Preview:

DENNIS G. DRISCOLL                                                              *   NO. 2011-CA-1719
VERSUS                                                                          *
                                                                                    COURT OF APPEAL
EILEEN ANN MOORE                                                                *
MAZALESKI, IN HER                                                                   FOURTH CIRCUIT
CAPACITY AS                                                                     *
TESTAMENTARY                                                                        STATE OF LOUISIANA
EXECUTRIX OF THE                                                                *
SUCCESSION OF MURIEL
BOTHNER MOORE
APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2005-08098, DIVISION “M”
Honorable Paulette R. Irons, Judge
Judge Madeleine M. Landrieu
(Court composed of Chief Judge Charles R. Jones, Judge Madeleine M. Landrieu,
Judge Joy Cossich Lobrano)
Charles L. Stern, Jr.
Danielle C. Babashoff
Margaret V. Glass
STEEG LAW FIRM, LLC
201 St. Charles Avenue
Suite 3201
New Orleans, LA 70170
COUNSEL FOR PLAINTIFF/APPELLANT
Robert A. Barnett
GUSTE, BARNETT, SCHLESINGER, HENDERSON & ALPAUGH, L.L.P.
639 Loyola Avenue
New Orleans, LA 70113-7103
COUNSEL FOR DEFENDANT/APPELLEE
AMENDED AND AFFIRMED AS AMENDED




Dennis Driscoll suspensively appeals the trial court’s judgment that
distributed funds deposited into the registry of the court among himself; his
brother, John Driscoll; and his cousin, Eileen  Moore Mazaleski, in her capacity as
executrix of the succession of her deceased mother, Muriel Moore.  For the reasons
that follow, we amend the judgment in part and affirm as amended.
FACTS AND PROCEEDINGS BELOW
On June 16, 2005, Dennis Driscoll filed the instant action against the
succession of his aunt, Muriel Moore, for partition of 3117-3119 Cadiz Street, a
side-by-side shotgun double Dennis co-owned with her prior to her death in
February, 2005.  The property consists of two separate residences that share
exterior walls and a roof but have separate mailing addresses and exterior doors.
The history of the ownership of this property is pertinent to this appeal.
For nearly forty years, the property was co-owned by two related married
couples: John L. Driscoll and his wife Helen; and Edward C. Moore and his wife
Muriel (the sister of Helen).  The Driscolls lived in 3119 Cadiz with their two sons,
1




John E. Driscoll and Dennis Driscoll.  The Moores lived in 3117 Cadiz with their
only child, a daughter named Eileen.    In 1985, Helen Driscoll died, leaving her
one-fourth ownership interest in the property to her two sons, with their father John
L. Driscoll having a usufruct for life over their portion.  A Judgment of Possession
filed in Helen’s succession and registered in the conveyance records on July 3,
1985 reflects this inheritance.  In 1992, John E. Driscoll died, terminating the
usufruct and leaving his own one-fourth interest in the property to his two sons
equally, as reflected by a Judgment of Possession filed June 22, 1993.
Approximately one year later, the two Driscoll sons agreed to split the various
assets they had been left by their father in a different manner.  As a result, John E.
Driscoll and Dennis Driscoll signed and filed in the conveyance records on April
14, 1994, an Amended Judgment of Possession that granted Dennis an undivided
one-half ownership interest in 3117-3119 Cadiz.
By this time, Edward Moore had also died, and his wife Muriel was living in
3117 Cadiz alone.  From 1995 on, Dennis Driscoll, co-owner with his aunt Muriel,
lived with his family in Ohio and visited New Orleans approximately once per
year, staying at 3119 Cadiz during those visits.  Muriel Moore, however, paid the
majority of the maintenance expenses, property taxes, and insurance premiums for
the entire property until her death in February, 2005.  Muriel bequeathed her share
of the double to her daughter Eileen Moore Mazaleski, who serves as the executrix
of her mother’s estate.
2




