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Judge Moore's Dissent, filed June 15, 2011, to follow opinion rendered June 10, 2011.

No. 46,053-CA COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA ***** OTIS ROBINSON, JR., REASSIE McDOWELL, LEONA McDOWELL DONNELL AND THE OTHER HEIRS OF WILLIE MAE TERRELL JETER Versus INEZ T. NUNLY, ADMINISTRATOR OF THE SUCCESSION OF JOANNA "JOE" BIAS, ISAAC DWAYNE MORRIS AND ANNETTE HAUSEY MORRIS ***** Appealed from the Second Judicial District Court for the Parish of Bienville, Louisiana Trial Court No. 38,781 Honorable C. Glenn Fallin, Judge *****
H. RUSSELL DAVIS Counsel for PlaintiffsAppellants Counsel for DefendantsAppellees, Inez Nunly, Administratrix of the Succession of Joanna "Joe" Bias Counsel for DefendantsAppellees, Isaac Dwayne Morris and Annette Hausey Morris

Plaintiffs-Appellants

Defendants-Appellees

MIXON & CARROLL, PLC By: James E. Mixon James L. Carroll Brian E. Frazier

STEWART & STEWART By: Jonathan M. Stewart

***** Before BROWN, GASKINS, CARAWAY, PEATROSS and MOORE, JJ. MOORE, J., dissents with written reasons.

MOORE, J., dissents. I respectfully dissent. I cannot subscribe to the majority's dismissal of the district court's factual findings, its expansive reading of Art. 2004, or its reliance on nonexistent evidence and faulty inferences. The majority concedes that when the plaintiff fails to object to it, the court may consider evidence offered at the trial of the exception of no cause of action. City of New Orleans v. Board of Directors, 98-1170 (La. 3/2/99), 739 So. 2d 748; Gipson v. Fortune, 45,201 (La. App. 2 Cir. 1/27/10), 30 So. 3d 1076, writ denied, 2010-0432 (La. 4/30/10), 34 So. 3d 298. Here, the plaintiffs failed to object to the testimony from a prior hearing or to the mountain of documents they themselves filed in opposition to the exception of no cause. In my view, the district court properly deemed the pleadings enlarged to incorporate this evidence. Based on the evidence, the court found no irregularities in the way the judicial sale was conducted and, further, that Otis Jr. thwarted Mr. Mixon's effort to get actual notice to some of the other heirs. The majority brushes this off as "simply a credibility call," but a credibility call is the distinct prerogative of the trier of fact. Rando v. Anco Insulations Inc., 2008-1163 (La. 5/22/09), 16 So. 3d 1065. In point of fact, Mr. Mixon's testimony was supported by his phone logs and his truly professional attempt to contact all heirs; by contrast, Otis Jr.'s uncooperative stance is apparent even from the cold record. Finding no abuse of discretion or manifest error, I would not dismiss the district court's credibility determination or factual findings. This suit is an action to nullify a judicial sale in a pending succession proceeding. Nullity is predicated on fraud or ill practices. La. C. C. P. art.

2004. Simply put, the plaintiffs recited a litany of irregularities, but they did not allege

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