author: MOORE, J.

text:
    Martha Melinda Jones KLEBANOFF and Carla Louise Jones, Plaintiffs-Appellees, v. Fred Jackson HABERLE, Aber Oil and Gas Co., Christopher Trust, through Charles Williams, Trustee, and Thomas C. Broome, Defendants-Appellants.
    No. 43,102-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 19, 2008.

      Blanchard, Walker, O’Quin Roberts by Paul M. Adkins, Scott R. Wolf, W. Timothy Allen, Shreveport, for Appellants.
    L. Havard Scott, III, for Appellees.
    . Before WILLIAMS, DREW and MOORE, JJ.
   MOORE, J.

liThe defendants, Christopher Phillips, the Christopher Trust and Fred Jackson Haberle,, appeal a judgment finding that they agreed, through an exchange of emails with the plaintiffs’ attorney, to compromise a lawsuit- in which the plaintiffs, Martha Melinda Jones Klebanoff and Carla Louise Jones, sought a declaration that they owned an undivided interest in a mineral lease. The judgment ordered the defendants to execute the compromise whereby they transferred their interest in the lease to the plaintiffs for $56,136.10 and a waiver of any future claims. We affirm. .

Factual Background

The plaintiffs are two daughters of Carl Jones, who as a lessee executed a mineral lease in 1975 referred to as “the Yarber Lease.” Carl Jones’s other daughter, Caroline J. Broome, is the plaintiffs’ half-sister and mother of one of the defendants, Christopher Phillips. According to the plaintiffs, Carl Jones died in 1999, but his most significant and valuable asset, the Yarber Lease, was not included in his succession. The plaintiffs also asserted that their father’s will left each daughter an equal share of his estate, with an overriding royalty to Phillips’s grandmother, Carolyn H. Jones, but all revenues from the Yarber Lease were being - paid to Thomas Broome (Caroline Broome’s husband and Phillips’s stepfather), Aber Oil & Gas (Phillips’s company), Fred Jackson Haberle (Phillips’s business partner), and the Christopher Trust (set up by Phillips).

The plaintiffs retained counsel, L. Ha-vard Scott, who sent demand letters to these people and entities, demanding that they return the Yarber Lease to Carl Jones’s succession and to Mrs. Jones. The Broomes | pimmediately complied, but the other parties refused.

In November 2005, the plaintiffs filed the instant suit seeking a declaratory judgment recognizing them as undivided owners of the Yarber Lease, with an accounting and payment of royalties. Phillips was not named a defendant in the original petition.

What then ensued was an exchange of emails between the plaintiffs’ lawyer, Ha-vard Scott, and Christopher Phillips, some 32 of them from January 27 to April 13, 2006. These were admitted at trial as Exhibits J-10 through J-42. According to the plaintiffs, on February 8, they reached an agreement with Phillips whereby the defendants would assign their entire interest in the Yarber Lease to the plaintiffs for $56,136.10, to be paid within two weeks, and a release from any further claims. The plaintiffs drafted an assignment and tendered it with the money on February 24, but the defendants refused to accept.

The plaintiffs filed the instant amended petition in April 2006, adding Phillips as a defendant and demanding enforcement of the compromise reached on February 8. Ultimately, they dismissed Aber Oil & Gas and dropped all claims except to enforce the compromise.

The matter proceeded to a bench trial in January 2007. The parties stipulated that Phillips had the authority to act on behalf of the other two defendants, the Christopher Trust and Fred Haberle, and that the Louisiana Uniform Electronic Transactions Act, specifically La. R.S. 9:2607, applied to the case. Phillips testified that there was no meeting of the minds ^between himself and the plaintiffs’ attorney, only a “starting point to deal.” He also testified that his main concern was to get a full and complete release, but he did not feel the document forwarded to him gave him this. He expected his own attorney to draft a “global release,” but for various reasons this never happened.

Action of the District Court

The court ruled orally that the parties reached a compromise on February 8, 2006 (Exhibit J — 18), in that they reached a meeting of minds as to what was being conveyed and how much it would cost. Further, Phillips asked his own lawyer to draft a settlement, but he failed to do so, and then Phillips was “spooked” by some terminology in the one sent by the plaintiffs. As in a sale, however, a dispute over the wording of the contract would not make it unenforceable. Finally, under R.S. 9:2607, the emails satisfied the writing requirement for a compromise, La. C.C. art. 3072.

The court rendered judgment finding an enforceable compromise, placing the plaintiffs in possession of the defendants’ interest in the Yarber Lease, and ordering the plaintiffs to deliver a release and $56,136.10 to the defendants. The court denied the defendants’ motion for new trial, and this appeal followed.

