Succession of Angerella Simms ( 2020 )

STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2019 CA 0936
SUCCESSION OF ANGERELLA SIMMS
Judgment Rendered: FEB 2 12020
ry
On Appeal from the 19th Judicial District Court
lIn and for the Parish of East Baton Rouge
State of Louisiana
Trial Court No. 102787
Honorable Trudy M. White, Judge Presiding'
Johnell M. Matthews Attorneys for Appellant,
Johnnie L. Matthews Wiley Williams
Chrystal M. Matthews
Baton Rouge, Louisiana
Jack M. Alltmont Attorney for Plaintiff/Appellee,
New Orleans, Louisiana Ralph Anthony Williams, II
BEFORE: HIGGINBOTHAM, PENZATO, AND LANIER, JJ.
The Honorable Todd Hernandez originally presided over this matter. The Honorable Trudy
White signed the amended judgments.
PENZATO, J.
This case is before us on appeal by Wiley Williams from a trial court
judgment granting a petition to annul a previously probated testament. For the
following reasons, we dismiss the appeal and remand this matter to the trial court.
FACTS AND PROCEDURAL HISTORY
Angerella Simms died in August 2016. 2 She had two children, Wiley
Williams and Ralph Williams. Ralph predeceased Ms. Simms. On April 4, 2017,
Wiley filed a petition seeking to probate a will executed by Ms. Simms on
November 23, 2009. The trial court signed orders probating the will and
appointing Wiley executor. Thereafter, Ralph Anthony Williams, II (" Tony"), one
of Ralph' s two children, filed a petition to annul the probated will, asserting that it
was not in accordance with the formalities prescribed for a notarial will under La.
C. C. art. 1577. More specifically, relying upon Successions of Toney, 2016- 1534
La. 5/ 3/ 17), 226 So. 3d 397, Tony called attention to the following defects of
form: the witnesses did not attest to having seen the notary sign the document, the
notary made no attestation at all but merely ascribed to the fact that he notarized
the document, and the notary did not state that he signed the document in the
presence of the witnesses and testatrix.
Following a hearing on the petition to annul the testament, the trial court
orally granted the petition, concluding that the attestation clause executed by the
notary failed to sufficiently comply with the requirements of La. C. C. art 1557 as
recognized in Successions of Toney, 226 So. 3d 397. A judgment was signed on
December 26, 2018, which provided as follows:
The Testament of Angerella W. Simms previously accepted by
Order of Probate in this matter dated April 10, 2017 is hereby
annulled. Further, absent a party presenting a valid will, the Court
declares that Angerella died intestate. The Judgment probating the
will is vacated and the Letters of Executorship are withdrawn. It is
2 The Petition for Probate represents that Ms. Simms died on August 2, 2016. The Affidavit of
Death and Heirship states that she died on August 30, 2016.
PA
further ordered that Wiley M. Williams render to Ralph Anthony
Williams, II an accounting for his actions in the administration of the
affairs of Angerella after her death.
Wiley filed a motion for new trial, which came for hearing on February 19,
2019. 3 The matter was taken under advisement and on February 25, 2019, the trial
court issued a " Ruling" on the motion for new trial:
The Court after considering the evidence, law and arguments of
counsel denies the mover' s motion. While the Court understands and
perhaps is even amenable to mover' s argument, the Court does not
find the Court' s previous ruling citing the Succession of Toney
decision to be contrary to the law and evidence.
A Judgment shall be submitted and signed accordingly. Each
party to bear their own respective cost of this proceeding.
Wiley filed a motion to appeal, and on April 25, 2019, an order of appeal
was entered granting a devolutive appeal from the judgment of February 25, 2019.
On September 10, 2019, this court, ex proprio motu, issued a rule to show
cause regarding two issues. First, the show cause order noted that it appeared from
the face of the February 25, 2019 " Ruling," that the appeal was premature given
that the trial court expressly ordered the parties to submit a written judgment.
Second, the show cause order additionally noted that the exact relief denied by the
February 25, 2019 " Ruling" could not be determined pertaining to the accounting
that Wiley M. Williams was to render to Ralph Anthony Williams, II, as referenced
in the December 26, 2018 judgment.
