SUCCESSION OF JOE OVERTON SUCCESSION OF LEOLA OVERTON v. << (2025)

This matter is before us on appeal by defendant, Lucille Overton Reed, from a judgment in favor of plaintiff, Charlie S. Overton, Sr., in this consolidated succession proceeding. For the reasons that follow, we convert the appeal to an application for supervisory writs, and reverse in part the March 2, 2023 judgment.

FACTS AND PROCEDURAL HISTORY

Joe Overton died on January 7, 2015. At the time of his death, Joe was married to Leola Jackson Overton. Joe's will provided, in pertinent part:

I direct that there should be paid out of my estate all claims, funeral expenses and administrative expenses due and owing with respect to my Estate, other than Estate taxes.

I leave and bequeath to my wife, Leola Jackson Overton, all community property, movable and immovable, that I may own at my death.

I leave and bequeath to my sisters and brother, namely, Lucille Overton Reed, Bertha Overton Montgomery, Izola Overton Millican, Viola Overton Hurst, Doris Overton Johnson, and Charlie Overton, all of my separate property, movable and immovable, that I may own at my death.

***

I name and appoint Lucille Overton Reed, as executrix of my estate, with full seizen and without bond.

On January 21, 2015, Lucille filed a “Petition for Probate of Statutory Testament.” In February 2015, the trial court signed an order granting an independent administration of Joe's succession and appointing Lucille as the independent executrix. Thereafter, on November 11, 2017, Leola died. Leola's will provided, in pertinent part:

I direct that there should be paid out of my estate all claims, funeral expenses and administrative expenses due and owing with respect to my Estate, other than Estate taxes.

***

If my husband should predecease me, I leave and bequeath to my [sisters-in-law] and [brother-in-law], namely, Lucille Overton Reed, Bertha Overton Montgomery, Izola Overton Millican, Viola Overton Hurst, Doris Overton Johnson, and Charlie Overton, all of my property, movable and immovable, separate and community, that I may own at my death.

Lucille filed a “Petition for Probate of Statutory Testament” on November 16, 2017, and sought to be named as the dative testamentary executrix of Leola's succession. The trial court ordered that Leola's will be filed and appointed Lucille as the dative testamentary executrix of Leola's succession on November 17, 2017.¹

On February 22, 2018, Charlie filed a “Motion to Remove Independent Administrator, for Accounting, and Other Incidental Relief.” Charlie sought Lucille's removal as the independent administrator of the succession; that she provide an annual accounting for 2015, 2016, 2017, and 2018; that she file a detailed descriptive list; and that she provide security. After a hearing on September 14, 2018, the trial court ordered Lucille to provide all written receipts and bank statements for all sums paid by Lucille's daughter, Valerria Porter, to anyone who performed work or services on the estate property; ordered Valerria to pay monthly rent in the amount of $750.00, plus all utilities while residing on the estate property; and restrained and enjoined Lucille from spending any succession funds. The judgment was subsequently signed October 9, 2018.

On May 22, 2018, Charlie filed a “Motion for Accounting, and Other Incidental Relief.” Charlie requested that Lucille be ordered to provide annual accountings and to file a detailed descriptive list or inventory. After a hearing, the trial court signed a judgment on September 6, 2018, ordering Lucille to file a detailed descriptive list and annual accountings for 2015, 2016, 2017, and 2018; allowing Lucille to use an accountant to prepare the annual accountings; and prohibiting Lucille from spending any succession assets for a period of time without express written consent of all counsel of record or further court order. On September 6, 2018, Lucille filed a “Sworn Descriptive List of Assets and Liabilities” for each estate.

