Opinion
No. 2023-CC-01416
01-24-2024
In the MATTER OF the SUCCESSION OF Laurie Wolfe MARGIOTTA
Crichton, J., would grant and docket for reasons assigned by McCallum, J. Crain, J., would grant.
Applying For Supervisory Writ, Parish of Tangipahoa, 21st Judicial District Court Number(s) 2020-30493, Court of Appeal, First Circuit, Number(s) 2023 CW 0805.
1Writ application denied. Crichton, J., would grant and docket for reasons assigned by McCallum, J. Crain, J., would grant.
McCallum, J., would grant and docket and assigns reasons.
McCALLUM, J., would grant and docket and assigns reasons.
1"We simply assume that the way we see things is the way they really are or the way they should be. And our attitudes and behaviors grow out of these assumptions." So it may very well be with jury trials and successions. No doubt, most practitioners assume that the Civil Law of this state expressly prohibits the availability of jury trials in any matters arising from succession proceedings. This case presented a unique opportunity for this Court to study and consider the effect Common Law lexical incursions have had on the interpretation of Louisiana laws by considering the generalized definition of the Common Law term "probate," and whether Louisiana law provides a more technical meaning of the term "probate."
Stephen R. Covey, "The 7 Habits of Highly Effective People: Powerful Lessons in Personal Change Interactive Edition," p. 21, Mango Media Inc., (2016).
The specific question presented is whether Louisiana Code of Civil Procedure Article 1732 (4) precludes jury trials in succession matters. Also of significance, this case presents an occasion for this Court to consider Louisiana Civil Code Article 1’s mandate that "[t]he sources of law are legislation and custom," as well as the functionality and efficacy of jurisprudence constante. In this case, the son of the deceased, who is the administrator of the attendant succession, has filed a petition alleging fraud against the widower, who answered 2and requested a trial by jury. The lower courts have determined that the defendant-widower is not entitled to a jury trial.
"Legislation is a solemn expression of legislative will." La, C.C. art. 2. "Custom results from practice repeated for a long time and generally accepted as having acquired the force of law. Custom may not abrogate legislation." La. C.C. art. 3.
Titled "Issues triable by jury," Louisiana Code of Civil Procedure Article 1731 provides:
A. Except as limited by Article 1732, the right of trial by jury is recognized.
B. Except as otherwise provided, the nature and amount of the principal demand shall determine whether any issue in the principal or incidental demand is triable by jury.
C. If the compulsory reconventional demand is triable by a jury, but the principal demand is not, the compulsory reconventional demand may be tried by a jury.
(Emphasis added). Titled "Limitation upon jury trials," La. C.C.P. art. 1732 provides certain exceptions to the general recognition of the right to a trial by jury as follows, in pertinent portion:
A trial by jury shall not be available in:
…
(4) A summary, executory, probate, partition, mandamus, habeas corpus, quo warranto, injunction, concursus, workers’ compensation, emancipation, tutorship, interdiction, curatorship, filiation, annulment of marriage, or divorce proceeding.
(Emphasis added).
"Succession," a term unique to Louisiana’s Civil Law system, is not explicitly listed under La. C.C.P. art. 1732 (4) as an exception to the general, statutorily recognized right to a trial by jury provided by La. C.C.P. art. 1731. The Louisiana Legislature has provided a definition for "succession." Titled "Meaning of Succession," La. C.C. art. 871 provides:
Common law states do not seem to employ the term "succession." Generally, our common law neighbors term all probate, succession, and estate matters, as Louisiana would refer to them, as simply "probate." See, e.g. TX EST Code § 22.029 (2022) ("The terms 'probate matter,’ 'probate proceedings,’ ‘proceeding in probate,’ and ‘proceedings for probate' are synonymous and include a matter or proceeding relating to a decedent's estate.").
Succession is the transmission of the estate of the deceased to his successors. The successors thus have the right to take possession of the estate of the deceased after complying with applicable provisions of law.
3"Probate" is not defined in Louisiana law. The closest to a definition for the term "probate" may be found in La. C.C.P. arts. 2851 and 2852. Titled "Petition for probate," La. C.C.P. art. 2851 provides:
If the deceased is believed to have died testate, any person who considers that he has an interest in opening the succession may petition a court of competent jurisdiction for the probate and execution of the testament.
Titled "Documents submitted with petition for probate," La. C.C.P. art. 2852 provides:
A. The petitioner shall submit with his petition evidence of the death of the decedent, and of all other facts necessary to establish the jurisdiction of the court.
B. If the testament is one other than a statutory testament, a notarial testament, or a nuncupative testament by public act, and is in the possession of the petitioner, he shall present it to the court, and pray that it be probated and executed.
Thus, the term "probate" in Louisiana might be interpreted to be one used when a testament is present, and related to the process by which one validates and executes such. This lends some credence to the argument that "probate" may not be synonymous with "succession." For the case at hand, it is undisputed the deceased died intestate and thus no petition for probate or execution of a testament was applicable.
"When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature." La. C.C. art. 9. "The words of a law must be given their generally prevailing meaning. Words of art and technical terms must be given their technical meaning when the law involves a technical matter." La. C.C. art. 11.
