Opinion
NUMBER 2016 CA 0069
09-08-2017
ROSE MANALE MCCANN v. WALTER LESTER MCCANN
Todd A. Rossi Michael J. deBarros Amy E. Counce Baton Rouge, LA Counsel for Plaintiff/Appellee Rose Manale McCann Charles A. Schutte, Jr. Baton Rouge, LA Counsel for Defendant/Appellant Peggy Blackwell, Testamentary Executrix of the Succession of Walter Lester McCann
NOT DESIGNATED FOR PUBLICATION
Appealed from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana
Docket Number 618,400 Honorable Todd W. Hernandez, Judge Todd A. Rossi
Michael J. deBarros
Amy E. Counce
Baton Rouge, LA Counsel for
Plaintiff/Appellee
Rose Manale McCann Charles A. Schutte, Jr.
Baton Rouge, LA Counsel for
Defendant/Appellant
Peggy Blackwell,
Testamentary Executrix
of the Succession of
Walter Lester McCann BEFORE: WHIPPLE, C.J., GUIDRY, AND McCLENDON, JJ. GUIDRY, J.
This is an appeal of a partial summary judgment that was sought after rendition of a final judgment that disposed of all remaining issues in the case and in which the final judgment disposing of all remaining issues in the case was not appealed. As a result of this procedural presentation, we dismiss the appeal.
FACTS AND PROCEDURAL HISTORY
Walter Lester McCann married Rose Manale McCann in Orleans Parish on January 24, 1951, and thereafter established their matrimonial domicile in East Baton Rouge Parish. Over 50 years later, in May 2009, Rose filed a petition to divorce Walter in the East Baton Rouge Parish Family Court (Family Court). A few months later, Rose filed a separate petition to partition the couple's community property. The Family Court signed a judgment of divorce on January 13, 2010; however, Walter died before the parties could complete partitioning the community property.
The Family Court rendered judgment on August 31, 2009, terminating the couple's community property regime retroactive to the date Rose filed for divorce and pursuant to the joint motion of the parties.
Walter died on June 27, 2010.
Following Walter's death, a succession proceeding was opened in the Nineteenth Judicial District Court (19th JDC), with the couple's daughter, Peggy Blackwell, being appointed executrix of the succession. As such, Rose filed a motion to substitute Walter's estate as the proper party defendant in the partition proceedings pending before the Family Court. The Succession, in turn, filed a declinatory exception of lack of subject matter jurisdiction and moved to have the partition proceedings transferred to the 19th JDC on the grounds that the Family Court was divested of jurisdiction over the matter in light of the intervening death of Walter. The Family Court overruled the exception and denied the motion to transfer; however, the Louisiana Supreme Court ultimately reversed that ruling, and the matter was transferred to the 19th JDC. See McCann v. McCann, 11-2434 (La. 5/8/12), 93 So. 3d 544.
Thereafter, the parties agreed to several partial settlements and consent judgments to partition certain property and rights of the community; however, the parties could not reach an agreement about who owned an IRA account and ten annuity accounts that Walter obtained during the marriage that all designated Rose as the sole beneficiary. So, on October 9, 2014, Rose filed a motion for partial summary judgment to be declared the sole owner of the accounts and to declare that she had no legal obligation to account to or to reimburse the Succession for amounts she received from those accounts. The 19th JDC held a hearing on Rose's motion for partial summary judgment on December 15, 2014, following which the court granted judgment declaring Rose to be the sole owner of the accounts and declaring that she did not have to account to or reimburse the Succession for amounts received from the accounts. A written judgment to that effect was signed on January 9, 2015. The judgment did not include a designation of finality.
Those settlements and judgments include: an April 3, 2013 Partial Settlement Agreement; a January 13, 2014 Consent Partial Judgment of Partition; a July 25, 2014 Consent Partial Judgment of Partition; an October 2, 2014 Consent Partial Judgment of Partition.
The Succession filed a writ application with this Court requesting supervisory review of the partial summary judgment in favor of Rose, but the writ was denied. McCann v. McCann, 15-0074 (La. App. 1st Cir. 4/20/15) (unpublished writ action). The Succession then applied for a writ of certiorari from the Louisiana Supreme Court, but the application was not considered because it was untimely. McCann v. McCann, 15-0971 (La. 9/11/15), 176 So. 3d 408.