1 ¿Discussion: Standard of Review

As a preliminary matter, the defendants urge that the proper standard of review is de novo, not manifest error, because of legal error that interdicted the fact-finding process. Evans v. Lungrin, 97-0541 (La.2/6/98), 708 So.2d 731. Specifically, they contend that the elements of a compromise were not present, thus tainting the court’s findings as a matter of law. Slaughter v. Arco Chemical Co., 2005-0657 (La.App. 4 Cir. 4/26/06), 931 So.2d 387.

The plaintiffs respond that the usual standard of review, manifest error, applies to cases involving disputes over the existence of a compromise agreement. Sceroler v. Rancher, 1999-2859 (La.App. 1 Cir. 2/15/02), 808 So.2d 803, writ denied, 2002-0811 (La.5/24/02), 816 So.2d 849. We agree.

The trial court’s interpretation of an alleged compromise agreement is subject to manifest error/clearly wrong review. Kelly v. Owens, 29,613 (La.App. 2 Cir. 8/20/97), 698 So.2d 757, writ denied, 97-2311 (La.12/12/97), 704 So.2d 1193; Doyal v. Pickett, 25,247 (La.App. 2 Cir. 12/1/93), 628 So.2d 184; Sceroler v. Rancher, supra. This is because the existence or validity of a compromise depends on a finding of the parties’ intent, an inherently factual finding. Kelly v. Owens, supra. For the reasons discussed below, we find no legal error of any kind that would interdict the district court’s fact-finding process. This argument lacks merit.

| eExistence of Compromise

By their first assignment of error, the defendants urge the court erred in finding they entered a compromise. Under C.C. art. 3072, a compromise must be in writing, and the writing must be “unambiguous, perfect and complete in itself.” Parich v. State Farm, 919 F.2d 906 (5 Cir.1990). The emails addressed all aspects of the agreement, but the plaintiffs’ counsel repeatedly referred to their “deal” as though it were finalized. In the crucial emails of February 8, Scott felt there was a deal, but within an hour Phillips retorted, “What deal do we have?” Then, in a February 15 email, Scott admitted exploring “alternative resolutions of this situation,” and on February 16 cited “the problem we have with consideration of the so called ‘original deal’ ”; from these, the defendants contend that even Scott doubted they had really reached a compromise. They submit that back-and-forth correspondence between the parties does not necessarily form a compromise. Sceroler v. Rancher, supra; Anthony v. Liberty Mutual Ins. Co., 99-1730 (La.App. 3 Cir. 4/5/00), 759 So.2d 910. In addition, disagreement over indemnity is fatal to a compromise. Collins v. Mike’s Trucking Co., 2005-0238 (La.App. 1 Cir. 5/5/06), 934 So.2d 827, writ denied, 2006-1914 (La.12/8/06), 943 So.2d 1094. Further, it was error for the court to apply the principles of sale, La. C.C. art. 2439, by analogy to the much more complicated requirements of a compromise, C.C. art. 3071. Finally, they argue the parties did not intend to be bound until a certain form of contract was executed, under La. C.C. art. 1947; since the assignment was never perfected, there was no enforceable agreement. Knipmeyer v. Diocese of Alexandria, 492 So.2d 550 (La.App. 3 Cir.), writ denied, 496 So.2d 347 (1986).

The plaintiffs respond that the only essential elements of a compromise are a mutual intent to end the litigation and reciprocal concessions to adjust their differences. La. C.C. art. 3071. A valid compromise may result when two instruments, read together, outline the parties’ obligations and show their acquiescence in the agreement. Felder v. Georgia Pacific Corp., 405 So.2d 521 (La.1981). Moreover, they contend, the defendants’ stipulation that the La. Uniform Electronic Transactions Act applied waived any claim that emails are not really writings.

At the time of these events, La. C.C. art. 3071 provided:

A transaction or compromise is an agreement between two or more persons, who, for preventing or putting an end to a lawsuit, adjust their differences by mutual consent, in the manner which they agree on, and which every one of them prefers to the hope of gaining, balanced by the danger of losing.
This contract must be either reduced into writing or recited in open court and capable of being transcribed from the record of the proceeding. The agreement recited in open court confers upon each of them the right of judicially enforcing its performance, although its substance may thereafter be written in a more convenient form.

