Opinion
2014 CA 1164
06-05-2015
B.P. AMERICA PRODUCTION COMPANY v. LEO A. GUENTHER AND JANE LINDER ROSENTHAL
Charles B. Johnson New Orleans, Louisiana Counsel for Defendant/Appellee Leo A. Guenther Perry R. Staub, Jr. Donald Miester, Jr. New Orleans, Louisiana Counsel for Defendant/Appellant Jane Linder Rosenthal Donald J. Brannan Robert L. Redfearn New Orleans, Louisiana Counsel for Plaintiffs/Appellees BP America Production Company and Hilcorp Energy Company
NOT DESIGNATED FOR PUBLICATION On Appeal from the Eighteenth Judicial District Court In and for the Parish of Point Coupee State of Louisiana
No. 41,009
Honorable J. Robin Free, Judge Presiding Charles B. Johnson
New Orleans, Louisiana
Counsel for Defendant/Appellee
Leo A. Guenther
Perry R. Staub, Jr.
Donald Miester, Jr.
New Orleans, Louisiana
Counsel for Defendant/Appellant
Jane Linder Rosenthal
Donald J. Brannan
Robert L. Redfearn
New Orleans, Louisiana
Counsel for Plaintiffs/Appellees
BP America Production Company
and Hilcorp Energy Company
BEFORE: WHIPPLE, C.J., McCLENDON AND HIGGINBOTHAM, JJ. McCLENDON, J.
A defendant in a concursus action seeks review of the trial court's judgment terminating the proceeding. For the following reasons, we vacate the trial court's judgment and remand this matter.
FACTS AND PROCEDURAL HISTORY
This matter derives from a contested succession. Rosalie Bigman Linder, a resident of Jefferson Parish, died testate on November 30, 1994. Prior to her death, on December 10, 1993, Ms. Linder executed a will in which she bequeathed all her royalties and mineral rights in land situated in Pointe Coupee Parish to Leo A. Guenther. In her will, Ms. Linder attempted to disinherit her daughter, Jane Linder Rosenthal, who was a forced heir.
At the time of the execution of Ms. Linder's will and at the time of Ms. Linder's death, all children were forced heirs pursuant to LSA-C.C. art. 1493.
Following Ms. Linder's death, Mr. Guenther, who was named executor in Ms. Linder's will, filed a petition to probate the will in the 24th Judicial District Court in Jefferson Parish. Subsequently, Mr. Guenther, as executor, filed a rule to show cause why Ms. Rosenthal should not be disinherited. On May 29, 1997, the trial court denied the executor's rule, and the Fifth Circuit affirmed, determining that the provision of the decedent's testament disinheriting Ms. Rosenthal, a forced heir, was invalid. See Succession of Linder, 97-1269 (La.App. 5 Cir. 6/30/98), 717 So.2d 1276 (unpublished), writ denied, 98-2651 (La. 12/11/98), 730 So.2d 463 (Linder I).
The subsequent litigation regarding distribution of Ms. Linder's estate has been extremely lengthy and contentious, stemming primarily from the fact that, beginning in 1996, the mineral interests bequeathed to Mr. Guenther began paying large royalties, totaling over $8,000,000.00 to date. See Succession of Linder, 02-106 (La.App. 5 Cir. 7/30/02), 824 So.2d 523 (Linder II)); Succession of Linder, 05-640 (La.App 5 Cir. 2/14/06), 924 So.2d 293 (Linder III); Succession of Linder, 08-394 (La.App. 5 Cir. 10/14/08), 994 So.2d 148, writ denied, 08-2866 (La. 2/6/09), 999 So.2d 783 (Linder IV), and Succession of Linder, 11-633 (La.App. 5 Cir. 5/22/12), 92 So.3d 1158, writ denied, 12-1893 (La. 12/14/12) 104 So.3d 440 (Linder V).
BP America Production Company filed the concursus proceeding at issue on September 7, 2007, in the 18th Judicial District Court in Pointe Coupee Parish, naming Mr. Guenther and Ms. Rosenthal, in their individual capacities, as defendants. In its petition, BP noted that the detailed descriptive list of assets filed by Mr. Guenther, in the succession proceeding and in his capacity as testamentary executor, valued the oil and gas properties at the time of Ms. Linder's death at $2,949.00. BP also noted that a judgment of possession rendered in the succession proceedings on August 13, 2007, also placed Mr. Guenther in possession of the decedent's entire oil, gas, and mineral interest in the Pointe Coupee property. However, BP believed that "that the true value of the decedent's mineral interest [at the time of her death] might have substantially exceeded the sum of $2,949.00."
The judgment of possession was later vacated by the Fifth Circuit in Linder IV.
In response, Mr. Guenther filed a peremptory exception raising the objection of res judicata. On February 6, 2008, the district court denied Mr. Guenther's exception, purportedly, in part, because there was no final judgment in the related action in the succession proceedings that would support a finding of res judicata.
Thereafter, Mr. Guenther, appearing in his capacity as executor of the Succession of Rosalie B. Linder, filed a pleading partially captioned as a "Rule to Show Cause that This Concursus Proceeding Be Terminated, That the Clerk of Court Be Directed to Deliver All Funds Presently on Deposit and All Funds Hereafter Deposited in the Registry of the Court to Leo A. Guenther, Executor of the Succession of Rosalie Bigman Linder." Mr. Guenther asserted, as executor, that the 24th Judicial District Court in the succession proceeding had resolved all issues pertaining to the mineral interests inherited by Mr. Guenther. Specifically, he averred that the district court accepted "the valuation of $2,949 for the mineral interests" and denied "Mrs. Rosenthal's request to reduce all of the particular legatees" for the reason that "her forced portion in the amount of $10,467.72 shall be satisfied from the Balance of Funds Available indicated in Schedule III of the Final Tableau."
