PETITION FOR LIMITED INTERDICTION OF DAN KERR LUCIDO FOR MANAGEMENT OF CERTAIN PROPERTY v. << (2026)

Petitioner appeals a judgment dismissing his petition for limited interdiction rendered by the trial court on its own motion. Petitioner also seeks review of two interlocutory rulings—one denying his motion for summary judgment and the other denying his motion seeking to have the trial court hold a limited interdiction hearing without the defendant present. For the following reasons, we affirm the interlocutory rulings, vacate the judgment dismissing the action, and remand.

FACTS AND PROCEDURAL HISTORY

John Clifford Kerr established the John Clifford Kerr Testamentary Trust. There are nine beneficiaries to the trust: Dan Kerr Lucido; Robert L. Kerr; Kandyce Kerr Whitehead; Kathleen Ann Dale Kerr Stogner; John W. Kerr, Jr.; Wade Kerr; Amy Kerr Bernath; Brandi Kerr Furr; and Steven R. Giglio.¹ The trust terminated on December 31, 2021, and the “said trust beneficiaries were declared owners in undivided fractions of [immovable property located in Livingston Parish] transferred into said [trust].”

On May 26, 2023, Robert L. Kerr filed a petition seeking the limited interdiction of his sister, Dan Kerr Lucido, and his appointment as limited curator. Therein, petitioner alleged that Ms. Lucido was unable or unwilling to participate in decisions concerning the immovable property located in Livingston Parish. Thereafter, Ms. Lucido took no action and allegedly could not be located.

On May 22, 2024, petitioner, in accordance with LSA-C.C.P. art. 4544, filed a motion seeking the appointment of an attorney to represent Ms. Lucido. In support of this motion, petitioner relied on Ms. Lucido's failure to make an appearance and petitioner's unsuccessful attempts to communicate with her. Brett Sommer was appointed to represent Ms. Lucido.

On December 16, 2024, although no answer to the petition had been filed, petitioner filed a “Motion for Art. 966 Summary Judgment and Motion for Art. 1702 Default Judgment.” Petitioner requested the court to name petitioner and Kandyce Kerr Whitehead, limited curator and limited undercurator, respectively, of Ms. Lucido's assets set forth in the detailed descriptive list attached to the original petition and of an additional $17,546.95 award rendered in favor of Ms. Lucido in a class action suit. Petitioner requested service of the motion on Mr. Sommer, Ms. Lucido's court-appointed counsel. On February 13, 202.5, although the answer had still not been filed, petitioner filed a supplemental memorandum in support of his motion. Petitioner certified that he mailed a copy of the pleading to Mr. Sommer. Apparently, Mr. Sommer never answered and never appeared.

At the February 24, 2025 hearing on the motion, petitioner's counsel noted that the trial court had previously appointed Mr. Sommer to represent Ms. Lucido, but Mr. Sommer had not been responsive. The trial court also indicated it “[h]ad not seen a return from [Mr. Sommer] in the paperwork.” Accordingly, the trial court appointed attorney Tammy Bowden, who was present in the court that day, to represent Ms. Lucido

Ms. Bowden filed an answer to the petition on Ms. Lucido's behalf. Subsequently, on March 31, 2025, the trial court conducted a hearing on petitioner's pending motion for summary judgment and default judgment. At that hearing, Ms. Bowden stated that she could not secure Ms. Lucido's whereabouts and, therefore, was unable to comply with her duties as court-appointed attorney. The trial court orally denied petitioner's motion for summary judgment and default judgment.

On April 9, 2025, petitioner filed a motion to set the matter for trial and sought relief pursuant to LSA-C.C.P. art. 4547.² Therein, petitioner asserted that good cause existed to conduct a hearing in Ms. Lucido's absence “as proven by the report of ad hoc counsel attesting to her inability and failure to locate or communicate with respondent.” In response, the trial court signed an order setting a status conference for May 12, 2025. Both a status conference and a hearing were held on May 12, 2025. At the hearing, Ms. Bowden stated that she still could not locate Ms. Lucido. Petitioner's counsel urged the trial court to find good cause to proceed with an interdiction hearing in the absence of Ms. Lucido. The trial court stated that it would not grant a limited interdiction of an absentee. By judgment dated May 30, 2025, the trial court denied petitioner's motion for summary judgment, and the trial court, on its own motion, dismissed petitioner's action with prejudice.³ This appeal followed.

On appeal, petitioner asserts, among other things, that the trial court erred in denying his motion for summary judgment, in failing to determine that good cause existed to proceed to an interdiction hearing in Ms. Lucido's absence, and in sua sponte dismissing his petition for limited interdiction.

