Summary
dismissing and remanding the appeal that arose from the November 14, 2017 judgment for want of appellate jurisdiction
Summary of this case from In re Succession of PelletteOpinion
2018 CA 0728
04-16-2019
IN THE MATTER OF THE SUCCESSION OF LINDA HACK PELLETTE
Stephen C. Carleton Carmen T. Hebert Barb Pilat Baton Rouge, Louisiana Attorneys for Plaintiffs/Defendants- in-Reconvention/Appellants, Ryan Bettencourtt and Jason Bettencourtt Wendra J. Moran Baton Rouge, Louisiana Attorney for Defendant/Plaintiff-in- Reconvention/Appellee, Jerome Pellette
NOT DESIGNATED FOR PUBLICATION On Appeal from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana
Trial Court No. P73158 The Honorable Donald R. Johnson, Judge Presiding Stephen C. Carleton
Carmen T. Hebert
Barb Pilat
Baton Rouge, Louisiana Attorneys for Plaintiffs/Defendants-
in-Reconvention/Appellants,
Ryan Bettencourtt and
Jason Bettencourtt Wendra J. Moran
Baton Rouge, Louisiana Attorney for Defendant/Plaintiff-in-
Reconvention/Appellee,
Jerome Pellette BEFORE: GUIDRY, THERIOT, AND PENZATO, JJ. PENZATO, J.
Appellants/Plaintiffs/Defendants-in-Reconvention, Ryan Bettencourtt and Jason Bettencourtt, appeal a trial court judgment denying their claims for rental reimbursement and awarding co-owner and Appellee/Defendant/Plaintiff-in-Reconvention, Jerome Pellette, certain other reimbursements upon reconventional demand. For the reasons that follow, we dismiss the appeal.
FACTS AND PROCEDURAL HISTORY
Linda Hack Pellette died intestate on January 24, 1999, after having been married twice. Her first marriage to Raymond Bettencourtt ended in divorce in 1985. Of this marriage, two children were born, Ryan and Jason. Linda married a second time to Jerome on October 27, 1990. Of the second marriage, two children were born, Lindsey Pellette and Tender Pellette, who were both minors at the time of their mother's death. At the time of Linda's death, Ryan was 21 years old and Jason was 17 years old. Jerome, the surviving spouse, was appointed administrator of Linda's succession.
By a Judgment of Possession dated April 6, 2001, Jerome was placed in possession of an undivided one-half (1/2) of the property belonging to the community of acquets and gains that existed between him and Linda. The Judgment of Possession also recognized that Jerome was entitled to the usufruct of the portion of the community property formerly belonging to Linda for the remainder of his life or until remarriage. The other heirs, Ryan, Jason, Lindsey, and Tender, were entitled to the naked ownership, in equal shares, of the one-half (1/2) of the community property formerly belonging to Linda's succession, subject to the usufruct of Jerome.
Part of the community property formerly belonging to Linda's succession included immovable property described in the detailed descriptive list as follows:
One (1) certain piece or portion of ground, together with all the buildings and improvements thereon, and all of the rights, ways[,] privileges, servitudes, appurtenances and advantages thereunto belonging or in any wise appertaining, situated in the Parish of East Baton Rouge, State of Louisiana, in that subdivision known as PARKVIEW OAKS EAST SUBDIVISION, and designed [sic] on the official plan thereof, on file and of record in the office of the Clerk and Recorder of the Parish of East Baton Rouge, State of Louisiana, as LOT NUMBER SIXTY (60), said subdivision, said lot having such measurements and dimensions and being subject to such servitudes as are more particularly described on said subdivision map.The same description of the immovable property was included in the Judgment of Possession. On May 11, 2001, Jerome married to Vicki Poirrier.
On September 30, 2016, Ryan and Jason filed a petition for partition in the succession proceedings, requesting that the residence located at 4953 Parkforest Drive located in East Baton Rouge Parish ("the Property") be partitioned. Ryan and Jason also requested any rental reimbursement due. Jerome answered the partition, claiming that a co-owner is not entitled to rental payments. He also filed a reconventional demand against Ryan and Jason, requesting reimbursement for the mortgage he paid on the Property and requesting reimbursement for expenses he incurred maintaining the Property. Jerome further sought reimbursement from Ryan for money allegedly withdrawn on July 24, 1999, from a Bank One account belonging to the Linda's estate. Ryan and Jason filed exceptions raising the objections of prescription, no right of action, and no cause of action to Jerome's reconventional demand, which the trial court deferred ruling on until the conclusion of the trial of this matter. In connection with the trial, the parties entered a stipulation that should Ryan and Jason be entitled to any rent for the period from May 2001 until September 2017, the fair market average monthly rental value for the Property would be $1,400.00. On the date of the trial, the parties stipulated to a private sale of the Property to Jerome for $218,000.00, subject to any reductions ordered by the trial court related to the mortgage and expenses paid by Jerome and/or the rental claim of Ryan and Jason. The trial was conducted over two days in September 2017. On November 14, 2017, the trial court issued a judgment, which is summarized below:
Jerome filed his answer to the partition and the reconventional demand individually and as the permanent natural tutor of Tender.