On October 5, 2018, Charlie filed a “Motion to Assess Costs of the Successions,” requesting that his legal fees be declared debts of the successions. On October 18, 2018, Lucille opposed the motion, arguing that Charlie's legal expenses were not expenses of the estate and should not be paid out of the estate. On that same date, Lucille filed a “Petition for Homologation of Final Account,” requesting that the heirs be served with a copy of the final account. Izola and Bertha filed concurrences, wherein they concurred with the final accounting and putting in possession, and Charlie filed an opposition, requesting that the court deny Lucille's petition pending the outcome of the motions that were before the court at the time. On February 19, 2019, the trial court signed a judgment appointing an appraiser to appraise the estate house. Subsequently, on May 6, 2019, the trial court signed a judgment ordering Lucille to take an inventory of the movable property at a designated address belonging to the succession and to give Charlie all keys to that designated address.

On June 17, 2019, Charlie filed a “Petition for Damages for Breach of Fiduciary Duty” against Lucille in her individual capacity and as the administratrix of the successions of Joe and Lucille in the consolidated succession proceedings. Charlie alleged he was one of six heirs of the decedents and Lucille breached her fiduciary duty as the administrator of the successions. Charlie sought damages against Lucille for breaching her fiduciary duty together with all costs and attorney's fees.

Thereafter, Lucille filed an answer and exceptions of res judicata, no right of action, and prescription. Lucille contended the doctrine of res judicata applied because the succession funds were only spent after receiving court authorization and after a detailed accounting was made; Charlie had no right of action because he was not an heir to the community property owned by Joe, where Joe “willed” all community property, movable and immovable, to Leola, and thus Charlie had no right of action to contest any expenditures before Leola's death; and the claims asserted in Charlie's petition had prescribed because more than a year had elapsed between Leola's death and the date Charlie filed his petition against Lucille. Following a hearing on March 11, 2021, the trial court overruled the exceptions of res judicata and no right of action and deferred ruling on the exception of prescription until trial. A judgment conforming to its ruling was signed on March 22, 2021.

A bench trial was held on Charlie's “Petition for Damages for Breach of Fiduciary Duty” on November 16, 2022. At the conclusion of trial, the trial court rendered oral rulings, which included that there were “more than sufficient grounds” to remove Lucille as the executrix. The trial court subsequently signed a judgment on March 2, 2023, which decreed that $92,93 7.05 was on deposit in two SHPE Credit Union Accounts at the time of Joe's death; awarded Charlie $8,999.11 to be paid by Lucille, which represented a one-sixth undivided interest in the $92,937.05 on deposit, less a credit of $38,942.39 for succession expenses;² ordered that Lucille receive no credit for increase in fair market value of the house due to repairs and renovations; awarded Charlie reasonable attorney's fees of $10,000.00 to be paid by Lucille; and awarded Charlie a one-sixth portion of the monthly rent attributable to the successions in the amount of $875.00. Lucille filed a motion for new trial on March 7, 2023, which the trial court denied following a hearing. On June 1, 2023, the trial court signed a judgment denying the motion for new trial.

Lucille now appeals from the March 2, 2023 judgment awarding Charlie a one-sixth share of the funds on deposit in the credit union account, attorney fees, and one-sixth of monthly rental payments due the succession and also appeals from the June 1, 2023 judgment denying her motion for new trial. On appeal, Lucille contends that the trial court erred in: (1) overruling her exception of res judicata; (2) overruling her exception of no right of action; (3) overruling her exception of prescription; (4) awarding Charlie “damages” to be paid by Lucille; (5) awarding Charlie attorney fees; (6) ordering Lucille to pay rent to Charlie; (7) removing Lucille as the executor of both successions;³ and (8) signing a consolidated judgment and reasons for judgment where the Successions of Joe and Lucille are separate and distinct entities.

JURISDICTION

Appellate courts have a duty to examine subject matter jurisdiction sua sponte, even when the litigants do not raise the issue. Dunbar v. Howard, 2021-1171 (La. App. 1st Cir. 8/16/22), 348 So. 3d 738, 743. Appeals from orders or judgments rendered in succession proceedings are governed by the rules applicable to appeals in ordinary proceedings, except that an order or judgment confirming, appointing, or removing a succession representative, or granting an interim allowance under Article 3321 shall be executed provisionally, notwithstanding appeal. La. C.C.P. art. 2974; Matter of Succession of Smith, 2020-1139 (La. App. 1st Cir. 6/2/21), 326 So. 3d 1252, 1253-1254.

