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SUCCESSION OF CARLO J. DILEO

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NO. 2011-CA-1256

COURT OF APPEAL * FOURTH CIRCUIT * STATE OF LOUISIANA *******

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2001-7981, DIVISION "D-16" Honorable Lloyd J. Medley, Judge ****** Judge Edwin A. Lombard ****** (Court composed of Judge Edwin A. Lombard, Judge Paul A. Bonin, Judge Madeleine M. Landrieu)

BONIN, J., DISSENTS WITH REASONS LANDRIEU, J., CONCURS WITH REASONS Scott J. Sonnier LEMLE & KELLEHER, LLP Pan American Life Center 21st Floor 601 Poydras Street New Orleans, LA 70130-6078 COUNSEL FOR APPELLANT Beau P. Sagona Eric J. Derbes Daniel J. Poolson, Jr. THE DERBES LAW FIRM, L.L.C. 3027 Ridgelake Drive Metairie, LA 70002 COUNSEL FOR APPELLEE

AFFIRMED

MARCH 21, 2012

This appeal is from summary judgment rendered in favor of the succession decedent's wife, Lillian Giarratano DiLeo, and against one of their daughters, Lucia D. Minvielle. After de novo review of the record in light of the applicable law and arguments of the parties, the judgment of the trial court is affirmed. Relevant Facts and Procedural History Carlo J. Di Leo died on April 30, 2001. On May 11, 2001, a petition for probate of the decedent's will and judgment of possession was properly filed with all requisite documents. The will, signed by the testator on January 26, 1996, specifically provided in relevant pertinent parts: I give and bequeath to my wife, Lillian Giarratano DiLeo, a usufruct for life over my entire estate. Said usufruct shall be over all of my property whether in this state or otherwise. I expressly grant to my spouse, as usufructuary, the right to sell, exchange, lease or otherwise dispose of all assets subject to the usufruct, whether the assets are consumable or non-consumable things. Such disposition shall not require the consent of the naked owners. . . My spouse shall have the power and authority to convert any and all property which is not productive of income into income producing property and to convert any and all non-consumable property into consumable property. . . I give and bequeath to my children, Carol di Leo Bandera, Janet DiLeo Gussman, Lucia Di Leo Minvielle, Sylvia Di Leo Delsa and

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Mary Di Leo Panepinto, in equal proportions, the remainder of my estate subject to the usufruct for live in favor of my wife, Lillian Giarratano DiLeo. . . The term "property" in my testament means all property subject to this testament that I now own or acquire in the future. . . . Any heir who fights any provision of this testament shall have their inheritance reduced to the minimum amount allowed by law at the time of my death. . . . The Judgment of Possession ("the initial Judgment") signed on May 11, 2001, recognized Mrs. DiLeo as heir of the decedent with a usufruct for life and their daughters as naked owners of the decedent's property, "subject to the usufruct for life in favor of their mother . . . ." Included in the estate property listing was the Merrill Lynch brokerage account at issue in this appeal. Notably, however, the Judgment of Possession failed to recite Mrs. DiLeo's explicit right under the decedent's will to convert non-consumable property, such as the investments contained in the Merrill Lynch account, to consumable property for her use as usufructuary. Accordingly, when Mrs. DiLeo sought access to the principal balance of the Merrill Lynch account, Merrill Lynch requested that the account holders, including the naked owners (her daughters), sign documents clarifying that Mrs. DiLeo, as usufruct, had the authority to sell the securities and other assets in the account without approval of the naked owners of the account. One of the DiLeo daughters, Lucia D. Minvielle, refused to sign the proffered documents. Accordingly, Mrs. DiLeo sought to amend the initial judgment to reflect the testator's explicit instruction that Mrs. DiLeo had full authority to convert all property into consumable property for her own use. On February 26, 2010, in a pleading entitled "Supplemental and Amending Petition for Probate and Will and For Possession," Mrs. DiLeo requested that the initial judgment of possession be

