GASKINS, J.
The intervenors in this matter, Pearl Hatter Biggs, Dock R. Hatter, Jr., Josezette Josephine White, and Bobbie Jean Hatter Smith, filed an application for supervisory writs from a trial court decision denying their motion for summary judgment against Isaac Curtis Hatter, Jr., Carolyn Hatter Curry, and Steno Hatter Gillis, and their motion for summary judgment against Lewis Louisiana Properties, LLC ("LLP"). In their motions for summary judgment, the intervenors asserted that the judgment of possession in favor of Isaac Curtis Hatter, Jr., and Carolyn Hatter Curry concerning a disputed piece of property in Claiborne Parish should be declared an absolute nullity due to fraud and ill practices and the intervenors should be awarded attorney fees and costs. The intervenors also assert that they should be declared the owners of the property because they have better title than LLP. This court granted the writ application, ordered the lodging of the record and docketed the matter for decision. For the following reasons, we reverse the trial court judgment and remand to the trial court for further proceedings.
The pertinent facts in this matter are found in the prior appeal, Biggs v. Hatter, 45,066 (La.App.2d Cir.3/3/10), 32 So.3d 355, and are set forth below:
A peremptory exception of prescription was filed by LLP on September 5, 2008, against Pearl, as executrix of the estate of Isaac Sr., asserting that under La. R.S. 9:5630, any action by a successor not recognized in a judgment of possession is prescribed two years after the judgment becomes final. LLP also argued that the petition of intervention filed by Pearl, Dock, Josezette Josephine White, and Bobbie Jean Hatter Smith was not a proper intervention because it did not assert ownership of the disputed property. LLP argued that this pleading did not interrupt prescription.
The trial court granted the exception of prescription. The succession and the intervenors appealed. This court reversed the trial court ruling. See Biggs v. Hatter, supra. We found that Pearl's petition, filed in her capacity as succession representative, interrupted the two-year prescriptive period under La. R.S. 9:5630. We also determined that the intervention by Pearl, in her individual capacity, and by her siblings, was a proper intervention and was also filed within the two-year prescriptive period. The matter was remanded for further proceedings.
During the course of the proceedings below, on September 24, 2008, a judgment of possession was signed by Judge Jenifer Ward Clason, recognizing the intervenors as Isaac Sr.'s sole heirs and legatees and owners of his undivided interest in the Wake Hatter Estate, which was described as the same piece of property conveyed in the judgment of possession obtained by Isaac Jr. and Carolyn, and sending the siblings into possession of the decedent's portion of the property.
In April 2010, LLP filed a reconventional demand against the intervenors attacking the judgment of possession in favor of the intervenors entered on September 24, 2008. LLP asserted that the disputed property is not in Homer, but in Colquitt, Louisiana. LLP points out that Isaac Jr. and Carolyn had a judgment of possession to the property in 2006 and sold it to LLP in October 2006. LLP contends that the judgment of possession in favor of the intervenors places a cloud on its title and sought a judgment to reform the intervenors' judgment of possession to remove any reference to the disputed property.
On September 5, 2008, LLP had filed a motion for summary judgment, claiming that the public record doctrine protected LLP from unfiled documents such as the will in this case which the intervenors assert was probated in California. In April 2010, LLP filed a supplemental memorandum to its motion for summary judgment against the estate of Isaac Sr., adding the intervenors. LLP asserted that Isaac Sr.'s will directed that all property owned by Isaac Sr. located in Homer, Louisiana be given to the intervenors. LLP contended that this did not address the 186-acre tract which is the subject of this lawsuit, which is located in Colquitt, Louisiana, approximately 12 miles from Homer. LLP also urged that there was no clause in the will directing that the residue of the estate be left to any particular person and therefore, the residue of the estate would pass through the laws of intestacy and vest in Isaac Sr.'s children, Isaac Jr. and Carolyn.
On June 4, 2010, the intervenors filed a motion for summary judgment against Isaac Jr., Carolyn, and Steno. The intervenors maintain that there is no dispute of fact that the judgment of possession obtained by Isaac Jr. and Carolyn, asserting that Isaac Sr. did not have a will, was obtained through fraud and ill practices. The intervenors sought to have the judgment of possession in favor of Isaac Jr. and Carolyn erased and cancelled from the conveyance records of Claiborne Parish. The intervenors also sought to recover attorney fees and costs.