This Court's appellate jurisdiction extends to final judgments, which are those that determine the merits in whole or in part, and to interlocutory judgments when expressly provided by law. See La. C.C.P. arts. 1841 and 2083; Malus v. Adair Asset Management, LLC, 2016-0610 (La. App. 1st Cir. 12/22/16), 209 So. 3d 1055, 1059. The March 2, 2023 judgment determines only certain preliminary issues in the succession, namely, the amount on deposit in two SHPE Credit Union Accounts at the time of Joe's death, an award to Charlie of one-sixth of that amount, an award of attorney fees to Charlie, and an award to Charlie of one-sixth share of monthly rental payments due to the successions. The heirs have not been placed in possession of their respective portions of the estates, nor has a judgment been rendered homologating a final account by the executor. See La. C.C.P. art. 3337. Moreover, the written judgment does not remove Lucille as the executrix. Thus, since it is not conclusive of the succession proceeding, the judgment does not constitute a final judgment. See La. C.C.P. art. 1841; Succession of Saucier, 2021-1466 (La. App. 1st Cir. 6/29/22), 344 So. 3d 108, 113.

The Louisiana 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); Succession of Jaga, 2016-1291 (La. App. 1st Cir. 9/15/17), 227 So. 3d 325, 327-28. Thus, the judgment is appealable only as provided by La. C.C.P. art. 1915.⁴ See Succession of Jaga, 227 So. 3d at 328; Matter of Succession of Smith, 326 So. 3d at 1254; In re Succession of Faget, 2006-2159 (La. App. 1st Cir. 9/19/07), 984 So. 2d 7, 9-10.

The March 2, 2023 judgment does not fall within any of the categories of partial judgments subject to immediate appeal listed in La. C.C.P. art. 1915(A). Therefore, the appeal of the judgment is governed by Subsection B of that article, which provides that a partial judgment “shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.” La. C.C.P. art. 1915(B)(1). The trial court did not designate the judgment as final for purposes of immediate appeal or determine that there was no just reason for delay. Therefore, the March 2, 2023 judgment is not subject to an immediate appeal. See La. C.C.P. art. 1915(B)(2). Consequently, this court lacks appellate jurisdiction. See La. C.C.P. arts. 1841, 1911, and 2083.

The proper procedural vehicle to contest an interlocutory judgment is by application for supervisory writs filed within thirty days of rendition of the interlocutory judgment. See La. C.C.P. art. 2201; Johnson v. C's Transportation Services, LLC, 2020-0338 (La. App. 1st Cir. 8/4/21), 2021 WL 3418693, at *1 (unpublished). We recognize that this Court has discretionary authority to convert an appeal from an interlocutory judgment to an application for supervisory writs. See Succession of Saucier, 344 So. 3d at 114. 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 Matter of Succession of Porche, 2016-0538 (La. App. 1st Cir. 2/17/17), 213 So. 3d 401, 406 n.2. In the instant case, Lucille filed her motion for suspensive appeal on June 23, 2023, within the thirty-day period for timely filing an application for supervisory writs after the denial of her motion for new trial. Accordingly, considering Lucille's appeal was filed within the delay for filing a supervisory writ application, and where a determination as to the reviewable issues before us may facilitate resolution of the remaining litigation and foster judicial economy, we convert the appeal to an application for supervisory writs and review the matter under our supervisory jurisdiction. See In re Succession of Morgan, 2015-0335 (La. App. 1st Cir. 2/24/16), 2016 WL 770192, * 3 (unpublished).

