Opinion
No. 22-C-16.
12-31-2022
SUCCESSION OF Ruth Reddoch ALLY.
COUNSEL FOR DEFENDANT/RESPONDENT, JOHN GARY ALLY, David M. Hufft , Timothy Thriffiley , Belle Chasse. COUNSEL FOR PLAINTIFF/RELATOR, SUSAN ANN ALLY, Kathryn A. E. Sunseri , J. Douglas Sunseri , Metairie. Panel composed of Judges Jude G. Gravois, Robert A. Chaisson, and Stephen J. Windhorst.
COUNSEL FOR DEFENDANT/RESPONDENT, JOHN GARY ALLY, David M. Hufft , Timothy Thriffiley , Belle Chasse.
COUNSEL FOR PLAINTIFF/RELATOR, SUSAN ANN ALLY, Kathryn A. E. Sunseri , J. Douglas Sunseri , Metairie.
Panel composed of Judges Jude G. Gravois, Robert A. Chaisson, and Stephen J. Windhorst.
WINDHORST, J.
In this succession matter, Susan Ann Ally seeks our supervisory review of the trial court's judgment denying her petition to probate olographic will and for appointment of executor and motion for removal of John Gary Ally as administrator. For the following reasons, we affirm this judgment.
FACTS and PROCEDURAL BACKGROUND
This matter pertains to the succession of Ruth Reddoch Ally, who died on August 2, 2018. Ms. Ally was survived by three children, Susan Ann Ally, John Gary Ally, and Hassan David Ally. On March 1, 2019, John Gary opened his mother's succession and was appointed administrator of her estate with letters of administration being issued to him on March 13, 2019.
On March 17, 2021, Susan Ann filed in the pending Succession of Ruth Reddoch Ally proceeding a petition to probate a purported olographic will of the decedent, seeking to probate the purported will, to have herself appointed as executrix of the decedent's succession, and to have John Gary Ally removed as administrator of the succession. John Gary filed an opposition to probate the olographic will, asserting that the olographic will was invalid because it was never signed by the testator.
The purported olographic will at issue appears as follows:
September 1, 2007
I Ruth Ally a resident of Metairie La being of sound and disposing mind and memory and over the age of 18 years and not being actuated by any duress menace fraud mistake or undue influence do make public and declare this to be my last Will, hereby expressly revoking all Wills previously made by me.
I appoint Susan Ally as Executor of this my last Will and I will give and bequeath unto the persons named below if he or she survives me the property described below —
My Son David Ally 1000.00
My Son Gary Ally 1000.00
My Daughter Susan Ally-All my other assets
After a hearing, the trial court denied Susan Ann's petition to probate the purported olographic will, her appointment as executrix, and the motion for removal of John Gary as administrator because the olographic will was invalid based on the lack of a signature at the end. The trial court rendered judgment on November 29, 2021. Susan Ann seeks supervisory review of this judgment.
LAW and ANALYSIS
Jurisdictional Issue
Preliminarily, issue has arisen among this panel of the court as to whether appellate jurisdiction exists in this case, and if it is appealable, must this case be reviewed only as an appeal and thus returned to the trial court for a notice of intent to appeal.
La. C.C.P. art. 2974 states:
Appeals from orders or judgments rendered in succession proceedings shall be governed by the rules applicable to appeals in ordinary proceedings, except that an order or judgment confirming, appointing, or removing a succession representative, or granting an interim allowance under Article 3321 shall be executed provisionally, notwithstanding appeal. [Emphasis added.]
The acts of a succession representative shall not be invalidated by the annulment of his appointment on appeal.
The first clause of La. C.C.P. art. 2974 provides that appeals from orders and judgments rendered in succession proceedings shall be governed by the rules applicable to appeals in ordinary proceedings. Accordingly, La. C.C.P. arts. 1841, 1915 and 2083 apply to judicial review of succession orders and judgments just as they apply to judgments in other judicial proceedings. In applying these articles, we conclude that the November 29, 2021 judgment now before us (hereafter "the Ally judgment") is not immediately appealable for the following reasons.
