STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2023 CA 0826 IN THE MATTER OF THE SUCCESSION OF

LOYCE SPURLOCK SCOTT Judgment Rendered:

On Appeal from the 19" Judicial District Court In and for the Parish ofEast Baton Rouge

State of Louisiana Trial Court Docket Number P 110821, Div./Sec. 27 

### Hon. Max N.Tobias, Judge Presiding MAR 2 0 2024

W. Michael Stemmans Counsel for Plaintiffs/Appellees, 

### M.Todd Alley Ron Troyd Ennis and Michael J. Taffaro Sadie Ennis Williams Jennifer E. Frederickson Baton Rouge, Louisiana

Kathleen Wilson Counsel for Defendant/Appellant, Baton Rouge, Louisiana Thomas Scott, Jr.

BEFORE: THERIOT, PENZATO, AND GREENE, JJ.PENZATO, J.

In this succession proceeding, Thomas Scott, Jr., the decedent' s spouse, 

### appeals a judgment of the trial court denying his objection to the succession

administrator' s preliminary detailed descriptive list and sustaining the administrator' s peremptory exception of prescription. After review, we affirm. FACTS AND PROCEDURAL HISTORY A petition to open the succession of Loyce Spurlock Scott and to appoint her daughter, Sadie Ennis Williams, as administrator was filed on December 22, 2021. 

### According to the petition, Mrs. Scott died intestate on November 26, 2021. At the time of her death, Mrs. Scott was married to Thomas Scott, Jr. Ms. Williams was appointed as the administrator of Mrs. Scott' s succession 

### on January 4, 2022. 

### On April 27, 2022, Ms. Williams filed a preliminary detailed descriptive list, identifying aparcel ofimmovable property with a municipal address of 15035 Shenandoah Ave., Baton Rouge, Louisiana, as Mrs. Scott' s separate property.' 

### Mr.Scott filed an objection to the preliminary detailed descriptive list on July 295 2022, stating the Shenandoah property was not Mrs. Scott's separate property but was, instead, owned by the community. Ms. Williams opposed Mr. Scott' s position regarding the classification ofthe property. 

### She also raised a peremptory exception of prescription, 

### arguing Mr. Scott' s right to controvert Mrs. Scott' s 

### declaration of acquisition of separate property, made by Mrs. Scott in the Act of Cash Sale for the Shenandoah property, was prescribed. See La. C.C. P. art. 927(A)(1); La. C. C. art. 2342.



### 3 The preliminary detailed descriptive list also identified movable property owned by the community and the properties' estimated value. Mr. Scott filed a traversal of the preliminary detailed descriptive list, disputing the monetary values for the community movable property assigned by Ms. Williams. The value ofthis property is not at issue in this appeal. 2

## An evidentiary hearing on Mr. Scott' s objection to the preliminary detailed

descriptive list was held on April 4, 2023. 

### Atthe conclusion ofthe hearing, the trial court rendered judgment sustaining the exception of prescription, denying Mr. 

### Scott's objection to the preliminary detailed descriptive list, and finding the 

### Shenandoah property was Mrs. Scott's separate property. Mr. Scott filed the instant appeal from the trial court' s April 20, 2023 judgment. JURISDICTION This court' s appellate jurisdiction extends to final judgments and to 

## interlocutoryjudgments when expressly allowed by law.2 See La.C.C.P. art.2083; Succession ofSaucier, 2021- 1466 (La. App. 1st Cir. 6129122), 344 So.3d 108, 113. 