DISCUSSION

At the outset, we note that in her first three assignments of error, Lucille contends the trial court erred in denying her peremptory exceptions of res judicata, no right of action, and prescription in its March 22, 2021 judgment. The denial of a peremptory exception is an interlocutory judgment, which is generally subject to review on the appeal of a final appealable judgment. La. C.C.P. art. 1841; see Bourg v. Safeway Insurance Company of Louisiana, 2019-0270 (La. App. 1st Cir. 3/5/20), 300 So. 3d 881, 887; Dunbar v. Howard, 2021-1171 (La. App. 1st Cir. 8/16/22), 348 So. 3d 738, 743-744. In the instant case, however, because the March 2, 2023 judgment before us is not a final judgment over which we can assert our appellate jurisdiction and because Lucille did not attempt to timely seek review by application for supervisory writs of the rulings set forth in the March 22, 2021 judgment, we are precluded from addressing these assignments of error on our supervisory review of the March 2, 2023 interlocutory judgment.⁵ See Matter of Succession of Porche, 213 So. 3d at 405 n.2.

Consolidated Judgment and Reasons for Judgment

In her eighth assignment of error, Lucille contends the trial court erred by signing a single consolidated judgment, i.e., the March 2, 2023 judgment, and issuing consolidated reasons for judgment for both successions. Louisiana Code of Civil Procedure article 1561(A) provides:

When two or more separate actions are pending in the same court, the section or division of the court in which the first filed action is pending may order consolidation of the actions for trial or other limited purposes after a contradictory hearing, upon a finding that common issues of fact and law predominate, and, in the event a trial date has been set in a subsequently filed action, upon a finding that consolidation is in the interest of justice. The contradictory hearing may be waived upon the certification by the mover that all parties in all cases to be consolidated consent to the consolidation.

The consolidation of cases is a procedural convenience designed to avoid multiplicity of actions and does not cause a case to lose its status as a procedural entity. In re Succession of Cannata, 2014-1546 (La. App. 1st Cir. 7/10/15), 180 So. 3d 355, 364, writ denied, 2015-1686 (La. 10/30/15), 180 So. 3d 303; see also La. C.C.P. art. 1561. As a general rule, a trial court has wide latitude with regard to the consolidation of suits pending in the same court and its decision in that regard will not be disturbed absent an abuse of discretion. In re Succession of Cannata, 180 So. 3d at 364. Consolidation is appropriate where the court finds that common issues of fact and law predominate and that judicial economy will be served by the consolidation. See In re Succession of Cannata, 180 So. 3d at 364; see also La. C.C.P. art. 1561.

Although consolidation of actions for trial is expressly authorized by La. C.C.P. art. 1561, nothing in the statute, or any other codal authority of which we are aware, specifically requires that two separate judgments be rendered in consolidated cases. This court has noted that customarily, trial courts render separate judgments in consolidated cases. Doctors for Women Medical Center, L.L.C. v. Breen, 2019-0582 (La. App. 1st Cir. 5/11/20), 303 So. 3d 667, 670 n.7, citing Darouse v. Mamon, 201 So. 2d 362, 364 (La. App. 1st Cir. 1967). But we routinely review a single judgment rendered in consolidated succession cases. See In re Succession of Cannata, 180 So. 3d at 360; Succession of Crute v. Crute, 2016-0836 (La. App. 1st Cir. 8/30/17), 226 So. 3d 1161, 1167; see also La. C.C.P. art. 1561. Likewise, the fifth circuit has recognized that the trial court may enter separate judgments in each consolidated case or one judgment under a caption reflecting the consolidation of the cases. Petition for Nullification of Donation Cotaya, 2022-539 (La. App. 5th Cir. 5/31/23), 367 So. 3d 806, 812, citing Louisiana Practice Series, Civil Appellate Procedure § 3:10, “Parties-Effect of consolidation of actions,” (Sept. 2022 update).

