Opinion
2022 CA 0765.
12-22-2022
In the MATTER OF the SUCCESSION OF Charles Lee BROWN, Sr.
Stacey Brown Palmer, Prairieville, Louisiana, Appellant Plaintiff—Pro Se. Cherie Vaughn, Prairieville, Louisiana, Appellee Defendant—Pro Se Leo Berggreen , Baton Rouge, Louisiana, Counsel for Appellee Intervenor—Leo Berggreen. Before: Welch, Penzato, and Lanier, JJ.
Stacey Brown Palmer, Prairieville, Louisiana, Appellant Plaintiff—Pro Se.
Cherie Vaughn, Prairieville, Louisiana, Appellee Defendant—Pro Se
Leo Berggreen , Baton Rouge, Louisiana, Counsel for Appellee Intervenor—Leo Berggreen.
Before: Welch, Penzato, and Lanier, JJ.
WELCH, J.
In this succession proceeding, Stacey Brown Palmer ("Ms. Palmer"), an adult child of the decedent, Charles Lee Brown, Sr. ("Mr. Brown, Sr."), appeals an amended judgment that denied and dismissed her Rule to Evict Tenant. In accordance with Uniform Rules—Courts of Appeal, Rule 2-16.1(B), we vacate the amended judgment, reinstate the original judgment, and dismiss this appeal.
Mr. Brown, Sr. died on August 14, 2015. He was married twice. His first marriage was to LeVea Spence Brown ("Ms. LeVea"), who died in 2009. Of Mr. Brown, Sr.'s marriage to Ms. LeVea, one child was born, Charles Lee Brown, Jr. ("Mr. Brown, Jr."), and one child was adopted, Ms. Palmer. Mr. Brown, Sr.'s second marriage was to Lois Ann Vidrine Brown ("Ms. Lois"), and he was still married to Ms. Lois at the time of his death.
Prior to Mr. Brown, Sr.'s death, he executed a Notarial Testament on April 10, 2015 ("the will"). In the will, Mr. Brown, Sr. appointed Ms. Lois as the independent adminstratrix of his estate. Mr. Brown, Sr. bequeathed to each Mr. Brown, Jr. and Ms. Palmer "a child's forced portion in [his] estate," both of which were subject to a lifetime usufruct in favor of Ms. Lois. Mr. Brown, Sr. also bequeathed to Ms. Lois "the family home and two acres of land immediately surrounding the family home," as well as "a lifetime usufruct over all of the remaining property in [his] estate."
Following Mr. Brown, Sr.'s death, on December 17, 2015, Ms. Lois filed a petition to probate the will and to be confirmed and appointed as independent administratrix of Mr. Brown, Sr.'s succession. On December 21, 2015, the trial court ordered that the will be filed and executed according to law; it also confirmed and appointed Ms. Lois as the independent adminstratrix of the succession of Mr. Brown, Sr. Thereafter, on September 13, 2016, Ms. Lois filed a petition for possession, asserting that the will had been duly probated, that all debts of the succession had been paid (other than legal fees), and that there was no further necessity for a continued administration of the succession. On September 19, 2016, a judgment of possession was signed by the trial court. Among other things, the judgment of possession recognized Ms. Lois as legatee under the will, entitling her to ownership and possession of a particularly described piece of immovable property (the family home and two acres immediately surrounding the family home as set forth in the will), which had a municipal address of 42338 Highway 933 in Prairieville, Louisiana. The judgment of possession also recognized Ms. Lois's entitlement to a lifetime usufruct over other particularly described property.
Ms. Lois died on April 13, 2018. Since that time, Ms. Palmer has filed various pleadings, challenging the validity of Mr. Brown, Sr.'s will and seeking to set aside or cancel the judgment of possession. However, none of Ms. Palmer's efforts in this regard have been successful.