Wiley responded to this court' s show cause order, acknowledging that the
court' s February 25, 2019 ruling was not memorialized by a written judgment as
ordered by the trial court. He indicated that a judgment had been prepared and
submitted to the trial court for signature. Furthermore, Wiley asserted that the
December 26, 2018 judgment had been amended to reflect sufficient decretal
3 The motion for new trial was filed on November 30, 2018, prior to a written judgment being
signed on December 26, 2018. The technical prematurity of the motion for new trial was cured
by the signing of the judgment. In re Tutorship ofIngraham, 565 So. 2d 1012, 1020 ( La. App. 1
Cir.), writ denied, 568 So. 2d 1078 ( La. 1990).
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language to indicate that it was a final judgment and had also been submitted to the
trial court for signature, with instructions to supplement the record on appeal.
Subsequently, on January 15, 2020, the appellate record was supplemented with the
two judgments.
The December 26, 2018 judgment was amended by the issuance of an
Amended Judgment" signed October 8, 2019, which contains the following
language:
The Court, in consideration of the law, as well as the Supreme
Court' s pronouncement in the Succession of Toney; therefore, the
Petition to Annul the previously probated Testament of Angerella W.
Simms is hereby GRANTED.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED,
that this is a final Judgment, and that there is no just reason for delay
pertaining to the issue of the validity of the Last Will and Testament of
Angerella W. Simms, as this Judgment disposes of all issues
concerning the validity of the will, and therefore, same is designated
as a final Judgment in accordance with the provisions of Louisiana
Code of Civil Procedure, Article 1915( B).
A judgment in accordance with the trial court' s February 25, 2019 ruling was
signed on October 8, 2019, which indicated:
IT IS HEREBY ORDERED, ADJUDGED AND DECREED
that mover' s/ Wiley Williams' Motion for Judgment Notwithstanding
the Verdict And/ Or New Trial is hereby DENIED. The Last Will and
Testament of Angerella W. Simms is hereby annulled. Each party is to
bear his own respective cost of this proceeding.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED,
that this is a final Judgment, and there is no just reason for delay on
the issue of the validity of the Last Will and Testament of Angerella
W. Simms, as this Judgment disposes of all issues pertaining to the
validity of the will, and therefore, same is designated as a final
judgment in accordance with the provisions of Louisiana Code of
Civil Procedure, art. 1915( B).
JURISDICTION
Before reaching the merits of this appeal, we have a duty to examine subject
matter jurisdiction sua sponte, even when the parties do not raise the issue.
Advanced Leveling & Concrete Solutions a Lathan Co., Inc., 2017- 1250 ( La. App.
I Cir. 12/ 20/ 18), 268 So. 3d 1044, 1046 ( en banc).
In a devolutive appeal, the jurisdiction of the trial court over all matters in
the case reviewable under the appeal is divested, and that of the appellate court
attaches, on the granting of the order of appeal. La. C. C. P. art. 2088( A). An order
of appeal is premature if granted before the court disposes of all timely filed
motions for new trial, and becomes effective upon the denial of such motion. La.
C. C. P. art. 2087( D). Unless the motion for new trial is denied, the trial court is not
divested of its original jurisdiction, and the appellate court' s jurisdiction does not
attach.
Lane a Lane, 2015- 1572 ( La. App. 1 Cir. 2/ 26/ 16), 2016 WL 770832, * 2.
In response to this court' s rule to show cause, Wiley procured a judgment
denying his motion for new trial, which was signed by the trial court on October 8,
2019. Thus, the order of appeal signed on April 25, 2019, did not become effective
until October 8, 2019, and the trial court maintained jurisdiction until that time.
See La. C. C. P. art. 2087( D); Lane, 2016 WL 770832, * 2. Therefore, the first
concern raised by this court' s show cause order as to the prematurity of the appeal
has been resolved. However, this does not resolve the jurisdictional issues
regarding this appeal.
Wiley' s motion for appeal sought to appeal the February 25, 2019 judgment,
referred to as a denial of his motion for new trial. A judgment denying a motion
for new trial is an interlocutory order and is normally not appealable. See La.