On December 3, 2010, the intervenors filed a motion for summary judgment against LLP, arguing that they filed a petitory action in this matter and that they have better title than LLP. The intervenors state that their ownership stems from the testament of Isaac Sr. and that the clear intent of the will was to convey to them the piece of property in dispute here. They urge that the property has been known for more than 70 years as the Wake Hatter Estate. It is described on the Claiborne tax assessor's plat of the parish as the Wake Hatter Estate. They assert that the property is widely known in the community as the Wake Hatter Estate. Pearl maintained in her deposition that the property taxes were paid in Homer.
On July 8, 2011, the trial court heard argument on all three motions for summary judgment and denied all three motions without reasons. The intervenors made an application for supervisory review to this court, urging that the trial court erred in denying their motions for summary judgment. This court granted the writ application and docketed the matter for decision.
The intervenors argue that the judgment of possession in favor of Isaac Jr. and Carolyn was obtained through fraud and ill practices. They assert that this issue is not disputed. They maintain that the record clearly shows that, because Isaac Jr. unsuccessfully contested his father's will in California, he was aware of his father's testament that bequeathed the Wake Hatter Estate to the intervenors. In spite of that fact, with their acquiescence, Steno, the mother of Isaac Jr. and Carolyn, filed a petition in Claiborne Parish on behalf of her children stating that Isaac Sr. died intestate and that as his only heirs, Isaac Jr. and Carolyn were entitled to ownership of the property. The intervenors contend that, by selling the property, Isaac Jr. and Carolyn ratified the fraudulent acts of their mother in obtaining the judgment of possession. The intervenors urge that their motion for summary judgment against Isaac Jr. and Carolyn should be granted and they should be awarded attorney fees and costs. They also contend that the judgment of possession in favor of Isaac Jr. and Carolyn and the sale to LLP should be cancelled from the conveyance records. This argument has merit.
Appellate courts review summary judgments de novo under the same criteria that govern the district court's consideration of whether summary judgment is appropriate. Palmer v. Martinez, 45,318 (La.App.2d Cir.7/21/10), 42 So.3d 1147, writs denied, 2010-1952, 2010-1953, 2010-1955 (La.11/5/10), 50 So.3d 804, 805.
When the motion for summary judgment is made and supported as provided in La. C.C.P. art. 966, the adverse party "may not rest on the mere allegations or denials of his pleading," but his response, by affidavits or other proper summary judgment evidence, "must set forth specific facts showing that there is a genuine issue for trial." If he does not so respond, summary judgment, if appropriate, shall be rendered against him. La. C.C.P. art. 967(B); Bates v. Louisiana National Guard Armory, 46,892 (La.App.2 Cir.1/25/12), 86 So.3d 21.
A final judgment obtained by fraud and ill practices may be annulled. La. C.C.P. art. 2004 provides:
The historical development of this provision established the following criteria for an action in nullity: (1) that the circumstances under which the judgment was rendered showed the deprivation of legal rights of the litigant seeking relief, and (2) that the enforcement of the judgment would have been unconscionable and inequitable. The Louisiana Supreme Court has accepted those two requirements as the necessary elements in establishing a nullity action under La. C.C.P. art. 2004. See Gladstone v. American Automobile Association, Inc., 419 So.2d 1219 (La. 1982); Wright v. Louisiana Power & Light, 2006-1181 (La.3/9/07), 951 So.2d 1058.
An ex parte judgment of possession may be annulled for fraud and ill practices where affidavits presented to the court to obtain the judgment contain false information to the effect that the decedent left no will. See Succession of Hearn, 412 So.2d 692 (La.App. 2d Cir.1982), writ denied, 415 So.2d 215 (La.1982); Succession of Davis, 347 So.2d 906 (La.App. 3d Cir.1977). See also West v. Gajdzik, 425 So.2d 263 (La. App. 3d Cir.1982), writ denied, 428 So.2d 475 (La.1983); Succession of Blackwell, 98-50 (La.App. 3d Cir.5/6/98), 713 So.2d 625, writ denied, 98-1983 (La.10/30/98), 727 So.2d 1169; David v. David, 347 So.2d 885 (La.App. 3d Cir.1977).