### Appellate courts have a duty to examine their subject matterjurisdiction sua sponte. Succession ofSaucier, 344 So.3d at 113. Louisiana Code of Civil Procedure article 2974 provides, in part, that appeals from orders orjudgments rendered in succession 

### proceedings are governed bythe rules applicable to appeals in ordinary proceedings. The April 20, 2023 judgment does not dismiss a party, is not ajudgment of 

### possession ofthe property at issue, and does not determine the merits ofall issues in the succession proceeding. 

### Therefore, it is a partial judgment appealable only if 

### authorized by La. C.C.P. art. 1915. See In re Succession ofMorgan, 2015-0335 (La. App. 1st Cir. 2124116), ( unpublished) 2016 WL 770192 at * 2 ( 

### judgment declaring ownership ofdisputed estate property, which was not ajudgment ofpossession and did not dismiss a party,was a partialjudgment subject to appeal only as provided by La. C. C. P. art. 1915); 

### In re Succession of Faget, 2006-2159 ( La. App. 1 st Cir. 9119107), 

### 984 So.2d 7, 9- 10 (judgment declaring surviving spouse to be a co-owner

2 A final judgment determines the merits of a controversy, in whole or in part; in contrast, an interlocutoryjudgment does not determine the merits, but only preliminary matters in the course ofan action. See La. C. C. P. art. 1841. 3

## offamily home was a partialjudgment subjectto appeal only under La.C.C.P. art.

1915). Louisiana Code of Civil Procedure art. 1915(A) identifies those partial final judgments that are appealable as a matter of right. 

### See Triton Diving Services LLC

v. Offshore Marine Service Association, Inc.,

### 2023-0169 (La.App. 1stCir.9/21/23), 372 So.3d 832, 836. The April 20, 2023 judgment does not fall within one ofthe categories enumerated in Article 1915(A). Therefore, 

### the judgment is only appealable pursuant to Article 1915( B)( 1), which pertinently provides that a partial judgment " shall not constitute a final judgment unless it is designated as a final 

### judgment bythe court after an express determination thatthere is nojust reason for delay." 3 Thejudgment on appeal states that it is a finaljudgment pursuant to La.C. G.P. 1915, and "[ 

### n]ojust reason fordelayofan appeal exists." Presumably,thetrial court intended to certify the judgment pursuant to Article 1915( B); however, this 

### designation by the trial court is not determinative ofthis court' sjurisdiction. See 

### CrosstexEnergy Services, LP v. Texas Brine Co., LLC,2022-0832 (La.App. 1st Cir. 3/ 16/23), 363 So.3d 557, 562. Where, as here, no reasons for the certification are provided, but some justification is apparent from the record, the appellate court should make a de novo determination of whether the certification was proper, 

### considering the factors set forth in R.J. Messinger, Inc. v. Rosenblum, 2004- 1664 La. 312105), 894 So.2d 1113, 1122- 23. 

### Particularly, Messinger instructs this court 

### to consider the relationship between the adjudicated and unadjudicated claims; the possibility theneedfor review might ormightnot be mooted byfuture developments 

### in the trial court;the possibilitythe reviewing court might be obliged to consider the

3 The Louisiana Code ofCivil Procedure provides for an appeal from certain partial judgments in succession proceedings. See La. C. C. P. arts. 2122, 2974, 3308, and 3337. Thejudgment on appeal does not fall into one ofthese categories. 4

### same issue a second time; and miscellaneous factors such as delay, economic and



### solvency considerations, shortening the time oftrial, frivolity ofcompeting claims, and expense. Messinger, 894 So.2d at 1122-23. 

### Applying these factors, we find the April 20, 2023 judgment was properly certified pursuant to La. C.C.P. art. 1915( B). The determination ofwhether the trial 

### court erred in finding Mr. Scott' s right to controvert Mrs. Scott's declaration of acquisition of separate property was prescribed and the classification of the 

### Shenandoah property as separate or community property may facilitate resolution of 

### the remaining litigation, reduce the costs oflitigation, and fosterjudicial economy. Therefore, appellate review at this juncture is warranted. FACTS ESTABLISHED DURING THE EVIDENTIARY HEARING 

### Mrs. Scott was involved in a car accident in 2005 and subsequently filed suit for personal injuries. Mr. Scott was not involved in the accident norwas he injured, 

### but he was a party plaintiff in Mrs. Scott' s lawsuit. The Scotts settled their claims 

### arising out of the accident in May 2007 and received a check in the amount of 850,000 from Travelers Indemnity Company,the defendant insurer. A copy ofthe check, which included Travelers' " explanation of payment," was admitted into

evidence. 