LAW

Louisiana law provides for full interdictions and limited interdictions. See LSA-C.C.P. art. 4541, LSA-C.C. arts. 389 and 390, and In re Interdiction of Watts, 2004-2166 (La.App. 1 Cir. 5/6/05), 903 So.2d 552, 554. A court may order the full interdiction of a natural person of the age of majority, or an emancipated minor, who due to an infirmity, is unable to make reasoned decisions regarding the care of his person and property, or to communicate those decisions, and whose interests cannot be protected by less restrictive means. LSA-C.C. art. 389. Full interdiction is a last resort and, as a result, is warranted only when a person's interests cannot be protected by less restrictive means, such as limited interdiction or a procuration, mandate, or trust. See LSA-C.C. art. 389, Revision Comments—2000, comment (e).⁴

Also, a court may order the limited interdiction of a natural person of the age of majority, or an emancipated minor, who due to an infirmity is unable to consistently make reasoned decisions regarding the care of his person or property, or any aspect of either, or to communicate those decisions, and whose interests cannot be protected by less restrictive means. LSA-C.C. art. 390. A right not specifically restricted in the judgment of limited interdiction is retained by the limited interdict. LSA-C.C. art. 390, Revision Comments—2000, comment (a).

The petitioner in an interdiction proceeding bears the burden of proof by clear and convincing evidence. LSA-C.C.P. art. 4548. The clear and convincing burden is applicable whether the petitioner seeks a full interdiction or a limited interdiction. LSA-C.C.P. art. 4548, Revision Comments—2000, comment (b). Since interdiction is so harsh, interdiction may not be used as a matter of convenience; hence the stiff burden of proof. In re Interdiction of Jones, 55,235 (La.App. 2 Cir. 9/27/23), 371 So.3d 1164, 1177, writs denied, 2023-1629, 2023-1637 (La. 2/6/24), 378 So.3d 755, 378 So.3d 751, citing Interdiction of Lemmons, 511 So.2d 57, 59 (La. 1987).

The person sought to be interdicted has a right to be present at the interdiction hearing and the court shall not conduct the hearing in his absence, unless the court determines that good cause exists to do so. LSA-C.C.P. art. 4547. The person sought to be interdicted also has the right to present evidence, to testify, to cross-examine witnesses, and to otherwise participate at the hearing. LSA-C.C.P. art. 4547.

DISCUSSION

Petitioner assigns error to the trial court's denial of his motion seeking to hold the interdiction hearing in Ms. Lucido's absence as well as the denial of his motion for summary judgment. We recognize these rulings are interlocutory in nature and subject to review in connection with the underlying unrestricted appeal of the final judgment dismissing the action. See Gorman v. Miller, 2012-0412 (La.App. 1 Cir. 11/13/13), 136 So.3d 834, 839 (en banc).

Petitioner maintains the trial court erred in failing to find that good cause existed under LSA-C.C.P. art. 4547 to proceed with the limited interdiction proceeding in Ms. Lucido's absence. Petitioner notes this is a limited interdiction seeking control over certain assets under LSA-C.C. art. 390 as opposed to a full interdiction over the person as authorized by LSA-C.C. art. 389. Petitioner asserts the trial court, without considering or allowing the petitioner to present evidence, summarily and categorically found that “good cause” did not exist where the defendant is an absentee. Nevertheless, petitioner maintains the evidence he submitted in connection with his motion for summary judgment shows that good cause existed to hold the limited interdiction hearing in Ms. Lucido's absence.

We note that petitioner did not contemporaneously object to the manner in which the trial court proceeded at the May 12, 2025 hearing. Further, petitioner did not introduce or proffer any evidence at the hearing. Even so, the trial court indicated it considered the record and the exhibits petitioner filed in connection with his motion for summary judgment. In finding that no good cause existed in accord with Article 4547 to proceed with the interdiction proceeding in Ms. Lucido's absence, the trial court noted that no one had consulted with Ms. Lucido. The trial court also noted that petitioner could achieve what he was seeking, at least with regard to the immovable property, via a partition suit. Under these circumstances, we cannot conclude that the trial court erred in declining to find that good cause existed to hold the interdiction hearing in Ms. Lucido's absence. This assignment of error is without merit.

Petitioner also contends the trial court erred in failing to grant summary judgment in his favor. Louisiana Code of Civil Procedure article 966(A)(1) provides that “[a] plaintiff's motion [for summary judgment] may be filed at any time after the answer has been filed.” In this case, petitioner filed his motion for summary judgment prior to the answer being filed, and the motion was premature. See Deutsche Bank Nat. Trust Co. v. Thomas, 2010-1453 (La.App. 1 Cir. 2/11/11), 57 So.3d 1185, 1188 (“The language of LSA-C.C.P. art. 966 is clear. [Plaintiff] could not properly move for summary judgment until after an answer was filed.”). Moreover, Ms. Lucido's initial court-appointed counsel upon whom the summary judgment was sought to be served had never appeared. After Ms. Bowden was appointed and after she filed an answer on Ms. Lucido's behalf, petitioner did not attempt to serve Ms. Bowden with the summary judgment pleadings. See LSA-C.C.P. art. 966(B)(1)(“[A] motion for summary judgment and all documents in support of the motion shall be filed and served on all parties in accordance with Article 1313(A)(4)[.]”). Considering the foregoing, we find no error in the trial court's refusal to grant summary judgment in light of the requirements of LSA-C.C.P. art. 4547, especially here where there had been no response by Ms. Lucido to the premature motion for summary judgment.⁵ This assignment of error is without merit.

