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Succession of Kansas

Court of Appeals of Louisiana, Fourth Circuit

December 21, 2017

SUCCESSION OF BENSON A. KANSAS

         APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2007-00756, DIVISION "I-14" Honorable Piper D. Griffin, Judge

          Sidney A. Cotlar ATTORNEY AT LAW, Faun L. Fenderson ATTORNEY AT LAW COUNSEL FOR PLAINTIFF/APPELLANT

          Dorothy L. Tarver TAGGART MORTON, LLC COUNSEL FOR DEFENDANT/APPELLEE

          Court composed of Chief Judge James F. McKay, III, Judge Edwin A. Lombard, Judge Roland L. Belsome

          Roland L. Belsome, Judge

         In this 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.

         FACTS AND PROCEDURAL HISTORY

         Benson 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 Jacob.

         Through 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.[1] On the same day, the trial court recorded the will and appointed Jacob as the dative testamentary administrator.[2] Jacob was unable to locate the other heir, Rhonda Borman, until early 2015, when he hired a new attorney, who happened to know her.

         After 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.

         On July 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.

         Jacob 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.

         STANDARD OF REVIEW

         When 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 ...


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