### The check is dated May 17, 2007 and made payable to Loyce Scott, 

### Thomas Scott, and their attorney for ` BODILY INJURY LIABILITY" and for FULL AND FINAL SETTLEMENT OF ANY AND ALL CLAIMS." 

### According to Ms. Williams, the Scotts received $ 379,000. Mr. Scott was 

### unable to recall the amount of settlement funds the Scotts personally received after costs and fees were deducted from the $ 850,000 total settlement; however, he confirmed it was more than $ 300,000. Mr. Scott testified that, to his knowledge, Mrs. 

### Scott did not have a separate bank account during their marriage, and the settlement funds were deposited into the Scotts' joint bank account.

5

### Mrs.Scottpurchasedthe Shenandoah property onJune 14,2007 for $ 232,000. Mrs. Scott paid the full purchase price ofthe property via cashier' s check remitted in her name alone.' The Act ofCash Sale, also introduced into evidence, identifies Mrs. Scott as " PURCHASER(S)" and states: Loyce S. Scott, born Spurlock, a resident ofthe full age ofmajority of the Parish of East Baton Rouge, State of Louisiana, who declared that 

### she is married to and living with Thomas Scott, acquiring the 

### hereinafter described property as her separate property, with her separate funds, for use under her separate administration and control[.] Emphasis original.) Mr. 

### Scott was not present at the closing when Mrs. Scott purchased the 

### Shenandoah property, did not sign purchase documents forthe property, and did not 

### execute a power ofattorney authorizing Mrs. Scottto complete the purchase on his behalf. 

### Mr. Scott testified that he believed the Shenandoah property belonged to 

### both he and Mrs. Scott, and he first became aware the property was allegedly Mrs. Scott' s separate property through the subject succession proceeding. 

### Conversely, Ms. Williams testified that her mother and Mr. Scott consistently recognized the Shenandoah property was Mrs. Scott' s separate property. Sheila Robinson was Mrs. Scott' s real estate agent for the purchase of the 

### Shenandoah property. Ms. Robinson testified that Mrs. Scott " 

### was really being persistent" in her efforts to purchase a home when she " knew that she was going to
come into [the] settlement," related to the 2005 car accident. Ms. Robinson also 

### stated that, prior to the closing, Mrs. Scott asked whether she could purchase the 

### property in hername alone. Ms. Robinson advised Mrs. Scottto speaktothe closing attorney aboutthe issue.

The copy ofthe cashier's check admitted into evidence is in the amount of $ 233,353.47 made payable to Commerce Title.DISCUSSION



### Under Louisiana law, property ofmarried persons is generally characterized as either community or separate. La. C.C. art. 2335. Things in the possession of a 

### spouse during the existence of a regime of community of acquets and gains are presumed to be community. La. C.C. art. 2340. However, the law provides that 

### damages recovered due to personal injuries sustained during the existence of the 

### community by a spouse are separate property; although, the portion of damages attributable to expenses incurred by the community as a result ofthe injury, or in compensation ofthe loss ofcommunity earnings, is community property. La. C.C. art. 2344. 

### Additionally, separate property includes property acquired by a spouse with separate things or with separate and community things when the value ofthe 

### community things is inconsequential in comparison with the value ofthe separate things used. La. C. C. art. 2341. 

### Louisiana Civil Code art. 2342(A) pertinently provides that a declaration in an act of acquisition that things are acquired with 

### separate funds as the separate property ofa spouse may be controverted bythe other spouse unless he concurred in the act. 

### Separate property of a spouse is hers exclusively. La. C.C. art. 2341. 

### The party asserting the separate nature of property acquired during the marriage has the burden of overcoming a strong presumption in favor of the 

### community. In re Succession ofHebert,2003-0531 ( La.App. 1st Cir.9117104), 887 So.2d 98, 101, writ denied,2004-2571 ( La. 12/ 17/04), 888 So.2d 872. Either spouse 

### may rebut the community presumption by showing the separate nature ofproperty 

### brought intothe community by a preponderance ofthe evidence, " the lowest burden

of persuasion." Talbot v. Talbot, 2003-0814 (La. 12112J03), 864 So.2d 590, 600-01. 