As noted previously, Dennis Driscoll filed the instant partition action in
June, 2005, against Ms. Mazaleski, in her capacity as executrix of the Succession
of Muriel Moore.    Ms. Mazaleski answered the petition and asserted a
reconventional demand against Dennis Driscoll and his brother, John E. Driscoll,
seeking reimbursement for their share of common expenses Muriel Moore had paid
for the benefit of the property.  Ms. Mazaleski simultaneously filed an exception
seeking the joinder of John E. Driscoll as an indispensable party to the plaintiff’s
action.  In support of her exception, Ms. Mazaleski asserted that, according to the
public records, John E. Driscoll was still the owner of the one-eighth undivided
interest in 3117-3119 Cadiz that he had inherited from his mother, Helen.1  In
response to the exception, on August 18, 2005, Dennis Driscoll filed an amended
petition adding John E. Driscoll as a defendant to the partition action.
On August 29, 2005, Hurricane Katrina severely damaged the double.  Ms.
Mazaleski deposited into the registry of the court the sum of $34,959.34, which
represented one-half the insurance reimbursement she had received for the
hurricane damage to the property.    Additionally, in 2008, Dennis and John E.
Driscoll agreed to jointly sell their combined one-half interest in the property to
Ms. Mazaleski for the sum of $30,000.00, which was also deposited into the
1 The memorandum in support of Ms. Mazaleski’s exception, filed in the trial court, suggests that because the 1994
Amended Judgment of Possession signed by the two Driscoll brothers was filed only in their father’s succession,
with no corresponding document filed in their mother’s succession, the 1994 Amended Judgment had transferred to
Dennis only the one-eighth interest John had inherited from his father, not the one-eighth interest John had inherited
from his mother in 1985.   Ms. Mazaleski therefore believed that at the time the partition action was filed, her
mother’s succession held a one-half share in the property, John held a one-eighth share, and Dennis held a three-
eighths share.
3




registry of the court.  Accordingly, when the matter was tried on December 15,
2010, there were only two issues remaining to be decided:
(1) Determination of the respective ownership interests of John E. Driscoll
and Dennis Driscoll at the time they conveyed their interests to Ms.
Mazaleski, for the purpose of dividing the sale proceeds between the two
brothers;  and
(2) Determination of the amount of reimbursement for common expenses
due the Succession of Muriel Moore by Dennis Driscoll and/or John E.
Driscoll.
Dennis Driscoll, John E. Driscoll and Eileen Mazaleski testified as the only
witnesses during a one-day bench trial held on December 15, 2010.  On July 20,
2011, the trial court issued a detailed written judgment in which the trial judge
noted that she had “bifurcated” the matter for the ease of addressing the two
separate issues.  Regarding the first issue, the ownership status of the property
between Dennis and John Driscoll at the time they conveyed their interests to Ms.
Mazaleski, the trial court held that John E. Driscoll still owned the one-eighth
share he had acquired from his mother, while Dennis Driscoll owned a three-
eighths share.  Therefore, the trial court divided the $30,000.00 proceeds from the
sale by awarding John twenty-five percent ($7,500.00) and Dennis seventy-five
percent ($22,500.00).  Regarding the second issue, Ms. Mazaleski’s reconventional
demand for reimbursement of common expenses, the trial court held that the
Succession of Moore was owed $24,231.30 by Dennis Driscoll, which amount
4




represented one-half of the common expenses paid by Muriel Moore for the benefit
of the entire property, less one-half of the common expenses paid by Dennis
Driscoll.  The trial court therefore ordered that $24,231.30 of the $34,959.34 being
held in the registry of the court, plus legal interest, be distributed by check to the
Succession of Moore, and that the remainder be distributed by check to Dennis
Driscoll.    Finally, the trial court ordered that, in the event the funds on deposit
with the Clerk of Court proved insufficient to satisfy the judgment in favor of the
Succession of Moore, Dennis Driscoll was cast in judgment for the shortfall, as
well as for all costs of the proceedings.
Dennis Driscoll filed a suspensive appeal from this judgment.      The
Succession of Moore filed an appellee brief contending that the portion of the
judgment awarding reimbursement to the Succession and casting Dennis Driscoll
in judgment for any shortfall and for costs should be affirmed.  John E. Driscoll
has not filed a brief or otherwise participated in this appeal.
ISSUES
On appeal, Dennis Driscoll asserts that the trial court committed two legal
errors, namely:
(1) The trial court incorrectly held that John E. Driscoll retained a one-eighth
interest in 3117-3119 Cadiz after he had signed the Amended Judgment of
Possession, and thus incorrectly ordered that John E. Driscoll be awarded a portion
of the sale proceeds held in the court registry;
5