In support of their motion for summary judgment against Isaac Jr. and Carolyn, the intervenors filed numerous documents and affidavits including a copy of a sheriff's deed filed July 2, 1979, executing a partition by licitation whereby Isaac Sr. and several family members, including the intervenors, were awarded various interests in the disputed property. The intervenors filed a judgment of possession entered in July 2003, giving Isaac Sr. the
Isaac Jr., Carolyn, and Steno filed nothing in opposition to the motion for summary judgment. The curator appointed to represent them at the hearing on the motions for summary judgment adopted the arguments made by LLP. No brief has been filed in this court on their behalf in opposition to the motion for summary judgment against them.
The intervenors have established that Isaac Jr. knew that a will existed, that his claim in California was unsuccessful to have the will declared a nullity, and that the will had been probated in California, disposing of the property in dispute in this matter. Yet after his efforts to nullify his father's will failed, he, his sister, and his mother caused a petition to be filed in Claiborne Parish stating that Isaac Sr. died intestate, left only Isaac Jr. and Carolyn as his heirs, that his only property included the land at issue in this case. On the basis of this information they knew to be false, Isaac Jr. and Carolyn obtained a judgment putting Isaac Jr. and Carolyn in possession of the disputed property. They then sold the property to LLP.
Based upon this record, the intervenors have shown that the judgment of possession entered in favor of Isaac Jr. and Carolyn was obtained by fraud and ill practices. The intervenors who filed this motion for summary judgment have shown that there is no genuine issue as to material fact, and that they are entitled to judgment as a matter of law. The trial court erred in denying the motion for summary judgment against them. We reverse that portion of the trial court judgment and declare that the judgment of possession in favor of Isaac Jr. and Carolyn is null due to fraud and ill practices. We order that the judgment of possession be cancelled from the conveyance records.
The intervenors sought to recover reasonable attorney fees and costs in connection with having the judgment of possession in favor of Isaac Jr. and Carolyn declared null for fraud and ill practices. We remand the matter to the trial court to allow the entry of evidence on the issue of reasonable attorney fees and costs.
The intervenors assert that the trial court should have granted their motion for summary judgment against LLP. They urge that LLP's "good faith" and public
The public records doctrine in this state was revised by Acts 2005, No. 169, § 1, which became effective on July 1, 2006. The sale in this matter to LLP took place on October 23, 2006, and is governed by the revised provisions. La. C.C. art. 3338 provides:
The recordation of an instrument does not create a presumption that the instrument is valid or genuine. La. C.C. art. 3341. A third person is a person who is not a party to or personally bound by an instrument. La. C.C. art. 3343.
The public records doctrine is founded upon our public policy and social purpose of assuring the stability of land titles. Camel v. Waller, 526 So.2d 1086 (La.1988). The doctrine does not create rights in a positive sense, but rather has the negative effect of denying the effectiveness of certain rights unless they are recorded. It is essentially a negative doctrine. Third persons are not allowed to rely on what is contained in the public records but can instead rely on the absence from the public record of those interests that are required to be recorded. Camel v. Waller, supra. Simply put, an instrument in writing affecting immovable property which is not recorded is null and void except between the parties. Cimarex Energy Co. v. Mauboules, 2009-1170 (La.4/9/10), 40 So.3d 931.
However, there are exceptions to the public records doctrine. One of those exceptions is inheritance rights. It has been consistently held in the jurisprudence that the law of registry is inapplicable where the ownership of, or claim affecting, immovable property has been acquired by inheritance and title has become vested by operation of law. See Long v. Chailan, 187 La. 507, 175 So. 42 (1937); Jackson v. D'Aubin, 338 So.2d 575 (La.1976); Crozat v. Lousiana Coastal VII, LLC, 2001-2404 (La.App.4th Cir.9/11/02), 830 So.2d 319, writs denied, 2002-3100, 2002-3103 (La.2/21/03), 837 So.2d 631; Vaughan v. Housing Authority of New Orleans, 80 So.2d 561 (La.App.Orleans 1955); Succession of Rosinski, 158 So.2d 467 (La.App. 3d Cir.1963); Knighten v. Ruffin, 255 So.2d 388 (La.App. 1st Cir.1971), writs denied, 260 La. 399, 459, 256 So.2d 288, 442 (La.1972). See also William V. Redmann, The Louisiana Law of Recordation: Some Principles and Some Problems, 39 Tulane Law Review 491, 505 (1964-1965). The courts have recognized a right to property obtained through a succession even where that interest was omitted from a judgment of possession that was filed in the public records and relied upon by a third party. See Crozat v. Lousiana Coastal VII, LLC, supra. The recent revision of the registry laws does not address real and personal rights affecting immovables created by operation
La. R.S. 9:5630 provides:
This article allows successors of a deceased person not recognized in a judgment of possession to assert an interest in an immovable formerly owned by the deceased, against a third person who has acquired an interest in the immovable by onerous title from a person recognized as an heir or legatee of the deceased in the judgment of possession, or his successors. The existence of this provision demonstrates that the public records doctrine will not be a bar to claims against third person for title to immovable property where successions are involved if the action is brought within the applicable time limits.