The second clause of La. C.C.P. art. 2974 (after "except") is addressed below.
First, the Ally judgment does not "determine the merits of the case in whole." La. C.C.P. art. 1841 states:
A judgment is the determination of the rights of the parties in an action and may award any relief to which the parties are entitled. It may be interlocutory or final.
A judgment that does not determine the merits but only preliminary matters in the course of the action is an interlocutory judgment.
A judgment that determines the merits in whole or in part is a final judgment.
All parties are still in the case, and the Ally judgment does not dispose of all issues in the controversy and fully determine the merits of their claims in whole. It does not "adjudicate all the claims and the rights and liabilities of all the parties." See also La. C.C.P. art. 1915 B(2), infra. This judgment therefore cannot be considered to be final and appealable as a judgment on the merits in whole.
Secondly, we consider whether the Ally judgment is an appealable partial final judgment. La. C.C.P. art. 1915 A provides that a final judgment may be rendered, although it does not adjudicate all of the issues in the case, in six specific instances. The Ally judgment, which denied probate of the purported olographic will and replacement of the administrator, is not one of the six specified judgments which may become a partial final judgment. Further, La. C.C.P. art. 1915 B states:
B. (1) When a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands, issues, or theories against a party, whether in an original demand, reconventional demand, cross-claim, third-party claim, or intervention, 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. [Emphasis added.]
La. C.C.P. art. 1915 B(1) thus states that when a court renders a partial judgment on one or more, but fewer than all of the claims, 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. Here, the trial court made no express determination that there is no just reason for delay and did not designate the Ally judgment as final and appealable (hereafter "designation"). As a result, under the provisions of La. C.C.P. art. 1915 B(2), this judgment is not a partial final judgment which is immediately appealable. In the absence of, or until such a designation, the judgment remains interlocutory, albeit partial and final, and "may be revised at any time prior to rendition of the final judgment adjudicating all the claims and the rights and liabilities of all the parties," i.e., usually by a judgment homologating the final tableau of distribution, or by a judgment of possession.
Thirdly, La. C.C.P. art. 2083 C clearly states:
C. An interlocutory judgment is appealable only when expressly provided by law. [Emphasis added.]
Added by Act 205, 2005 ordinary session, effective Jan. 1, 2006.
Thus, appeal of an interlocutory judgment cannot be implied or presupposed from a statutory provision which does not expressly state that the judgment is appealable. We can find no provision in statutory law which expressly states that an order or judgment which removes and/or appoints a succession representative is appealable, absent dismissal of a party under La. C.C.P. art. 1915 A, or a proper designation of this partial judgment as final and appealable under La. C.C.P. art. 1915 B.
Although the second clause of La. C.C.P. art. 2974 (after "except") refers to exceptions to usual procedures while pending on appeal, it does not expressly provide that a succession judgment which removes and/or appoints a succession representative is appealable. It merely provides exceptions to La. C.C.P. art. 2974's general rule of uniform applicability of appellate procedures to successions. The phrases "on appeal" and "notwithstanding an appeal" in La. C.C.P. arts. 2974 and 2122 do not expressly make such a judgment appealable, nor do they presuppose or imply appellate jurisdiction. Rather, these terms simply mean while an appeal is pending, and refer to appeals which are otherwise properly taken, e.g., after a proper designation of such partial judgments as final and appealable, pursuant to La. C.C.P. art. 1915 B, or after a judgment which results in the dismissal of a party entirely from the case pursuant to La. C.C.P. art. 1915 A(1). These references to appeal in La. C.C.P. arts. 2974 and 2122 simply provide that the exceptions apply pending appeal, but do not expressly make such judgments appealable absent an article 1915B designation, or dismissal from the case under La. C.C.P. art. 1915 A(1).
In the case before us, Susan Ally's motion to remove the administrator and to be appointed executrix was denied, but as an heir, she remained a party to the succession with claims yet to be determined and possible objections to be raised during the course of the ongoing succession. She was therefore not a dismissed party under La. C.C.P. art. 1915 A(1).