There are two essential elements of a compromise: (1) mutual intention of preventing or putting an end to the litigation, and (2) reciprocal concessions of the parties to adjust their differences. Trahan v. Coca Cola Bottling Co., 2004-0100 (La.3/2/05), 894 So.2d 1096. The requirement |7that the agreement be in writing does not necessarily mean that the agreement must be contained in one document. Felder v. Georgia Pacific Corp., supra. Where two instruments, read together, outline the obligations each party has to the other and evidence each party’s acquiescence in the agreement, a written compromise agreement has been perfected. Id.; Townsend v. Square, 94-0758 (La.App. 4 Cir. 9/29/94), 643 So.2d 787. Compromises are favored in the law, and the burden of proving the invalidity of such an agreement lies with the party attacking it. Rivett v. State Farm, 508 So.2d 1356 (La.1987); Kelly v. Owens, supra.

The crucial issue is the parties’ intent as expressed in the emails. What follows is a summary of their communications.

In his first message, February 1, Phillips told Scott, “If you want you can just propose [the plaintiffs] pay me for what I have in the deal and I will convey my interest to them.” Scott replied on February 2 that this would be acceptable to his clients: “We agree to this proposal of settlement.” Several days later, Phillips clarified his offer by demanding payment in full: “I will not finance their interest^] Aber Oil & Gas and myself would expect to be paid for what we have invested at which point we would convey the interest over.” On February 8, Scott tentatively accepted this offer, but:

Now it seems as if the only issue that we do not have a complete meeting of the minds with respect to is how much investment is involved, how much your aunts will “finance” this transaction/compromise and how much time you will allow them to do it.

He requested proof of how much the defendants had invested in the current project, the Frierson 30-3 well; he also commented, perhaps gratuitously, |sthat the plaintiffs had been “coerced” into signing over their interest in the Yarber Lease in 2000. Phillips immediately replied that thanks to that statement, “I will no longer try to work with you, your clients can either pay the $56,136.10 in two weeks or I will have my attorney contact you.” He reiterated that he could not finance the plaintiffs’ payment: “Please let me know how you would like to proceed.”

Scott responded that he was “thrown for a loop” by the request for up-front money instead of a payout from the lease. “Nevertheless, subject to working out the financing aspect, we have a compromise. I will do what I can to scrounge up some financing for Carla and Melinda.” Phillips replied (Exhibit J — 18):

If I don’t receive the money before the logging of the 30-3 the deal is off and you will have to resume litigation. * * * Expect a letter outlining our conversations and my proposal from my attorney. I will have [the accountant] include the information you requested below.

Scott responded, “I am pleased that we have a deal. * * * I look forward to hearing from your attorney so that we can get this matter concluded.” Almost immediately, however, Phillips asked, “What deal do we have? The 33% back in after payout or the payment of the remainder of the un-recovered funds before logging the Frierson 30-3.”

A week later, Scott asked Phillips why he had not received the paperwork “to close our settlement of a return assignment of yours and Haberle’s interest in the Yarber lease for the unrecovered amount of $56,000,” and again requested documentation of production payments and the identity of the payee. Apparently wavering, Phillips replied, “The 33 [9percent back-in after payout is the current structure. * * * However, I would rather just get the money I have in it back and move on.” He again offered to send “detailed financials concerning what has been spent and recouped. We can make the deal effective Feb. 1 and any additional funds received will be forwarded to your clients.”

On February 22, Scott advised Phillips that the money was in his trust account, ready to be transferred, but he had not yet received the assignment from the defendants’ lawyer as promised. Later the same day, he emailed his own proposed assignment as an attachment. Phillips responded that he had “several problems” with Scott’s assignment; mainly, it contained no indemnification from future claims by the plaintiffs or any kind of warranty. Scott replied that he would provide a “general release for you,” and the assurance that his clients’ funds would not be disbursed until the assignment was signed. Phillips agreed: “No problem on not disbursing until the assignment is completed. I would rather have my attorney draw up the assignment.”

After some delay and receiving nothing from Phillips, Scott wrote on March 7, and again on March 17, asking for the detailed financials by the end of the next week “or else you will leave me with no choice but to request the court’s involvement.” Phillips replied with some financial information but added, “I do not feel comfortable assigning this to you. How will I be assured of indemnification of future claims concerning the Carl Jones Estate from Carla and Melinda?” Scott promptly advised that assigning it to him was merely an accommodation to his clients, and he |1nintended to provide a “complete and comprehensive release.” Again hearing nothing from Phillips, on March 28 Scott forwarded another proposed assignment; however, it omitted the requested indemnification or hold-harmless clause.

