IN RE: THE SUCCESSION OF JOHN RAY KENDALL

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Court of Appeal of Louisiana, First Circuit.

IN RE: THE SUCCESSION OF JOHN RAY KENDALL

2016 CA 0413

Decided: February 09, 2017

BEFORE: HIGGINBOTHAM, THERIOT AND CHUTZ, JJ. Marlise O. Harrell Hammond, Louisiana Counsel for Plaintiff-Appellant Joseph Ray Kendall Administrator of the Estate of John Ray Kendall F. Timothy Garlick Folsom, Louisiana and Gordon S. Patton New Orleans Counsel for Plaintiff-Appellee Erin Michele Huber, Administratrix of the Succession of Michael Arthur Huber Lindsey K. HunterRichard L. McGimseySteven B. “Beaux” Jones Assistant Attorneys General Baton Rouge, Louisiana Counsel for Plaintiff-Appellee Louisiana Law Enforcement Officers and Firemen's Survivor Benefit Review Board

Appellant, Joseph Ray Kendall (Mr. Kendall), the administrator of the Estate of John Ray Kendall (Kendall Estate), appeals a partial summary judgment declaring the ownership of certain assets. For the following reasons, we dismiss the appeal.

PROCEDURAL AND FACTUAL BACKGROUND

Mr. Kendall alleges he is the adopted son of John Ray Kendall (Decedent), who was married to Mr. Kendall's mother, Marilyn Joan Dowd Kendall (Mrs. Kendall), until the time of her death. Several months after Mrs. Kendall's death, Decedent, who was an employee of the Louisiana State Police (LSP), was driving a LSP enforcement vehicle when he was killed in a vehicular accident on August 9, 2011. Pursuant to La. R.S. 40:1665.2(C)(1),1 the Law Enforcement Officers and Firemen's Survivor Benefit Review Board (the Board) conditionally approved a $250,000.00 payment to Mr. Kendall based on his claim that he was Decedent's adopted son. The payment was contingent upon Mr. Kendall providing “certified adoption papers.” After he failed to provide such documentation, the Board deposited the sum of $250,000.00 into the registry of the 21st Judicial District Court, Parish of Tangipahoa, where Mr. Kendall previously had opened Decedent's succession.

In opening Decedent's succession and requesting his appointment as administrator, Mr. Kendall alleged Decedent died intestate. Subsequently, a petition to probate an olographic will purportedly executed by Decedent was filed by Connie P. DePaula and Michael A. Huber, who were named as universal legatees of the Kendall Estate in the olographic will. Mr. Kendall filed an opposition to the probate of the olographic will alleging it was not written or signed by Decedent and was also defective because it was signed by the purported legatees as witnesses. By a stipulated judgment dated May 22, 2012, the trial court appointed “a handwriting expert to determine whether the will filed in this matter was written by the decedent.” The record contains neither a report from the appointed expert nor a ruling by the trial court as to the validity of the olographic will.

Additionally, Mr. Kendall, as the administrator of the estate of his mother (Dowd-Kendall Estate), as well as in his individual capacity, filed a reimbursement claim against the Kendall Estate. Mr. Kendall alleged that following his mother's death, Decedent depleted community assets belonging to the Dowd-Kendall Estate, including the proceeds of two annuities, for which reimbursement was owed to the Dowd-Kendall Estate. Thereafter, the administratrix of the Succession of Michael A. Huber (Huber Estate)2 filed a motion for partial summary judgment seeking a declaration that: (1) the Dowd-Kendall Estate had no interest in the proceeds of the two annuities; and (2) the Kendall Estate was the sole owner of the $250,000.00 paid by the Board into the court registry.

Following a hearing, the trial court signed a judgment on November 2, 2015, granting in part and denying in part the motion for partial summary judgment. The trial court granted the motion to the extent of recognizing Decedent as being the owner of the proceeds of the two disputed annuities at the time he cashed in those annuities, as well as recognizing the administratrix of the Huber Estate as the owner of the $250,000.00 deposited by the Board into the court registry. The trial court denied the motion for partial summary judgment in part insofar as the court reserved a right of reimbursement to the executor of the Dowd-Kendall Estate for one-half of the proceeds of the two disputed annuities upon submission of appropriate claims for reimbursement.

The administratrix of the Huber Estate filed a motion for new trial. Pursuant to that motion, the trial court rendered an amended judgment on March 3, 2016. Essentially, the amended judgment provided the executor of the Dowd-Kendall Estate was only entitled to claim reimbursement for one-half of any community funds expended to purchase the two disputed annuities, as opposed to one-half of the annuity proceeds as provided in the original judgment.3

Mr. Kendall has now appealed, alleging in three assignments of error that the trial court erred: (1) in determining the Huber Estate was entitled to the $250,000.00 deposited in the court registry; (2) in failing to recognize his adoption by Decedent; and (3) in determining Decedent was entitled to ownership of the proceeds of the two disputed annuities at the time he cashed them in.

