SUCCESSION OF BENSON A. KANSAS
FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2007-00756,
DIVISION "I-14" Honorable Piper D. Griffin, Judge
A. Cotlar ATTORNEY AT LAW, Faun L. Fenderson ATTORNEY AT LAW
COUNSEL FOR PLAINTIFF/APPELLANT
Dorothy L. Tarver TAGGART MORTON, LLC COUNSEL FOR
composed of Chief Judge James F. McKay, III, Judge Edwin A.
Lombard, Judge Roland L. Belsome
L. Belsome, Judge
succession proceeding, the Appellant, Jacob Kansas, appeals
the trial court's judgment on his motion for new trial.
For the following reasons, we reverse and render in part,
vacate in part, and affirm in part.
AND PROCEDURAL HISTORY
Kansas died testate on February 9, 2001. The only asset to
Benson's estate was a condominium located at 1921
Prytania Street, Unit T, which was in poor condition. Jacob
Kansas, an attorney and distant cousin to Benson, paid for
his burial. In exchange, Raymond Kansas, Benson's
brother, assigned his interest in his brother's estate to
his wife, Jacob learned that Judge Max Tobias drafted the
will in the late 1970's while in private practice. Jacob
tried on several occasions to retrieve the will from Judge
Tobias, who had indicated that he was trying to locate it.
While waiting on the production of the will, Jacob paid
extensive costs associated with the condominium, including
cleaning fees, appraisals, past due condominium fees and
property taxes. Finally, in January of 2007, Judge Tobias
produced the will. On January 24, 2007, Jacob filed the
following in association with the succession: a petition for
recordation and execution of the testament, petition for
appointment as dative testamentary administrator, sworn
detailed descriptive list, administrative oath, letters of
administration, and a proof of claim. On the same day, the trial
court recorded the will and appointed Jacob as the dative
testamentary administrator. Jacob was unable to locate the
other heir, Rhonda Borman, until early 2015, when he hired a
new attorney, who happened to know her.
locating Ms. Borman, on November 9, 2015, Jacob filed a rule
to show cause why various succession issues should not be
resolved. In particular, Jacob raised four issues to be
addressed by the trial court, involving: 1) the assignment of
succession right by Raymond, 2) renunciation of heirs, 3)
reimbursement of expenses he personally paid on behalf of the
estate, and 4) authority to sell the condominium.
Rhonda's two sons, Matthew and Daniel Borman, who were
successors in interest after her death, opposed the Rule to
Show Cause filed by Jacob.
26, 2016, after a hearing, the trial court issued a judgment,
consisting of six rulings: 1) recognizing Raymond's
assignment of succession interests to Jacob; 2) recognizing
Jacob's one-half interest, Matthew Borman's
one-fourth interest, and Daniel Todd Borman's one-fourth
interest in the estate; 3) removing Jacob as administrator;
4) appointing Matthew Borman as dative testamentary executor;
5) denying the sale of the condominium; and 6) paying Jacob
executor compensation and reimbursing Jacob for expenses he
incurred after he was appointed administrator in 2007.
filed a motion for new trial. On January 6, 2017, the trial
court granted the motion for new trial "for reargument
only." After the hearing, it issued a judgment on the
motion for new trial on February 7, 2017. The substance of
the judgment remained substantially the same as the first
judgment, other than increasing the reimbursement amount due
to Jacob. This timely devolutive appeal follows.
the issues presented on appeal involve fact questions or
mixed questions of law and fact, the manifest error standard
applies; when the issues involve questions of law, the de
novo standard applies. Boes Iron Works, Inc. v. Gee
Cee Grp., Inc., 16-0207, p. 8 (La.App. 4 Cir. 11/16/16),
206 So.3d 938, 946, writ denied, 17-0040 (La.
2/10/17), 216 So.3d 45. "A legal error occurs when a
trial court applies incorrect principles of law and such
errors are prejudicial." Hamp's Constr., L.L.C.
v. Hous. Auth. of New Orleans, 10-0816, p. 3 (La.App. 4
Cir. 12/1/10), 52 So.3d 970, 973. "Legal errors are
prejudicial when they materially affect the outcome and
deprive a party of substantial rights." South East
Auto Dealers Rental Ass'n, Inc. v. EZ Rent To Own,
Inc., 07-0599, p. 5 (La.App. 4 Cir. 2/27/08), 980 So.2d
89, 93. When the court of appeal finds that a reversible
error of law or manifest error of material fact was made in
the trial court, it ...