On April 5, Scott faxed a conventional letter to Phillips advising that he had filed the amended petition to enforce the compromise. Phillips replied by email, over a week later, that the proposed assignment was “very generic and included no release.” Further, “I am tired of dealing with you and your slanderous comments. * * * Once the lawsuit has been served I will forward it on to [my attorney] and all future correspondence should by-pass me and be directed toward him.” Scott responded that his clients had always been agreeable to the general release, which they expected Phillips’s attorney to provide, but that he (Scott) would respect his request and communicate only through counsel. This was the final email.

As this synopsis shows, on at least three occasions (February 1, 7 and 8), Phillips offered to settle the lawsuit for “what I have in the deal,” “what we have invested,” and “$56,136.10 in two weeks.” Scott accepted, subject to financing, and Phillips confirmed, “If I don’t receive the money before the logging of the 30-3 the deal is off.” In our view, this exchange satisfied the two essential elements of the compromise: a mutual intent to end the litigation and reciprocal concessions. Trahan v. Coca Cola Bottling Co., supra. The district court was not plainly wrong in so finding.

Admittedly, Phillips’s subsequent emails contained isolated remarks which, taken out of context, might cast doubt on the compromise, as when |nhe asked on February 8, “What deal do we have?” However, this potential issue appears resolved by the remainder of that email, and by the one of February 16, when Phillips stated, “I would rather just, get the money I have in it back and move on.” In our view, this suggests reservations about the commitment he previously made, but it does not alter the showing of consent and mutual concessions reached on February 8.

The remainder of the emails show some difficulty in incidental matters. Phillips was reluctant to make an assignment in favor of the plaintiffs’ attorney, but Scott’s responses show this was merely a concession to his clients, who would be the true parties in interest. Next, there was something of an impasse as each side apparently expected the other to furnish the assignment; the plaintiffs provided two drafts, both of which omitted the indemnification on which Phillips insisted. However, Scott repeatedly assured Phillips that the plaintiffs would indeed sign whatever indemnification he wished.. This does not rise to the level of disagreement that was fatal to the compromise in Collins v. Mike’s Trucking Co., supra. On February 16, Scott mentioned “alternative resolution” of the situation, but in context this is an obvious reference to judicial enforcement of the compromise. Neither these incidental issues, nor the district court’s fleeting analogy to a contract of sale, alter the essential finding of a compromise.

Finally, the defendants urge that the parties contemplated the preparation of additional documents, or placing the compromise agreement into a certain form; in such a situation, the law presumes they did not intend to be bound until a contract was executed in that form. In support, they cite[iaLa. C.C. art.1947:

When, in the absence of a legal requirement, the parties have contemplated a certain form, it is presumed that they do not intend to be bound until the contract is executed in that form.

The argument, however, is unpersuasive. Phillips stated on February 24, “I would rather have my attorney draw up the assignment”; on several occasions Scott said he was awaiting that document, but it never came. Phillips promised to provide it; he never delivered. Any failure to execute an assignment lies squarely with Phillips, and is a deficiency he cannot claim to his benefit under the guise of Art.1947.

The jurisprudence cited by the defendants is also inapposite. In Knipmeyer v. Diocese of Alexandria, supra, the court refused to interpret a survey form or letter of intent as a contract of employment, which was usually expressed by a standard-form contract. In Breaux Bros. Const. Co. v. Associated Contractors Inc., 226 La. 720, 77 So.2d 17 (1954), the court refused to enforce an oral contract for earth removal. In addition to finding no evidence that the parties agreed on a price, the court added that the parties obviously agreed that the contract should be reduced to writing, in the absence of which there was no contract. In the instant case, the parties’ positions were clearly expressed in writings which are recognized under the La. Uniform Electronic Transactions Act, La. R.S. 9:2607. The object of their communications was never anything other than a compromise. We find no presumption of an intent not to be bound until the execution of a contract in a special form.

| rsThis assignment of error lacks merit.

Admission of Parol Evidence

By their second assignment, the defendants urge the court erred in admitting the testimony of Christopher Phillips. Parol evidence is inadmissible to prove the existence of a settlement agreement. Collins v. Mike’s Trucking Co., supra. The fact that the court felt the need to listen to testimony only underscores that the emails did not prove a compromise.

The plaintiffs respond that the court did not really consider Phillips’s testimony; it found a compromise strictly within the four corners of the emails. Moreover, Phillips’s testimony was against his own interest and thus admissible under EM Nominee Partnership v. Arkla Energy Resources, 26,795 (La.App. 2 Cir. 5/12/95), 656 So.2d 55, writ denied, 95-1792 (La.1/5/96), 666 So.2d 300. We agree.