(1) Overruled Ryan and Jason's exceptions raising the objections of prescription, no right of action, and no cause of action;
(2) Denied Jerome's motion in limine;
(3) Recognized the stipulated value of the Property as $218,000.00;
(4) Recognized the current ownership of the Property in accordance with the April 6, 2001 Judgment of Possession as:
| Jerome Pellette | 50.0% |
| Tender Pellette | 12.5% |
| Lindsey Pellette | 12.5% |
| Ryan Bettencourtt | 12.5% |
| Jason Bettencourtt | 12.5%; |
(5) Recognized that the parties agreed to a private sale of the Property to Jerome for $218,000.00, entitling Ryan and Jason to $27,250.00 each;
(6) Recognized the parties' stipulation that Jerome was entitled to reimbursement from Ryan and Jason in the amount of their ownership interests for the mortgage payments made by Jerome for the Property totaling $197,447.26, or $24,680.91 from Ryan and Jason each;
(7) Recognized the parties' stipulation that Jerome was entitled to reimbursement for home preservation repairs from Ryan and Jason in the amount of $1,372.00 each;
(8) Decreed that Jerome was entitled to $910.97 from Ryan and Jason each for insurance and property taxes;
(9) Found that Jerome was the usufructuary over the Property from January 1999 until May 2001, and thus had the exclusive right to use
the home; therefore, neither Ryan nor Jason could demand occupancy during this period;It is from this judgment that Ryan and Jason have appealed.
(10) Found that after May 2001, neither Ryan nor Jason made a demand to occupy the Property and they were not refused the right to occupy the Property; therefore, they had no right to demand rental reimbursement from May 2001 until the present and that an award of rental value is proper;
(11) Decreed that Jerome was entitled to reimbursement from Ryan for money taken out of a Bank One account in the amount of $5,686.00;
(12) Ordered a private closing of the Property to take place within 30 days whereby all co-owners would sell the Property to Jerome;
(13) All costs were assessed against Ryan and Jason;
(14) After the sale of the Property, the court decreed that Ryan would owe Jerome $5,399.88; and
(15) After the sale of the Property, the court decreed that Jason would owe Jerome $286.12.
Jerome filed a motion in limine seeking to exclude evidence of attempts made by Ryan and Jason to visit their sisters, of attempts to access the Property prior to May 2001, and of testimony of five witnesses listed by Ryan and Jason. The denial of the motion in limine has not been appealed by any of the parties and is not before us on appeal.
On June 4, 2018, this court issued a rule to show cause as it appeared that the November 14, 2017 judgment was not a final judgment because it did not describe the immovable property with sufficient particularity, citing La. C.C.P. art. 1919, and the January 25, 2018 appeal from the November 14, 2017 judgment appeared untimely. Both parties responded to the rule to show cause claiming that the description in the judgment of the immovable property by its municipal address, without any legal property description, did not preclude this court from asserting its appellate jurisdiction as this court could simply provide for the proper amendment of the judgment. Ryan and Jason also asserted that the appeal was timely. We first address our subject matter jurisdiction over this appeal.
SUBJECT MATTER JURISDICTION
Appellate courts have a duty to examine subject matter jurisdiction sua sponte, even when the parties do not raise the issue. Texas Gas Exploration Corp. v. Lafourche Realty Company, Inc., 2011-0520 (La. App. 1 Cir. 11/9/11), 79 So. 3d 1054, 1059, writ denied, 2012-0360 (La. 4/9/12), 85 So. 3d 698. This court's appellate jurisdiction extends to "final judgments," which are those that determine the merits in whole or in part. See La. C.C.P. arts. 1841 and 2083. A valid judgment must be "precise, definite, and certain." Laird v. St. Tammany Parish Safe Harbor, 2002-0045 (La. App. 1 Cir. 12/20/02), 836 So. 2d 364, 365. Moreover, a final appealable judgment must contain decretal language, and it must name the party in favor of whom the ruling is ordered, the party against whom the ruling is ordered, and the relief that is granted or denied. See Carter v. Williamson Eye Center, 2001-2016 (La. App. 1 Cir. 11/27/02), 837 So. 2d 43, 44.
