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Succession of Crute v. Crute

Court of Appeals of Louisiana, First Circuit

August 30, 2017

SUCCESSION OF FRANK EDWARD CRUTE
v.
CLARA OMLOR CRUTECLARA OMLOR CRUTE
v.
FRANK EDWARD CRUTE

         On Appeal from the Twenty-First Judicial District Court In and for the Parish of Tangipahoa State of Louisiana Trial Court No. 2010-0003223 c/w 94-01422 The Honorable Jeff Johnson, Judge Presiding

          Hobart Pardue Attorney for Plaintiff/Appellant, Lydia Teixeira, Administratrix of Succession of Frank Crute

          Walter Antin, Jr. Attorneys for Defendant/Appellee, Richard C. Macaluso Clara Omlor Crute

          BEFORE: PETTIGREW, McDONALD, AND PENZATO, JJ.

          PENZATO, J.

         This appeal arises from prolonged litigation pertaining to the succession of Frank Crute. Lydia Teixeira, succession administratrix and daughter of Frank Crute, appeals the trial court's amended judgment granting the motion for summary judgment filed by Clara Omlor Crute and disposing of the disputed property. For the reasons set forth below, we reverse the amended judgment and remand.

         FACTS AND PROCEDURAL HISTORY

         This matter began when Clara Omlor Crute filed a petition for divorce against Frank Crute on May 6, 1994 in the Twenty-First Judicial District Court, Parish of Tangipahoa, Docket No. 9401422, Division H. On the same date, Frank and Clara Crute entered into an agreement entitled, "Act of Partition and Settlement of Community Property" (Partition Agreement), which was executed before a notary and two witnesses. Sections (1) and (2) of the Partition Agreement transferred certain property to each party. Section (3) of the Partition Agreement listed additional immovable and movable property that was to "remain owned in indivision in equal portions by the parties." The property referred to in Section (3) of the Partition Agreement included a piece of immovable property and the following movable property:

a. $15, 000.00 Certificate of Deposit, #11074 at First National Bank of Denham Springs;
b. $30, 000.00 Certificate of Deposit, # 11051 at First National Bank of Denham Springs;
c. 1989 Nissan Maxima; d. 1979 Pickup Truck;
e. United States Savings Bonds;
f. Stocks;
g. Whole life policies;
h. The Travelers Life Insurance Company Group policy #G-104410, account #224349870; and
i. All furnishings, fixtures, appliances and furniture.

         Additionally, this section contained the following provision:

All property in Section 3 is subject to a survivorship clause and all property in Section 3 of this Act shall belong exclusively and solely to the survivor and said property shall form no part of the estate of the party which shall pre-decease the other.

         Section (3) of the Partition Agreement also granted Frank Crute a "usufruct" for life over the immovable property listed and a "usufruct" over the 1989 Nissan Maxima. A judgment of divorce was entered by confirmation of default on July 4, 1994. Following the divorce, the trial court signed another judgment on October 6, 1994, entitled "Joint Motion and Order for Domestic Relations Order, " which approved the Partition Agreement and made it a judgment of the trial court.

         On June 10, 2005, Frank Crute executed a last will and testament, leaving three of his children each a sum of money and "the balance of [his] estate" to his daughter, Ms. Teixeira. Frank Crute died on June 25, 2005. On February 2, 2006, Ms. Teixeira, as the succession administratrix for the Succession of Frank Edward Crute, filed a Petition to Set Aside Partition and Settlement of Community Property against Ms. Crute, claiming that the survivorship clause contained in Section (3) of the Partition Agreement was contrary to Louisiana law and that the entire community property settlement should be set aside as null and void. The petition was filed in the Twenty-First Judicial District Court, Parish of Livingston, Docket No. 110, 709, Division A (Succession Suit). On August 3, 2010, the trial court signed an order, noting that counsel for both parties agreed to transfer the Succession Suit to the Twenty-First Judicial District Court, Parish of Tangipahoa, Division A.