Petitioner also contends the trial court erred in dismissing his petition on the court's own motion. After reviewing the pertinent provisions of the Louisiana Code of Civil Procedure, we find no provision that allows a trial court to dismiss an action on its own motion under the circumstances herein. Our procedural law confers upon a trial court only very limited authority to dismiss a lawsuit on its own motion. Gorman, 136 So.3d at 839, citing Dahan Novelties & Co., LLC v. Ohio Cas. Ins. Co., 2010-0626 (La.App. 4 Cir. 10/20/10), 51 So.3d 129, 135. For example, a trial court on its own motion may notice peremption or failure to disclose a cause of action and dismiss the lawsuit. LSA-C.C.P. arts. 927(B)⁶ and 934; Gorman, 136 So.3d at 839. Also, when no party appears for trial, the trial court may dismiss an action “on its own motion.” LSA-C.C.P. art. 1672(A)(2); Gorman, 136 So.3d at 839.

Moreover, voluntary dismissal of petitioner's suit requires a motion by the petitioner and involuntary dismissal requires a motion by “a party.” LSA-C.C.P. arts. 1671 and 1672; Gorman, 136 So.3d at 839. The trial court is not a party to an action and cannot supply the motion for involuntary dismissal. Gorman, 136 So.3d at 839. If a party fails to present sufficient evidence entitling him to summary judgment or to a default judgment, the trial court's authority is limited to denying those requests. See Gorman, 136 So.3d at 839. Similarly, the trial court's ruling finding that no good cause existed to have the hearing on the petition for interdiction absent Ms. Lucido's presence does not mandate a dismissal of the action. It merely indicates the trial court will not set an interdiction hearing under the existing circumstances. Therefore, the trial court erred in dismissing petitioner's lawsuit on its own motion.⁷

CONCLUSION

Based on the foregoing, we find no error in the trial court's interlocutory ruling declining to hold the interdiction hearing in Ms. Lucido's absence and thus affirm that ruling. We also affirm the trial court's May 30, 2025 judgment, as amended on November 24, 2025, to the extent it denied petitioner's motion for summary judgment. We vacate the trial court's May 30, 2025 judgment, as amended on November 24, 2025, to the extent it dismissed petitioner's action and remand the case for further proceedings consistent with the views expressed herein. Costs of this appeal are assessed against petitioner, Robert L. Kerr.

JUDGMENT VACATED; MATTER REMANDED.

FOOTNOTES

1.   Mr. Giglio is also counsel for petitioner, Robert L. Kerr.

2.   Louisiana Code of Civil Procedure article 4547 provides:An interdiction proceeding shall be heard summarily and by preference. The defendant has a right to be present at the hearing and the court shall not conduct the hearing in his absence, unless the court determines that good cause exists to do so. The defendant has the right to present evidence, to testify, to cross-examine witnesses, and to otherwise participate at the hearing. If the defendant is unable to come to the courthouse for the hearing, the judge may hold the hearing where the defendant is located. The hearing may be closed for good cause. The court may call witnesses not called by the parties and may require the presence of a proposed curator.

3.   On November 3, 2025, we remanded this matter to the trial court for the limited purpose of inviting the trial court to amend the May 23, 2025 judgment to comply with the decretal language requirements found in LSA-C.C.P. art. 1918(A). The trial court signed an amended judgment of November 24, 2025 that corrected the decretal language deficiencies in the prior judgment.

4.   In the context of a full interdiction, one court has indicated that interdiction is so harsh a remedy that it is in essence “a pronouncement of civil death without the dubious advantage of an inscription thereof on a tombstone.” Doll v. Doll, 156 So.2d 275, 278 (La.App. 4 Cir. 1963).

5.   Given that no response to the motion for summary judgment was ever filed by or on behalf of Ms. Lucido, waiver is not at issue in this appeal. Cf. Frisard v. State Farm Fire and Cas. Co., 2006-2353 (La.App. 1 Cir. 11/2/07), 979 So.2d 494, 499 n.6. (Although no answer had been filed prior to plaintiff filing a motion for summary judgment, the defendant waived any objection by filing an opposition to the petitioner's motion for partial summary judgment.)

6.   The following objections raised by peremptory exception may be noticed by the trial court: nonjoinder of a party, peremption, res judicata, the failure to disclose a cause of action or a right of action or interest in the petitioner to institute the suit, or discharge in bankruptcy. LSA-C.C.P. art. 927(B).

7.   Given our ruling, we pretermit the remaining issues raised in the petitioner's appellate brief, including his assignment of error urging that the trial court erred in denying expansion of his detailed descriptive list to include the recently discovered $17,546.95 award in favor of Ms. Lucido.

McCLENDON, C.J.