SANDY D. SMITH AND KEVIN D. SMITH
LESLIE RAY SELF, ET AL.
FROM THE THIRTY-SIXTH JUDICIAL DISTRICT COURT PARISH OF
BEAUREGARD, NO. C20160431 HONORABLE MARTHA ANN O'NEAL,
R. Lestage Hall, Lestage & Landreneau COUNSEL FOR
PLAINTIFFS/APPELLEES: Sandy D. Smith, Kevin D. Smith
Michael Maneille COUNSEL FOR DEFENDANT/APPELLANT: Michael
Melvin Smith, Administrator of the Succession of Arlene L.
L. Wallace COUNSEL FOR DEFENDANT/APPELLEE: Leslie Ray Self.
composed of Billy Howard Ezell, Van H. Kyzar, and Candyce G.
defendant, Michael Melvin Smith, as Administrator of the
Succession of Arline L. Cline, appeals from a trial
court judgment dismissing a money judgment based on
prescription and ordering that its reinscription in the
mortgage records be cancelled and erased. For the following
reasons, we reverse and render judgment.
OF THE RECORD
9, 2016, the plaintiffs, Sandy and Kevin Smith, filed a
petition to quiet title and partition immovable property,
naming as defendants, Michael Melvin Smith, as the
Administrator of the Succession of Arline L. Cline, and
Leslie Ray Self. The plaintiffs own an undivided interest,
along with Leslie Ray Self, in two tracts of property located
in Beauregard Parish, which were previously owned by Artie
Ray Self (Mr. Self) and his first wife, Myrtle Faye Self. Mr.
Self initially inherited a one-ninths interest in the two
tracts, and he and Myrtle then purchased the remaining
eight-ninths interest in the property from his siblings. At
Myrtle's death, their four children each inherited a
one-quarter interest of her four-ninths interest in the two
tracts. All but the one-quarter interest owned by Leslie Ray
Self was acquired by the plaintiffs. The plaintiffs also
acquired Mr. Self s five-ninths interest in the second tract,
which he had donated to a third person. All of his
five-ninths interest in the first tract was inherited by
their four children following his death, and the plaintiffs
have acquired all but the one-quarter interest owned by
Leslie Ray Self.
matter arises because of a judicial mortgage filed in the
Beauregard Parish mortgage records, which stems from a
November 28, 1989 judgment between Mr. Self and his second
wife, Arline Cline Self (Ms. Cline), in which the trial court
awarded Ms. Cline $20, 000.00 to settle her community
property claims. This judgment, which was rendered in Vernon
Parish, was filed on June 7, 1990, in the mortgage records of
the parish of Mr. Self s domicile, Beauregard Parish, where
the two tracts of property are located. The judgment was
revived in Vernon Parish on April 14, 2000, and the revived
judgment was filed in the Beauregard Parish mortgage records
that same day. Ms. Cline died intestate on November 13, 2006,
and Mr. Self died intestate on February 1, 2006. On April 8,
2010, Ms. Cline's succession was opened in Vernon Parish,
and her son, Michael Melvin Smith (Mr. Smith), was appointed
administrator of the succession. On that same day, Mr. Smith
filed an ex parte motion in Vernon Parish to revive the
November 28, 1989 money judgment that had previously been
revived on April 14, 2000. Mr. Smith noted in his motion that
no succession had been opened for Mr. Self, and he requested
that a curator ad hoc be appointed to notify Mr. Self s
unopened succession. A judgment reviving the November 28,
1989 judgment was rendered on April 8, 2010. The judgment
further appointed an attorney as curator ad hoc to notify Mr.
Self s unopened succession of the judgment. The April 8, 2010
judgment of revival was filed in the Beauregard Parish
mortgage records that same day.
plaintiffs alleged that the revived November 28, 1989
judgment created a cloud on their title to the two tracts of
property and that Mr. Smith failed to comply with La.Civ.Code
art. 3121, when he failed to have an administrator appointed
to represent Mr. Self s unopened succession before the
judgment was revived. Thus, they asked that the revived
judgment be cancelled and erased from the Beauregard Parish
mortgage records. In response, Mr. Smith filed declinatory
exceptions of lack of subject matter jurisdiction and
improper venue, a dilatory exception of prematurity, and a
peremptory exception of res judicata. Mr. Smith's
exceptions were adopted by Leslie Ray Self. Following an
August 25, 2016 hearing, the trial court rendered written
reasons for judgment, denying all of the exceptions.
