HOFFMAN v. UNOPENED SUCCESSION OF BUTLER (2025)

Plaintiff-appellant, Iris Annette Butler, Provisional Administrator in the Succession of Dominique Marie Butler (“Iris”), appeals a summary judgment granted in favor of defendant-appellee, Sheriff Bobby Webre, in his capacity as duly elected Sheriff of the Parish of Ascension, State of Louisiana (“Sheriff Webre”), and dismissing Iris’ claims against Sheriff Webre with prejudice. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Dominique Marie Butler died on February 13, 2018, leaving behind four minor children. On September 12, 2018, Roger W. Hoffman filed a petition seeking partition by licitation of immovable property located in Donaldsonville, Louisiana (“the property”), naming as defendant the Unopened Succession of Dominique Marie Butler (“Ms. Butler's Succession”). Hoffman alleged that he and Ms. Butler's Succession co-owned the property, in the proportion of an undivided one-half interest each. Hoffman further alleged the property was not susceptible of being partitioned in kind and that the co-owners had been unable to agree upon a nonjudicial partition. Therefore, Hoffman requested that a curator ad hoc be appointed to represent Ms. Butler's Succession and her minor children and that the property be sold by private sale or public auction.

A court-appointed curator answered Hoffman's petition for partition and following a trial on the merits, which the curator did not attend, the trial court rendered judgment ordering the partition and sale of the property. On December 10, 2019, Sheriff Webre issued a notice of seizure and sale of the property. Before the scheduled public auction occurred, Iris filed a petition for injunctive relief seeking to enjoin the public auction. Iris alleged that the property should be appraised before it is sold pursuant to La. C.C.P. art. 2332 in order to protect the interests of Ms. Butler's minor children.

On September 15, 2020, the trial court signed a written judgment permanently enjoining the sale of the property without an appraisal, ordering an appraisal of the property, and ordering “that the minimum price at the sale be set at two-thirds (2/3) of the appraisal value.”

Hoffman appealed the September 15, 2020 judgment, arguing, in pertinent part, that the trial court erred in granting the permanent injunction, in requiring an appraisal, and in requiring a minimum sales price of two-thirds of the appraisal value. This Court affirmed the trial court's September 15, 2020 judgment, explaining, in pertinent part, that pursuant to La. C.C.P. art. 4605 and its Comment b, the trial court had discretion to direct the manner and conditions of the sale. Hoffman v. Butler, 2020-1330 (La. App. 1 Cir. 6/30/21), 328 So. 3d 1177, 1183-84 (“Hoffman I”).¹

On August 11, 2021, Sheriff Webre issued a notice of seizure of the property, which was served on Hoffman and Ms. Butler's Succession. Sheriff Webre appointed two appraisers who appraised the property for $75,000 and $72,500, respectively. The average of the appraisals was $73,750, which made the starting bid $49,166.67 (two-thirds of the appraised value). The property was set for sale by public auction on January 12, 2022, and notice of the sale was published in a local newspaper on December 2, 2021 and January 6, 2022. On January 12, 2022, the property was offered for sale at 10:00 a.m. in Gonzales, Louisiana. Carla Cannon, the Foreclosure Deputy for the Ascension Parish Sheriff's Office, conducted the sale with an opening bid of $49,166.67. No bid was made by any person at the sale and therefore, it was announced that the property would be offered for a second time at a later date, with the opening bid set as sheriff's costs of the sale.

A second sale was scheduled for April 6, 2022, and notices of the sale were published in a local newspaper on February 24, 2022 and March 31, 2022. On April 6, 2022, Deputy Cannon held the second offering of the property and opened bidding at $18,858.04, the sheriff's costs of the sale. There was only one bid by a third-party, Johnny Darville, in the amount of $40,150.00. The sale of the property to Darville was recorded in the conveyance records of the Ascension Parish Clerk of Court.

