Opinion
NO. 2018 CW 0430
07-23-2018
IN THE MATTER OF THE SUCCESSION OF LEROY WELLS
In Re: Saleria Butler Tate, applying for supervisory writs, 19th Judicial District Court, Parish of East Baton Rouge, No. 95582. BEFORE: THERIOT, CHUTZ AND PENZATO, JJ.
WRIT GRANTED WITH ORDER. The trial court's January 31, 2018, judgment granting the petition to remove executrix filed by James Wells, Sr. removing Saleria Butler Tate as executrix of the Succession of Leroy Wells is an appealable judgment. In Re Succession of LeBouef, 2013-0209 (La. App. 1st Cir. 9/9/14), 153 So.3d 527 (en banc). See also La. Code Civ. P. arts. 2122 and 2974. In addition, although relator's notice of intent to seek supervisory review references the judgment denying her motion to reconsider (i.e. motion for new trial), this court considers a request for review of the denial of a motion for new trial as an appeal of the judgment on the merits as well, when it is clear from the appellant's brief that she intended to appeal the merits of the case. Jackson v. Wise, 2017-1062 (La. App. 1st Cir. 4/13/18) -- So.3d --, 2018 WL 1772996, *3.
Therefore, the writ is granted for the limited purpose of remanding the case to the trial court with instructions to grant relator, Saleria Butler Tate, a devolutive appeal pursuant to the pleading that notified the trial court of her intention to seek writs. See In re Howard, 541 So.2d 195, 197 (La. 1989) (per curiam). Additionally, a copy of this court's order is to be included in the appellate record.
MRT
WRC
AHP
COURT OF APPEAL, FIRST CIRCUIT /s/_________
DEPUTY CLERK OF COURT
FOR THE COURT