Opinion
CA 24-335
08-28-2024
SUCCESSION OF CAROL JAMES AYMOND, JR.
Douglas Lee Bryan The Bryan Law Firm, LLC COUNSEL FOR PLAINTIFF/APPELLANT: Valentina V. Bryan as tutrix of Dalila C. Aymond William Alan Pesnell Alan Pesnell Lawyer, LLC COUNSEL FOR PLAINTIFF/APPELLANT: Valentina V. Bryan as tutrix of Dalila C. Aymond Theodore David Vicknair Vicknair Law Firm COUNSEL FOR PLAINTIFF/APPELLANT: Valentina V. Bryan as tutrix of Dalila C. Aymond Ryan Toups Chaffe McCall, LLP COUNSEL FOR DEFENDANT/APPELLEE: Chantel G. Aymond Eric LaFleur LaFleur & Laborde COUNSEL FOR DEFENDANT/APPELLEE: Chantel G. Aymond
THIS OPINION IS NOT DESIGNATED FOR PUBLICATION. Uniform Rules-Courts of Appeal, Rule 2-16.3.
APPEAL FROM THE TWELFTH JUDICIAL DISTRICT COURT PARISH OF AVOYELLES, NO. 2021-904365-A HONORABLE KERRY LYNDON SPRUILL, DISTRICT JUDGE
Douglas Lee Bryan
The Bryan Law Firm, LLC
COUNSEL FOR PLAINTIFF/APPELLANT: Valentina V. Bryan as tutrix of Dalila C. Aymond
William Alan Pesnell
Alan Pesnell Lawyer, LLC
COUNSEL FOR PLAINTIFF/APPELLANT: Valentina V. Bryan as tutrix of Dalila C. Aymond
Theodore David Vicknair
Vicknair Law Firm
COUNSEL FOR PLAINTIFF/APPELLANT: Valentina V. Bryan as tutrix of Dalila C. Aymond
Ryan Toups
Chaffe McCall, LLP
COUNSEL FOR DEFENDANT/APPELLEE: Chantel G. Aymond
Eric LaFleur
LaFleur & Laborde
COUNSEL FOR DEFENDANT/APPELLEE: Chantel G. Aymond
Court composed of Elizabeth A. Pickett, Van H. Kyzar, and Candyce G. Perret, Judges.
ELIZABETH A. PICKETT, CHIEF JUDGE
In the instant appeal, Appellee, Chantel Georgette Aymond, Independent Executrix of Succession of Carol James Aymond, Jr., filed a Motion to Supplement the Appellate Record. Appellant, Valentina V. Bryan, has opposed the motion. For the reasons stated herein, we grant the motion to supplement.
Appellant seeks to appeal the Final Judgment of April 23, 2024, which 1) dismissed her petition to remove Appellee as Independent Executrix of Succession of Carol James Aymond, Jr., 2) dismissed her demands for termination/reduction of the usufructuary rights of Appellee in the Succession of Carol James Aymond, Jr., and 3) denied Appellant's demands to remove Appellee as trustee of the Dalila Carol Aymond Trust. After the appeal was lodged in this court, Appellee filed the instant motion to supplement the record with the deposition transcript of Stephan M. Carty.
In addition to the instant appeal, a related companion appeal was simultaneously lodged in this court and bears docket number CA 24-334. Appellee states that in the lower court, the parties agreed to one record of evidence and testimony for these two cases, including the admission of Mr. Carty's deposition testimony taken on December 13, 2023. Appellee also points out that in the judgment on appeal, the trial court denied Appellant's objections to the testimony and qualifications of Mr. Carty as an expert witness, thereby admitting his deposition testimony into evidence and the record. Although the deposition was included in the appellate record of the companion case, Appellee notes that it was omitted from the record in the instant appeal.
Accordingly, Appellee now seeks to supplement the record under La.Code Civ.P. art. 2132, which provides that "[a] record on appeal which is incorrect or contains misstatements, irregularities, or informalities, or which omits a material part of the trial record, may be corrected even after the record is transmitted to the appellate court, by the parties by stipulation, by the trial court, or by order of the appellate court." Appellee also refers to La.Code Civ.P. art. 2128, which states "[w]hen no designation is made, the record shall be a transcript of all proceedings as well as all documents filed in the trial court."
In opposition to the motion, Appellant acknowledges that the trial court denied her objections to Mr. Carty as a witness and to his exhibits. Appellant asserts, however, that she opposes the supplementation of the record because the trial court's denial of her objections "was an egregious error of law and evidences a complete misunderstanding of the issues raised" by her. Appellant proceeds to argue the merits of her objections to Mr. Carty's deposition testimony and exhibits and states that she nonetheless reserves her assignment of error on appeal regarding her objections. Lastly, Appellant concedes that this court may perceive her opposition to this motion as premature.
In reply to the opposition, Appellee asserts that Appellant's opposition goes to the merits of her assignments of error on appeal, including her objection to the deposition testimony of Mr. Carty, and states no valid reason for denying Appellee's motion to supplement the record. Appellee also refers to the trial court's Written Reasons for Ruling wherein the trial court stated that it "ordered the taking of [Mr. Carty's] deposition" and that "[b]y subsequent agreement of the parties, the deposition of Mr. Carty was then taken for trial purposes and filed of record reserving all objections." The trial court also denied Appellant's objections, finding that Mr. Carty's deposition was relevant and admissible, citing extensively to the deposition in making its ruling on the merits. Appellee concludes that this is a classic situation where pursuant to Articles 2128 and 2132, the record herein should be supplemented with Mr. Carty's deposition and exhibits which were considered by the trial court in reaching its ruling that is now before this court in the instant appeal.
We note that Appellant's opposition to the motion to supplement the record pertains entirely to the admissibility of Mr. Carty's deposition testimony and exhibits. Further, the admissibility of Mr. Carty's deposition is before this court on appeal in Appellant's assignment of error number three. As such, we find no merit in Appellant's argument that Appellee's motion to supplement the record should be denied. Accordingly, considering Articles 2128 and 2132, we grant Appellee's motion to supplement the record and order the clerk for the Twelfth Judicial District Court to supplement the appellate record, in duplicate, with the deposition testimony of Stephen M. Carty and its accompanying exhibits within fifteen days of this opinion.
MOTION TO SUPPLEMENT THE APPELLATE RECORD GRANTED.