NOT DESIGNATED FOR PUBLICATION

Transcription

1 NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT SUCCESSION OF BILLY JAMES TABOR ********** APPEAL FROM THE ELEVENTH JUDICIAL DISTRICT COURT PARISH OF SABINE, NO. 62,786 HONORABLE STEPHEN B. BEASLEY, DISTRICT JUDGE ********** JAMES T. GENOVESE JUDGE ********** Court composed of Jimmie C. Peters, James T. Genovese, and Shannon J. Gremillion, Judges. Lee H. Ayres Sarah E. Smith Ayres, Warren, Shelton & Williams, L.L.C. Post Office Box 1764 Shreveport, Louisiana (318) COUNSEL FOR APPELLANT: Martha Elliot Tabor Ronald W. Morrison, Jr. Livaccari, Villarrubia, Lemmon 101 W. Robert E. Lee Blvd., Suite 404 New Orleans, Louisiana (504) COUNSEL FOR APPELLEE: Donna Beth Tabor Carter APPEAL DISMISSED.

2 GENOVESE, Judge. Upon the lodging of the record in the instant appeal, this court, on its own motion, issued a rule for the appellant, Martha Elliot Tabor, to show cause, by brief only, why the appeal should not be dismissed as having been taken from a nonappealable partial judgment which has not been designated as immediately appealable for express reasons pursuant to La.Code Civ.P. art. 1915(B). The appellant filed a brief in response to this court s rule. For the reasons which follow, we dismiss the appeal. The appellee, testimentary executrix Donna Beth Tabor Carter, filed a pleading in this testate succession proceeding entitled Petition for Return of Decedent s Funds, or, in the Alternative, Judgment for Conversion of Funds. In this pleading, the executrix claimed that, while the decedent was still alive and married to the appellant, the appellant had entered into a mineral lease. Claiming that certain funds received by the appellant in conjunction with the mineral lease constituted funds belonging to the allegedly then-existing community between the appellant and the decedent, the appellee sought a money judgment against the appellant for the portion of the funds allegedly belonging to the succession. In the course of this action, both the executrix and the appellant filed cross motions for summary judgment. Following a hearing on these cross motions for summary judgment, the trial court entered judgment denying the appellant s motion for summary judgment and granting the executrix s motion for summary judgment. The judgment signed by the trial court found that the monies received from the mineral lease were the civil fruits of the appellant s separate property and that the funds were therefore community property. The judgment found that no declaration of separate property had been executed and that, even though the funds were not 1

3 dispensed to the appellant until after the decedent s death, the decedent s succession was entitled to half the sum paid. The trial court ordered that one-half of the funds realized from the subject draft is property of the estate of Billy James Tabor and shall be transferred thereto within 15 days of the signing of this Order. The judgment does not set forth the dollar figure of the referenced draft. Although the appellant filed a motion for new trial, the trial court denied this motion. Therefore, the appellant filed the instant appeal. As detailed above, upon receipt of the record in this appeal, this court issued a rule for the appellant to show cause why the appeal should not be dismissed as having been taken from a partial judgment which has not been designated as appealable pursuant to La.Code Civ.P. art. 1915(B). In the brief in response to this court s rule to show cause, the appellant first argues that, since the appealed judgment decides the merits of the claim between the executrix and the appellant, this judgment is final pursuant to La.Code Civ.P. art The appellant then points out that final judgments are declared appealable pursuant to La.Code Civ.P. art Finally, the appellant cites two cases, Long v. Alost, (La.App. 3 Cir. 5/4/94), 637 So.2d 167, and Devillier v. City of Opelousas, 243 So.2d 118 (La.App. 3 Cir. 1971), for the proposition that partial final judgments are appealable. Louisiana Code of Civil Procedure Article 1915(B) states: (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, 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 order or decision which adjudicates fewer than all claims or the rights 2