On June 22, 2022, Iris filed a “Petition to Rescind Sale of Property” naming Hoffman as a party defendant and alleging he “caused to be issued a Notice of Seizure and Sale in this case selling certain immovable property belonging to minor children without appraisal, exposing said minors to great loss in this matter.” Iris alleged the April 6, 2022 sheriff's sale was held without an appraisal and “in violation of’ the trial court's September 15, 2020 judgment. Iris further alleged that “expenses were taken out of the sale of the property without any authority and deducted from the proceeds[.]” Iris requested that the trial court rescind the April 6, 2022 sale and “that all monies be returned that were taken out of the sale so that the proceeds can be distributed properly and according to law.” On August 29, 2022, Iris amended her petition to name Sheriff Webre as a party defendant, but did not assert allegations specific to Sheriff Webre.

On April 8, 2024, Sheriff Webre filed a motion for summary judgment arguing Iris cannot prove the sale of the property was conducted in violation of the September 15, 2020 judgment or in violation of Louisiana law. Sheriff Webre argued the April 6, 2022 sale of the property was conducted pursuant to La. C.C.P. arts. 2331 and 2336 and was sold with the benefit of appraisal. Sheriff Webre further argued the legality of the sale could no longer be contested because Ms. Butler's Succession accepted the proceeds of the sale. Sheriff Webre argued that since Iris did not allege the sale was the product of fraud or ill practices, her sole remedy was recovery of the proceeds of the sale, which were disbursed to Hoffman and Ms. Butler's Succession. Sheriff Webre attached to his motion for summary judgment an affidavit by Deputy Cannon, who attested to the procedures and events leading up to the April 6, 2022 sale. Several documents were identified by Deputy Cannon and attached to her affidavit, including the following: (1) July 29, 2021 correspondence from Hoffman's attorney to the Ascension Parish Clerk of Court requesting a Commission to Sell to sell the property with appraisal be sent to Sheriff Webre; (2) the Commission to Sell issued by the Ascension Parish Clerk to Sheriff Webre; (3) notice of seizure of the property, which indicates it was served on counsel for Iris on August 16, 2021; (4) the appraisals of the property; (5) proof of publication of the attempted sale held on January 12, 2022, and the sale held on April 6, 2022; (5) the act of sale and related documents recorded in the conveyance records of the Ascension Parish Clerk of Court's Office; (6) copies of checks made payable to Ms. Butler's Succession and Hoffman's attorney in the amount of $9,909.80; and (7) a copy of a check made payable to Hoffman's attorney in the amount of $15,775.07. Deputy Cannon stated in her affidavit that the check sent to Ms. Butler's Succession was cashed.

On July 1, 2024, Iris filed an opposition to Sheriff Webre's motion for summary judgment, arguing the sale did not conform with the trial court's September 15, 2020 judgment. Iris also argued that Hoffman's attorney should not have received $12,680.26 in expenses from the sale of the property without the trial court's approval. Iris attached to her opposition the following documents: (1) the trial court's September 23, 2019 judgment; (2) an appellate brief filed by Hoffman in Hoffman I; and (3) purported email correspondence between counsel for Hoffman and an employee of the Ascension Parish Sheriff's Office regarding expenses for the sale of the property.

Sheriff Webre filed a reply to Iris’ opposition, arguing the opposition was untimely under La. C.C.P. art. 966(B)(2) because it was filed seven days before the hearing scheduled for Sheriff Webre's motion for summary judgment. Sheriff Webre also objected to the purported emails attached to Iris’ opposition as improper summary judgment evidence under La. C.C.P. art. 966(A)(4)(a).

On July 8, 2024, a hearing was held on Sheriff Webre's motion for summary judgment. Iris requested a continuance of the hearing, which the trial court denied. Thereafter, the trial court struck Iris’ opposition as untimely. Following argument, the trial court granted summary judgment, finding Sheriff Webre followed all requirements of La. C.C.P. art. 2336.