In this case, LLP argues that the intervenors failed to file their California judgment in the public records in Claiborne Parish prior to the purchase of the land by LLP, and therefore, under the public records doctrine, LLP is entitled to rely on the absence of that filing. As outlined above, inheritance rights vested by operation of law are an exception to the public records doctrine. The intervenors in this case acted timely to preserve and enforce their inheritance rights after discovering the efforts of Isaac Jr. and Carolyn to usurp the intervenors' title to the property. They filed against all parties within two years of the judgment of possession in favor of Isaac Jr. and Carolyn in accordance with La. R.S. 9:5630. Therefore, the public records doctrine does not operate to preserve any rights to this property that LLP claims to have acquired from Isaac Jr. and Carolyn through their fraudulently obtained judgment of possession.
LLP also argues that there is a genuine issue of material fact concerning the description of the property in this matter. They contend that the will conveys property in Homer, Louisiana, while the legal description of the property they purchased is located near Colquitt, Louisiana. In support of their motion for summary judgment against LLP, the intervenors
The map filed by the intervenors shows that the property labeled as the "Wake Hatter Estate" excludes the north 13 1/3 acres. The intervenors attached to their motion several deeds showing the chain of title to the property described in both judgments of possession in this matter. A portion of a deposition from Pearl Hatter Biggs that was admitted stated that Isaac Sr. owned only one piece of property in Louisiana which was his interest in the Wake Hatter Estate. Also attached to the motion for summary judgment are affidavits from Pearl Hatter Biggs and Dock Hatter. Those portions of the affidavits not excluded by the trial court stated that the tax notices on this property are sent from Homer, Louisiana and that Colquitt is a small community and not a town.
In this case, the intervenors have provided documentation to show that the property described in the judgment of possession obtained by Isaac Jr. and Carolyn and then conveyed to LLP was the Wake Hatter Estate. This was the same property conveyed to the intervenors in Isaac Sr.'s will and upon which the intervenors also obtained a judgment of possession. LLP has argued that there is a dispute as to the description of the property, but has failed to show any proof that the property described in the judgments of possession obtained by the parties in this matter is a different piece of property from the Wake Hatter Estate conveyed in the will of Isaac Sr. Based on the record, there is no genuine issue of material fact regarding the property description in this case.
We find that the trial court erred in failing to grant summary judgment in favor of the intervenors against LLP. As set forth above, the judgment of possession obtained by Isaac Jr. and Carolyn is null because it was obtained by fraud and ill practices. Because the intervenors' title to the property was an inheritance right and vested by operation of law, the public records doctrine provides no protection to LLP's claim to ownership of the property through the purchase from Isaac Jr. and Carolyn, who were not the rightful owners. There is no dispute as to the description of the property conveyed in Isaac Sr.'s will. There is no genuine issue of material fact that the intervenors are the rightful owners of the property.
We are cognizant that LLP filed a reconventional demand in the trial court against the intervenors, based on its argument that the property conveyed in the will was not the property described in the judgment of possession obtained by Isaac Jr. and Carolyn and sold to LLP. That claim has been considered and disposed of in these proceedings, rendering LLP's reconventional demand moot.
For the reasons stated above, we reverse the trial court judgment denying the motion for summary judgment by the intervenors against Isaac Hatter, Jr., Carolyn Hatter Curry, and Steno Hatter Gillis, and the motion for summary judgment against LLP. We grant the motions for summary judgment and find that the intervenors
REVERSED; REMANDED FOR FURTHER PROCEEDINGS.
