Judgment One). The trial court denied the petition to nullify the judgment homologating the tableau of distribution and to cancel the sale of the property to Deep South in a judgment dated February 22, 2017 (Judgment Two). Wilbert Pritchett appealed both judgments. The matters were consolidated on appeal.
JUDGMENT ONE
The first judgment on review is the December 27, 2016 judgment denying Wilbert Pritchett's petition to remove and substitute the succession administrator, forfeit bond and all other relief and claims asserted by Mr. Pritchett against the administrator, Oyster Ventures, LLC, with prejudice.
In brief to this Court, Wilbert Pritchett assigns five errors relating to this judgment. Mr. Pritchett argues the decision to confirm Oyster's appointment as succession administrator based on creditor status violated his constitutional right to redeem the property as sole heir of the deceased. He further argues that the trial court erred in failing to inquire about the nature or origin of the debt in Oyster's claim to be a creditor of the succession. Wilbert Pritchett argues that Oyster acted prematurely by hiring an appraiser and negotiating the sale of the home before the appointment of the administration of the succession, and that Oyster filed the petition for appointment before it was actually a creditor of the succession.
Mr. Pritchett also argues that he accepted the succession years earlier, was registered to vote at the address of the property, and has lived in the home since 1958. At the hearing Wilbert Pritchett testified that he lived in the property without electricity, water or gas connections and used a blanket for a front door. However, he acknowledged that he did not pay the taxes or the blight liens, and did not do any maintenance or repairs on the home because he was depressed and financially unable to do so. Mr. Pritchett also admitted to being a convicted felon.
In support of his initial argument relating to the violation of his constitutional rights to redeem the property, Wilbert Pritchett argues that Louisiana Constitution Article VII 25(B)(2), which is specific to blighted properties in the City of New Orleans and provides for an eighteen month redemption period, should be applied rather than La. C.C.P. art. 3097A(3).
La. Const. art. VII, § 25 (B) Redemption. (1) The property sold shall be redeemable for three years after the date of recordation of the tax sale, by paying the price given, including costs, five percent penalty thereon, and interest at the rate of one percent per month until redemption. (2) In the city of New Orleans, when such property sold is residential or commercial property which is abandoned property as defined by R.S. 33:4720.12(1) or blighted property as defined by Act 155 of the 1984 Regular Session, it shall be redeemable for eighteen months after the date of recordation of the tax sale by payment in accordance with Subparagraph (1) of this Paragraph.
3097A. No person may be appointed dative testamentary executor, provisional administrator, or administrator who is: (3) A convicted felon, under the laws of the United States or of any state or territory thereof.
Mr. Pritchett's argument is unconvincing. "It is a fundamental rule of statutory construction that when two statutes deal with the same subject matter, if there is a conflict, the statute specifically directed to the matter at issue must prevail as an exception to the statute more general in character." However, the rules of statutory construction apply only when there is a conflict between laws which deal with the same subject. In the matter before us there is no conflict between the cited constitutional article that provides for a shortened period for redemption of blighted property sold at a tax sale, and the code article setting forth persons qualified to become a succession representative. The subject of the two laws is different, and therefore, the laws are not in conflict.
State v. Campbell, 2003-3035 (La. 7/6/04), 877 So.2d 112, 118, (citing Fontenot v. Reddell Vidrine Water Dist ., 2002-0439 (La. 1/14/03), 836 So.2d 14, 28).
The property was purchased in a tax sale in May of 2016. Oyster redeemed the property in July of 2016. The relevant documents to support the redemption by Oyster are contained in the record and Mr. Pritchett does not dispute the validity of the documents or the relevant facts. As we understand his argument, Mr. Pritchett asserts he should have be given the full eighteen months provided for in Louisiana Constitution Article VII § 25(B)(2) to redeem his father's property, regardless of the redemption by Oyster. He argues that the redemption by Oyster, which was less than four months after the tax sale, infringed on his constitutional due process rights to redeem his father's home within the eighteen months allowed by the Louisiana Constitution. Simply put, the period of eighteen months he should have had to redeem the property was unconstitutionally shortened by Oyster's act in redeeming the property sooner.