On that note, it is clear and unambiguous that La. C.C.P. art. 1732 (4) provides "probate" as an exception to the general right to a trial by jury. However, 4it is equally clear and unambiguous that Louisiana has chosen to employ a Civilian term, "succession," and it has elected not to expressly list that term within the exceptions to the right of a trial by jury. Although Louisiana has not explicitly employed the generalized meaning to probate that its common law neighbors have done, I believe this Court should grant writ and docket this matter so that it may determine whether it has implicitly adopted such a generalized, common usage of the term. To that end, the Louisiana Constitution evidently considers matters of probate and succession separate by expressly including both terms in defining the jurisdiction of district courts. See LA Const. Art. 5, § 16 (Providing that "[district courts] shall have exclusive original jurisdiction of … probate and succession matters: …. "). Where such a separation of terms is noted by our Constitution, this Court must be careful to at least first consider any argument that "probate" is not intended to be a generalized term, but instead, is employed as a word of art, a 5technical term that has taken on an expressly technical meaning as applied within the context of procedural matters where testaments are involved.
Although the statutory provisions that provide for the procedures for both probate and successions fall under Book VI titled "Probate Procedure (Art. 2811 to Arts. 3500)," Louisiana headings are for convenience of reference only. "The headings of the articles of this Code, and the source notes and cross references thereunder, are used for purposes of convenient arrangement and reference, and do not constitute parts of the procedural law." La. C.C.P. art. 5057. "The articles of this Code are to be construed liberally, and with due regard for the fact that rules of procedure implement the substantive law and are not an end in themselves." La. C.C.P. art. 5051. "When the language of an article is clear and free from ambiguity, its letter is not to be disregarded under the pretext of pursuing its spirit." La. C.C.P. art. 5052. "Words and phrases are to be read in their context, and are to be construed according to the common and approved usage of the language employed. The word ‘shall’ is mandatory, and the word ‘may’ is permissive." La. C.C.P. art. 5053.
Further guidance may be gleaned from the Revised Statutes as to the importance, or lack thereof, of headings to sections, or in this case, titles of Books. "Headings to sections, source notes, and cross references are given for the purpose of convenient reference and do not constitute part of the law." La. R.S. 1:13 A. "The classification and organization of the sections of the Revised Statutes is made for the purpose of convenience, reference, and orderly arrangement, and no implication or presumption of a legislative construction shall be drawn therefrom." La. R.S. 1:12. "Words and phrases shall be read with their context and shall be construed according to the common and approved usage of the language. Technical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to such peculiar and appropriate meaning. The word ‘shall’ is mandatory and the word ‘may’ is permissive." La. R.S. 1:3.
Accordingly, the he adings and title of the Book are not dispositive of the nature or meaning of "probate" in Louisiana. Such non-dispositive conclusions further establish the notion that this Court should grant writ and docket this matter for further study.
Furthermore, and as provided in La. C.C.P. art. 1731, Louisiana favors a policy of maintaining a generalized right to a trial by jury. Such policy was recently reaffirmed when the Legislature broadened the cases for which parties may request a trial by lowering the "amount of the principal demand" triable by jury to ten thousand dollars. Historically, courts, including this Court, have been careful with limiting general or common rights by strictly construing exceptions to those rights. They have certainly not done so without first considering the merits of the matter and studying, in-depth, such exceptions. For example, in different context, see: Thibodeaux v. Bordelon, 488 So. 2d 244 (La. App. 3 Cir. 1986); Chehardy, Sherman, Ellis, Breslin & Murray v. Amerasia Co., Inc., 1996-384 (La. App. 5 Cir. 11/14/96), 694 So. 2d 355; Restored Surfaces, Inc. v. Sanchez, 2011-529 (La. App. 5 Cir. 12/28/11), 82 So. 3d 524; and Kimball v. Anesthesia Specialists of Baton Rouge, Inc., 2000-1954 (La. App. 1 Cir. 9/28/01), 809 So. 2d 405.
See generally, CD v. SC. 2022-00961 (La. 6/1/23), 366 So. 3d 1245, 1249 n.5 (Explaining that "[c]onfidence in juries, and their ability to handle and decide difficult, factual questions, is reflected in the legislature’s recent amendment to reduce the threshold amount for a jury trial. Effective January 1, 2021, the Legislature amended La. C.C.P. art. 1732, lowering the threshold amount to ten thousand dollars for trials by jury. See 2020 La. Sess. Law Serv. 1st Ex. See. Act 37 (H.B. 57)(WEST); La. C.C.P. art. 1732 (2021).").
Finally, I note that in its reasons for striking the request for a trial by jury, the trial court stated: "[a]nd I understand that it could be bifurcated, but the issues that -- the issues of damages and the cause of action that are not part of that probate proceeding are not germane causes of action here." In finding La. C.C.P. art. 1732 (4) precluded jury trials in succession matters, the trial court ultimately decided the action for fraud was "so interconnected with the probate proceedings" that trial by jury was disallowed. It seemingly did so on its own motion, without any filed objection lodged by the administrator. Regardless of this Court's view as to the 6meaning of "probate," we should at least grant and docket this matter to determine whether an action for fraud by an administrator against a surviving spouse is one in fact "so interconnected with the probate proceedings" so as to preclude the defendant his general, statutorily recognized and protected right to a trial by jury pursuant to La. C.C.P. arts. 1731 and 1732 (4).
For these reasons, I would grant and docket this matter for further study and consideration.