SHOW CAUSE

The trial court certified those portions of the partial summary judgment recognizing Decedent as the owner of the proceeds of the disputed annuities and recognizing the administratrix of the Huber Estate as being the owner of the $250,000.00 in the court registry as being “final and appealable judgment[s].” No reasons for the certification were given.

On November 29, 2016, this court, ex proprio motu, issued a Rule to Show Cause why this appeal should or should not be dismissed since the trial court gave no reasons for its Article 1915(B) certification 4 and no such reasons were apparent from our examination of the record. Specifically, this court stated:

In the instant case, the November 2, 2015 judgment recognizes the Estate of Michael Arthur Huber as the owner of all funds payable under two annuity contracts, as well as the funds on deposit in the registry of the court that were paid by The Law Enforcement and Fireman's Survivor Benefits Review Board in the amount of $250,000.00. The claims of the Huber Estate to these funds, all of which are assets of the Estate of John Ray Kendall, are based exclusively on Michael Arthur Huber's status as a legatee under an olographic will purported[ly] executed by John Ray Kendall. The record reveals that Joseph Ray Kendall, the Executor of John Ray Kendall's succession, filed an objection to the probate of the olographic will, alleging it was not written by John Ray Kendall and that, further, it was invalid because the named legatees signed as witnesses thereto. Although the trial court appointed a handwriting expert to examine the purported olographic will, the record contains no report from that expert or otherwise indicates in any manner that the objections to the validity of the purported olographic will were ever ruled upon or disposed of by the trial court. In the absence of any evidence of such a ruling, there is a possibility that the need for review of the partial judgment in the instant matter could be mooted by future developments if the purported olographic will is found to be invalid.

A partial summary judgment rendered pursuant to La. C.C.P. art. 966(E) may be immediately appealed during an ongoing proceeding only if it has been properly designated as a final judgment by the trial court. La. C.C.P. art. 1915(B). Although the trial court designated the November 2, 2015 partial summary judgment as being final and appealable under Article 1915(B), that designation is not determinative of this court's jurisdiction. Van ex rel. White v. Davis, 00-0206 (La. App. 1st Cir. 2/16/01), 808 So.2d 478, 480. Appellate courts have the duty to examine subject matter jurisdiction sua sponte, even when the parties do not raise the issue. Motorola, Inc. v. Associated Indemnity Corporation, 02-0716 (La. App. 1st Cir. 4/30/03), 867 So.2d 715, 717.

Historically, our courts have had a policy against multiple appeals and piecemeal litigation. Article 1915(B) attempts to strike a balance between the undesirability of piecemeal appeals and the need for making review available at a time that best serves the needs of the parties. Thus, in considering whether a judgment has been properly designated as final and appealable pursuant to Article 1915(B), a trial court must take into account judicial administrative interests as well as the equities involved. R.J. Messinger, Inc. v. Rosenblum, 04-1664 (La. 3/2/05), 894 So.2d 1113, 1122; Templet v. State of Louisiana, Department of Public Safety and Corrections, 05-1903 (La. App. 1st Cir. 11/3/06), 951 So.2d 182, 185. Some of the factors a trial court should take into account in making an Article 1915(B) certification is the relationship between the adjudicated and unadjudicated claims; the possibility that the need for review might or might not be mooted by future developments in the trial court; the possibility the reviewing court might be obliged to consider the same issue a second time; and miscellaneous factors such as delay, economic and solvency considerations, shortening the time of trial, frivolity of competing claims, expense, and the like. R.J. Messinger, Inc., 894 So.2d at 1122. However, the overriding inquiry for the trial court is whether there is no just reason for delay. R.J. Messinger, Inc., 894 So.2d at 1122-23.

In response to this court's Rule to Show Cause, Mr. Kendall filed a brief acknowledging many unadjudicated claims remain in this proceeding. He further conceded the “decision in this appeal could be rendered moot after a trial on the merits regarding the validity of decedent's will.” Mr. Kendall concluded by stating “the instant appeal should be dismissed without prejudice so that it can be reurged after the disposal by the trial court of the remaining issues.”

Appellee, the administratrix of the Huber Estate, filed a show cause brief opposing dismissal of the appeal. According to appellee, the handwriting expert appointed by the trial court issued a report in June 2012 concluding the signature on the olographic will was Decedent's signature. Despite this claim, no such report is included in the appellate record.

Appellee also argues Mr. Kendall's challenge to the olographic will should be considered abandoned because he has failed for over four years to re-set for hearing his initial opposition and rule to show cause. In making this argument, appellee concedes La. C.C.P. art. 561 5 , the abandonment article, “does not strictly apply to an issue which is part of a litigated cause ․” Nevertheless, appellee argues the rationale behind Article 561 - “the lack of seriousness implied by the failure to act within a reasonable period of time” - suggests Mr. Kendall has abandoned his challenge to the olographic will.

