Opinion
NO. 2013 CA 0595
02-18-2014
SUCCESSION OF JAMES S. BURGO
Donald Burgo Angola, Louisiana Appellant, In Proper Person Robert P. Fuhrer Morgan City, Louisiana Attorney for Appellee, Lois Sampey Burgo
NOT DESIGNATED FOR PUBLICATION
On Appeal from the
16th Judicial District Court,
In and for the Parish of St. Mary,
State of Louisiana
Trial Court No. 19,379
The Honorable James R. McClelland, Judge Presiding
Donald Burgo
Angola, Louisiana
Appellant,
In Proper Person
Robert P. Fuhrer
Morgan City, Louisiana
Attorney for Appellee,
Lois Sampey Burgo
BEFORE: WHIPPLE, C.J., WELCH, AND CRAIN, JJ.
CRAIN, J.
Donald Christopher Burgo appeals a judgment of possession rendered in the succession of his father. We affirm.
FACTS
James Samuel Burgo died on February 18, 2012. He was survived by his wife, Lois Sampey Burgo, and his adoptive son, Donald, who was born December 16, 1966. Lois filed a petition to probate the notarial will left by James, and sought to be recognized as the owner and placed in possession of an undivided one-half interest in the community of acquets and gains existing between her and James, and further recognized as the universal legatee and placed into possession of the entirety of the estate. She alleged that Donald's only child, James, was not a forced heir because he was more than twenty-four years old and was capable of caring for himself. An affidavit of death, domicile, and heirship was executed by Kathryn Jett and Ann T. Daigle, with both attesting that James was married but once, to Lois, and that his only child, Donald, was over twenty-four years of age, and was capable of caring for himself. The trial court signed a judgment of possession on June 6, 2012, in which it was adjudged that James left no forced heirs. The judgment further ordered that the entirety of James' estate be placed into Lois' possession. Donald now appeals the judgment of possession.
Donald originally sought review of the judgment of possession by application for supervisory writ. This court granted the writ, stating that the judgment of possession was appealable, and ordered the trial court to grant him an appeal of the judgment of possession pursuant to the June 25, 2012 pleading notifying the trial court of his intention to seek supervisory review of that judgment. Burgo v. Chambers, 12-1633 (La. App. 1 Cir. 1/28/13) (unpublished writ action). The trial court complied and this appeal of the judgment of possession followed.
DISCUSSION
Louisiana Code of Civil Procedure article 3061 provides:
A. The court shall render and sign immediately a judgment of possession, if it finds from an examination of the petition for possession, and from the record of the proceeding, that the petitioners are entitled to the relief prayed for.
B. The judgment shall recognize the petitioners as the heirs, legatees, surviving spouse in community, or usufructuary, as the case may be, of the deceased, send the heirs or legatees into possession of the property owned by the deceased at the time of his death, and recognize the surviving spouse in community as entitled to the possession of an undivided one-half of the community property, and of the other undivided one-half to the extent that he has the usufruct thereof. The judgment shall include the last known address of at least one of the heirs or legatees or the surviving spouse, as the case may be, sent into possession of the property of the deceased. The failure to include the address of at least one of the heirs or legatees or the surviving spouse shall not affect the validity of the judgment.
C. A judgment sending one or more petitioners into possession under a testamentary usufruct or trust automatically incorporates all the terms of the testamentary usufruct or trust without the necessity of stating the terms in the judgment.
A judgment of possession is prima facie evidence of the relationship to the deceased of the parties recognized therein, as heir, legatee, surviving spouse in community, or usufructuary, as the case may be, and of their right to the possession of the estate of the deceased. La. Code Civ. Pro. art. 3062. One claiming to be an heir of the deceased may appeal a judgment placing others in possession. Succession of Lissa, 194 La. 328, 334, 193 So. 663, 665 (La. 1940); Succession of Amaro, 13-0022 (La. App. 4 Cir. 5/15/13), 116 So. 3d 913, 916.
An appeal of a judgment of possession is independent of an action of nullity. Succession of Vidrim, 562 So. 2d 52, 53 (La. App. 3 Cir. 1990); David v. David, 347 So. 2d 885, 888 (La. App. 3 Cir. 1977). When the basis for an attack on a judgment does not appear in the record and cannot be corrected on appeal, it must be asserted through an action for nullity. Boyce Machinery Corporation v. Interstate Paving Corporation, 356 So. 2d 505, 506-507 (La. App. 1 Cir. 1977); see also F. Maraist and H. Lemmon, Louisiana Civil Law Treatise: Civil Procedure § 12.6, at p.3 (1999). As an appellate court, we have no jurisdiction to review evidence that is not contained in the record on appeal, and we cannot receive new evidence. Neimann v. Crosby Development Co., L.L.C., 11-1337 (La. App. 1 Cir. 5/3/12), 92 So, 3d 1039, 1044
An appeal is not a substitute for an action in nullity. See Lowe's Home Const. LLC v, Lips, 10-762 (La. App. 5 Cir. 1/25/11), 61 So. 3d 12, 16, writ denied, 11-371 (La. 4/25/11), 62 So. 3d 89.
By previously issued actions, this court has denied Donald's motions to order additional evidence and to supplement the appellate record herein.
After thorough review, we find no error by the trial court in rendering the judgment of possession based on the evidence presented. There is no indication that the legal requirements for rendition of the judgment were not met. Moreover, based on the record before us, we do not find that the judgment of possession is contrary to the law or evidence.
On appeal, Donald asserts numerous claims, including a claim that he is a forced heir because he has been diagnosed by forensic psychiatrists with "an Axis I Diagnosis of: Chronic Schizo-Affective with BiPolar Disorder," as reflected in FBI and CJIS histories available to the courts. He claims the probated will to be a forgery, in that it does not reflect the "patent block-print and signature unique" to his father. He further claims that his father did not possess the necessary capacity to execute the probated will. He alleges additional acts of fraud by parties who refused to file with the court a prior "sealed" will that his father executed in the 1970s.
The record on appeal does not establish that Donald's claims, including his claim of forced heirship, are valid. Compare Succession of Amaro, 13-0022 (La. App. 4 Cir. 5/15/13), 116 So. 3d 913. 916. Donald's claims must be raised through a nullity action, which would allow the introduction of necessary evidence to substantiate the claims. See Assensoh v. Diamond Nails, 04-1130 (La. App. 4 Cir. 2/16/05), 897 So. 2d 806, 810, writ denied, 05-0601 (La. 4/29/05), 901 So. 2d 1073 (effect of nullity action is to. permit the introduction of evidence).
We note that a testator may disinherit a forced heir for just cause, and that a parent may disinherit a child if the child has struck his parent. La. Civ. Code arts. 1617, 1621A(1). This court previously upheld Donald's conviction of two counts of cruelty to the infirmed, one of the victims of which was Donald's father, James Burgo. The facts of that case specifically set forth that Donald struck his eighty-two-year-old father, who was recovering from recent brain surgery. State v. Burgo, 07-0227 (La. App. 1 Cir. 6/8/07) (unpublished).
The record before us contains a pleading filed by Donald styled "Burden of Proof in Action to Annul," However, it is unclear whether a nullity action is pending. Our review herein is limited solely to review of the judgment of possession.
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CONCLUSION
For the foregoing reasons, the June 6, 2012 judgment of possession is affirmed. This memorandum opinion is issued in compliance with Uniform Rules - Courts of Appeal Rule 2-16. IB. Costs of this appeal are assessed to Donald C. Burgo.
AFFIRMED.