         On April 29, 2014, Frank Crute's ex-wife, Ms. Crute, filed a Petition for Judicial Partition of Community Property in the Divorce Suit, seeking a declaratory judgment validating and enforcing the Partition Agreement and the October 6, 1994 judgment (Divorce/Declaratory Suit). Shortly thereafter, Ms. Crute, as the defendant, filed a motion for summary judgment in the Succession Suit on July 10, 2014, claiming that the Partition Agreement was made part of the judgment of divorce on October 6, 1994, and that the survivorship clause was valid.

         Ms. Crute subsequently filed an ex parte motion to transfer and consolidate the Divorce/Declaratory Suit and the Succession Suit, asserting that Ms. Teixeira agreed to the transfer and consolidation. On April 1, 2015, the trial court signed the order transferring the Divorce/Declaratory Suit from Division H to Division A and consolidating it with the Succession Suit.

         After the transfer and consolidation, Ms. Crute filed a motion for summary judgment in the Divorce/Declaratory Suit on April 20, 2015, based on the same facts and legal arguments made in the earlier filed motion for summary judgment in the Succession Suit. Ms. Crute filed four "supplemental" memoranda in support of her motion for summary judgment, all of which assert her same argument, that the Partition Agreement was valid, as made in her memorandum in support of the motion for summary judgment filed in the Succession Suit seeking to dismiss Ms. Teixeira's suit to set aside the Partition Agreement. The only evidence submitted was Ms. Crute's affidavit, attached to her third supplemental memorandum in support of motion for summary judgment, and an excerpt of a transcript of her testimony at a March 17, 2015 hearing. The trial court held a hearing on both motions for summary judgment on June 1, 2015, and took the matter under advisement.[1] The trial court issued one set of written reasons for judgment in the consolidated matter on June 30, 2015, but issued two separate judgments.

         On July 23, 2015, the trial court signed a judgment in the Succession Suit granting Ms. Crute's July 10, 2014 motion for summary judgment and dismissing Ms. Teixeira's petition with prejudice. On August 31, 2015, the trial court granted a suspensive appeal from the July 23, 2015 judgment. Ms. Teixeira failed to timely file a brief within the period of time provided by Rule 2-12.7 of the Uniform Rules of the Courts of Appeal, and this court dismissed that appeal. Succession of Frank Edward Crute v. Clara Omlor Crute, 2015-1912 (La.App. 1 Cir. 3/2/16)(unpublished).

         On December 7, 2015, the trial court signed a judgment in the Divorce/Declaratory Suit which ordered Ms. Crute be declared the sole owner of all the property listed in Section (3) of the Partition Agreement. The judgment purported to order Ms. Teixeira to deliver those properties and an accounting to Ms. Crute, but contained no specific dates. Also on December 7, 2015, the trial court set a hearing for the previously filed motion for new trial filed by Ms. Teixeira. A hearing on the motion for new trial took place on January 14, 2016, at which the trial court denied the motion and issued a judgment in accordance therewith on January 25, 2016.

         After Ms. Teixeira filed an appeal, this court issued a Rule to Show Cause on June 22, 2016, and remanded the matter for the limited purpose of allowing the trial court to sign an amended judgment in accordance with La. C.C.P. art. 1951.

         On September 6, 2016, the trial court signed an amended judgment granting the motion for summary judgment filed April 20, 2015, and ordering that Ms. Crute be declared the sole owner of all property listed in Section (3) of the Partition Agreement and that Ms. Teixeira deliver the property to Ms. Crute by a certain date. It is from this judgment that Ms. Teixeira appeals. As the September 6, 2016 amended judgment corrected both issues that were the subject of our show cause order-the unspecific decretal language and specificity as to the delivery of the property to Ms. Crute-we maintain this appeal.

         ERRORS

         Ms. Teixeira asserts that the trial court lacked subject matter jurisdiction because the matter was improperly transferred and consolidated. She also claims that the two lawsuits were improperly consolidated into the later-filed or higher numbered lawsuit. Finally, she claims that the ruling of the trial court divesting Frank Crute's heirs of his half of the partitioned property in the Divorce/Declaratory Suit was erroneous because the Partition Agreement was in violation of La. C.C.P. art. 969, as both parties were not represented by counsel and the judgments were presented ex parte by Ms. Crute.

         LAW AND DISCUSSION

         Jurisdictional ...


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