A two-day bench trial to resolve the matters remaining in the partition action was set for April 13-14, 2015, but on April 14, 2015, the parties "entered into [a] Final Settlement and Partition Agreement...providing for a partition of the remaining property and compromising all claims asserted, or which could have been asserted, in the Partition Proceedings." In accordance thereto, the parties filed a "Motion for Entry of Consent Final Judgment of Partition," wherein they waived their right to a trial on the merits and appeals, except as expressly reserved in the "Final Settlement and Partition Agreement." The parties thus requested the 19th JDC to enter the "Consent Final Judgment of Partition" attached to the motion. The 19th JDC signed the "Consent Final Judgment of Partition" that was attached to the parties' motion on October 8, 2015. Notice of the October 8, 2015 judgment was issued that same day.
On October 28, 2015, the Succession filed a petition for a devolutive appeal of the January 9, 2015 judgment granting Rose's Motion for Partial Summary Judgment, averring that it was entitled to appeal the judgment at this juncture because:
The Judgment is now final after rendition of the final Judgment of Partition signed on October 8, 2015, reserving the Succession's right to appeal the Judgment.The 19th JDC signed an order granting the appeal on October 30, 2015.
Upon lodging of the record, this Court issued rules to show cause questioning the timeliness of the Succession's appeal. Following review of the parties' respective briefs in response to the rules issued, a writ panel of this Court voted on July 11, 2016, to maintain the appeal, but reserved for the panel to which the appeal is assigned, "a final determination as to whether the appeal is to be maintained."
JURISDICTION TO CONSIDER THE APPEAL
The appellate jurisdiction of Louisiana appellate courts extends to all final judgments. La. C.C.P. art. 2083(A). However, interlocutory judgments are appealable only when expressly provided by law. La. C.C.P. art. 2083(C); see also Comments-2005(a). Jurisprudentially, however, it has been held that an interlocutory ruling is reviewable on appeal of a final, appealable judgment in the case. Louisiana High School Athletics Association, Inc. v. State, 12-1471, p. 26 (La. 1/29/13), 107 So. 3d 583, 603 (citing People of Living God v. Chantilly Corporation, 251 La. 943, 947-48, 207 So. 2d 752, 753 (1968), which held interlocutory judgments "are not independently and immediately appealable, and ... appellate review thereof must await rendition of an appealable judgment in the cause. ... [W]hen a judgment is rendered in the case which is appealable, the reviewing court can then consider the correctness of the prior interlocutory judgment.")
Prior to 2005, La. C.C.P. art. 2083 provided that an appeal could be taken from an interlocutory judgment that may cause irreparable injury, but by 2005 La. Acts, No. 205, § 1, effective January 1, 2006, the statute was amended to provide the current requirement that interlocutory judgments are only appealable when expressly provided by law. As such, we question the propriety of perpetuating a jurisprudential standard that arguably conflicts with legislative pronouncement. See Fontenet v. Cypress Bayou Casino, 06-0300, p. 7 (La. App. 1st Cir. 6/8/07), 964 So. 2d 1035, 1041 (holding that a legislative enactment had the effect of supplanting the jurisprudentially-created standard).
In the instant matter, the Succession did not appeal the October 8, 2015 Consent Final Judgment of Partition. Technically, however, it appears that the October 8, 2015 Consent Final Judgment of Partition itself is not an appealable judgment. By law, a party "who voluntarily and unconditionally acquiesced in a judgment rendered against him," cannot take an appeal of the judgment. See La. C.C.P. art. 2085. Additionally, in the judgment itself, the parties waived their right to appeal, except for those matters reserved in paragraph IX of the judgment, which paragraph recites the following relative to rights the Succession is seeking to assert by virtue of this appeal:
IX. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Succession and Rose McCann expressly reserve their rights to: ...(c) assert rights of ownership of the IRAs and Annuities awarded to Rose McCann in the judgment granting her motion for partial summary judgment signed on January 9, 2015, and/or their successor accounts; and (d) any devolutive or suspensive appeal from the judgment on the Motion for Partial Summary Judgment signed on January 9, 2015, related to the
IRAs and Annuities awarded to Rose McCann, which shall be a final appealable judgment upon rendition of this Consent Final Judgment of Partition.
