Opinion
2018 CA 0246
03-20-2019
SUCCESSION OF CLYDE A. CHARLES
Martin L. Broussard, Jr. New Orleans, LA Attorney for Plaintiff/Appellee Estate of Nakia Bonvillian Anthony P. Lewis Thibodaux, LA Attorney for Defendant/Appellant Lois Charles Hill
NOT DESIGNATED FOR PUBLICATION On Appeal from the Thirty-Second Judicial District Court In and for the Parish of Terrebonne State of Louisiana
No. 19469 Division C The Honorable Juan W. Pickett, Judge Presiding Martin L. Broussard, Jr.
New Orleans, LA Attorney for Plaintiff/Appellee
Estate of Nakia Bonvillian Anthony P. Lewis
Thibodaux, LA Attorney for Defendant/Appellant
Lois Charles Hill BEFORE: McDONALD, CRAIN, AND HOLDRIDGE, JJ. HOLDRIDGE, J.
Lois Charles Hill appeals a judgment of the trial court dismissing with prejudice a Rule to Show Cause that she filed to have Nakia Bonvillian declared a non-heir of Clyde A. Charles and request for an accounting of Charles' succession. For the following reasons, we dismiss the appeal.
We use the spelling set forth in the parties' petition, but note that during these proceedings the parties have also used the spelling "Bonvillain."
FACTUAL AND PROCEDURAL HISTORY
This is a succession matter wherein the decedent, Clyde A. Charles, died intestate on January 7, 2009. Charles was never married and was survived by nine siblings. On January 16, 2009, Charles' alleged daughter, Nakia Bonvillian, and his sister, Lois Hill, filed a "Joint Petition for Confirmation of Co-Administratrixes" requesting to be confirmed as co-administratrixes of Charles' succession. On January 16, 2009, Bonvillian and Hill were appointed co-administratrixes of Charles' succession. Bonvillian and Hill submitted an affidavit of death and heirship acknowledging that Bonvillian may be Charles' daughter.
The Code of Civil Procedure only uses the term "administrator." However, since the parties used the term "administratrix" in their pleadings, we will use that term throughout this opinion.
On May 4, 2009, Bonvillian and Hill entered into a consent judgment to allow for DNA testing of Bonvillian to determine if Charles was her father. The DNA test revealed that Charles was the father of Bonvillian. Therefore, Bonvillian and Hill filed a "Joint Motion to Remove Co-Executor" stating that there was "no further need for a co-administration of the Estate since ... Bonvillian [was] the only heir[.]" On August 18, 2009, the trial court removed Hill as the co-administratrix of Charles' succession.
On November 18, 2009, Bonvillian filed a Petition for Possession asking the trial court to recognize her as Charles' sole heir and to place her in possession of his estate. Bonvillian filed an affidavit of death and heirship and a sworn detailed descriptive list with her Petition for Possession. On November 18, 2009, the trial court rendered a judgment of possession recognizing Bonvillian as Charles' sole heir and giving her possession of his estate.
On December 11, 2009, Bonvillian died and her brother, Kenneth Pledger, was appointed as the administrator of her succession following her death. In August 2012, Kenneth Pledger died and his son, Darnell Pledger, was appointed as administrator of Bonvillian's succession.
Thereafter, on December 28, 2009, Hill and her eight siblings filed a Petition to Reopen Charles' Succession pursuant to La. C.C.P. art. 3393 to permit the indebtedness of Charles to be identified and satisfied by his succession assets. On January 4, 2010, the trial court signed an order reopening Charles' succession. On May 4, 2012, the trial court closed Charles' succession. Approximately three years later, Hill filed a "Petition to Reopen Succession" requesting that she be re-appointed as administratrix and arguing that Bonvillian was not eligible to inherit from Charles because her right to establish filiation was perempted by former La. C.C. art. 209. On August 20, 2015, the trial court reopened Charles' succession and re-appointed Hill as administratrix without providing notice to Bonvillian's counsel. On February 16, 2016, Hill filed a Rule to Show Cause asking the trial court to declare Bonvillian a non-heir of Charles and for an accounting of the Succession of Charles from the current administrator, Darnell Pledger. In her memorandum, Hill argued that Bonvillian's 2009 paternity judgment was an absolute nullity. Therefore, Hill argued that Bonvillian should be declared a non- heir of Charles because her judgment of possession was based upon a judgment of paternity rendered in a separate proceeding that was an absolute nullity.
We question whether it was proper for the trial court to reopen Charles' succession to attempt to declare that Bonvillian was a non-heir of Charles without giving any notice to any heirs or succession representatives. A succession generally may be reopened only to add additional found property or for any other proper cause. See La. C.C.P. art. 3393; In re Successions of Gurtner, 2007-1065 (La. App. 4 Cir. 4/9/08), 982 So.2d 952, 954.
We note that a motion for summary judgment establishing paternity was allegedly rendered on August 3, 2009, but is not found in the record before us. The transcript of the hearing on the motion for summary judgment is in the record indicating the trial court granted summary judgment finding Charles to be the father of Bonvillian. --------
On April 4, 2016, the trial court conducted a hearing on Hill's Rule to Show Cause. At the hearing, the issue was raised sua sponte by the trial court of whether Hill received notice of the hearing at which the trial court granted Bonvillian's 2009 paternity judgment finding Charles to be her father. The trial court ruled from the bench that it would grant Hill's motion for an accounting, and would allow Bonvillian to re-urge the issue of filiation. The trial court did not sign a judgment from this hearing. On June 19, 2017, the trial court held another hearing on Hill's remaining claims, and took the matter under advisement. On July 29, 2017, the trial court rendered written reasons for judgment. On August 24, 2017, the trial court signed its judgment, dismissing with prejudice Hill's Rule to Show Cause that sought to declare Bonvillian a non-heir of Charles and that requested an accounting from the administrator of Charles' succession. Hill devolutively appealed the August 24, 2017 judgment.