(2) The trial court incorrectly failed to reduce the amount of the reimbursement
owed to the Succession of Moore by the value of Muriel Moore’s enjoyment of the
property, as required by Louisiana Civil Code article 806.
STANDARD OF REVIEW
The appellant asserts that the trial court has misinterpreted the law in two
respects: (1) the effect of the Amended Judgment of Possession on the Driscoll
brothers’ respective ownership interests, and (2) the application of Civil Code
article 806 to the reimbursement claim.  Because the appellant does not dispute the
trial court’s factual findings but alleges only legal errors, the appropriate standard
of review is as follows:
The standard of appellate review of questions of law is to determine
whether  the  trial  court  was  legally  correct  or  legally  incorrect.
Cangelosi  v.  Allstate  Insurance  Co.,                                                 96-0159   (La.  App.   1  Cir.
9/27/96), 680 So.2d 1358. If the trial court's decision was based on its
erroneous interpretation or application of law, rather than a valid
exercise  of  discretion,  such  incorrect  decision  is  not  entitled  to
deference  by  the  reviewing  court.  Conagra  Poultry  Co.  v.
Collingsworth, 30,155, p. 2 (La. App. 2 Cir.1/21/98), 705 So.2d 1280,
1281-1282.
Billieson v. City of New Orleans, 2002-1993, pp. 3-4 (La. App. 4 Cir. 9/17/03), 863
So. 2d 557, 560.    We therefore have reviewed the record to determine whether the
trial court correctly applied the law in this case.
DISCUSSION
We first note that the trial court’s judgment is inconsistent on its face.  The
trial court found that John E. Driscoll still owned a one-eighth interest in the
property at the time he and his brother conveyed their combined interests to the
Succession of Moore, and it therefore awarded John a corresponding percentage of
6




the sale proceeds.  Despite finding him to be a co-owner, however, the trial court
did not require that John contribute any amount to the reimbursement awarded the
Succession of Moore for the payment of common expenses; nor did the court
award John any share of the insurance proceeds attached to the property.
Dennis Driscoll does not mention this inconsistency in his appellant brief.
He does, however, argue that the trial court erred by finding that John was a co-
owner entitled to receive a percentage of the sale proceeds.  We first address that
argument.
Respective Ownership Interests of Dennis and John Driscoll
In the instant case, John E. Driscoll testified that when he signed the 1994
Amended Judgment of Possession relative to his father’s succession, he intended to
convey his entire interest in 3117-3119 Cadiz to his brother Dennis, and he
believed he had done so.  John further testified that he continued to believe he had
no ownership interest in the property until the instant action was filed (in 2005),
when he first learned, through his attorney, that on the face of the public records,
he still owned a one-eighth share of the property he had inherited from his mother.
John testified that if he were, in fact, still a co-owner, he wanted to pay his share of
the reimbursement due his aunt’s succession for the common property expenses
paid by her.
In oral reasons recited from the bench, the trial court judge stated that she
had based her conclusion primarily upon Louisiana Civil Code Article 958.  That
article, however, which relates to the informal acceptance of succession property,
7




has no applicability to the instant situation.  The article provides:                   “Acts of the
successor concerning property that he does not know belongs to the estate do not
imply an intention to accept.”    The relevant question for the trial court to answer
was not whether John E. Driscoll had accepted his mother’s succession and/or his
father’s succession.  Rather, the issue was whether the 1994 Amended Judgment of
Possession, which ordered that Dennis Driscoll be put into possession of “an
undivided one-half (1/2) interest in and to” the immovable property designated as
3117-3119 Cadiz Street, could legally convey an undivided one-half interest to
Dennis given that the decedent (the father of Dennis and John) owned only an
undivided one-fourth interest at the time of his death, with his sons Dennis and
John each owning the one-eighth interest they had acquired in 1985 from their
mother’s succession.  Although the 1994 Amended Judgment of Possession was
filed in the conveyance records, there was no corresponding document amending
the 1985 Judgment of Possession in the mother’s succession.  Therefore, insofar as
third persons were concerned, the 1994 Amended Judgment of Possession may not
have been sufficient to convey to Dennis the one-eighth interest John had inherited
from his mother.  Therefore, at the time this lawsuit was instituted, the public
records, at least arguably, reflected the ownership of 3117-3119 Cadiz to be as
follows:
8




Succession of Muriel Moore—undivided one-half interest;
Dennis Driscoll—undivided three-eighths interest; and
John E. Driscoll—undivided one-eighth interest.2
Louisiana Civil Code Article 1839 provides, in pertinent part: “An
instrument involving immovable property shall have effect against third persons
only from the time it is filed for registry in the parish where the property is
located.”    There is no question that Ms. Mazaleski, the original defendant in this
partition action, is a “third person” within the terms of Article 1839.    However, the
issue presented for the trial court’s decision in the instant case was not whether
John E. Driscoll still owned a one-eighth share vis-à-vis Ms. Mazaleski, but
whether he retained that share vis-à-vis his brother Dennis.  In 2008, prior to the
trial of this action, John and Dennis jointly conveyed their combined interests to
the Succession of Moore for $30,000.00.  Thereafter, when Ms. Mazaleski
deposited those sale proceeds into the registry of the court, she removed the
Succession from any involvement in the trial court’s decision regarding Dennis’
and John’s prior ownership of the property.  Because Dennis and John were both
parties to the 1994 Amended Judgment of Possession, their rights with regard to
each other were controlled by the document they signed rather than by the public
records.
2 We do not decide here the issue of what ownership was reflected in the public records because that issue is now
moot.   Regardless of the respective ownership interests of Dennis and John prior to the sale to the Succession of
Moore, their joint conveyance of their combined interests to the Succession in 2008 cleared the title on the public
records, as evidenced by this opinion.
9