4 and liabilities of fewer than all the parties, shall not terminate the action as to any of the claims or parties and shall not constitute a final judgment for the purpose of an immediate appeal. Any such order or decision issued 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. While this statute has undergone other revisions, a major revision of this statute was accomplished by 1997 La.Acts 483, wherein the legislature instituted the practice of designating partial judgments and partial summary judgments as immediately appealable for express written reasons. More specifically, the legislature has now amended La.Code Civ.P. art to read: Except as otherwise provided by law, every final judgment shall be signed by the judge. For the purpose of an appeal as provided in Article 2083, no appeal may be taken from a final judgment until the requirement of this Article has been fulfilled. No appeal may be taken from a partial final judgment under Article 1915(B) until the judgment has been designated a final judgment under Article 1915(B). An appeal may be taken from a final judgment under Article 1915(A) without the judgment being so designated. The two cases cited by the appellant were decided well before the enactment of these revisions, and, therefore, we find their holdings inapplicable to the instant case. Turning to the facts of the instant case, the appellant makes the alternative argument in her brief filed in this court that the trial court s judgment decides all matters pending between the executrix and the appellant. Contrary to this statement by appellant, this court observes that the decedent s will presented for probate in this matter bequests certain immovable property to the appellant. The record does not reflect that any judgment has been entered homologating a tableau of distribution in 1 this succession proceeding. This court has held that La.Code Civ.P. art is 1 We note that the instant appealed judgment does not order the payment of a specific dollar figure by the appellant to the succession. In Vanderbrook v. Coachmen Indus., Inc., , pp (La.App. 1 Cir. 5/10/02), 818 So.2d 906, 913, the first circuit commented: The judgment in this matter states, and damages be awarded as 3

5 applicable to succession proceedings. In Re Succession of Guilbeau, (La.App. 3 Cir. 12/1/10), 51 So.2d 184. Therefore, we find that a complete, final adjudication of all matters pending between the executrix and the appellant has not been rendered in this case. Without a designation of the judgment sub judice as prayed for in plaintiff s petition. Louisiana courts require that a judgment be precise, definite and certain. See Scott v. State, 525 So.2d 689 (La.App. 1 Cir.1988). The specific nature and amount of damages should be determinable from a judgment without reference to an extrinsic source such as pleadings or reasons for judgment. As our supreme court held nearly a century ago: [I]f a judgment purports to be final and is given upon a money demand, the amount of the recovery must be stated in it with certainty and precision. If the amount remains to be determined by a future contingency, or ascertained by references, or diminished by the allowance of an unliquidated credit, or is otherwise indefinite and uncertain, it is no proper judgment. Fontelieu v. Fontelieu, 116 La. 866, 41 So. 120, 125 (La.1096); and Simon v. Hulse, 12 La.App. 450, 124 So. 845, 846 (La.App. 1 Cir.1929). Judgments are recorded in the mortgage records, not judgments and pleadings, not judgments and written reasons. LSA R.S. 9:2755. Only judgments are made executory in other Louisiana courts. LSA C.C.P. art A judgment may be executed by a writ of fieri facias. LSA C.C.P. art A certified copy of a judgment is considered authentic evidence in an executory proceeding. LSA C.C.P. art A third person should be able to determine from a judgment the amount owed without reference to other documents. (Form No provided in Volume 12 of the Louisiana Code of Civil Procedure is an example of a precise, definite and certain judgment.) Further, if different elements of damages begin to accrue legal interest at difference times, such as attorney s fees, they should be itemized separately. Because the exact amount of damages cannot be determined from this judgment the trial court s award of damages is reversed and this issue must be remanded to the district court. While we do not pass on the merits of whether the judgment at issue herein is reversible based on the foregoing jurisprudence, we are constrained to note that, applying the above principles to this judgment, the judgment does not decide the full merits of the claims between the executrix and the appellant because it does not set forth the specific dollar amount due from the appellant. Thus, regardless of the lack of the judgment homologing a tableau of distribution in this case, we find that the appealed judgment in its current form cannot constitute a full adjudication of all matters between these parties. 4

6 immediately appealable for express reasons, we find that this appeal must be dismissed at appellant s cost. APPEAL DISMISSED. THIS OPINION IS NOT DESIGNATED FOR PUBLICATION. Rule Uniform Rules, Court of Appeal. 5