Lucille and Charlie filed a joint motion to consolidate the Succession of Leola Overton with the Succession of Joe Overton on August 17, 2018. Thereafter, the consolidation of the successions was ordered by the trial court. The trial court's March 2, 2023 judgment accurately bears a caption reflecting the consolidation of the two individual cases. On review, we find the trial court did not err in rendering a single judgment under a caption reflecting the consolidation of the Succession of Leola Overton with the Succession of Joe Overton. This assignment of error is without merit.

Damages

In her fourth assignment of error, Lucille contends the trial court erred in awarding Charlie damages to be paid by Lucille. Specifically, she contends the trial court applied the incorrect burden of proof as to her actions in preserving the assets of the successions. Lucille asserts the trial court found she had to prove an increase in the value of the house due to the repairs. However, she contends Charlie was required to show the repairs to the house were not necessary.

A succession representative is a fiduciary with respect to the succession, and shall have the duty of collecting, preserving, and managing the property of the succession in accordance with law. He shall act at all times as a prudent administrator, and shall be personally responsible for all damages resulting from his failure so to act. La. C.C.P. art. 3191. Those seeking damages as a result of the succession representative's breaches must prove that the succession suffered damages as a result of the breaches. The trial court's award of damages for the succession representative's breach of her fiduciary duty will not be modified on appeal absent a showing of an abuse of discretion. See Succession of Fanz, 2016-0180 (La. App. 4th Cir. 12/16/16), 208 So. 3d 422, 436, writs denied, 2017-0084, 2017-0310 (La. 3/24/17), 216 So. 3d 816, 217 So. 3d 3 5 5. Thus, in the instant case, Charlie was required to prove that the succession suffered damages as a result of Lucille's breaches.

At trial, Lucille Reed testified she relied on Valerria to contract the renovation work on the decedents’ house, the last of the renovation work was performed in January 2017, and she renovated the house at Leola's request. She also stated she did not check with her siblings before renovating the house. Lucille testified that she thought the house needed to be fixed because, when she would go to Greensburg, she did not have anywhere to stay. Further, she stated she did not take any money from the succession. When asked why $26,000.00 of succession funds went to Valerria, Lucille stated she did not believe that was accurate.

Valerria testified that she assisted her mother in renovating the Overton house. Valerria stated Joe and Leola lived in the house until Joe died and then Leola went into a nursing home. Valerria lived in the Overton house during the renovation process but indicated she moved out when the court stated she would have to pay rent. She testified that the back of the house was “caved in.” Valerria further testified that she used a checkbook her mother gave her to write checks from the estate account and she helped her mother with the accounting of the estate funds. She indicated the money paid to her from the succession accounts were reimbursements for money she had previously paid for renovation work or bills.

Charlie testified that he did not agree to the renovations and thought they should not all have been done. He stated that only the floors in the bathroom needed to be fixed. However, his sister, Doris, testified that she wanted the house fixed. In addition, testimony was further elicited from six persons employed to perform work on the house.⁶

At the conclusion of the trial, the court found “at least some improvements were needed at [the] house.” The court noted there were no photos or appraisal from before the renovation work was done and stated Lucille should not have made the improvements. The trial court then ordered each party to submit a post-trial memorandum within ten days. Thereafter, on March 2, 2023, the trial court signed a judgment ordering Lucille to pay Charlie $8,999.11, which represented a one-sixth undivided interest in $92,937.05 on deposit in two SHPE Credit Union Accounts at the time of the death of Joe Overton, less a credit in the amount of $38,942.39 for ordinary and proper expenses of the succession.

On review, however, we note that it appears that in rendering its judgment, the trial court relied on information contained in the post-trial briefs that was not introduced into evidence at trial. In particular, the parties failed to introduce evidence of the purported SHPE Credit Union Accounts at trial. Although these accounts are referenced in Charlie's post-trial brief, a post-trial memorandum consists only of argument, not evidence. Seale & Ross, P.L.C. v. Holder, 2019-1487 (La. App. 1st Cir. 8/3/20), 310 So. 3d 195, 205. Thus, we find that the trial court abused its discretion in finding that Charlie proved that the successions suffered damages as a result of Lucille's breaches. Accordingly, we reverse the trial court's damage award of $8,999.11 to Charlie.