Mr. Smith answered the plaintiffs' petition and moved for
summary judgment. In support of his motion, Mr. Smith filed a
copy of the February 6, 1985 judgment of divorce between Mr.
Self and Ms. Cline; a copy of the November 28, 1989 community
property judgment, in which the trial court awarded Ms. Cline
$20, 000.00 in settlement of her community property claims; a
copy of the plaintiffs' petition to quiet title and
partition immovable property; a copy of Mr. Smith's
answer; a copy of the April 14, 2000 judgment reviving the
November 28, 1989 judgment, which was filed in the Beauregard
Parish mortgage records that same day; a certificate from the
Beauregard Parish Clerk of Court, dated October 17, 2016,
indicating that Mr. Self s succession was never opened; a
copy of Mr. Smith's ex parte motion for revival of
judgment and the April 8, 2010 judgment of revival, which was
filed that same day in the Beauregard Parish mortgage
records; a copy of the Vernon Parish court documents
appointing Mr. Smith as the administrator of the Succession
of Arlene L. Cline and listing the $20, 000.00 money judgment
as succession property; and copies of portions of the
plaintiffs' petition and Mr. Smith's answer, which
indicate that Mr. Smith did not open Mr. Selfs succession
prior to the 2010 reinscription of the November 28, 1989
judgment. The plaintiffs neither introduced nor opposed any
of Mr. Smith's exhibits in opposition to his motion for
summary judgment; however, they noted that Mr. Smith's
exhibits were not appropriate support for a motion for
a February 8, 2017 hearing, the trial court denied Mr.
Smith's motion for summary judgment, finding that the
exhibits introduced by him in support of his motion failed to
comply with La.Civ.Code art. 966(A)(4), and that there was a
genuine issue of material fact as to whether the judgment was
for alimony, which would first have to be made executory
before it could be filed in the Beauregard Parish mortgage
records. Following the trial court's denial of Mr.
Smith's motion for summary judgment, the matter proceeded
straight to a trial on the merits. At the close of evidence,
the trial court ordered a partition by licitation of the two
tracts of property, but took the judicial-mortgage issue
under advisement. Thereafter, on February 21, 2017, the trial
court issued written reasons for judgment, finding that Mr.
Smith failed to comply with La.Code Civ.P. art. 3121, by not
having an attorney appointed as administrator of Mr. Self s
unopened succession, and by not having the judgment first
made executory before inscribing it in the Beauregard Parish
mortgage records. Thus, the trial court held that the
November 28, 1989 judgment was prescribed and ordered that
the April 8, 2010 reinscription of the revived judgment be
cancelled and erased from the Beauregard Parish mortgage
records. Written judgments were rendered by the trial court
on March 24, 2017, on its denial of the motion for summary
judgment and its findings from the trial on the merits. It is
from these judgments that Mr. Smith appeals.
appeal, Mr. Smith raises fifteen assignments of error:
1. For the [Thirty-Sixth] Judicial District Court of
Beauregard Parish to properly adjudicate the cloud on title
issue alleged against the [Thirtieth] Judicial District Court
Vernon Parish community property money judgment recorded in
the Beauregard Parish public records, it must first determine
whether this judgment being attacked in its forum is either a
relative nullity or absolute nullity.
2. Despite the trial court observing in the August 25, 2016
exception hearing it must focus upon the proper forum for
filing a nullity action-Beauregard Parish or Vernon Parish-it
erred in its failure to do so prior to deciding the revived
judgment is a cloud on title.
3. The trial court erred in exercising its subject matter
jurisdictional authority in its venue to cancel a judgment
inscription, without first considering and deciding the
nullity issue related to a judgment rendered by a district
court in a different venue.
4. The [Thirty-Sixth] Judicial District Court erred in
denying the appellant's declinatory exceptions of lack of
subject matter jurisdiction and improper venue.
5. The [Thirty-Sixth] Judicial District Court trial court
erred in prematurely cancelling a judgment rendered in a
collateral venue, without the [Thirtieth] Judicial District
Court, which rendered the judgment, finding it was a relative
[sic] null judgment.
6. The [Thirty-Sixth] Judicial District Court erred in
denying the appellant's dilatory exception of
7. The trial court erred in finding genuine issues of
material fact existed between the appellees' cloud on
title allegations and the civil procedure appellant followed
in his 2010 judgment revival action, thus precluding summary
judgment in ...