The November 14, 2017 judgment describes the Property by its municipal address of "4953 Parkforest Drive." There is no other description of the immovable property. The record does contain the Judgment of Possession, which provides a description of a piece of immovable property, but no legal description is provided. Judgments in succession proceedings recognizing heirs or legatees or sending them into possession are not required to describe immovable property with particularity. La. C.C.P. art. 1919.
Louisiana Code of Civil Procedure articles 1919 and 2089 require that all final judgments affecting immovable property must describe such property with particularity. The judgment must include the legal description of a property, with reference to landmarks such as roads, benchmarks, or other monuments which can be located, or a survey commencing at some established point. Hooper v. Hero Lands Company, 2015-0929 (La. App. 4 Cir. 3/30/16), 216 So. 3d 965, 980, writ denied, 2016-0971 (La. 9/16/16), 206 So. 3d 205. The purpose of these articles is "to insure that the public in general, and title examiners, successful litigants, officials charged with executions of judgments and surveyors in particular, can accurately deal with the immovable property." Goal Properties, Inc. v. Prestridge, 2014-422 (La. App. 3 Cir. 11/5/14), 150 So. 3d 610, 613 (quoting Hurst v. Ricard, 558 So. 2d 1269, 1272 (La. App. 1 Cir.), writ denied, 559 So. 2d 1378 (La. 1990)). However, the failure to describe the property does not nullify the judgment rendered. Goal Properties, 150 So. 3d at 613 (citing Fields v. Etheridge, 487 So. 2d 551, 552 (La. App. 4 Cir. 1986)). Finding that the record was insufficient to amend the judgment to include a particular description of the property, the court in Goal Properties, 150 So. 2d at 613-14, dismissed the appeal. The judgment before us refers to the Property only as "4953 Parkforest Drive." There is no legal description of the Property contained within the record. In the instant case, as in Goal Properties, the record is insufficient for this court to amend the judgment to include a particular description of the property. Moreover, we note additional deficiencies with the November 14, 2017 judgment.
With regard to the timeliness of the appeal, Ryan and Jason have provided sufficient information with regard to legal holidays for this court to ascertain that the January 25, 2018 appeal of the November 14, 2017 judgment was timely.
Although the entire judgment is prefaced with "IT IS HEREBY ORDERED, ADJUDGED, AND DECREED" language, not all of the fifteen paragraphs grant or deny relief. Many of the paragraphs recite facts and recognize the stipulations made between the parties, as is commonly done in written reasons for judgment. Louisiana Code of Civil Procedure article 1918 mandates that reasons for judgment be set out in an opinion separate from the judgment. A judgment and reasons for judgment are two separate and distinct documents; it is well-settled law that the district court's oral or written reasons form no part of the judgment. Lohenis v. Rousse, 2014-1078 (La. App. 1 Cir. 3/9/15), 166 So. 3d 1020, 1032. Appeals are taken from judgments, not the reasons for judgment. See La. C.C.P. arts. 2082, 2083; Davis v. Farm Fresh Food Supplier, 2002-1401 (La. App. 1 Cir. 3/28/03), 844 So. 2d 352, 353-54.
See paragraphs 3, 4, 5, 6, 7 & 9 as summarized above.
We are aware that the Louisiana Supreme Court has held that the language contained in La. C.C.P. art. 1918 stating, "[w]hen written reasons for judgment are assigned, they shall be set out in an opinion separate from the judgment[,]" is merely precatory and does not render a judgment, identified as such and complete in every respect, invalid merely because it contains surplus language. Hinchman v. International Brotherhood of Electrical Workers, Local Union # 130, 292 So. 2d 717, 720 (La. 1974). However, the November 14, 2017 judgment is not complete in every respect, as it does not contain appropriate decretal language with respect to the rental reimbursement claims of Ryan and Jason.