Attorney Fees

In her fifth assignment of error, Lucille contends the trial court erred in ordering her to pay Charlie attorney fees. At the outset, we recognize the well-settled principle that attorney fees are not recoverable unless expressly authorized by statute or by a contract between the parties. Sulak v. Brimmer Construction Services, LLC, 2023-0058 (La. App. 1st Cir. 10/10/23), 382 So. 3d 919, 924. The trial court has much discretion in fixing an award of attorney fees, and its award will not be modified on appeal absent a showing of an abuse of discretion. In re Succession of Hendricks, 2013-1766 (La. App. 1st Cir. 11/7/14), 2014 WL 5800310, *3 (unpublished).

An attorney representing particular heirs or claimants in a succession proceeding has no claim against the estate for his services, even though such services benefited the other heirs. Succession of LaRue, 2016-1146 (La. App. 1st Cir. 7/20/17), 2017 WL 3083666, *6 (unpublished). Fees incurred by an heir attempting to hold the executor of the succession to the standard of care owed by the executor to the succession are not to be paid out of the succession. In re Succession of McCoy, 2010-0453 (La. App. 1st Cir. 9/10/10), 2010 WL 3518067, *2 (unpublished).⁷

However, in the instant case, the trial court awarded Charlie attorney fees in the amount of $10,000.00 to be paid by Lucille in her individual capacity. We are aware of no direct statutory or contractual authority authorizing the trial court's award of attorney fees in favor of Charlie to be paid by Lucille. Further, since Charlie is not the executor of either succession and is merely a legatee attempting to hold Lucille to the standard of care she owes as executrix, he may not recover attorney fees from the successions. Therefore, we find the trial court abused its discretion in awarding Charlie attorney fees. Accordingly, the portion of the March 2, 2023 judgment awarding Charlie $10,000.00 in attorney fees to be paid by Lucille is reversed.

Rental of House

In her sixth assignment of error, Lucille contends the trial court erred in awarding Charlie rent in the amount of $875.00 per month to be paid by Lucille. Lucille argues that there was no evidence concerning rental values, and it is unknown how the trial court arrived at the rental amount.⁸

The issue of whether Charlie is owed rent stems from Lucille's daughter, Valerria, living in the Overton house rent free. Valerria began staying in the Overton house before Joe died. She stayed there from late 2014 through September 2018, when the trial court stated that she would have to pay rent if she continued to live there past October 1, 2018. At the hearing in September 2018, the trial court indicated that reasonable monthly rent for the house was in the neighborhood of $750.00 plus the cost of utilities. At the trial on November 16, 2022, Valerria agreed the Overton house was appraised in 2019 and the value of the house was $118,000.00, but there was no appraisal of the house before the renovations occurred, and the house was covered in mold and mildew during that time. Valerria indicated she moved out of the house after the trial court ruled she would owe rent if she continued living there. After the November 16, 2022 trial, the trial court set the rent for the house at $750.00 per month and ordered Lucille to pay Charlie one-sixth of $750.00 per month from the date of judicial demand through the date occupancy ended, which totaled $875.00.

The testimony set forth at trial does not provide a reasonable factual basis for the finding of the trial court. The parties failed to produce any testimony or other evidence concerning rental values of similar houses in the area during the time in which Valerria occupied the house. See In Succession of Felker, 2010-0561 (La. App. 1st Cir. 10/29/10), 2010 WL 4272996, *5 (unpublished). While there was evidence of the 2019 appraisal of the house, the appraisal did not establish rental values for similar houses in the area. Therefore, we find that the trial court erred in awarding Charlie rent in the amount of $875.00 per month to be paid by Lucille, and that portion of the judgment is reversed. This assignment of error has merit.