The lengthy synopsis of the emails shows the contours of the parties’ negotiations: what each side wanted, which avenues they rejected and, finally, the terms they agreed to. The entire agreement is apparent from the communications. Phillips’s testimony did not taint the ultimate finding of a compromise.

A compromise settles only those differences that the parties clearly intended to settle, including the necessary consequences of what they express. La. C.C. art. 3076. The intent which the words of the compromise instrument express in light of the circumstances at the time of the execution of the agreement is controlling. Robinson v. Robinson, 99-3097 (La. 1/17/01),14 p. 18, 778 So.2d 1105, at 1122. Phillips’s testimony corroborated that he wanted to settle the lawsuit for an amount equal to his investment in the Frierson 30-3 and full indemnity. It also established that when the well turned out to be productive, the plaintiffs’ undivided interest was worth much more than his $56,136.10 investment. The fact that the deal turned out to be unfavorable to the defendants is no basis for denying that the deal was ever struck. Phillips’s testimony surely illuminated the circumstances surrounding the compromise, but did not amount to improper parol evidence. This assignment of error lacks merit.

Conclusion

For the reasons expressed, the judgment is affirmed. Appellate costs are to be paid by the defendants, Christopher Phillips, the Christopher Trust and Fred Jackson Haberle.

AFFIRMED.

      . " § 2607. Legal recognition of electronic records, electronic signatures, and electronic contracts.
      "A. A record or signature may not be denied legal effect or enforceability solely because it is in electronic form.

        "B. A contract may not be denied legal effect or enforceability solely because an electronic record was used in its formation.
      "C. If a law requires a record to be in writing, an electronic record satisfies the law.
      “D. If a law requires a signature, an electronic signature satisfies the law.”

      . This article was amended by 2007 La. Acts. No. 138, effective August 15, 2007, and its substance incorporated into current articles 3071 and 3072. According to the revision comments, the amendment was not intended to change the law.

      . The substance of the current Art. 3076, which took effect August 15, 2007, was previously part of Art. 3073. The 2007 amendment was not intended to change the law.


source: Caselaw Access Project

author: CARAWAY, J.

license: Public Domain

text:
    SUCCESSION OF Carl L. DAVIS, Jr.
    No. 43,096-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 19, 2008.
    Pringle & Herzog by John R. Herzog, Shreveport, for Appellant.
    Theus, Grisham, Davis & Leigh by Paul D. Spillers, Robert L. Curry III, Monroe, for Appellee.
    ’ Before GASKINS, CARAWAY and MOORE, JJ.
   CARAWAY, J.

Lin this ancillary succession proceeding, an independent executor appeals a judgment sending a particular legatee into possession of her undivided one-half interest in certain Louisiana mineral rights. At the time of the judgment, approximately 14 months after the date of death, the executor had not filed the federal estate tax return, although an estimate for that tax of over $1,000,000 had been preliminarily paid. The independent executor appeals the partial judgment of possession, and the legatee has raised an issue regarding the subject matter jurisdiction of this court to hear the appeal. Finding the action of the trial court premature, we reverse the judgment and remand for the issuance of further orders for a complete accounting by the executor.

Facts

Carl L. Davis, Jr., a resident of Houston, TX, died testate on April 21, 2006, without surviving wife or children. Davis executed a last will and testament in Texas on September 12, 2001, and named his friend, Vincent Otho Cano, independent executor of his estate. Davis’s will also bequeathed to his sole surviving sibling, Alice David Hinton, one-half of the mineral interests (hereinafter the “Louisiana Minerals”) he owned on 65,000 acres of land in North Louisiana that he had received “as a dividend from Davis Bros. Lumber Company, Ltd. prior to its liquidation in 1971.... ” Cano received the remaining one-half interest. Hinton and Cano also received one-half interests in other mineral rights owned by Davis which [¿were not located in Louisiana. Davis left the residue of his estate which included a home and cash accounts to Cano.

An order admitting Davis’s will to probate and authorizing letters testamentary to Cano was signed by a Texas court on June 20, 2006. Subsequently, on January 10, 2007, Hinton filed ancillary probate proceedings in the Third Judicial District Court of Louisiana in accordance with C.C.P. arts. 3401, et seq., and La. R.S. 9:2421, et seq. An order of probate was signed by the Louisiana court on January 11, 2007.

Cano also filed a petition to probate Davis’s will, to be named independent executor and for letters of administration in the Third Judicial District Court on January 27, 2007. The court appointed Cano as independent executor and ordered the issuance of letters of administration on March 14, 2007. The letters testamentary were not issued until August 7, 2007, approximately one month after the order of appeal was signed in this matter. As a result, Hinton now challenges the jurisdiction for this appeal.