C. C. P. art. 2083( C); Hickman a Exxon Mobil Corp., 2017- 0235 ( La. App. 1 Cir.
7/ 18/ 18), 255 So. 3d 1097, 1101, writ denied, 2018- 1463 ( La. 11/ 20/ 18), 256 So.
3d 996. However, when a motion for appeal refers by date to the judgment
denying a motion for new trial, but the circumstances indicate that the appellant
actually intended to appeal from the final judgment on the merits, the appeal
should be maintained as being taken from the judgment on the merits. Id. In this
case, it is clear from Wiley' s " Specification of Errors" that he intended to appeal
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from the judgment signed by the trial court on December 26, 2018, that annulled
the previously probated testament of Ms. Simms, withdrew the Letters of
Executorship granted to Wiley, and ordered an accounting to Tony. This judgment
was amended on October 8, 2019 to state, in relevant part that, " the Petition to
Annul the previously probated Testament of Angerella W. Simms is hereby
rx" Amium-07 i
A judgment annulling a previously probated testament determines the merits
of that separate action, brought in the succession proceeding, and accordingly
constitutes a final appealable judgment. See In re Succession of Theriot, 2008-
1233 ( La. App. 1 Cir. 12/ 23/ 08), 4 So. 3d 878, 882. However, the October 8, 2019
Amended Judgment," which would otherwise be an appealable judgment of the
court, is nonetheless fatally defective for lack of proper decretal language.
Because our jurisdiction extends only to " final judgments," see La. C. C. P.
art. 2083( A), this court cannot determine the merits of an appeal unless our
appellate jurisdiction is properly invoked by a valid final judgment. Texas Gas
Exploration Corp. a Lafourche Realty Co., Inc., 2011- 0520 ( La. App. 1 Cir.
11/ 9/ 11), 79 So. 3d 1054, 1061, writ denied, 2012- 0360 ( La. 4/ 9/ 12), 85 So. 3d 698.
For a judgment to be a final judgment, it must contain appropriate decretal
language. Matter of Succession of Weber, 2018- 1337 ( La. App. 1 Cir. 4/ 29/ 19),
276 So. 3d 1021, 1026. For the language to be considered decretal, 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. Id. at 1026- 27. These
determinations should be evident from the language of the judgment without
reference to other documents in the record. Advanced Leveling, 268 So. 3d at
IN1
The October 8, 2019 " Amended Judgment" grants the petition to annul the
previously probated testament of Ms. Simms. However, it does not name the party
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in favor of whom the ruling is ordered, the party against whom the ruling is
ordered, and the specific relief that is granted, i.e. annulling the previously
probated testament of Ms. Simms. Thus, because the judgment lacks sufficient
decretal language, ascertainable from the four corners of the judgment, the ruling
on which this appeal is based is not a final appealable judgment. See De Vance u
Tucker, 2018- 1440 ( La. App. 1 Cir. 5/ 31/ 19), 278 So. 3d 380, 382.
This court is authorized to treat an appeal of a non -appealable judgment as
an application for supervisory writs and to rule on the merits of the application.
See Best Fishing, Inc. a Rancatore, 96- 2254 ( La. App. 1 Cir. 12/ 29/ 97), 706 So. 2d
161, 166. However, when the jurisdictional defect lies in the non -finality of a
judgment for its lack of the requisite decretal language or specificity ( as opposed to
an appeal from an interlocutory judgment), an appellate court will generally refrain
from the exercise of its supervisory jurisdiction when an adequate remedy exists by
appeal, particularly when an adequate remedy by appeal will exist upon the entry
of a judgment containing the requisite precise, definite, and certain decretal
language necessary for appellate review. Succession of Weber, 276 So. 3d at 1027.
In the absence of precise, definite and certain decretal language, the judgment is
defective, and this court lacks jurisdiction to review the merits, even if we were to
convert the matter to an application for supervisory writs. Id.
Therefore, as the October 8, 2019 " Amended Judgment" is defective
because it lacks proper decretal language, we decline to exercise our supervisory
jurisdiction.
CONCLUSION
For the foregoing reasons, we dismiss the appeal and remand the matter to
the trial court for further proceedings. We decline to assess costs pending the
rendition of a final judgment.
APPEAL DISMISSED; REMANDED.
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