In the petition for partition filed by Ryan and Jason, the brothers sought partition of the Property and a determination of any reimbursement expenses, rental use, or other claims. With regard to partition:
[c]o-owners of property have the absolute right to have the property partitioned. La. C.C. art. 1308; Tri-State Concrete Co., Inc. v. Stephens, 406 So. 2d 205 (La. 1981). When property is held in indivision, a person having a share in full ownership may demand partition of the property in kind or by licitation. La. C.C. art. 543. When property is partitioned by licitation, a co-owner is entitled to reimbursement from the proceeds of the sale of the amount proven to be due him for payment of taxes and expenses of preservation of the property, as well as the amount due for the fruits and revenues generated by the property. La. C.C.P. art. 4626.Moises v. Guzman, 2004-884 (La. App. 5 Cir. 12/14/04), 904 So. 2d 1, 2. A settlement of accounts between co-owners is incidental to an action for partition. Von Drake, 36 So. 3d at 1222. The judgment before us grants the relief sought in the principal demand as it orders a partition of the Property, but it does not dismiss the incidental demands made by Ryan and Jason for reimbursement expenses, rental use, or other claims.
Von Drake v. Rogers, 45,305 (La. App. 2 Cir. 5/19/10), 36 So. 3d 1218, 1222, writ denied, 2010-1471 (La. 10/15/10), 45 So. 3d 1111, recognized that although this procedural article concerns the context of absentee co-owners where a petition for licitation is mandated, the article recognizes and requires that an accounting for all taxes and "fruits and revenues" of the property shall be ordered in effectuating the partition.
With regard to these claims, the judgment makes a finding that Ryan and Jason did not have a right to demand reimbursement and then stated, "no award of rental value is proper." The Fourth Circuit recently addressed a similar issue and noted that the judgment made "findings of fact with respect to Decedent's capacity at the time of his death." However, the judgment failed to "'spell out in lucid, unmistakable language' what relief [was] granted." Orozco v. Aries Building Systems, Inc., 2017-0656 (La. App. 4 Cir. 1/24/18), ___So. 3d ___, ___, 2018 WL 525656, * 3.
Several cases have discussed the requirements of the decree with regard to a valid judgment. The decree alone should indicate the decision, and the result decreed should be spelled out in lucid, unmistakable language, as the quality of definiteness is essential to a proper judgment. Boyd Louisiana Racing, Inc. v. Bridges, 2015-0393 (La. App. 1 Cir. 12/23/15), 2015 WL 9435285, at * 2 (unpublished); Input/Output Marine Systems, Inc. v. Wilson Greatbatch, Technologies, Inc., 2010-477 (La. App. 5 Cir. 10/29/10), 52 So. 3d 909, 916; Gros v. STMG Lapeyre, LLC, 2014-0848 (La. App. 1 Cir. 5/6/15), 2015 WL 2169680, at * 2 (unpublished); Plaisance v. Jefferson Parish School Board, 2016-747 (La. App. 5 Cir. 4/12/17), 218 So. 3d 708, 713.
Similar to Orozco, we determine that the findings of the trial court that "neither Ryan nor Jason made a demand to occupy the home[,] neither ... [had] the right to demand reimbursement ... [and] no award of rental value is proper" are not accompanied by decretal language dismissing or disposing of Ryan and Jason's incidental demands. The judgment before us is akin to a judgment that merely grants a motion for summary judgment but fails to contain proper decretal language; such a judgment is defective and cannot be considered a final judgment. Gaten v. Tangipahoa Parish School System, 2011-1133 (La. App. 1 Cir. 3/23/12), 91 So. 3d 1073, 1074.
A final appealable judgment must contain appropriate decretal language disposing of or dismissing claims in the case. See Costanza v. Snap-On Tools, 2013-0332 (La. App. 1 Cir. 3/5/14), 2014 WL 886021, at *4 (unpublished). A judgment that does not dismiss claims made in an incidental demand is an interlocutory judgment. See Greff v. Milam, 2008-726 (La. App. 5 Cir. 2/10/09), 8 So. 3d 693, 697. Because the November 14, 2017 judgment does not contain the appropriate decretal language disposing of or dismissing all the claims of Ryan and Jason, we cannot consider it as a final judgment for the purpose of an immediate appeal. See Costanza, 2014 WL 886021, at *4; Johnson v. Mount Pilgrim Baptist Church, 2005-0337 (La. App. 1 Cir. 3/24/06), 934 So. 2d 66, 67 (finding that language in a judgment that granted an exception of no cause of action but did not dismiss plaintiffs' claims lacked appropriate decretal language and did not constitute a final judgment for purposes of immediate appeal).