### Proof is sufficient to constitute a preponderance when the entirety ofthe evidence,

7both direct and circumstantial, establishes the fact or causation sought to be proved



### is more probable than not. Talbot, 864 So.2d at 600.5 

### It is undisputed that Mr. and Mrs. Scott did not enter a separate property 

### regime eitherbefore orduringtheir marriage. See La. C.C. art. 2328. Therefore, the 

### Shenandoah property was presumed to belong to the community, since Mrs. Scott acquired it during their marriage. See La. C.C. art. 2340. Thus, Ms. Williams, as administrator of Mrs. Scott' s estate, 

### bore the initial burden of proving the 

### Shenandoah property was Mrs. Scott's separate property and the relief sought by Mr. Scott was barred by prescription. See In re Succession ofHebert, 887 So.2d at 101; Landco Construction, LLC v. Precision Construction & Maintenance, LLC, 

### 2019-0403 ( La. App. 1st Cir. 11115119), 290 So.3d 1185, 1190, writ denied, 2019- 01977 (La.2110120), 

### 292 So.3d 67 (The partywho raises an exception ofprescription ordinarily bears the burden ofproofattrial on the exception.). 

### Exception ofPrescription Ms. Williams asserts a spouse' s right to contest the separate or community 

### nature ofproperty pursuant to La. C.C. art. 2342 is a personal action subject to the ten-year prescriptive period found in La. C. C. art. 3499.' Ms. Williams contends 

### that, because Mrs. Scott executed the declaration ofacquisition ofseparate property

5 Mr. Scott asserts Ms. Williams had the burden ofproving the Shenandoah property was Mrs. Scott's separate property through proof that is " fixed, clear, positive and legally certain." In Talbot, 864 So.2d at 598-600, the Louisiana Supreme Court noted this burden of proof was the same astheclearand convincing standard and declinedto require aspouseto rebut the presumption of community through proof that is fixed, clear, positive, and legally certain. The Talbot court recognized that imposing the clear and convincing burden ofproofwould render near impossible the ability of some spouses to prove the separate nature of property acquired, possibly decades before the termination of the community regime. During that broad expanse oftime, records are lost, destroyed, and possibly stolen, and to satisfy the clear and convincing burden of proof, a spouse would potentially need to keep evidence dating back decades. See Talbot, 864 So.2d 599- 600. 6 On appeal, Mr. Scott asserts the trial court improperly required him to prove the Shenandoah property was community, rather than requiring Ms. Williams to prove the property was not community. We disagree and find the trial court applied the proper burden ofproof. Louisiana Civil Code art. 3499 states, " Unless otherwise provided by legislation, a personal action is subject to a liberative prescription often years." 8in June 2007, Mr.Scott' s cause ofaction to contest the declaration prescribed in June

2017, years before the present claim was asserted. Mr. Scott does not dispute this
timeline. Instead, Mr. Scott argues that, because he did not sign or concur in Mrs. Scott' s declaration of acquisition of separate property, " there was no prescriptive period that applied to him." Mr. 

### Scott cites no legal authority to support this

assertion. 

### In a case involving no dispute regarding material facts, but only the 

### determination ofa legal issue, the reviewing court must apply the de novo standard

of review. 

### Big 4 Trucking, Inc. v. New Hampshire Ins. Co., 

### 2017-0420 ( La. App. 1st Cir. 11/ 1117), 233 So.3d 686, 689. The proper application and interpretation of

a prescriptive statute is a question of law. Theriot v. Archer Construction, L.L.C., 

### 2017- 1304 (La.App. 1 st Cir.4/30/18), 250 So.3d 927, 929, writ denied,2018-0843 La. 9128/ 18), 253 So.3d 145. The issue ofwhether Mr. Scott' s action is prescribed 

### involves the proper application of La. C.C. arts. 2342 and 3499; thus, we applythe de novo standard of review. 

### We findthetrial courtwas legally correctin determining thatMr.Scott' s right to controvert Mrs. Scott' s declaration of acquisition of separate property under La. C.C. art. 2342 was prescribed. In Levatino v. Levatino, 506 So.2d 858, 863 ( La. 

