Opinion
NO. 2011-CA-1256
04-04-2012
SUCCESSION OF CARLO J. DILEO
, J., CONCURS WITH REASONS
The majority concludes that the trial court's amendment of the judgment of possession is not substantive, and therefore was permissible under article 1951 of the Code of Civil Procedure. I disagree. Although I find that the 2010 judgment affected a substantive change in the 2001 judgment, I concur in the result reached by the majority for the following reasons.
The majority arrives at this conclusion by relying upon La. Code Civ. Pro. art. 3061(C), which provides that a judgment sending one into possession of a testamentary usufruct automatically incorporates all the terms of the testamentary usufruct without the necessity of stating them. I note that Paragraph C of article 3061 was added by the legislature by Acts 2010, No. 226, which became effective August 15, 2010. In the instant case, however, the initial judgment of possession was signed on May 11, 2001 and was amended by the trial court on February 26, 2010, both before the effective date of the statutory amendment adding Paragraph C. I therefore believe the majority's reliance upon this statute is misplaced.
The May 11, 2001 judgment of possession is a final judgment. Louisiana Code of Civil Procedure article 1951 provides that a final judgment may be amended by the trial court at any time, with or without notice, on its own motion or that of any party "to alter the phraseology of the judgment, but not the substance; or to correct errors of calculation." Here, the amended judgment that the trial court signed on February 26, 2010, without giving notice to all parties, altered the substance of the original judgment, not merely the phraseology. It did so by conferring upon Mrs. DiLeo rights not contained or mentioned in the original judgment of possession. That these rights were bequeathed to her by testament is not disputed; however, the relevant inquiry is whether these rights were also included in the 2001 judgment of possession, which clearly they were not. The trial court's amendment of the judgment to include them was a procedurally improper remedy.
The only proper means by which Mrs. DiLeo could have attacked a judgment of possession she believed to be contrary to her husband's will was the filing of a motion for new trial or an action for nullity. However, at the time Ms. Minvielle refused to sign the documentation required to release the Merrill Lynch account, the delay for applying for a new trial had long lapsed. Therefore, the only avenue remaining to Mrs. DiLeo was the filing of an action for nullity, which she did not do. Instead, she filed a petition requesting that the judgment of possession be amended. The trial court's ex parte signing of an amended judgment of possession the same day was in error.
See La. Code Civ. Pro. arts. 1971, et. seq. (motion for new trial) and 2001, et seq. (action for nullity).
After the trial court signed the amended judgment in 2010, Ms. Minvielle was faced with the same procedural remedies to seek alteration of the amended judgment that had been available to Mrs. DiLeo with regard to the original judgment. Ms. Minvielle properly filed an action to annul the amended judgment for lack of notice. Mrs. DiLeo responded by asserting a reconventional demand requesting that, in the event the amended judgment was annulled, the succession be reopened or alternatively, the initial judgment of possession be annulled. Ms. DiLeo's raising of the nullity issue by reconventional demand is equivalent to her asserting an action for nullity of the original judgment of possession.
La. C.C.P. art. 1061 permits the defendant to assert by reconventional demand "any cause of action" he may have against the plaintiff and requires the defendant to assert by reconventional demand all causes of action he may have against the plaintiff that arise out of the transaction or occurrence that is the subject matter of the principal action. In the instant case, therefore, Mrs. DiLeo was clearly permitted, and arguably required, to assert her action for nullity of the original judgment by reconventional demand in the instant suit.
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Thereafter, Ms. Minvielle sought summary judgment on her petition to annul the amended judgment, and Mrs. DiLeo moved for summary judgment to dismiss Ms. Minvielle's petition or alternatively, as prayed for in her reconventional demand, to have the succession reopened and her right to the Merrill Lynch funds recognized. Therefore, when the trial court heard and decided the cross motions for summary judgment, all the pertinent issues had been raised with regard to the substance of both the original and amended judgments of possession, and all parties had been notified. Although the trial court erred by amending the original judgment of possession ex parte and in the absence of a petition to annul, the procedural posture of the case had changed materially by the time the court considered the cross motions for summary judgment that are the subject of this appeal.
In essence, what was before the court on the cross motions for summary judgment were the merits of each party's nullity action on the respective underlying judgments. Each party had notice and an opportunity to present evidence in support of her claim. As there are no material facts in dispute regarding the testament and the rights conferred by it to Mrs. Dileo, the trial court correctly granted Mrs. DiLeo's motion for summary judgment and dismissed Ms. Minvielle's action for nullity of the amended judgment of possession.
Further, I find no error in the trial court's failure to reopen the succession. A reopening of the succession would be a waste of judicial time and resources in the instant case because all the relevant issues between the parties have been raised, the testament is clear on its face, and all property and rights conferred by the testament are resolved.
Accordingly, I respectfully concur in the majority's affirmation of the trial court's granting of summary judgment.