On May 11, Hinton filed a Petition for Partial Possession seeking to be recognized as owner of her legacy. The trial court set the hearing for June 4, 2007. Both parties submitted pre-hearing memo-randa. Cano argued that the petition for partial possession was premature as the federal estate tax return had not been filed. Hinton argued that her legacy was not exposed to tax liability because her brother’s will directed that the estate taxes be paid from the residuary estate. She further contended that because 13no Louisiana inheritance taxes were due, she was entitled to a judgment of possession. She also sought an accounting for $1.3 million in income from her Louisiana Minerals which had allegedly accrued since Davis’s death.

At the hearing, only Cano testified. He stated that the filing of a federal estate tax return was necessary for the estate. He had applied for and was granted an extension for filing the tax return until January 21, 2008. Nevertheless, the Department of Treasury required estimated taxes paid. Two checks were sent for payment of the estimated taxes that totaled in excess of $1,000,000. Copies of the forms for the extension were placed into evidence. Attachments to the form prepared by Cano’s accountant explained that the decedent’s mineral interests “comprise approximately 85% of the value of the decedent’s estate .... ” The explanation also declared that the “executor is in the process of assessing the availability of other estate assets, to pay the estate tax since the mineral interests are not available to be utilized at this time.” Cano testified that the final federal estate tax return was to be filed by July 15. He also stated that he would then know if he had to obtain funds beyond the residual estate for payment of taxes. Cano conceded that his original valuation of the estate at $629,000 was incorrect because he had later learned of more income belonging to the estate. Finally, Cano made no claim of any creditor’s debt affecting the administration of the succession.

After considering Cano’s testimony and the argument of counsel, the trial court rendered judgment in favor of Hinton, placing her into possession of her legacy. The court specifically determined that no Louisiana | inheritance taxes were due and that the will required that the taxes be paid from the residual estate. The judgment further ordered that Cano file within 45 days an accounting of all mineral royalties attributable to Hinton’s legacy of the Louisiana Minerals accruing since the date of death.

This appeal by Cano challenges the trial court’s authority for the partial judgment of possession.

Louisiana Succession Law

For an ancillary succession proceeding involving a nonresident decedent’s property in this state, the procedure for administration of the succession shall be the same as provided for the succession of a Louisiana domiciliary. La. C.C.P. art. 3401.

The parties do not dispute that Davis’s will appoints Cano as an independent executor so that Louisiana’s independent administration of estates law, La. C.C.P. arts. 3396, et seq., has application. Upon qualification of a succession representative and compliance with the provisions of the chapter for independent administration of estates, the court shall issue Letters of Independent Executorship, certifying that the independent executor has been duly qualified. La. C.C.P. art. 3396.1. Except as expressly provided otherwise in the independent administration of estates law, an independent administrator shall have all the rights, powers, authorities, privileges, and duties of a succession representative provided in Chapters 4 through 12 of the Code of Civil Procedure title for the administration of successions, but without the necessity of delay for objection, or application to, or any action in or by, the court. La. C.C.P. art. L3396.15. Except where the testament provides otherwise, an independent executor shall not be required to provide security for the administration of the estate. If an interested person, such as an heir, legatee, or creditor of the estate requests security, then upon application by such party, and after a contradictory hearing, the court may order the independent executor to furnish security as the court determines to be adequate. La. C.C.P. art. 3396.14. An independent executor is not required to file an interim accounting. Nevertheless, any person interested in the estate may demand an annual accounting from the independent executor as provided in Article 3331 of the Code of Civil Procedure. Further, the court on application of any interested person may require an independent executor to furnish accountings at more frequent intervals. La. C.C.P. art. 3396.17. The court on motion of any interested person, after a contradictory hearing, may remove an independent executor for any of the reasons provided in Book VI of the Code of Civil Procedure for which a succession representative may be removed from office. In addition, the court on motion of any interested person, after a contradictory hearing, may for good cause order that the letters of independent administration be withdrawn and that the succession thereafter be administered under the procedures set forth elsewhere in Book VI of the Code. La. C.C.P. art. 3396.20.

Regarding the partial judgment of possession which is the subject of this appeal, Cano cites La. C.C.P. art. 3396.18, which provides as follows:

A. Before the succession can be closed and the independent administrator discharged, there must be filed an inventory or sworn descriptive list of assets and liabilities of the estate verified by the independent administrator.
|,;B. A successor shall not be placed in possession of property without the filing of an inventory or sworn descriptive list of assets and liabilities and proof that the inheritance tax, if any, shown as due on the return has been paid. The successor may be placed in possession by a final or partial judgment of possession.