By signing the Amended Judgment of Possession, Dennis and John made an
agreement with each other that Dennis would take over John’s interest in 3117-
3119 Cadiz in exchange for John receiving other consideration from his father’s
succession.  The testimony of the two brothers confirms that when they signed that
document, their mutual intent was that John’s entire interest in the property be
transferred to Dennis.  Such a voluntary partition of property among co-owners/
co-heirs is recognized and permitted by Louisiana law.3    Moreover, any attempt to
refute the terms of the Amended Judgment of Possession in this proceeding would
constitute a collateral attack on the judgment, which the law does not allow. 4
Accordingly, we conclude that the trial court committed legal error by
finding that John E. Driscoll retained a one-eighth interest in 3117-3119 Cadiz to
the detriment of the ownership interest possessed by his brother Dennis at the time
they jointly conveyed their mutual interests in the property to Ms. Mazaleski as
executrix of the Succession of Moore.  The trial court’s order that twenty-five
percent of the proceeds from the sale of that property be distributed to John E.
Driscoll and the remainder to Dennis Driscoll was legally incorrect.  We therefore
vacate that order and amend the judgment to order that the entire $30,000.00
proceeds of the sale be distributed to Dennis Driscoll.  We note that our ruling
cures the inconsistency that existed in the trial court’s original judgment.
3 See La. C.C. art. 809; and Katz v. Katz, 423 So. 2d 1277 (La. App. 4th Cir. 1982).
4 In Allen v. Commercial Nat. Bank, 147 So.2d 865, 868 (La.1962), the Supreme Court stated: “No principle of law
has received greater and more frequent sanction, or is more deeply imbedded in our jurisprudence, than that which
forbids a collateral attack on a judgment or order of a competent tribunal, not void on its face ab initio.”   See also
Salles v. Salles, 2004-1449 (La.App. 1 Cir.12/2/05), 928 So.2d 1.
10




Reimbursement for Common Expenses Paid by Muriel Moore
Dennis Driscoll next argues that the trial court committed legal error by
failing to reduce the amount of the reimbursement he owed his aunt’s succession
by the value of her enjoyment of the property, as required by Louisiana Civil Code
article 806.      That article provides:
A co-owner who on account of the thing held in indivision has
incurred necessary expenses, expenses for ordinary maintenance and
repairs, or necessary management expenses paid to a third person, is
entitled to reimbursement from the other co-owners in proportion to
their shares.
If the co-owner who incurred the expenses had the enjoyment
of the thing held in indivision, his reimbursement shall be reduced in
proportion to the value of the enjoyment.
The trial court found that the reduction in reimbursement provided for
in  the  second  paragraph  of  article                                              806  was  not  applicable  to  the
circumstances presented by the instant case.    We agree.
Dennis  Driscoll  alleges  in  his  brief  that  a  reduction  in  the
reimbursement is appropriate because “[i]t is undisputed that Ms. Moore had
exclusive use of 3117 Cadiz Street, half of the Property, from January 1992
until February 2005, approximately 146 months.”   Acknowledging this fact,
we nevertheless conclude, as did the trial court, that no reduction for Ms.
Moore’s enjoyment of the property is warranted.   As the appellant admits,
Ms. Moore did not have use or enjoyment of the entire property; she only
had use or enjoyment of one-half, the side in which she lived.   Dennis
Driscoll did not rent out the other side, but he and his family stayed in that
side whenever they visited New Orleans.   Under these circumstances—a
divided house co-owned by two parties, each of which has use of only his
11




side—there  is  no  reduction  for  enjoyment  due  under  article                806.
Accordingly,  we  conclude  that  the  trial  court’s  failure  to  reduce  the
reimbursement owed the Succession of Moore was legally correct.
CONCLUSION
For the reasons stated, we amend the judgment to delete the order
distributing  insurance  proceeds  in  the  amount  of                            $7,500.00  to  John  E.
Driscoll, and to increase the amount of insurance proceeds ordered to be
distributed to Dennis Driscoll to  $30,000.00.    In all other respects, the
judgment of the trial court is affirmed.
AMENDED AND AFFIRMED AS AMENDED
12

Download 305722.pdf

Louisiana Law