We find no legal support for Mr. Pritchett's argument. Oyster points out that the succession benefited from the prompt action because the redemption prevented the sheriff's sale of the property that was formally requested by the city in July of 2016. It is also evident from the record that Mr. Pritchett did not pay any of the taxes or code enforcement fines due on the property, although he claimed to live in the property since 1958.
"Any person may redeem tax sale title to property, but the redemption shall be in the name of the tax debtor." The law does not restrict redemption of property to the owner or the heirs of the owner. Nor does the law provide for a waiting period before the redemption can occur. Louisiana Constitution Article VII, § 25(B)(2) provides that abandoned property in the City of New Orleans which is blighted "shall be redeemable for eighteen months after the date of recordation of the tax sale by payment..." Under the law Oyster had the constitutional right to redeem the property in Olee Pritchett's name by paying the back taxes as well as other amounts that may be proven due within eighteen months from the date of the tax sale.
See Philnola LLC v. Manganello, 2015-284 (La.App. 5 Cir. 12/23/15), 184 So.3d 148, 151-52 (discussing a three-year period for redemption).
In his next argument, Wilbert Pritchett asserts Oyster does not qualify as creditor of the succession and does not have standing to open the succession. Mr. Pritchett argues the petition for administration was filed before the redemption was finalized. In this part of the objection to the appointment, Mr. Pritchett does not argue that Oyster wasn't a creditor of the succession when the appointment was made, only that it was not a creditor at the time the petition was filed. The basis of this argument is that the petition for administration was filed on July 21, 2016, about thirty-nine minutes before the receipt for full payment of the tax lien was certified in the Receiving Warrant.
The record contains a copy of the redemption calculation dated June 22, 2016 showing a total of $10,408.90 balance due for unpaid taxes and code enforcement liens. The record also contains copy of a cashier's check dated July 20, 2016 in that amount tendered to the City of New Orleans for payment of all amounts due on the property. The receiving warrant issued by the City, although dated July 21, 2016, reflects that the taxes were paid in full by cashier's check on July 20, 2016. Accordingly, we find Oyster was a creditor of the succession at the time the petition was filed; and therefore, Oyster had status to petition for appointment as administrator of Olee Pritchett's succession.
In his next argument, Mr. Pritchett asserts that, as sole heir, he should have been substituted as administrator pursuant to La. C.C.P. art. 3098, which gives priority to heirs over creditors when appointing an administrator of a succession. These priorities apply only where one qualified claimant opposes the appointment of another qualified claimant and provokes a hearing on the opposition prior to the appointment.
A. When the appointment as administrator or dative testamentary executor is claimed by more than one qualified person, except as otherwise provided by law, preference in the appointment shall be given by the court in the following order to: (1) The best qualified among the surviving spouse, competent heirs or legatees, or the legal representatives of any incompetent heirs or legatees of the deceased. (2) The best qualified of the nominees of the surviving spouse, of the competent heirs or legatees, or of the legal representatives of any incompetent heirs or legatees of the deceased. (3) The best qualified of the creditors of the deceased or a creditor of the estate of the deceased, or a co-owner of immovable property with the deceased.
Succession of Bradford, 27,123 (La.App. 2 Cir. 6/21/95), 658 So.2d 248, writ granted, matter remanded on other grounds, 1995-1884 (La. 12/8/95), 664 So.2d 393.
Mr. Pritchett did not petition for notice of application of appointment as provided for in La. C.C.P. art. 3091 , nor did he oppose the appointment of Oyster as administrator of the succession when the petition was filed. Oyster has been appointed as administrator. Mr. Pritchett filed a petition to be substituted for Oyster after the court confirmed the appointment and after the court authorized the sale of succession property. Therefore, La. C.C.P. art. 3098 is inoperative and the priorities do not apply to the instant case.
An interested person desiring to be notified of the filing of an application for appointment as administrator, at any time after the death of the deceased, may petition the court in which the succession has been opened, or may be opened, for such notice. A petition for such notice shall comply with Article 3092, shall bear the number and caption of the succession proceeding, and shall be docketed and filed by the clerk in the record thereof. When a petition for such notice has been filed within ten days of the death of the deceased, or prior to the application for appointment as administrator, the applicant for appointment shall serve the notice prayed for, as provided in Article 3093.
Succession of Armentor, 426 So.2d 1366, 1369 (La.App. 3 Cir. 1983).