We reject appellee's arguments, finding that no basis exists to dismiss a matter based on the rationale behind Article 561 when the party urging abandonment admits Article 561 does not “strictly apply” to the matter. The jurisprudence has uniformly held La. C.C.P. art. 561 is to be liberally construed in favor of maintaining a plaintiff's suit. Windham v. Terrebonne Parish Consolidated Government, 12-1964 (La. App. 1st Cir. 9/13/13), 187 So.3d 6, 9.

Having reviewed both the record and the parties' arguments, we conclude the trial court erred in certifying the partial summary judgment as final and immediately appealable.6 In considering the factors set forth in Messinger, we particularly note the extremely close relationship between the adjudicated and unadjudicated claims. The November 2, 2015 judgment relates to claims made by the Huber Estate that are dependent upon Michael Huber's status as a legatee under the olographic will purportedly executed by Decedent. However, based on the record and the parties' admissions in brief, the trial court has never ruled on Mr. Kendall's challenge to the validity of the olographic will. If the olographic will is ultimately determined by the trial court to be invalid, the claims of the Huber Estate concerning both the annuities and the $250,000.00 must fall and any decision rendered by this court regarding the instant appeal would be rendered moot. Under these circumstances, we conclude allowing an immediate appeal of the partial summary judgment rendered on November 2, 2015, would only serve to encourage multiple appeals and piecemeal litigation that causes delay and judicial inefficiency. See Welch v. East Baton Rouge Parish Metropolitan Council, 10-1531 (La. App. 1st Cir. 3/25/11), 64 So.3d 244, 249.

Further, we decline to exercise our supervisory jurisdiction to review the partial summary judgment rendered by the trial court. See Stelluto v. Stelluto, 05-0074 (La. 6/29/05), 914 So.2d 34, 39 (the decision to convert an appeal to an application for supervisory writs is within the discretion of the appellate court). To review this judgment at this point is judicially inefficient since Mr. Kendall's challenge to the validity of the olographic testament is still outstanding. As previously noted, if the olographic will is ultimately determined by the trial court to be invalid, the claims of the Huber Estate must fall and this court's decision would be moot. Under these circumstances, an immediate review of the partial summary judgment is not justified since any determination herein likely will not terminate this litigation. See Grefer v. Alpha Technical, 99-1782 (La. 10/15/99), 744 So.2d 1284, 1285 (per curiam); Herlitz Construction Company, Inc. v. Hotel Investors of New Iberia, Inc., 396 So.2d 878 (La. 1981) (per curiam). Mr. Kendall will have an adequate remedy on appeal following a determination of the validity of the olographic will.

CONCLUSION

For the above reasons, it is hereby ordered that this appeal be dismissed, and this matter is remanded to the trial court for further proceedings consistent with this opinion. All costs of this appeal are to be paid by appellant, Joseph Ray Kendall.

APPEAL DISMISSED; AND REMANDED.

FOOTNOTES

1.   Formerly, La. R.S. 33:2201.

2.   Michael Huber died during the pendency of this proceeding. One of his daughters, Erin Michele Huber, the administratrix of her father's succession, was substituted for Mr. Huber in this matter. Additionally, Ms. DePaula, the other universal legatee named in the olographic will, was no longer a party to this proceeding at this point. Ms. DePaula had earlier filed a “Receipt of Legacy and Release” acknowledging receipt from Mr. Kendall “of funds in full satisfaction of the bequest to her.”

3.   Because it is unnecessary for this court to reach the issue in view of our disposition of this appeal, we express no opinion as to the propriety of either the motion for new trial or the amended judgment.

4.   Louisiana Code of Civil Procedure article 1915(B) provides:(1) When a court renders a ․ partial summary judgment ․ as to one or more but less than all of the claims, demands, issues, or theories against a party ․ the 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.(2) In the absence of such a determination and designation, any such order or decision shall not constitute a final judgment for the purpose of an immediate appeal and may be revised at any time prior to rendition of the judgment adjudicating all the claims and the rights and liabilities of all the parties.

5.   Louisiana Code of Civil Procedure article 561(A) provides:A. (1) An action ․ is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years, unless it is a succession proceeding:(a) Which has been opened;(b) In which an administrator or executor has been appointed; or(c) In which a testament has been probated.

6.   We conducted our review of the Article 1915(B) certification de novo since no reasons for the certification are apparent from the record, the trial court gave no reasons for the certification, and the trial court declined the opportunity to file a per curiam. See R.J. Messinger, Inc., 894 So.2d at 1122.

CHUTZ, J.

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