On August 6, 2024, the trial court signed a written judgment denying Iris’ motion to continue, sustaining Sheriff Webre's objection to Iris’ opposition, granting Sheriff Webre's motion for summary judgment, and dismissing Iris’ claims against him with prejudice. On August 19, 2024, the trial court signed written reasons for judgment finding there was no genuine issue of material fact that the property was sold with appraisal. Iris appeals the August 6, 2024 judgment, arguing the trial court erred by granting Sheriff Webre's motion for summary judgment, because Sheriff Webre sold the property for less than two-thirds of its value, as required by the September 15, 2020 judgment.²

STANDARD OF REVIEW

Appellate courts review the granting of a summary judgment de novo using the same criteria governing the trial court's consideration of whether summary judgment is appropriate, i.e., whether there is any genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. See La. C.C.P. art. 966(A)(3); Lafayette Steel Erector, Inc. v. G. Kendrick, LLC, 2022-0892 (La. App. 1 Cir. 8/29/23), 375 So. 3d 464, 473, writ denied, 2023-01316 (La. 12/19/23), 375 So. 3d 414.

The summary judgment procedure is expressly favored in the law and is designed to secure the just, speedy, and inexpensive determination of non-domestic civil actions. See La. C.C.P. art. 966(A)(2). The purpose of a motion for summary judgment is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial. Hines v. Garrett, 2004-0806 (La. 6/25/04), 876 So. 2d 764, 769 (per curiam). After an adequate opportunity for discovery, summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3).

On a motion for summary judgment, the initial burden of proof rests with the mover. See La. C.C.P. art. 966(D)(1); Bayview Loan Servicing, LLC v. Holden, 2023-1347 (La. App. 1 Cir. 6/7/24), 391 So. 3d 751, 756, writ denied, 2024-01032 (La. 11/14/24), 396 So. 3d 62. If, however, the mover will not bear the burden of proof at trial on the matter that is before the court on the motion, the mover's burden on the motion does not require that all essential elements of the adverse party's claim, action, or defense be negated. Instead, after meeting its initial burden of showing that there are no genuine issues of material fact, the mover may point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, summary judgment shall be granted unless the adverse party can produce factual evidence sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. See La. C.C.P. art. 966(D)(1); Bayview Loan Servicing, LLC, 391 So. 3d at 756-57.

LAW AND DISCUSSION

Partition by licitation is conducted by public auction, after the advertisements required for judicial sales under execution. La. C.C.P. art. 4607; Hoffman I, 328 So. 3d at 1182. The sheriff shall serve upon the defendant a written notice of seizure of the property; notice shall be accomplished by personal service or domiciliary service. La. C.C.P. art. 2721(B). The notice of seizure shall include information concerning the time, date, and place of the sheriff's sale, in accordance with the form provided in La. R.S. 13:3852(B). La. C.C.P. art. 2721(B).

When an appraisal is required for a judicial sale, the sheriff shall serve written notice on the parties directing each to name an appraiser to value to the property. La. R.S. 13:4363(A). If a party neglects to appoint an appraiser, then the sheriff shall appoint an appraiser for them. La. R.S. 13:4364(A). If the appraisers cannot agree, and (1) the difference in value between the two appraisals does not exceed two hundred and fifty thousand dollars, and (2) the value assigned by the lower of the two appraisers is at least ninety percent of the value assigned by the higher of the two appraisers, then the sheriff shall average the two figures and use the average as the appraised value for purposes of determining the opening bid. La. R.S. 13:4365(B). Notice of the sale of property shall be published at least twice for immovable property, in the manner provided by law. La. C.C.P. art. 2331(A).

When property is to be sold with the benefit of appraisal, the property shall not be sold if the price bid by the highest bidder is less than two-thirds of the appraised value. In that event, the sheriff shall re-advertise the sale of the property in the same manner as for an original sale, and the same delay must elapse. La. C.C.P. art. 2336. At the second offering, the property shall be sold for cash for whatever it will bring. Id.

Herein, Sheriff Webre attached to his motion for summary judgment evidence demonstrating that he complied with the relevant law to sell the property with the benefit of appraisal.³ In particular, Sheriff Webre provided evidence to show notice of seizure of the property was served on Iris, as required by La. C.C.P. art. 2721.⁴ Additionally, as stated by Deputy Cannon in her affidavit, two appraisers were appointed to appraise the property prior to the sale. Pursuant to La. R.S. 13:4365(B), Sheriff Webre used the average of the two appraisals, $73,750.00, to set the opening bid of $49,166.67 (two-thirds the appraisal value) for the public auction set for January 12, 2022. Sheriff Webre also properly advertised the January 12, 2022 and April 6, 2022 public auctions as required by La. C.C.P. art. 2331. Deputy Cannon stated that she held the public auction on January 12, 2022, but no bid was entered. Therefore, as required by La. C.C.P. art. 2336, the property was re-advertised and offered at a second public auction on April 6, 2022, wherein the property was sold to the only bidder. On our de novo review, we find the uncontested summary judgment evidence demonstrates that Sheriff Webre complied with the relevant law and the property was sold with the benefit of appraisal pursuant to the September 15, 2020 judgment.