In opposition, Ms. Rosenthal asserted that subsequent proceedings in the 24th Judicial District Court have not yielded either a final tableau approval or judgment of possession, the previous judgment having been vacated. As such, Ms. Rosenthal urged that the executor's request to terminate the concursus proceeding was premature.
Following argument, on June 11, 2013, the trial court issued an order terminating the concursus proceeding, declaring the fair market value of the mineral lease to be $2,949.00, declaring that Ms. Rosenthal has no claim to royalties on deposit in the registry of the court, declaring that the bequest of the mineral interest to Mr. Guenther did not impinge on Ms. Rosenthal's forced portion, relieving B.P. America Production Company of all liability for payment of funds in the registry of the court, and instructing the Clerk of Court to deliver all funds on deposit to an oil and gas account with Charles Schwab & Company, Inc., for the estate of Rosalie Bigman Linder.
Ms. Rosenthal has appealed, assigning the following as error:
1. The Trial Court erred in dismissing the concursus proceeding summarily, based solely on the arguments of counsel, without the presentation of any evidence.
2. The Trial Court erred in dismissing the concursus proceeding on the basis of res judicata, when not all elements of res judicata were met.
3. The Trial Court erred in ordering the monies be turned over to an entity that was not a party to the concursus proceeding.
4. The Trial Court erred in not allowing the funds to stay in the registry of the 18th Judicial District Court until a final judgment of possession terminates the succession proceeding in its entirety.
DISCUSSION
In her third assignment of error, Ms. Rosenthal asserts that Mr. Guenther, in his capacity as executor of Ms. Linder's succession, was not a party properly before the trial court in the concursus proceedings. She also asserts that the trial court erred in ordering the funds transferred to the succession, which was also not a named party in the concursus proceedings.
Mr. Guenther asserts that the trial court's ruling is interlocutory and not appealable absent a LSA-C.C.P. art. 1915B designation given that the ruling does not determine the merits of the Succession of Rosalie B. Linder. See LSA-C.C.P. art. 1841. However, the judgment resolved all issues raised in the concursus proceeding and is therefore a final judgment properly reviewable on appeal.
In this regard, we note that the rule to show cause was initiated by Mr. Guenther, appearing in his capacity as executor of the Succession of Rosalie B. Linder. As Ms. Rosenthal notes, Mr. Guenther, in his capacity as executor, was not named a defendant in the concursus proceeding.
Because the executor was never named a party in the concursus proceedings, the proper mechanism for the executor to join the proceedings would be through an intervention. Specifically, LSA-C.C.P. art. 1091 provides:
A third person having an interest therein may intervene in a pending action to enforce a right related to or connected with the object of the pending action against one or more of the parties thereto by:Further, an intervention shall be commenced by a petition that complies with the requirements of LSA-C.C.P. arts. 891, 892, and 893. LSA-C.C.P. art. 1032. An intervention cannot be initiated by filing exceptions. Becnel v. Madere, 535 So.2d 387, 389 (La.App. 5 Cir.), writ denied, 536 So.2d 1199 (La. 1988).
(1) Joining with plaintiff in demanding the same or similar relief against the defendant;
(2) Uniting with defendant in resisting the plaintiff's demand; or
(3) Opposing both plaintiff and defendant.
On appeal, Mr. Guenther contends that Ms. Rosenthal waived any objection to his appearance in his capacity as executor. Specifically, he notes that counsel for Ms. Rosenthal at the hearing on the executor's rule indicated the executor was not a party, "but let's just go ahead."
While we question whether the executor's failure to follow the requisite pleading requirements for an intervention can be waived, we find no clear waiver by Ms. Rosenthal. First the statement "but let's just go ahead" is ambiguous and could be read as a willingness to proceed with the proper parties. Further, despite Ms. Rosenthal's counsel's statement that he wanted to "go ahead," he later re-urged his objection that it was inappropriate for Mr. Guenther, in his capacity as executor, to file a rule in the concursus proceeding when the executor is not a party to those proceedings.
Under these circumstances, because the executor was not a party in the concursus proceedings, he was not authorized to petition the court for relief. Therefore, we vacate the trial court's June 11, 2013 order, and remand this matter to the trial court for further proceedings consistent herewith.
Because we find merit in assignment of error number three, we pretermit discussion of the remaining assignments of error.
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Further, BP America Production Company and Hilcorp Energy Company, BP's purported successor in the rights and obligations belonging to BP as lessee, have filed a motion with this court to be dismissed from the concursus proceedings. The movers suggest that they have no interest in the outcome of the case other than to learn the identity of the defendant to whom they should pay future royalties. Movers have not provided any law or jurisprudence to support their position that they, as the initiators of a concursus, should be dismissed prior to rendition of a final judgment. Further, the movers did not file a motion to be dismissed in the district court. Accordingly, we will not consider the motion filed for the first time with this court. See Uniform Rules of Louisiana Courts of Appeal, Rule 1-3. Therefore, we deny the movers' motion to dismiss.
CONCLUSION
For the foregoing reasons, we vacate the June 11, 2013 order rendered by the trial court, and we deny the motion to dismiss filed by BP America Production Company and Hilcorp Energy Company. We remand this matter for further proceedings. Costs of this appeal are assessed to appellee, Leo A. Guenther.
JUDGMENT VACATED; MOTION TO DISMISS DENIED; REMANDED.