Opinion
NO. 2011-CA-1287
02-08-2012
MAUREEN MARIE RICHARD v. MICHAEL XAVIER RICHARD
PER CURIAM Melanie Palmer COUNSEL FOR APPELLANT Ammon L. Miller, Jr. LAW OFFICE OF AMMON L. MILLER, JR. COUNSEL FOR APPELLEE
NOT DESIGNATED FOR PUBLICATION
APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2001-6709, DIVISION "A-DRS-3"
Honorable Tiffany G. Chase, Judge
PER CURIAM
(Court composed of Judge Terri F. Love, Judge Paul A. Bonin, Judge Daniel L.
Dysart)
Melanie Palmer
COUNSEL FOR APPELLANT
Ammon L. Miller, Jr.
LAW OFFICE OF AMMON L. MILLER, JR.
COUNSEL FOR APPELLEE
APPEAL DISMISSED
The Succession of Maureen Palmer Favret, through the executrix Melanie Palmer, seeks review of the judgment of the trial court granting Michael Richard's motion to disburse funds. After the appeal was lodged, Michael Richard filed a motion to dismiss on the grounds that the relief granted in the judgment appealed is moot. We grant the motion to dismiss and dismiss the executrix's appeal without prejudice. We explain our holding below.
STATEMENT OF FACTS/PROCEDURAL HISTORY
This Court's earlier decision in Richard v. Richard, 2010-0906 (La. App. 4 Cir. 1/19/11), 68 So.3d 1094, summarized some of the pertinent facts of this case:
Maureen and Michael Richard were married on June 7, 1985, and a judgment of divorce was rendered on November 5, 2001. According to the petition for divorce filed by Maureen Richard, six children were born of the marriage. Shortly after their divorce was granted, the parties filed detailed descriptive lists of the assets and debts that existed during the community property regime. Maureen Richard filed an amended detailed descriptive list in 2006, and listed certain items as community property and others as separate property.Id., p.1-2, 68 So.3d at 1096. This Court affirmed the judgments of February 1, 2010 and March 12, 2010. Id., p.7, 68 So.3d at 1099.
Maureen Favret passed away in January 2009, before the community property between her and Michael Richard had been partitioned. The Succession of Maureen Palmer Favret was substituted as party plaintiff for Maureen Richard, with her sister, Melanie Palmer, appearing on behalf of the Succession as the duly appointed representative of her late sister's estate. The parties filed additional
detailed descriptive lists, and trial was held on the partition of community property on October 15, 2009.
On February 1, 2010, the trial court rendered judgment partitioning the community property between the late Maureen Favret and Michael Richard. The trial court also issued lengthy written reasons for judgment. On March 12, 2010, the trial court rendered an amended judgment to address the issue of the proceeds from the sale of the former family home. This issue had been omitted from the February 1, 2010 judgment. The Succession of Maureen Palmer Favret appealed both the February 1, 2010 and March 12, 2010 judgments.
After the delays for applying for a rehearing and/or an application for a supervisory writ with the Supreme Court of this Court's affirmation, Michael Richard filed a motion to disburse funds on April 6, 2011. Michael Richard alleged that in accordance with the February 1, 2010 and March 12, 2010 judgments, he was entitled to receive funds from the sale of the former community home held in an interest-bearing account with Capital One. The court set a hearing for April 26, 2011. The motion to disburse funds and the order setting a hearing date on the motion were served on Anne Neeb, counsel of record for Melanie Palmer, executrix of the estate of Maureen Palmer Favret (hereinafter, "Melanie Palmer"). On April 18, 2011, Anne Neeb filed a motion to withdraw as counsel of record. On April 21, 2011, Melanie Palmer filed a motion for continuance, alleging that she was unaware of the hearing set for April 26, 2011, and that Anne Neeb had not been her counsel since October 2010.
On April 26, 2011, the trial court denied Melanie Palmer's motion for continuance. The trial court noted that Anne Neeb was the counsel of record and had been served with notice of the hearing. The trial court noted that Anne Neeb filed a motion to withdraw as counsel of record, but noted that the motion had not been granted. The record reveals that on April 27, 2011, the trial court signed the motion to withdraw as counsel of record filed by Anne Neeb.
The trial court granted the motion to disburse funds, ordering that Capital One Bank release to Michael Richard the sum of $181,316.81 from account xxxxxx7957, which held the funds from the sale of the former community home. The judgment further ordered that one-half of the interest earned on the account be disbursed to Michael Richard.
On May 19, 2011, Melanie Palmer filed a petition for suspensive appeal, which the trial court granted on May 26, 2011. The record was lodged on September 15, 2011. The appellant filed a brief on October 11, 2011. The appellee filed an exception of res judicata and an appellee brief on October 28, 2011. On December 7, 2011, the appellee filed a motion to dismiss.
The motion to dismiss noted that on October 11, 2011, Capital One Bank filed a petition for concursus and deposited into the registry of the court the funds located in account xxxxxx7957, which held the funds from the sale of the former community home, as well as the funds from several other accounts. The motion to dismiss concluded that this appeal is now moot as there is no money in the Capital One Bank account to disburse. The executrix filed an opposition to the motion, but she does not contest the dispositive facts that Capital One Bank is no longer in possession of any contested funds and that a concursus has been instituted to which concursus she is a party.
DISCUSSION
It is well-settled that appellate courts will not render advisory opinions from which no practical results can follow and that moot questions will not be considered on appeal. Weaver v. Chimneywood Homeowners Ass'n., Inc., 2001-1444, p.3 (La. App. 4 Cir. 1/30/02), 809 So.2d 1071, 1073. "A case is 'moot' when a rendered judgment or decree can serve no useful purpose and give no practical relief or effect." State v. Malone, 2008-2253, p.2 (La. 12/1/09), 25 So.3d 113, 116, citing Cat's Meow, Inc. v. City of New Orleans, 98-0601, p.8 (La. 10/20/98), 720 So.2d 1186, 1193.
In this instance, Melanie Palmer filed an appeal from a judgment which ordered Capital One Bank to disburse funds from account xxxxxx7957 to Michael Richard. Capital One Bank filed a petition for concursus and deposited the funds from account xxxxxx7957, as well as funds from other accounts, into the registry of the court. At this point, a decree from this Court affirming or reversing a judgment ordering Capital One Bank to disburse specified funds from account xxxxxx7957 to Michael Richard would serve no useful purpose and give no practical relief or effect as Capital One Bank no longer has the funds in its possession to disburse.
Thus, as no practical result can follow from a judgment or decree from this Court, we deem the matter moot. Once a judgment is rendered in the concursus proceeding, an aggrieved party may file for an appeal.
ORDER
Accordingly, we grant the appellee's motion to dismiss the appeal without prejudice.
APPEAL DISMISSED