In support of her Petition for Partial Possession, Hinton cites Code of Civil Procedure Articles 3061 and 3381, which provide as follows:

Art. 3061. Judgment rendered and signed immediately
The court shall render and sign immediately a judgment of possession, if it finds from an examination of the petition for possession, and from the record of the proceeding, that the petitioners are entitled to the relief prayed for, and that all inheritance taxes due have been paid or deposited into the registry of the court, or that no such taxes are due and that an inheritance tax return, when required, with the required accompanying documents, has been filed with the collector of revenue. The judgment shall recognize the petitioners as the heirs, legatees, surviving spouse in community, or usufructuary, as the case may be, of the deceased, send the heirs or legatees into possession of the property owned by the deceased at the time of his death, and recognize the surviving spouse in community as entitled to the possession of an undivided one-half of the community property, and of the other undivided one-half to the extent that he has the usufruct thereof....
Art. 3381. Judgment of possession A judgment of possession shall be rendered and signed as provided in Article 3061. The judgment shall be rendered and signed only after a hearing contradictory with the succession representative, unless he joins in the petition, in which event the judgment shall be rendered and signed immediately.

A succession representative is a fiduciary with respect to the succession, and shall have the duty of collecting, preserving, and managing the property of the succession in accordance with law. La. C.C.P. art. 3191. Also, Article 3197 states that “[i]t shall be the duty of a succession representative to close the succession as soon as advisable.”

¡vWhile not clearly addressed in the Code „f Civil Procedure articles for the administration of successions, the filing of the federal estate tax return and the payment of such tax are functions of the administration of the estate as shown by the estate tax apportionment law, La. R.S. 9:2431, et seq. In that law, the definition of “tax” includes the federal estate tax. La. R.S. 9:2431(7). The law provides for apportionment of the tax among those persons receiving legacies in accordance with the directives in the decedent’s will or otherwise “in the proportion that the value of the interest of each person interested in the estate bears to the total value of the interests of all persons interested in the estate.” La. R.S. 9:2432. In stating the rules of apportionment of the tax, including the federal estate tax, La. R.S. 9:2432 references apportionment “by the court” which implies the judicial procedures attendant to the administration of successions and the recognition of heirs and legatees by a judgment of possession. Finally, the fiduciary or other person in possession of the property of the deceased required to pay the tax may withhold from any property distributable to any person interested in the estate, upon its distribution to him, the amount of tax attributable to his interest. La. R.S. 9:2434(A).

Discussion

I.

In brief, Hinton argues that on the date of appeal, Cano lacked authority to act as succession representative because his letters testamentary had not been issued by the court. On those grounds, Hinton raises a claim Lthat this court lacks subject matter jurisdiction to hear the appeal. We find no merit to this claim.

At the time of Hinton’s request for this contradictory hearing, she named Cano and prayed that the court order him “to notify Petitioner of any effort to have the Court issue Letters Testamentary to him and that Petitioner be granted ten (10) days to request that bond be posted by VINCENT OTHO CANO prior to Letters Testamentary being issued to him.” This prayer regarding security is contrary to the decedent’s will and La. C.C.P. art. 3396.14 and was not supported by specific allegations justifying the prayer. The initial order of the trial court appointing Cano as independent executor in March 2007, required no security, and the subject judgment which also orders Cano as executor to account to Hinton for the accrued mineral royalties from her legacy does not require security for the further administration of the estate. Therefore, at the time of the contradictory hearing against the executor, there was no justification shown in the record for the non-issuance of the letters testamentary which failure remained contrary to the March 14, 2007 order.

Moreover, Cano’s defense asserted on behalf of the estate, and the subject judgment rendered against him in his representative capacity in June 2007, were proceedings under the supervision of the trial court and not independent acts of an executor without the proper authority. Before the delays for appeal of the judgment had run, Cano was issued letters | atestamentary making Hinton’s claims regarding authority for Cano’s prosecution of this appeal moot.

II.

Hinton’s petition for partial possession and delivery of her Louisiana legacy has appeal from the broad perspective because of the delay of action by Cano since Davis’s death, the lack of accounting by Cano and, most importantly, the large sum of income being generated by the Louisiana Minerals. Citing Code of Civil Procedure Articles 3061 and 3381, Hinton asserts that the judgment of possession was proper after the contradictory hearing despite Cano’s refusal to “join in the petition” and his opposition to the delivery of Hinton’s legacy. We disagree.