Removal of Independent Executor

In her seventh assignment of error, Lucille contends the trial court erred in removing her as the executor of both Joe and Leola's successions. Lucille argues she was improperly removed since there was no showing that she violated any fiduciary duties.

At the conclusion of trial on November 16, 2022, the trial court ruled that Lucille was removed as the independent executrix upon completion of her final action of paying the property taxes for 2022. The trial court found Lucille breached her fiduciary duty by failing to move forward with a partial judgment of possession. The trial court further determined that Lucille failed to protect the interest of all of the heirs involved; the successions paid for things that were no longer owned by the successions such as car insurance and maintenance; and there was no accounting for three or four years. While the trial court indicated orally that it removed Lucille as the independent executrix, there is no judgment to that effect.

Appeals from orders or judgments rendered in succession proceedings are governed by the rules applicable to appeals in ordinary proceedings, except that an order or judgment confirming, appointing, or removing a succession representative, or granting an interim allowance under Article 3321 shall be executed provisionally, notwithstanding appeal. La. C.C.P. art. 2974. No appeal may be taken from a judgment until it has been signed by the judge. See La. C.C.P. art. 1911. Where a final judgment is not reduced to writing and signed by a judge, there is no final judgment and no appeal can be taken. See Carter v. Ameer LLC, 2018-0703 (La. App. 4th Cir. 2/27/19), 265 So. 3d 922, 924; Wynne v. Parlay's, Inc., 97-1170 (La. App. 4th Cir. 11/5/97), 701 So. 2d 1369, 1370 (in considering an appeal from a judgment entered orally but never signed by the trial court: “the absence of a signed judgment is fatal to [appellant's] appeal[.] ․ Since there is no signed judgment the appeal must be dismissed as premature.”). While the trial court orally removed Lucille as the independent executrix, it failed to render a written judgment to that effect. Accordingly, in the absence of any such order in the March 2, 2023 judgment, this issue is not before us to review.

CONCLUSION

For the above and foregoing reasons, the portions of the trial court's March 2, 2023 judgment in favor of Charlie S. Overton, Sr. and against Lucille Overton Reed, awarding Charlie S. Overton, Sr. $8,999.11 in damages, $10,000.00 in attorney's fees, and $875.00 in rental reimbursements is reversed. In all other aspects, the judgment is affirmed. Costs of this appeal are assessed one-half to Lucille Overton Reed and one-half to Charlie S. Overton, Sr.

APPEAL CONVERTED TO APPLICATION FOR SUPERVISORY WRIT; MARCH 2, 2023 JUDGMENT REVERSED IN PART; AFFIRMED IN PART.

FOOTNOTES

1.   In August 2018, the trial court consolidated the Succession of Leola Overton with the Succession of Joe Overton.

2.   There is no explanation or designation of the SHPE Credit Union Accounts as either community or separate property in the judgment before us.

3.   Although Lucille appealed suspensively, to the extent that she attempts to challenge her removal as the executrix in this appeal, we note that a judgment appointing or removing a succession representative shall be “executed provisionally notwithstanding an appeal” such that appeals taken from such judgments are necessarily devolutive. See La. C.C.P. arts. 2122 and 2974; and In re Succession of LeBouef, 2013-0209 (La. App. 1st Cir. 9/9/14), 153 So. 3d 527, 533-534 (en banc).