On July 14, 2021, Ms. Palmer filed a Rule to Evict Tenant, seeking to evict the tenants—identified in the motion as Cheri Vaughn, Chris Vaughn, Maisie Vaughn, and "unknown parties"—who were occupying the premises located at 42338 Highway 933, Prairieville, Louisiana. After a hearing on October 12, 2021, the trial court dismissed the matter. A judgment denying Ms. Palmer's Rule to Evict Tenant, dismissing the matter without prejudice, and casting Ms. Palmer with costs of the proceedings, was signed on November 1, 2021. The notice of signing of this judgment was issued by the clerk of court on November 3, 2021. The record does not reflect that a timely motion for new trial was filed or that there was a timely appeal taken with respect to the November 1, 2021 judgment. Therefore, the November 1, 2021 judgment became final on January 12, 2022. See La. C.C.P. arts. 1974 and 2087.
In the record, this tenant's name is also spelled as "Cherie." For consistency, we utilize the spelling "Cheri," which is the spelling used in Ms. Palmer's Rule to Evict Tenant.
The record does not reveal the relationship of these tenants to any of the parties involved in the succession of Mr. Brown, Sr.
Ms. Palmer's Rule to Evict Tenant asserted that the tenants were occupying "the premises located at 42338 Highway 933, Prairieville, Louisiana 70769, and 17038 Charlie Brown Road, Prairieville, Louisiana 70769 given during legal proceedings and hidden under the address of 42338 Highway 933, Prairieville, Louisiana 70769...."
Louisiana Code of Civil Procedure article 1974 provides: "A party may file a motion for a new trial not later than seven days, exclusive of legal holidays, after the clerk has mailed or the sheriff has served the notice of judgment as required by [La. C.C.P. art.] 1913."
Louisiana Code of Civil Procedure article 2087 provides, in pertinent part:
A. Except as otherwise provided in this Article or by other law, an appeal which does not suspend the effect or the execution of an appealable order or judgment may be taken within sixty days of any of the following:
(1) The expiration of the delay for applying for a new trial or judgment notwithstanding the verdict, as provided by Article 1974 and Article 1811, if no application has been filed timely.
On March 31, 2022, the trial court, on its own motion, amended the November 1, 2021 judgment insofar as it cast Ms. Palmer with costs of the proceeding. In the amended judgment, the trial court re-stated its ruling from the November 1, 2021 judgment regarding the denial and dismissal of Ms. Palmer's Rule to Evict Tenant at her costs. However, the trial court noted that Ms. Palmer had previously been granted in forma pauperis status and was "inadvertently cast with costs" in the November 1, 2021 judgment. Therefore, the trial court amended the November 1, 2021 judgment by specifically ordering that Ms. Palmer was "not responsible for costs" and was "permitted to resume in forma pauperis status as previously granted." Pursuant to a motion and order for appeal filed on May 10, 2022, Ms. Palmer appeals the March 31, 2022 amended judgment.
An indigent litigant who is granted the privilege of proceeding in forma pauperis may be held liable for costs if judgment is rendered and costs assessed against the indigent litigant. See Herigodt v. Town of Golden Meadow, 2020-0752 (La. App. 1st Cir. 2/22/21), 321 So.3d 1004, 1016. writ denied , 2021-00880 (La. 10/12/21), 325 So.3d 1070.
Louisiana Code of Civil Procedure article 1951 provides:
On motion of the court or any party, a final judgment may be amended at any time to alter the phraseology of the judgment or to correct deficiencies in the decretal language or errors of calculation. The judgment may be amended only after a hearing with notice to all parties, except that a hearing is not required if all parties consent or if the court or the party submitting the amended judgment certifies that it was provided to all parties at least five days before the amendment and that no opposition has been received. A final judgment may not be amended under this Article to change its substance.