DISCUSSION
After reviewing the record, we have determined that initial issue presented is whether the August 24, 2017 judgment is interlocutory or final. Appellate courts have the duty to examine subject matter jurisdiction sua sponte, even when the parties do not raise the issue. McLaren v. Foster, 2018-136 (La. App. 3 Cir. 9/26/18), 256 So.3d 383, 385. Generally, appeals from orders or judgments rendered in succession proceedings shall be governed by the rules applicable to appeals in ordinary proceedings. La. C.C.P. art. 2974; Succession of Theriot, 2008-1233 (La. App. 1 Cir. 12/23/08), 4 So.3d 878, 882.
A judgment that does not determine the merits, but only resolves preliminary matters in the course of the action, is an interlocutory judgment. La. C.C.P. art. 1841. An interlocutory judgment is appealable only when expressly provided by law. La. C.C.P. art. 2083. However, where a court renders a partial judgment as to one or more but less than all of the claims, demands, issues, or theories, the trial court can designate the judgment as a final judgment after an express determination that there is no just reason for delay. La. C.C.P. art. 1915(B)(1). But in the absence of such a determination or designation, a ruling adjudicating fewer than all claims shall not constitute a final judgment for the purpose of an immediate appeal. La. C.C.P. art. 1915(B)(2); In re Succession of Sharp, 2011-1984 (La. App. 1 Cir. 5/14/12), 2012 WL 1744467 *5 (unpublished).
The August 24, 2017 judgment that Hill appeals is a denial of her Rule to Show Cause to declare Bonvillian a non-heir of Charles and request for an accounting of Charles' succession. The final judgment in this matter is a judgment of possession that was rendered on November 18, 2009. There was no appeal by any party to this judgment and it is now a final and definitive judgment. See La. C.C.P. art. 2166(A); Succession of Poole, 2015-1317 (La. App. 1 Cir. 10/28/16), 213 So.3d 18, 23. The denial of the Rule to Show Cause Hill appeals from is neither a final judgment nor an appealable interlocutory judgment because it is not expressly provided by law. See La. C.C.P. arts. 1841 and 2083. The Code of Civil Procedure grants the right to an immediate appeal of certain judgments rendered in succession proceedings; however, the present judgment is not among those identified by the Code. See La. C.C.P. art. 3308 (judgment homologating tableau of distribution may be suspensively appealed), La. C.C.P. art. 3337 (judgment homologating final account is a "final judgment"), La. C.C.P. arts. 2122 and 2974 (governing appeals of orders appointing or removing a succession representative); see also Succession of Jaga, 2016-1291 (La. App. 1 Cir. 9/15/17), 227 So.3d 325, 327-28; In re Succession of LeBouef, 2013-0209 (La. App. 1 Cir. 9/9/14), 153 So.3d 527, 533; Succession of McLean, 26,566 (La. App. 2 Cir. 3/1/95), 651 So.2d 920, 926. Thus, we have found no express law, in the succession provisions or otherwise, nor has Hill referenced such, that allows an appeal from such an interlocutory judgment. See Matter of Succession of Breen, 2018-0003 (La. App. 1 Cir. 12/13/18), 2018 WL 6567356 at *4 (unpublished).
When confronted with a judgment on appeal that is not final and appealable, like the August 24, 2017 judgment, we are authorized to exercise our discretion to convert the appeal to an application for supervisory writs. Verret v. Johnson, 2017-1015 (La. App. 1 Cir. 4/13/18), 250 So. 3d 269, 273. The Louisiana Constitution confers supervisory jurisdiction to a court of appeal over "cases which arise within its circuit." La. Const. art. V, § 10(A). Moreover, the jurisprudence indicates that the decision to convert an appeal to an application for supervisory writs is within the discretion of the appellate courts. Stelluto v. Stelluto, 2005-0074 (La. 6/29/05), 914 So. 2d 34, 39. Although this court has discretion to convert an appeal to an application for supervisory writs, it may only do so if the appeal would have been timely had it been filed as a supervisory writ application. Bosley v. Louisiana Department of Public Safety and Corrections, 2016-1112, 2017 WL 1423925, *4 n.5 (La. App. 1 Cir. 4/20/17). A party intending to apply to this court for a supervisory writ shall give notice of such intention by requesting a return date to be set by the trial court, which shall not exceed thirty days from the date of the notice of judgment. See Uniform Rules—Courts of Appeal, Rules 4-2 and 4-3.
The record reveals that the notice of judgment was mailed to all parties on August 31, 2017. However, Bonvillian did not file her motion for devolutive appeal until October 24, 2017. Because her appeal was not filed within thirty days of the judgment, the motion for appeal cannot be considered a timely filed application for supervisory writs under Uniform Rules—Courts of Appeal, Rule 4-3. Accordingly, we decline to convert the appeal to an application for supervisory writs and this appeal must be dismissed. See Matter of Succession of Porche, 2016-0538 (La. App. 1 Cir. 2/17/17), 213 So.3d 401, 406.
CONCLUSION
For the foregoing reasons, we find that the August 24, 2017 judgment is a non-appealable, interlocutory judgment. Accordingly, we dismiss the appeal. Costs of this appeal are assessed to Lois Charles Hill.
APPEAL DISMISSED.