Nevertheless, even presuming that the October 8, 2015 Consent Final Judgment of Partition could be found to be an appealable judgment, this Court has previously found that a party's attempt to appeal an interlocutory ruling after a final judgment in the case was rendered was insufficient to confer jurisdiction on this Court to consider the interlocutory judgment and dismissed the appeal. See Joseph v. Ratcliff, 10-1342 (La. App. 1st Cir. 3/25/11), 63 So. 3d 220. Although not expressly addressed in the opinion, this Court appeared to reject the appellant's assertion that the impediment to the appeal of a non-appealable interlocutory judgment was removed when the trial court signed a final judgment adjudicating all the claims, rights, and liabilities of the parties, by holding that the judgment at issue was a partial judgment that was not reviewable absent being designated as a final judgment pursuant to La. C.C. P. art. 1915(B). Joseph, 10-1342 at p. 4, 5-6, 63 So. 3d at 223, 224.
Article 2085 further provides that "[c]onfession of or acquiescence in part of a divisible judgment or in a favorable part of an indivisible judgment does not preclude an appeal as to other parts of such judgment."
Still, the Succession argues that the pronouncement in the October 8, 2015 Consent Final Judgment of Partition that the January 9, 2015 partial summary judgment "shall be a final appealable judgment" upon rendition of the October 8, 2015 Consent Final Judgment of Partition was a designation of the January 9, 2015 partial summary judgment as a final judgment pursuant to La. C.C.P. art. 1915(B). For the following reasons, we find that such a purported designation, contained in a final judgment that is not appealed and that otherwise terminates the litigation, is not proper.
It has been recognized that Louisiana law does not provide a time delay for filing a request to certify a judgment as final for purposes of appeal. Thus, it has WHIPPLE, C.J., dissenting.
I respectfully dissent from the majority's decision to dismiss this appeal. The judgment at issue is a judgment wherein the parties have made certain dispositions by agreement or judicial decree, while reserving their right to challenge other portions of the judgment(s) and the classification or distribution of other property. Appellant's motion for appeal was filed within thirty days of the rendition of the judgment. Cf. Joseph v. Ratcliff, 2010-1342 (La. App. 1st Cir. 3/25/11), 63 So. 3d 220, 225. Thus, in my view, in the interest of judicial efficiency and fundamental fairness to the parties, we should exercise our plenary power of supervisory jurisdiction and address the merits.
2016 CA 0069
McCLENDON, J., concurring.
Given that the issue in dispute was reviewed under our supervisory jurisdiction and based on the unique facts of this case, I concur in the result. been held that "[i]n the absence of an explicit expression of legislative will, Louisiana courts have no basis for imposing a specific delay for filing a motion to certify a judgment as final for purposes of immediate appeal." Fraternal Order of Police v. City of New Orleans, 02-1801, p. 4 (La. 11/8/02), 831 So. 2d 897, 899. However, it has also been recognized that historically, our courts have a policy against multiple appeals, piecemeal litigation, and that our courts seek to operate under principles of sound judicial administration to promote judicial efficiency and economy. R.J. Messinger, Inc. v. Rosenblum, 04-1664, p. 13 (La. 3/2/05), 894 So. 2d 1113, 1122. To that end, it has been held that appeals of partial judgments often facilitate matters pending before a trial court by allowing for correction of errors prior to trial and entry of final judgment. Moreover, a rule allowing a motion to certify to be filed at any time prior to final judgment in the case is consistent with general principles favoring appeals. Fraternal Order of Police, 02-1801 at p. 4, 831 So. 2d at 900.
In light of the October 8, 2015 Consent Final Judgment of Partition, there are no other matters left to be adjudicated. Thus, we observe that other than the questionable viability of the current appeal, the partition action has otherwise been essentially concluded. Additionally, we observe that the January 9, 2015 partial summary judgment was previously considered by this court on supervisory review. See McCann v. McCann, 15-0074 (La. App. 1st Cir. 4/20/15) (unpublished writ action). And it appears the issues raised herein were fully considered on supervisory review. Accordingly, we find this court lacks jurisdiction to consider the instant appeal and shall dismiss the same.
One of the members of the writ panel actually dissented in part from the decision to deny the writ application. --------
CONCLUSION
Having determined that this Court lacks jurisdiction to consider the instant appeal, we dismiss the appeal. All costs in this matter are cast to Peggy Blackwell, as testamentary executrix of the Succession of Walter Lester McCann.
APPEAL DISMISSED.