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supplemented and amended to reflect the critical language of the testamentary usufruct and, thus, clarify the explicit rights conveyed to her in her husband's will. That same day, the trial court signed the Supplemental and Amending Judgment of Possession ("the Amended Judgment") which includes the following pertinent language: . . . It is expressly granted to Lillian Giarratano DiLeo the right to sell, exchange, lease or otherwise dispose of all assets subject to the usufruct, whether the assets are consumable or non-consumable things. Such disposition shall not require the consent of the naked owners. The usufruct shall not terminate upon such disposition and shall attach to the proceeds and any reinvestment thereof. Lillian Giarratano DiLeo is granted the power and authority to convert any and all property which is not productive of income into income producing property and to convert any and all non-consumable property into consumable property. . . . Shortly thereafter, Ms. Minvielle filed a petition to annul the Amended Judgment, arguing that it was invalid because she and her sisters were not joined as petitioners or notified that the petition had been filed. Mrs. DiLeo answered, pointing out that after Ms. Minvielle refused to sign the necessary documents to release the Merrill Lynch account, she wrote a letter to all five of her daughters, including Ms. Minvielle, advising them she intended to exercise the rights conferred upon her in her husband's will. In conjunction with her answer, Mrs. DiLeo also filed a reconventional demand requesting that, in the event that the Amended Judgment was annulled, the succession be reopened to recognize a right of inheritance conferred on her as usufructuary in the decedent's will. In the alternative, Mrs. DiLeo requested that the initial judgment be annulled for a vice of substance as it was drafted by William Delsa, spouse of one of the naked owners (Sylvia D. Delsa) and accorded additional rights to the naked owners not intended by the decedent. As exhibits to her Answer and Reconventional Demand, Mrs.

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DiLeo submitted copies of (1) the Merrill Lynch usufruct modification agreement signed by four of the five 5 naked owners; (2) the letter dated February 20, 2010, advising all five of her daughters (and naked owners) of her intention to exercise the rights conferred upon her in their father's will; and (3) affidavits of concurrence executed individually by Carol DiLeo Bandera, Mary DiLeo Panepinto, Janet DiLeo Gussman, and Sylvia DiLeo Delsa, declaring that the facts as stated in Mrs. DiLeo's Answer and Reconventional Demand were true and correct and that the affiant concurs in granting to Mrs. DiLeo "all of the relief which she seeks therein." Subsequently, Ms. Minvielle sought summary judgment to annul the Amended Judgment and Mrs. DiLeo sought summary judgment to dismiss Ms. Minvielle's petition to annul the Amended Judgment. After a hearing on the motions, the trial court ruled in favor of Mrs. DiLeo, denying Minvielle's motion for summary judgment and granting Mrs. DiLeo's motion for summary judgment. Ms. Minvielle appeals. Discussion Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law." La. Code Civ. Proc. art. 966(B). The initial burden of

producing evidence at the hearing on the motion for summary judgment is on the mover, who can ordinarily meet that burden by submitting affidavits or by pointing out the lack of factual support for an essential element in the opponent's case. Schultz v. Guoth, 10-0343, p. 4 (La. 1/19/11), 57 So.3d 1002, 1006; citing Samaha v. Rau, 07-1726, p. 4 (La. 2/26/08), 977 So.2d 880, 883. "At that point, the party
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who bears the burden of persuasion at trial (usually the plaintiff) must come forth with evidence (affidavits or discovery responses) which demonstrates that he or she will be able to meet the burden at trial....Once the motion for summary judgment has been properly supported by the moving party, the failure of the nonmoving party to produce evidence of material factual dispute mandates the granting of the motion." Id; (citations omitted). "A summary judgment is reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court's determination of whether summary judgment is appropriate; i.e. whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law." Samaha v. Rau, 07-1726, pp. 3-4, 977 So.2d at 882-83. In her motion for summary judgment, Mrs. DiLeo requests Ms. Minvielle's petition to annul the Amended Judgment be dismissed or, alternatively, that (as requested in her reconventional demand) the succession be reopened to recognize a right of inheritance conferred on her as usufructuary in the decedent's will. In her memorandum in support of her motion, Mrs. DiLeo points out that the express terms of her husband's will grant her the right to exchange, lease or otherwise dispose of all assets, both consumable and non-consumable, but that the original judgment of possession drafted by her son-in-law, William J. Delsa, failed to include that pertinent language, thus leading to the request by Merrill Lynch for clarification. Further, Mrs. DiLeo points out that the judgment of possession was amended to include the pertinent language of her husband's will only after Ms. Minvielle refused to sign the clarification document. Finally, Mrs. DiLeo asserts that Amended Judgment is valid pursuant to La. Civ. Code art. 3502 because it was