Admittedly, Cano’s testimony at trial was less than forthcoming about the details of his dealings with estate matters for the Louisiana and other properties and his handling of the federal estate tax return. Certainly, with the federal estate tax return nearing completion, Cano’s production of the details of his accountant’s or petroleum engineer’s efforts for appraisal of the large mineral holdings of the estate and documentation of those efforts may have avoided the judgment rendered by the trial court. Despite obligations as a fiduciary over a succession of concern to only himself and Hinton, Cano neglected basic communication with Hinton, who for protection of her interests brought him before the trial court. While Louisiana’s new independent administration of estates law allows actions by hpthe independent executor without application to the court for approval, the obligation of the fiduciary still requires good faith dealings and managerial disclosure with the heirs and legatees for whom he represents. La. C.C.P. arts. 3191, 3396.15 and 3396.17. While disclosure by a more formal annual accounting may be demanded from any person interested in the estate, a general good faith disclosure obligation is also present so as to avoid this type of dispute and fulfill the fiduciary’s duty.

Nevertheless, the trial court had at its disposal other remedies to insure that this independent executor was properly fulfilling his duties before the court’s issuance of the judgment of possession. Certainly, an accounting addressed under Article 3396.17 could have been ordered immediately. The trial court can order an accounting on its own motion. La. C.C.P. art. 3331. The accounting should have sought the computation and detailed explanation of the federal estate tax which Cano ambiguously suggested in his testimony and arguments might be required to be satisfied out of a portion of the value of Hinton’s legacy. With Davis’s will directing allocation of the federal estate tax to the residual estate, any possibility of an apportionment of the federal tax to Hinton’s legacy should have been explained to the trial court and this court. Circumstantially, we understand from the record and estate tax law that the mineral assets in Louisiana producing in excess of $2.6 million in the year after Davis’s death required appraisals for the filing of the federal estate tax return. See, 26 U.S.C.A. |^§ 2001; Estate of Johnston by Payne v. United States, 779 F.2d 1123 (5th Cir.1986), cert. denied, Payne v. United States, 477 U.S. 904, 106 S.Ct. 3273, 91 L.Ed.2d 564 (1986). Nevertheless, Cano did not provide the trial court with an adequate explanation of the steps being taken for the federal estate tax return and the proposed allocation of that tax as such allocation might affect Hinton’s legacy.

As set forth above, the filing of the federal estate tax return and the payment of such tax are functions of the administration of a Louisiana succession. Even with the weak explanation of the independent executor’s actions for the federal estate tax return, the record indicates that the trial court’s judgment was premature until proof in the form of an accounting for the federal estate tax was provided.

Additionally, Code of Civil Procedure Article 3396.18 requires a detailed descriptive list of assets and liabilities of the estate before the succession can be closed. Such list is an accounting that was also not before the court.

Despite the fact that this is an ancillary succession proceeding and that the Louisiana Minerals legacy apparently may not be subject to an apportionment of the federal estate tax, the determination of the federal estate tax on the return should have been brought before the court under the facts of this case before the issuance of the judgment of possession. Accordingly, we will reverse the judgment and remand the matter to the trial court for further orders for the required accountings of the independent executor before the delivery of Hinton’s legacy.

1t2Conclusion

The partial judgment of possession is reversed. The case is remanded to the trial court for further proceedings consistent with this opinion. Costs of this appeal are assessed to the Succession of Davis.

REVERSED AND REMANDED.

      . The original inventory filed by Cano in the Texas proceedings listed the total value of Davis’s estate at $629,209.22, including real property of $175,000 and cash in the amount of $454,172.84. That inventory included neither the Louisiana Minerals, nor the other mineral interests identified in his will.

      . Under La. C.C.P. art. 2163, an appellate court may consider a peremptory exception of lack of subject matter jurisdiction filed for the first time in the appellate court if the exception is pleaded prior to a submission of the case for a decision and if proof of the ground of the exception appears of record.

      . Although Hinton asserts in pleadings and brief that the Louisiana Minerals had generated over $1,300,000 in revenue in the year following Davis’s death, she never testified to that information at trial. Nevertheless, from Cano’s argument, the information regarding the royalty income from the Louisiana Minerals appears not in dispute.

      . Article 3396.17 addresses an "annual accounting.” Cano had been acting as executor since June 2006 and the June 6, 2007 Louisiana hearing was over one year after Davis’s death. Regardless of the timing for the first "annual accounting,” this dispute required Cano to account with more expertise and detail than that presented by his testimony.