This interpretation is consistent with the holding in Succession of Graves, 07-2180 (La. App. 1 Cir. 3/12/08), 985 So.2d 140, writ denied, 08-0799 (La. 6/6/08), 983 So.2d 919, with which we agree, and is discussed further below. We find this to be the facially correct interpretation of La. C.C.P. arts. 2974 and 2122, and moreover, that this interpretation is not in conflict with La. C.C.P. art. 2083 C, and harmonizes articles 2974 and 2122 with article 2083. Borel v. Young, 07-0419 (La. 11/27/07), 989 So.2d 42, 61, on reh'g (7/1/08); Butler v. Jefferson Par. Fire Dep't, 15-659 (La. App. 5 Cir. 2/24/16), 186 So.3d 1231, 1236; Wimberly v. Brown, 07-559 (La. App. 5 Cir. 11/27/07), 973 So.2d 75, 78, quoting City of Pineville v. American Federation of State, County, and Mun. Employees, et al AFL-CIO, Local 3352, 00-1983 (La. 6/29/01), 791 So.2d 609, 612.
Further, the Ally judgment did not confirm, appoint, or remove a succession representative, or grant an interim allowance. The Ally judgment denied probate of the purported olographic will, and also denied removal and replacement of the succession representative. Therefore, any contention that La. C.C.P. art. 2974 independently authorizes appeal review does not apply here.
We respectfully disagree with the dissent's reliance on Succession of Roth, 230 La. 33, 87 So.2d 719 (1956). We find Roth inapplicable to this case in that Roth was decided prior to enactment of La. C.C.P. arts. 1841, 1915, and 2083 C, and under dissimilar statutory provisions then existing.
We thus conclude that because this judgment remains an interlocutory partial judgment, there is no appellate jurisdiction and no appeal of right from the trial court's judgment which denied probate of the purported olographic will and replacement of the administrator. This judgment may only be reviewed pursuant to this court's supervisory jurisdiction exercised by an application for a supervisory writ, as counsel for Susan Ann Ally has properly chosen.
Review of such judgments has been the subject of much consideration by the Louisiana courts of appeal. The Louisiana First Circuit Court of Appeal, in Succession of Schneider v. Schneider, 371 So.2d 1380 (La. App. 1 Cir. 1979), found it "apparent" that La. C.C.P. arts. 2974 and 2122 contemplated that review of judgments appointing or removing succession representatives would be by appeal, stating, "It is apparent that both of these provisions contemplate an appeal from an order of the trial court appointing a succession representative." [Emphasis added.] Schneider, 371 So.2d at 1382. However, Schneider was decided before enactment of La. C.C.P. art. 2083 C in 2005 (Act 205), which for the first time stated clear legislative intent that interlocutory judgments are appealable only when expressly provided by law, as opposed to the earlier Schneider standard, when "apparently contemplated" by law. We therefore find that Schneider no longer applies to this appellate issue.
The Louisiana Law Institute's 2005 Comment (b) to La. C.C.P. art. 2083 C agrees. It states:
Article 2083(C) has been added to provide that interlocutory judgments are appealable only when expressly provided by legislation, such as Code of Civil Procedure Articles 3612 and 592(A)(3)(b). Appellate review of all other interlocutory judgments should now be applied for pursuant to the appellate courts supervisory authority set forth in Article 2201, the Uniform Rules for Courts of Appeal, and the Rules of the Supreme Court of Louisiana. The new restriction on appeals of interlocutory judgments reflects a judicial policy of the appellate courts that review of such judgments by supervisory writs is more efficient and expeditious then by appeal. See Hamilton Medical Group v. Ochsner Health Plan , 550 So.2d 290 (La. App. 3 Cir. 1989); Laborde v. DeBlanc , 532 So.2d 829 (La. App. 4 Cir. 1988). The courts of appeal have the discretion to decide supervisory writs peremptorily or assign them for briefing and argument. Nothing herein is intended to abridge the court's supervisory writ authority. [Emphasis added.]