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rendered within thirty years of the opening of the succession and recognizes a right of inheritance conferred upon Mrs. DiLeo by the decedent's will. In support of her motion, Mrs. DiLeo resubmits the documents submitted as exhibits to her answer and reconventional demand and (1) an affidavit by Mr. Delsa stating that he prepared the original petition and pleadings filed, including the initial Judgment of Possession, and that he was married to one of the naked owners (Sylvia D. Delsa) at the time the initial petition was filed; (2) an affidavit by Mrs. DiLeo stating that she has nearly exhausted her own assets in caring for herself and needs to access the principal of the Merrill Lynch account at issue for her continued support; and (3) documents related to Mrs. DiLeo's assets and income, including the Merrill Lynch account at issue, supporting her assertion that her assets are near exhaustion and she needs access to the Merrill Lynch account. In her motion for summary judgment, Ms. Minvielle asserts that (1) she was a legatee under her father's will; (2) the original petition did not "pray for the right to sell, exchange, lease or otherwise dispose of property over which Lillian G. DiLeo was granted a usufruct" and the initial judgment did not grant those rights to Mrs. DiLeo; (3) she was not petitioner in the supplemental and amended petition filed on February 26, 2011, was not notified that such a petition had been filed, and did not consent to such petition; (4) the amended petition was not verified, nor was a Rule to Show Cause conducted; and (5) she was "never notified" of the Amended Judgment rendered on February 26, 2010. Mrs. Minvielle argues that the succession could not be reopened without notice to all interested parties and that because her mother "unconditionally accepted" the original judgment of possession she should not be allowed to reopen the succession to recognize the additional rights accorded to her in Mr. DiLeo's will.
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First, as indicated by documents submitted in support of her summary judgment, Mrs. DiLeo notified all of her daughters, including Ms. Minvielle, of her intention to exercise her rights under the decedent's will. As indicated by the language of the will, Mr. DiLeo clearly intended for Mrs. DiLeo to have full access to all assets, even warning his children that any child "who fights any provision of this testament shall have their inheritance reduced to the minimum amount allowed by law at the time of my death. . . ." The original judgment of possession, as drafted by Mrs. DiLeo's son-inlaw, failed to reflect the testator's clearly stated intention. Ms. Minvielle, relying on Yokum v. Van Calsem, 2007-0676 (La. App. 4 Cir. 2008), 981 So.2d 725, argues, however, that the omission in the initial judgment of possession of Mrs. DiLeo's explicit right to alienate all consumable and non-consumable property constitutes a permanent elimination of that right. Her reliance on Yokum is misplaced. In Yokum, the decedent granted a usufruct over property located at 824 Royal Street to her husband, with the "greatest freedom to act that can be given under the Louisiana Civil Code," including the right to dispose of "nonconsumable things" pursuant to La. Civ. Code art 567; the judgment of possession stated only that the usufruct was for life. When the usufructuary sold the property without consent of the naked owners and at far less than the appraised value, the naked owners (the decedent's brothers and stepson) filed a petition for a declaratory judgment and petitory action to annul and rescind the sale. The trial court granted partial summary judgment recognizing the decedent's brothers and stepson as naked owners of the property and the purchasers of the property as "usufructaries only of the property located at 824 Royal
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Street . . . " This court affirmed, reasoning that because in the Act of Cash Sale the usufructuary conveyed "his interest as granted to him under the Judgment of Possession" and the judgment of possession granted only a usufruct for life, "the Act of Cash Sale could have only conveyed William F. van Calsem's usufruct interest since the only interest he had in property pursuant to the judgment of possession was a usufruct interest." 981 So.2d at 734. In dicta, this court acknowledged that, pursuant to La. Code Civ. Proc. art. 3062, a judgment of possession constitutes prima facie evidence of the right of parties to possession of the estate of the deceased and that for the reasons stated in Succession of McCarthy, 583 So.2d 140 (La. App. 1st Cir. 1991), the judgment of possession in Yokum was binding. Yokum, 20070676, p. 8, 981 So.2d at 732. Thus, the facts of this case are clearly distinguishable. Mrs. DiLeo seeks only to amend the judgment of possession to reflect the explicit intention of the testator. She does not, as was the case in Yokum, argue that the initial judgment of possession should be interpreted to allow conveyance of broader rights in an act of sale than those specifically granted in the judgment of possession. As acknowledged in Yokum, a judgment of possession constitutes prima facie evidence of the right of parties to possession of the estate of the deceased, La. Code. Civ. Proc. art. 3062, but as indicated by La. Civ. Code Proc. art. 3393 pertaining to the reopening of a succession, such prima facie evidence is rebuttable. Moreover, McCarthy (referred to in Yokum and cited by Ms. Minvielle) is also clearly distinguishable. In that case, the issue before the First Circuit was whether the trial court abused its discretion in maintaining
