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,
Pardue Attorney for Plaintiff/Appellant, Lydia Teixeira,
Administratrix of Succession of Frank Crute
Antin, Jr. Attorneys for Defendant/Appellee, Richard C.
Macaluso Clara Omlor Crute
BEFORE: PETTIGREW, McDONALD, AND PENZATO, JJ.
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.
AND PROCEDURAL HISTORY
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;
g. Whole life policies;
h. The Travelers Life Insurance Company Group policy
#G-104410, account #224349870; and
i. All furnishings, fixtures, appliances and furniture.
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.
(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.
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.
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
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
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. The trial court issued one set of written
reasons for judgment in the consolidated matter on June 30,
2015, but issued two separate judgments.
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).
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.
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.
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
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