Subsequent to the 2005 amendment of La. C.C.P. art. 2083 C, the First Circuit in Succession of Graves, supra, dismissed an appeal on the grounds that a judgment removing a succession administrator is a non-appealable interlocutory judgment. The court stated that "no appeal lies from a judgment appointing or removing a succession administrator[.]" Graves, 985 So.2d at 141. The Graves court specifically rejected the argument that La. C.C.P. arts. 2974 and 2122 authorized an appeal of a judgment appointing or removing a succession representative, reasoning that La. C.C.P. art. 2083, as amended in 2005, now allows appeals of interlocutory judgments "only when expressly provided by law." Id. The court opined that while Articles 2974 and 2122 addressed matters pertinent to the review of judgments appointing or removing a succession representative, these articles did not expressly provide for the review to be by appeal. Id. On that basis, the Graves court declared that no appeal lies from such judgments, which may be reviewed under the court's supervisory jurisdiction. This is the conclusion we have reached on our reading of La. C.C.P. arts. 2974 and 2122.
In Succession of Sharp, 11-1984 (La. App. 1 Cir. 5/14/12), 2012 WL 1744467 (unpublished), the judgment found to be appealable was a partial final judgment, but not certified and designated as appealable under La. C.C.P. art. 1915 B. The court, relying on Schneider, rejected the argument that a judgment removing an executor was not subject to appeal, and instead determined that Article 2974 clearly contemplated an appeal from an order of the trial court appointing a succession representative. Thus, the court decided that a judgment appointing a succession representative was an appealable judgment, citing Schneider, 371 So.2d at 1382.
We believe the Sharp court's reliance on Schneider, decided before the 2005 provision requiring express statutory authorization for appeal was misplaced, and that La. C.C.P. art. 2974 and 2122 do not provide per se authorization for appeal of an order appointing a succession representative, absent a separate existing ground under La. C.C.P. art. 1915 A or B.
In 2014, the First Circuit en banc decided Succession of LeBouef, 13-209 (La. App. 1 Cir. 9/9/2014), 153 So.3d 527, which involved an appeal from a trial court judgment removing co-administrators, holding them in contempt, and appointing a new administrator. The LeBouef court stated, "Conflicting pronouncements by this Court have created uncertainty concerning whether a judgment appointing or removing a succession administrator is appealable or is reviewable by supervisory writ. In rejecting the holding in Graves, and adopting the holdings in Schneider and Sharp, the LeBouef court concluded that La. C.C.P. arts. 2974 and 2122 expressly allow appeals from judgments appointing or removing succession representatives.
As with Sharp, we respectfully disagree with the holding in LeBouef for several reasons. LeBouef relied on Schneider, which as explained above, we find inapplicable to appealability of interlocutory judgments because it was decided long before the post-2005 requirements of La. C.C.P. art. 2083. Lebouef, 153 So.3d at 532. LeBouef also relied on Sharp, finding it "implicit in the Sharp holding" that such appeals are "expressly provided by law." Id. As stated above, we find that the provisions of these articles do not expressly provide for appeal of such interlocutory judgments.
Courts must presume that every word in a statute is intended, and that some effect is to be given to each such word, and that no unnecessary words were employed. Thus, courts are bound to give effect to all parts of a code article and to construe no sentence, clause or word as meaningless and surplusage if a construction giving force to, and preserving, all words can legitimately be found. City of New Orleans v. Louisiana Assessors' Retirement and Relief Fund, 05-2548 (La. 10/1/07), 986 So.2d 1, 17; Moss v. State, 05-1963 (La. 4/4/06), 925 So.2d 1185, 1196. We do not disregard the words "on appeal" or "notwithstanding appeal" in La. C.C.P. arts. 2974 and 2122 or find that they are surplusage, but they do not expressly provide for appeal of interlocutory judgments. We find that these terms are used only to provide that certain actions can continue provisionally, even while an appeal is pending, on grounds which are expressly provided, i.e., by La. C.C.P. art. 1915 A or B. Thus, finding that these terms do not expressly provide that such judgments are appealable does not render them "meaningless." They simply refer to appeals taken on other existing statutory authorizations.