Furthermore, the November 14, 2017 judgment overruled the exceptions raising the objections of no right of action, no cause of action, and prescription filed by Ryan and Jason. The denial of a peremptory exception is an interlocutory judgment. Williams v. Genuine Parts Company, 2014-0857 (La. App. 1 Cir. 1/8/15), 2015 WL 127974, at * 4 (unpublished). Because the November 14, 2017 is not a final judgment, the denial of the peremptory exceptions is not immediately appealable.
We also note that while the November 14, 2017 judgment disposes of the claims made in the reconventional demand, that portion of the judgment is not designated as a final partial judgment as required by La. C.C.P. art. 1915(B). A judgment that only partially determines the merits of the action is a partial final judgment and is only appealable if authorized by La. C.C.P. art. 1915. Rhodes v. Lewis, 2001-1989 (La. 5/14/02), 817 So. 2d 64, 66. Subpart A of La. C.C.P. art. 1915 designates certain categories of partial judgments as final judgments subject to immediate appeal without the necessity of any designation of finality by the trial court, while Subpart B of La. C.C.P. art. 1915 provides that when a court renders a partial judgment, it may designate the judgment as final when there is no just reason for delay.
Louisiana Code of Civil Procedure article 1915(A) provides:
A final judgment may be rendered and signed by the court, even though it may not grant the successful party or parties all of the relief prayed for, or may not adjudicate all of the issues in the case, when the court:
(1) Dismisses the suit as to less than all of the parties, defendants, third party plaintiffs, third party defendants, or intervenors.
(2) Grants a motion for judgment on the pleadings, as provided by Articles 965, 968, and 969.
(3) Grants a motion for summary judgment, as provided by Articles 966 through 969, but not including a summary judgment granted pursuant to Article 966(E).
(4) Signs a judgment on either the principal or incidental demand, when the two have been tried separately, as provided by Article 1038.
(5) Signs a judgment on the issue of liability when that issue has been tried separately by the court, or when, in a jury trial, the issue of liability has been tried before a jury and the issue of damages is to be tried before a different jury.
(6) Imposes sanctions or disciplinary action pursuant to Article 191, 863, or 864 or Code of Evidence Article 510(G).
The November 14, 2017 judgment fails to include a legal description of the Property; lacks decretal language dismissing the incidental demands of Ryan and Jason; contains interlocutory rulings regarding the peremptory exceptions raising the objections of prescription, no right of action, and no cause of action and the motion in limine; and lacks the necessary determination and designation required pursuant to La. C.C.P. art. 1915(B) as to the portion of the judgment regarding Jerome's reconventional demand so as to render the entire judgment not immediately appealable. Therefore, the judgment appealed is not properly before us on appeal. The proper procedural vehicle to contest an interlocutory judgment is an application for supervisory writs. See La. C.C.P. art. 2201; State in Interest of J.C., 2016-0138 (La. App. 1 Cir. 6/3/16), 196 So. 3d 102, 107. This court has authority to exercise our supervisory jurisdiction and treat the appeal of this interlocutory judgment as an application for supervisory writs. Id. The decision to convert an appeal to an application for a supervisory writs of review is within the discretion of an appellate court. Id. (citing Stelluto v. Stelluto, 2005-0074 (La. 6/29/05), 914 So. 2d 34, 39). However, as this court previously recognized in Matter of Succession of Porche, 2016-0538 (La. App. 1 Cir. 2/17/17), 213 So. 3d 401, 406 n.2, the appellate courts of this state ordinarily convert an appeal to an application for supervisory writs only if the motion for appeal is filed within the thirty-day time period allowed for the filing of an application for supervisory writs under Rule 4-3 of the Uniform Rules—Courts of Appeal. See e.g., KAS Properties, LLC v. Louisiana Board of Supervisors for Louisiana State University, 2014-0566 (La. App. 1 Cir. 4/21/15), 167 So. 3d 1007, 1010; Wadick v. General Heating & Air Conditioning, LLC, 2014-0187 (La. App. 4 Cir. 7/23/14), 145 So. 3d 586, 593, writ denied, 2014-1913 (La. 11/21/14), 160 So. 3d 972.
In the instant case, Ryan and Jason did not file their motion for devolutive appeal until January 25, 2018, after the expiration of the thirty-day period for filing an application for supervisory writs; accordingly, we decline to exercise our supervisory jurisdiction.
CONCLUSION
For the above and foregoing reasons, we dismiss this appeal for want of appellate jurisdiction and remand this case to the trial court for further proceedings to correct the deficiencies contained in the November 14, 2107 judgment. All costs are assessed against Ryan Bettencourtt and Jason Bettencourtt.
APPEAL DISMISSED; REMANDED.