Under these facts, the disqualification of an administrator can be accomplished only for the reasons set forth in La. C.C.P. art. 3097. "An executor who qualifies under the provisions of La. C.C.P. 3097 cannot be removed from office except for one of the reasons stated in La. C.C.P. art. 3182, or for breach of fiduciary duty imposed by La. C.C.P. art. 3191."
Id.
Succession of Luwisch, 1995-1185 (La.App. 4 Cir. 5/22/96), 675 So.2d 799, 801, (citing Succession of Orlando, 442 So.2d 501 (La.App. 5 Cir. 1983), writ denied 446 So.2d 1227 (La.1984)).
La. C.C.P. art. 3191 provides, in part:
A succession representative is a fiduciary with respect to the succession, and shall have the duty of collecting, preserving, and managing the property of the succession in accordance with law. He shall act all times as a prudent administrator, and shall be personally responsible for all damages resulting from his failure so to act.
La. C.C.P. art. 3182 provides:
[T]he court may remove any succession representative who is or has become disqualified, has become incapable of discharging the duties of his office, has mismanaged the estate, has failed to perform any duty imposed by law or by order of the court, has ceased to be a domiciliary of the state without appointing an agent as provided in Article 3097(A)(4), or has failed to give notice of his application for appointment when required under Article 3093.
Mr. Pritchett does not allege Oyster has breached its fiduciary duty to the succession, or that it has failed to perform any duty imposed by law or by order of the court. His arguments in support of this assignment of error suggest allegations of mismanagement of the estate. Mr. Pritchett argues Oyster's status as succession administrator should not have been confirmed because it hired an appraiser for the property and negotiated the sale to Deep South before the petition for administration was filed. Mr. Pritchett alleges that these actions amount "to predatory gentrification." "Gentrification" and its effect on neighborhoods are matters reserved for city planners and have no bearing on the legal qualifications of the administrator of this succession.
Moreover, we do not find that pre-succession planning is mismanagement. At the hearing, Mr. Fanaro testified that he had to assess the value of the property to properly evaluate whether the succession property exceeded the debts, especially considering that the property was so heavily encumbered by liens. Further, it is clear from the record that the property was in imminent danger of foreclosure, and that swift action was necessary to preserve the only asset of the succession. Mr. Fanaro was able to find a qualified buyer willing to purchase the property for the appraised value to prevent the loss of the asset. We do not find the actions taken by Oyster constitute mismanagement of succession property. We find no merit in Mr. Pritchett's argument.
In his fourth assignment of error, Wilbert Pritchett raises questions about the sale of the property to Deep South. The value of the property was assessed by a licensed appraiser and Mr. Pritchett does not question the value. He argues that the sale required leave of court because Christopher Genard, a principal in Deep South, was also a party to the succession in that he signed the Affidavit of Death and Jurisdiction. Mr. Pritchett asserts this amounts improper self-dealing. Mr. Pritchett cites no legal authority to support his assertion that one who attests to an affidavit of death becomes a party to the succession. Deep South did not sell the property to itself. Oyster, as administrator of the succession, sold the property to Deep South in accordance with law.
"A succession representative may sell succession property in order to pay debts and legacies, or for any other purpose, when authorized by the court......" "The approval of an application to sell succession property at a private sale rests within the sound discretion of the trial court, provided of course, that there are good reasons for the sale and the sale is in the best interest of the succession."
Succession of Shepherd, 454 So.2d 1265 (La.App. 2 Cir.1984), La. C.C.P. art. 3281.
The property was sold to Deep South with authorization from the court, after proper appraisal and advertisement in accordance with law. The property was blighted and at risk of being sold at a sheriff's sale. The district court found the sale of the property to be in the best interest of the succession. We find no abuse of the discretion in that ruling. Accordingly, we find no merit in this assignment of error.
Finally, Mr. Pritchett argues the trial court had no jurisdiction to allow Oyster to open the succession because Mr. Pritchett "had long ago accepted the Succession of Olee Pritchett" unconditionally by taking physical possession of the property.