An application for writs would not itself suspend actions of, or the removal or appointment of, a succession representative while the application is pending, or deprive the trial court of jurisdiction to allow succession matters to continue. Therefore, there was no need to include writ applications in these articles.
We therefore agree with the holding in Succession of Graves, supra, finding a judgment appointing or removing a succession administrator to be a non-appealable interlocutory judgment, absent the dismissal of a party under La. C.C.P. art. 1915 A, or the designation of a judgment as final and appealable under La. C.C.P. art. 1915 B.
Validity of Olographic Testament
The two forms of testaments are olographic and notarial. La. C.C. art. 1574. If the formalities set forth by law are not observed for the execution of a testament, the testament is absolutely null. La. C.C. art. 1573. La. C.C. art.1575 states as follows:
A. An olographic testament is one entirely written, dated, and signed in the handwriting of the testator. Although the date may appear anywhere in the testament, the testator must sign the testament at the end of the testament. If anything is written by the testator after his signature, the testament shall not be invalid and such writing may be considered by the court, in its discretion, as part of the testament. The olographic testament is subject to no other requirement as to form.
The date is sufficiently indicated if the day, month, and year are reasonably ascertainable from information in the testament, as clarified by extrinsic evidence, if necessary.
B. Additions and deletions on the testament may be given effect only if made by the hand of the testator. [Emphasis added.]
The Louisiana Supreme Court has held that a valid olographic will must be written, signed and dated in the handwriting of the testator. In re Succession of Aycock, 02-701 (La. 5/24/02), 819 So.2d 290, 290. A valid olographic will must also evidence testamentary intent. In re Succession of Boada, 13-234 (La. App. 5 Cir. 11/19/13), 130 So.3d 350, 352; In re Succession of Carroll, 09-219 (La. App. 5 Cir. 12/8/09), 30 So.3d 11, 17. When a person has written a testament in olographic form without the aid of counsel, the testator's intention is of paramount importance. Succession of Enos, 20-329 (La. App. 3 Cir. 12/16/20), 310 So.3d 236, 238.
Because Louisiana law favors maintaining the validity of testaments, courts liberally construe the requirements, maintaining the validity of the will if at all possible, as long as it is in substantial compliance with the statute. In re Succession of Holbrook, 13-1181 (La. 1/28/14), 144 So.3d 845, 851. The requirement that the testatrix's signature be affixed to the end of an olographic will, however, does not appear to have been relaxed by the Louisiana Supreme Court. Succession of King, 595 So.2d 805, 809 (La. Ct. App.), writ denied, 598 So.2d 357 (La. 1992). The purpose of this rule is to show that the provisions preceding the signature are approved by the testatrix. Id.
The purported olographic will is dated September 1, 2007 at the top of the document, thereby satisfying that requirement. In addition, there does not appear to be any dispute that the testament is written in the testator's handwriting and evidences the testator's intent. The sole issue before us as to the validity of Ms. Ally's olographic will is the lack of her signature at the end of her will. While the writ application and information before us suggests that this olographic will does contain the testator's intent, the lack of her signature at the end of the olographic will cannot be overlooked. The requirement of the testator's signature at the end of the document represents that the testator is satisfied with the disposition of his or her property as written and that the testament is his or her final will and testament. The testator's signature at the commencement of writing the will indicates only that he or she has begun the process of distributing his or her property. To conclude that this satisfies the requirement that the will contain a signature at the end could result in "drafts" of wills satisfying this requirement and confusion regarding what is actually a testator's last will and testament. This would defeat the intent of the law.
DECREE
Accordingly, we find no error in the trial court's finding that this olographic will is invalid because it did not contain the purported testator's signature at the end of the testament. Nor did it contain her signature anywhere following any of the testamentary dispositions. We conclude that the trial court was correct in denying the petition to probate the purported olographic will, and for appointment of executor and motion for removal of John Gary Ally as administrator. We therefore deny the writ and affirm the judgment of the trial court.