### App. 1st Cir. 1987), this court held that the ten-year prescriptive period found in La. C.C. art. 3499 applied to a wife' s action to controvert a declaration of separate 

### property pursuant to La. C.G. art. 2342. 

### Similarly, in Estate ofGoss v. Estate of 

### Goss, 2015-960 (La.App.3d Cir.319/ 16), 187 So.3d 570, 575- 76, writdenied,2016- 0660 ( La. 5/27/ 16), 192 So.3d 743, the court held that, if the husband was not 

### prohibited from controverting the declaration because he was a party to it, his right to contest the classification of the property as his wife' s separate property was a personal action subject to the ten year prescriptive period set forth in La. C. C. art.

93499.8 Because more than ten years had passed, the action was time-barred pursuant

to La. C.C. art. 2342. 

### Estate ofGoss, 187 So.3d at 576. The evidence establishes that Mr. Scott failed to controvert Mrs. Scott' s 

### declaration ofacquisition ofseparate property within ten years ofJune 2007, when Mrs. Scott executed the Act ofCash Sale and when the Act was recorded in the East Baton Rouge Parish mortgage records. Therefore, the trial court correctly determined Mr. Scott' s cause ofaction under La. C.C. art. 2342 was prescribed. 

### Objection to Preliminary Detailed Descriptive List A trial court' s findings regarding the nature of property as community or separate is a factual determination subject to manifest error review.' Berthelot v. 

### Berthelot,2017- 1055 (La.App. 1st Cir. 7/ 18/ 18), 254 So.3d 800, 807. Here, the trial 

### court concluded that "the evidence clearly preponderates" the Shenandoah property was Mrs. Scott' s separate property. The trial court relied, in part, on the declaration 

### of acquisition of separate property executed by Mrs. Scott. 

### We have already determined that Mr. Scott' s right to controvert the declaration is prescribed. Thus, 

### Mrs. Scott's declaration ofacquisition of separate property is uncontroverted. See La. C. C. art. 2342. 

### However, the trial court explained that the declaration was not its primary reason for finding the Shenandoah property was Mrs. Scott' s separate property.°

8 For this reason, we find no merit in Mr. Scott' s assertion that this case is distinguishable from Estate ofGoss because, there,the husband signed adeclaration ofparaphernality concurring in his wife' s declaration ofseparate property. It is apparent the Goss court reached the conclusion that La. C.C. art. 3499 applied ifthe husband was not prohibited from contesting the declaration. See Estate ofGoss, 187 So.3d at 575-76. Louisianajurisprudence as well as the plain language of La. C. C. art. 2342 also belie Mr. Scott' s argument that Mrs. Scott' s declaration ofthe acquisition of separate property was invalid because he did not concur in the act ofcash sale forthe Shenandoah property. To reverse a fact finder' s determination under the manifest error standard, the appellate court must find from the record that a reasonable factual basis does not exist for the finding ofthe trial courtand thatthe record establishes thatthe finding is clearly wrong.Marshall v. Marshall,2023- 0193 ( La.App. 1st Cir. 9/28/23), 376 So.3d 891, 894. k0According to Mr.Scott,thetrial courtconcluded thedeclarationwasthe only evidence presented to overcome the strong presumption in favorofthe community. This is patently incorrect. 10Instead, the trial court determined Mrs. Scott received a greater percentage of the

settlement funds, due to the nature of the parties' 

### claims in the personal injury lawsuit; therefore, Mrs. Scott received sufficient settlement funds, i.e., separate 

### property, to purchase the Shenandoah property. Mr. Scott argues separate and community funds were commingled, either by 

## the lump sum settlement check orthrough the deposit ofthe settlement funds into the Scotts' joint bank account, such that it cannot be determined which portion was 

### Mrs. Scott's separate property. 

### Mr. Scott also argues the trial court erred in finding Mrs. Scott received a larger percentage ofthe accident settlement, since the record 

### does not contain an itemization reflecting the amounts paid to resolve specific

claims. We disagree. 