We find the trial court had jurisdiction and authority to open the succession pursuant to La. C.C.P. art. 3393B which provides:
After formal or informal acceptance by the heirs or legatees or rendition of a judgment of possession by a court of competent jurisdiction, if other property is discovered, or for any other proper cause, upon the petition
of any interested person, the court, without notice or upon such notice as it may direct, may order that the succession be opened or reopened, as the case may be, regardless of whether or not, theretofore, any succession proceedings had been filed in court. The court may appoint or reappoint the succession representative, if any, or may appoint another, or new, succession representative. The procedure provided by this Code, for an original administration, shall apply to the administration of successions formally or informally accepted by heirs or legatees and in successions where a judgment of possession has been rendered, in so far as same is applicable.
Wilbert Pritchett admitted he did not judicially open the succession, seek a judgment of possession, or make any attempt to pay the debts of the succession or preserve its sole asset. Mr. Pritchett did not pay the taxes or code enforcement liens on the property or make any repairs, nor did he make any attempt to oppose the tax sale, or to prevent the foreclosure and sheriff's sale of the property.
Even assuming Mr. Pritchett lived in the blighted home and accepted the succession, it is not clear from the record that Wilbert Pritchett is the sole surviving heir. Mr. Pritchett testified that he has lost contact with at least one of his siblings and that one other sibling may have had a child. Under these circumstances we find the trial court had proper cause to order that the succession be opened and to appoint a succession representative to protect possible heirs and pay the substantial debts of the succession.
Finding no merit in the assignments of error raised by Wilbert Pritchett, we affirm the judgment of the trial court denying Wilbert Pritchett's petition to remove and substitute the succession administrator.
JUDGMENT TWO
The second judgment in these consolidated cases is a grant of a summary judgment that dismissed Wilbert Pritchett's "Petition for Order Nullifying Judgment Homologating Tableau of Distribution and Cancelling Private Sale of Immovable" with prejudice and declared the judgment to be final and appealable. The petition sought to invalidate the actions of Oyster as administrator of the succession. Deep South was named as an indispensable party to the action seeking to nullify the sale based on the fact that it is the purchaser of the property. Deep South filed a Motion for Summary Judgment in response to the petition. That motion was granted by the trial court.
Mr. Pritchett appeals the grant of summary judgment. He argues that the summary judgment was premature because there has been no discovery, and that summary judgment is inappropriate because the appointment of Oyster as administrator was improper for reasons assigned in his arguments on Judgment One.
A defendant may move for summary judgment at any time. "After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law."
La. C.C.P. art. 966 A(1).
La. C.C.P. art. 966 A(3).
In his first assignment of error, Mr. Pritchett asserts that he was not given the opportunity to conduct discovery. "There is no absolute right to delay action on a motion for summary judgment until discovery is complete. Rather, all that is required is that the parties have a fair opportunity to carry out discovery and to present their claim. It is within the trial court's discretion to render summary judgment or require further discovery, and a trial court's decision in this regard should only be reversed upon a showing of an abuse of discretion."
McCastle-Getwood v. Prof'l Cleaning Control, 2014-0993 (La.App. 1 Cir. 1/29/15), 170 So.3d 218, 223, (citing Ladart v. Harahan Living Center, Inc., 13-923, p. 12 (La.App. 5 Cir. 5/14/14), 142 So.3d 103, 110, writ denied, 14-1147 (La. 9/19/14), 149 So.3d 243). --------
Mr. Pritchett's argument is not specific as to what form of discovery remains necessary or what type of information he seeks to discover. He merely states that the time between the filing of the petition and the motion for summary judgment was too short. Mr. Pritchett does not maintain and it does not appear from the record that he moved for a continuance or that he attempted to conduct discovery. Given the circumstances of this case, the facts presented to the trial court, we find no abuse of discretion in this instance.
In his second assignment of error relating to this judgment, Mr. Pritchett argues the grant of the summary judgment was error because it was based on the district court's incorrect decision in Judgment One. Mr. Pritchett opposed the summary judgment making the same arguments posed in his petition to be substituted for Oyster as succession representative. He argues that his constitutional rights were violated by the procedure, that Oyster was not a creditor when the petition for administration was filed, and that Deep South essentially sold the property to itself in an improper self-dealing transaction. Because we have considered and rejected these arguments in our discussion of Judgment One, we find no merit in these arguments.
For the foregoing reasons, we affirm both judgments on appeal.
AFFIRMED