AFFIRMED
DISSENTS WITH REASONS Page 1256> GRAVOIS, J., DISSENTS WITH REASONS
For the following reasons, I respectfully dissent from the majority's opinion that appellate jurisdiction does not exist in this case.
As noted in the majority's opinion, this matter pertains to the succession of Ruth Reddoch Ally, who died on August 2, 2018. Relator, Susan Ann Ally, seeks this Court's supervisory review of the trial court's judgment which denied her petition to probate a purported olographic will of the decedent and for appointment of executor and motion for removal of John Gary Ally as administrator. The trial court denied relator's petition and motion, finding that the olographic will was invalid because it was not signed at the end of the testament.
Upon review of the writ application and the attachments thereto, and the opposition to the writ application, I would find that the judgment at issue which denied relator's petition to probate the purported olographic will of the decedent is a final, appealable judgment, reviewable under our appellate jurisdiction, rather than under our supervisory jurisdiction. In Succession of Roth, 230 La. 33, 87 So.2d 719, 720 (1956), the Louisiana Supreme Court found that the judgment at issue, which disposed of the issue in controversy between the parties, i.e., the validity of the olographic will of March 17, 1948, was a final appealable judgment within the contemplation of Article 565 of the Louisiana Code of Practice (now Article 2083 of the Louisiana Code of Civil Procedure.) (See also In re Succession of Pitman, 42,654 (La. App. 2 Cir. 10/24/07), 968 So.2d 871, 874, where the Second Circuit stated, "A probate of a will is a final appealable judgment.", citing Succession of Salzer, 597 So.2d 448 (La. 1992) and Roth, supra.)
Just like in Succession of Roth, supra, because the judgment at issue fully determines the merits of the claim that the olographic will in question was invalid because it did not comply with the requirements of La. C.C. art. 1575, I am of the opinion the judgment is a final appealable judgment. Additionally, in my opinion, justice would be better served in this case by this judgment, which decides a critical issue in the succession, being reviewed under our appellate jurisdiction, where the panel would have the benefit of a full record, full briefing, and possibly oral argument, rather than under our supervisory jurisdiction, where we normally review only whatever documentation is filed with the writ application.
Further, if indeed the majority is correct that the judgment in question is an interlocutory judgment, then under such circumstances, I presume that it would thus follow that the judgment could possibly be appealed at some unknown point in the future, such as when the final judgment of possession is rendered. If the doctrine of "law of the case" is determined to not be applicable at that time and the will is later found to be valid in a future appeal, then the whole dynamics of the succession would change and possibly most if not all actions taken in the succession in the interim would have to be undone, which would undoubtedly result in much loss of time and expense for the parties. If the will is reviewed under our appellate jurisdiction now, then the issue of validity of the will would soon eventually be put to rest one way or the other, and the parties could then proceed with handling the succession accordingly.
This Court and other appellate courts have routinely declined to exercise supervisory jurisdiction over a final, appealable judgment, and have remanded such matters to the trial court so that an appeal may be perfected by the affected parties. See Dufrene v. Farrell, 03-1391 (La. App. 5 Cir. 4/27/04), 873 So.2d 800, 802; B-G & G Investors VI, L.L.C. v. Thibaut HG Corp., 08-0093 (La. App. 4 Cir. 5/21/08), 985 So.2d 837, 840.
Accordingly, I would grant this writ application for the limited purpose of transferring it to the trial court, with instructions to the trial court to treat relator's timely-filed notice of intent as a timely-filed motion for an appeal, and to allow relator, if she so chooses, to perfect her appeal of the judgment at issue.
Alternatively, because under La. C.C.P. art. 2088(A)(11), the trial court retains jurisdiction to "[c]ertify a partial judgment ... in accordance with Article 1915(B)," I would remand the matter to give the trial court the opportunity to designate the subject judgment as a final appealable judgment after an express determination that there is no just reason for delay, pursuant to La. C.C.P. art. 1915(B)(1).