### The mere mixing ofseparate and community funds in abankaccount does not itselfconvertthe entire account into communityproperty. Where separate funds can be traced with sufficient certainty to establish the separate ownership of property 

### paid for with those funds, the separate status of such property will be upheld. Downey v. Downey, 2023- 0060 (La.App. 1st Cir. 9115123), 375 So.3d 987, 996. 

### During the hearing on Mr. 

### Scott's objection to the preliminary detailed descriptive list, witnesses testified that, due to the passage oftime, records from the bank, the Scotts' 

### personal injury attorney, Travelers, and the title company that handled the closing on the Shenandoah property were unavailable. A trial court has 

### broad discretion in determining the admissibility of parol evidence, particularly 

### when proof required to prove the separate nature ofproperty is difficult to obtain because of the passage of time. See Talbot, 864 So.2d at 602; Vidrine v. Vidrine, 2014-235 ( 

### La. App. 3d Cir. 1011114) ( unpublished), 2014 WL 4926111, * 2; citin Andrea Carroll & Richard D. Moreno, Louisiana Civil Law Treatise: Matrimonial

11Regimes § 4. 8 ( 3 ed.).

### 11 Courts are to resolve the admissibility ofevidence in favor

of receiving the evidence. 

### Talbot, 864 So.2d at 602 (finding the trial court did not abuse its discretion by relying on parol evidence, i.e., witness testimony, to establish that stock was the wife' s separate property where the stock certificates were not available). We find no abuse ofdiscretion in the trial court' s reliance on testimony to find,through reasonable inference, Mrs. Scott' s portion ofthe settlement proceeds 

### was more substantial than any portion owed to the community orto Mr. Scott and was sufficient to fully fund the purchase ofthe Shenandoah property. Ms. Williams testified that Mrs. Scott was " severely" injured in the 2005 

### accident and underwenttwo surgeries, indicating herpersonal injurydamages would have been substantial. Although Mr. Scott was not involved in the accident, he was 

### aparty plaintiffto Mrs. Scott's lawsuit,leadingthetrial courtto reasonably conclude 

### any amount paid to Mr. Scottwas forthe resolution ofhis loss ofconsortium claim. See Jenkins v. State ex rel. Department ofTransportation & Development, 2006- 

### 1804 (La. App. 1st Cir. 8119108), 993 So.2d 749, 777, writ denied, 2008-2471 ( La. 12/ 19/08), 996 So.2d 1133 ( A claim for loss of consortium under La. C.C. art. 2315( B) 

### is a derivative claim, derived from the personal injuries sustained by the 

### primary victim, and includes damages forthe loss ofmaterial services and support, love, companionship, affection, aid and assistance, society, sexual relations, 

### comfort, solace, and felicity.). Thus, the trial court made the factual determination that Mrs. Scott' s percentage of the net settlement amount, which was several hundred thousand dollars, would be " much greater" than the percentage Mr. Scott would have received for his loss of consortium claim. 

### Finally, Mr. Scott testified that Mrs. Scott was not employed and did not earn income. Therefore, it is



### 1 In evaluating the evidence, some allowance mustbe made where the acquisition occurred many years before the claim is asserted. Parol evidence may be sufficient to rebut the presumption of community where it is uncontradicted. In re Succession ofMoore, 2006-906 ( La. App. 3d Cir. 12120106), 946 So.2d 700, 703. 12reasonable to infer the settlement would not have included compensation forthe loss

ofcommunity earnings. See La. C. C. art. 2344. We find no manifest error in the trial court' s factual conclusion that Mrs. Scott 

### purchased the Shenandoah propertywith money she received in the 2007 settlement, which was her separate property pursuant to La. C.C. art. art. 2344. Mrs. Scott' s 

### separate funds were traced with sufficient certainty to establish the separate 

### ownership ofthe Shenandoah property paid forwith those funds; thus, the separate status ofthe Shenandoah property was properly upheld. 

### See Downey, 375 So.3d at

a DECREE We affirm the April 20, 2023 judgment. All costs ofthis appeal are assessed against Thomas Scott, Jr. AFFIRMED.

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