CONCLUSION

For the aforementioned reasons, we affirm the trial court's August 6, 2024 judgment granting summary judgment in favor of Sheriff Bobby Webre, in his capacity as duly elected Sheriff of the Parish of Ascension, State of Louisiana and dismissing with prejudice the claims of Iris Annette Butler, Provisional Administrator in the Succession of Dominique Marie Butler, against Sheriff Bobby Webre, in his capacity as duly elected Sheriff of the Parish of Ascension, State of Louisiana. Costs of this appeal are assessed against Iris Annette Butler, Provisional Administrator in the Succession of Dominique Marie Butler.

AFFIRMED.

The trial court has the discretion to direct the manner and conditions of effecting a partition so that it will be most advantageous and convenient to the parties. See LSA-C.C.P. art. 4605 and LSA-C.C. art. 1336. To protect the minor children's interest in the property, the trial court's September 15, 2020, judgment, required that “the minimum price at the sale be set at two-thirds (2/3) of the appraisal value.” The judgment codified the trial court's oral reasons for judgment, wherein the court stated that “y'all put in the judgment itself that [the property] not be sold for less than two-thirds of the appraised value.” In its oral reasons, the court also indicated, “If something happens and it doesn't [sell for two-thirds of the appraised value], then maybe y'all come back to me and say, look, Judge, we're at a standstill here. We couldn't get a sale done.” However, it is not stated in the judgment whether the property was to be sold at public auction or by private sale.

Nevertheless, as to Sheriff Webre, the record established that he complied with all legal requirements incumbent upon him for a public sale. Accordingly, I concur with the result reached by the majority.

FOOTNOTES

1.   This Court affirmed the September 15, 2020 judgment as amended to provide a sufficiently particular description of the property. Hoffman I at 1185,.

2.   Iris asserts in her appellate brief that $12,680.26 was “taken from the children's money without a judgment from the court authorizing that it be taken out.” However, Iris does not provide any legal argument regarding this issue. Accordingly, we consider this issue to be abandoned. See Louisiana Commerce & Trade Ass'n, SIF v. Williams, 2014-1680 (La. App. 1 Cir. 6/5/15), 174 So. 3d 696, 699; Uniform Rules of Louisiana Courts of Appeal, Rule 2-12.4(B)(4).

3.   Although the issue is not raised by Iris on appeal, we note that the trial court correctly refused to consider her opposition to Sheriff Webre's motion for summary judgment as the opposition was filed less than 15 days prior to the scheduled hearing on the motion for summary judgment. See La. C.C.P. art. 966(B)(2); Auricchio v. Harriston, 2020-01167 (La. 10/10/21), 332 So. 3d 660, 663.

4.   Sheriff Webre did not provide evidence to demonstrate that Iris was served with written notice directing her to name an appraiser to value to the property, as required by La. R.S. 13:4363. However, as discussed, Iris was notified of the seizure and was aware the judicial sale would proceed with the benefit of appraisal. Deputy Cannon stated in her affidavit that Sheriff Webre appointed two appraisers to appraise the property. Iris does not argue that she was unaware of her right to choose an appraiser, nor does she assert that the appraisals were incorrect. In the absence of proof to the contrary, the two appraisers are presumed to be qualified and their appraisals must be presumed to be valid. Whitney Nat. Bank v. F. W.F., Inc., 93-1152, 93-1153 (La. App. 4 Cir.), 635 So. 2d 361, 365, writ denied, 94-1546 (La. 9/23/94), 642 So. 2d 1301.

BALFOUR, J.

McClendon, CJ. concurs and assigns reasons.