4.   Louisiana Code of Civil Procedure article 1915 was recently amended and reenacted by La. Acts. 2025, No. 250, § 3, effective August 1, 2025, largely to restore the Article to its pre-1997 form. See La. C.C.P. art. 1915, Comments -- 2025, Comments (a) and (b). The revisions remove from Paragraph B the authority of the trial court to designate a judgment as final and appealable after an express determination that there is no just reason for delay. As a result, Paragraph A now provides a list of judgments from which an appeal may be taken. This change seeks to remove uncertainty as to whether an appeal or a supervisory writ should be taken from a judgment that does not grant the successful party or parties all of the relief prayed for or may not adjudicate all of the issues in the case. La. C.C.P. art. 1915, Comments-2025, Comment (a). Paragraph B retains much of the language of former Paragraph C. The language of Paragraph C is new and provides for interlocutory judgments that are not appealable. See La. C.C.P. art. 2083(C). These amendments have prospective application only and shall not apply to appeals and supervisory writs filed prior to August 1, 2025, the effective date of the Act. See La. Acts. 2025, No. 250, § 6. The instant appeal was filed prior to the effective date of the 2025 amendment. Thus, we will apply the version of La. C.C.P. art. 1915 in effect at the time.

5.   We note that under La. C.C.P. art. 927(B), an appellate court may notice an exception of res judicata on its own motion and assign briefing and permit the parties an opportunity to request oral argument. However, we decline to do so in this case.

6.   First, Michael Neyland testified that he was hired to replace the cabinets in the house. He recalled water damage to the floor and specifically mentioned the floor was rotten under the sink. He stated he did not think the house was habitable at the time because it was in very poor condition. He further stated that after the repairs, the house was in much better condition. Next, Wilbert Self testified that he installed sills under the Overton house. Third, Lester Myles stated he was hired to perform work on the Overton house and recalled rotten wood, drywall, floors, and doors. He stated the floor was in poor condition and was sinking and the ceiling was falling in the kitchen and dining room. He further indicated he painted and repaired leaking pipes. However, he testified he did not recall how much he charged for the work. Additionally, Rogers Matthews testified he did not remember what work he did on the house and he did not know how he was paid. Further, Eulas Wright testified that he worked on the floors, gutted the kitchen, put up drywall, and painted. Lastly, Larry Overton testified that he put a cage over the air conditioner and patched the roof.

7.   In McCoy, this court explained:[A]t the time McCoy incurred these attorney fees, he was not the executor, but was simply one of the heirs. An attorney representing particular heirs has no claim against the estate for his services, even though such services may have benefited the other heirs. [Succession of Meier, 204 So.2d 793, 797 (La. App. 4th Cir. 1967).] McCoy's litigation to remove Jackson as executor was an attempt by an heir to hold the executor to the standard of care owed by the executor to the succession. It was not an action by the executor to defend the succession from attack or to administer the succession. As such, the attorney fees incurred in such action were not chargeable to the succession, and we find no error in the court's decision concerning these fees.In re Succession of McCoy, 2010 WL 3 518067 at *4.

8.   Lucille further argues the trial court erred in ordering rent due from the date of judicial demand in the judgment signed March 2, 2023. She specifically contends that at the September 14, 2018 hearing, the trial court indicated that Valerria would have to pay rent if she stayed at the Overton house past October 1, 2018. However, at the November 16, 2022 trial, the trial court indicated that rent of $750.00 was due from the date of demand through September 2018, which is when Valerria moved out of the house. At the conclusion of the September 14 hearing, the trial court stated, “effective October 1st[,] if [Valerria] is going to remain staying [at the Overton house] she has got to pay [$]750 and absorb all of the costs.” However, the judgment signed by the trial court on March 2, 2023 provides that Lucille owes Charlie $875.00 in rent, which is Charlie's one-sixth portion of $750.00 from the date of demand. It is well settled that if there is any conflict between a written judgment and written reasons, the language of the judgment controls. Slaughter v. Board of Supers of Southern University & Agr. & Mechanical College, 2010-1049 (La. App. 1st Cir. 8/2/11), 76 So. 3d 438, 459, writ denied, 2011-2110 (La. 1/13/12), 77 So. 3d 970. Thus, we find the March 2, 2023 judgment controls.

MILLER, J.

Green, J. concurs