Thus, a judgment may be amended by the court where the resulting judgment takes nothing from or adds nothing to the original judgment. Villaume v. Villaume, 363 So.2d 448, 450 (La. 1978). However, an amendment to a judgment which adds to, subtracts from, or in any way affects the substance of the judgment, is considered a substantive amendment. Suprun v. Louisiana Farm Bureau Mutual Insurance Co., 2009-1555 (La. App. 1st Cir. 4/30/10), 40 So.3d 261, 268. Substantive amendments to judgments can be made only by consent of the parties or after a timely application for new trial, an action for nullity, or a timely appeal. Villaume, 363 So.2d at 451; Suprun, 40 So.3d at 268. Otherwise, a trial court lacks authority to make any modifications of substance to a final judgment. Bourgeois v. Kost, 2002-2785 (La. 5/20/03), 846 So.2d 692, 696. When the substance of a judgment has been improperly amended, the amended judgment is an absolute nullity; it must be annulled and set aside, and the original judgment reinstated. Sanderford v. Mason, 2012-1881 (La. App. 1st Cir 11/1/13), 135 So.3d 745, 749; see also McGee v. Wilkinson, 2003-1178 (La. App. 1st Cir. 4/2/04), 878 So.2d 552, 554-555; Locke v. Madcon Corporation, 2021-0382 (La. App. 1st Cir. 12/30/21), 340 So.3d 946, 949-950. Furthermore, when this Court notices the absolute nullity of an amended judgment, we must vacate the amended judgment on our own motion. Locke, 340 So.3d at 949. The absolute nullity of an amended judgment may be noticed by the appellate court under its appellate jurisdiction or its supervisory jurisdiction. See Locke, 340 So.3d at 949; Allied World Assurance Company (U.S.) Inc. v. Amedisys, Inc., 2022-0655 (La. App. 1st Cir. 8/12/22) (unpublished writ action), 2022 WL 3336498.
In reviewing the November 1, 2021 judgment alongside the March 31, 2022 amended judgment, we observe that the amended judgment changed the assessment of costs for the proceedings— it changed Ms. Palmer being cast with costs to Ms. Palmer not being "responsible for costs." This change by the March 31, 2022 amended judgment to the November 1, 2021 judgment was not merely a change in the "phraseology" of the judgment, the decretal language of the judgment, or to "correct errors of calculation." Rather, it was a substantive change to the November 1, 2021 judgment.
As previously set forth, substantive changes to a judgment can only be properly made by consent of the parties, through the granting of a timely motion for new trial, through an appeal, or through an action for nullity. The record does not reflect that any of these proper procedural avenues were followed; rather, it was done by the trial court, on its own motion, after the judgment had become final by the lapse of new trial and appellate delays. As such, we must conclude that the March 31, 2022 amended judgment was improperly signed, that the March 31, 2022 amended judgment is a nullity, and that the November 1, 2021 judgment must be reinstated. See Sanderford, 135 So.3d at 749. Therefore, we vacate the March 31, 2022 amended judgment and reinstate the November 1, 2021 judgment.
Given our ruling in this regard, we are constrained to find that Ms. Palmer's appeal is now untimely. Ms. Palmer filed her motion for appeal on May 10, 2022, which was within the delay for appealing the March 31, 2022 amended judgment. However, that judgment has been declared null herein; thus, it is deemed to have never been rendered. See Thibodaux v. Burns, 340 So.2d 335, 339 (La. App. 1st Cir. 1976) ("A judgment declared null is as though it were never rendered.") As previously noted, with respect to the November 1, 2021 judgment, neither a motion for new trial nor appeal was taken within the delays allowed by law; thus, the November 1, 2021 judgment became final on January 12, 2022. Consequently, any effort by Ms. Palmer to now appeal that judgment is untimely, and as such, this appeal must be dismissed. See Stevenson v. State Farm, 624 So.2d 28, 30 (La. App. 2nd Cir. 1993) (providing that after an amended judgment was determined to be a nullity on appeal due to an improper substantive change and the original judgment was reinstated, motion for appeal was deemed untimely, even though filed within appellate delays of the amended judgment, because appeal delays from the original judgment were not extended by the entry of the amended judgment since the amended judgment was null and deemed to have never been rendered).
Cf. Benoit v. Benoit, 2021-0864 (La. App. 1st Cir. 4/4/22), 341 So.3d 719, 731 writ not considered , 2022-00951 (10/4/22), 347 So.3d 890 (after amended judgment declared null due to improper substantive changes and the original judgment reinstated, this Court reviewed original judgment, as appeal was filed within the appellate delay of original judgment).
For all of the above and foregoing reasons, we vacate the March 31, 2022 amended judgment and reinstate the November 1, 2021 judgment. Additionally, we dismiss this appeal as untimely.