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an exception of no cause of action. The judgment of possession at issue granted a surviving spouse a usufruct for life, even though at that time a testamentary confirmation of a legal usufruct generally terminated upon remarriage. The usufructuary remarried and the children (the naked owners) attempted to reopen the succession to correct the judgment to reflect that the usufruct terminated at remarriage, but the trial court found no "proper cause" existed to reopen the succession. The First Circuit affirmed, observing that the decision to reopen a succession was within the discretion of the trial court and that under circumstances where the children had unconditionally accepted a lifetime usufruct until after their mother's remarriage, the trial court did not abuse its discretion in finding that there was no proper cause to reopen the succession. In this case, Mr. DiLeo (the testator) granted to his wife the property and rights she seeks to make explicit in an amended judgment. Ms. Minvielle, however, refuses to accept her father's wishes and the clear language of his will, arguing instead that the judgment of possession has primacy over the testamentary language and, as such, restricts and permanently eliminates the broader usufruct rights conveyed by testament to Mrs. DiLeo. In essence, Ms. Minvielle advocates a "gotcha" form of succession law wherein a layman, unversed in the technicalities of usufructs, is without recourse if she fails to recognize that the language of the initial judgment of possession omits rights conveyed to her by the testator and one heir refuses to acknowledge the usufructuary rights clearly delineated by the testator but not specifically delineated in the judgment of possession. This is incorrect.
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La. Code Civ. Proc. art. 3061, provides that the "judgment sending one or more petitioners into possession under a testamentary usufruct or trust automatically incorporates all of the terms of the testamentary usufruct without the necessity of stating the terms in the judgment." La. Code Civ. Proc. art. 3061(C)1 (emphasis added). In turn, La. Code Civ. Proc. art. 1951 provides in pertinent part that "[a] final judgment may be amended at any time, with or without notice, on its own motion or the motion of any party: (1) To alter the phraseology of the judgment, but not the substance . . ." La. Code Civ. Proc. art. 1951(1). (emphasis added). Upon de novo review in light of the applicable law, we find that because the initial judgment of possession automatically incorporates the terms of the testamentary usufruct, the amendment of a judgment of possession to reflect the specific language of the testamentary usufruct cannot be categorized as a substantive change and, therefore, the amendment of the judgment on the motion of Mrs. DiLeo without notice to Mrs. Minvielle is not improper. Accordingly, Mrs. DiLeo is entitled to summary judgment in her favor, dismissing Ms. Minvielle's petition to annul the Amended Judgment. Finally, although "proper cause" exists to reopen the succession, it is unnecessary to do so and, therefore, any discussion of the procedural and administrative issues related to reopening a succession, see La. Code Civ. Proc. art. 3393, is pretermitted.

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Paragraph C of La. Code Civ. Proc. art. 3061 became effective in August 15, 2010. The legislature did not express its intent pertaining to retrospective or prospective application of Paragraph C, but it clearly is not a substantive change and therefore is applicable retroactively. See Sudwischer, v. Estate of Hoffpauir, 97-0785, p. 9 (La. 12/12/97) 705 So.2d 724, 728. Because an appellate court is bound to apply the law as it exists at the time of its decision, see Jacobs v. City of Bunkie, 98-2510, (La. 5/18/1999), 737 So.2d 14, 19 (even where the law has changed

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Conclusion After de novo review, the judgment of the trial court of the trial court is affirmed. AFFIRMED.

during pendency of suit, if retroactive application is permissible, new law applies on appeal), Paragraph C is determinative in the matter before us.

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