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Smith v. Self

Court of Appeals of Louisiana, Third Circuit

January 31, 2018

SANDY D. SMITH AND KEVIN D. SMITH
v.
LESLIE RAY SELF, ET AL.

         APPEAL FROM THE THIRTY-SIXTH JUDICIAL DISTRICT COURT PARISH OF BEAUREGARD, NO. C20160431 HONORABLE MARTHA ANN O'NEAL, DISTRICT JUDGE

          David R. Lestage Hall, Lestage & Landreneau COUNSEL FOR PLAINTIFFS/APPELLEES: Sandy D. Smith, Kevin D. Smith

          P. Michael Maneille COUNSEL FOR DEFENDANT/APPELLANT: Michael Melvin Smith, Administrator of the Succession of Arlene L. Cline

          David L. Wallace COUNSEL FOR DEFENDANT/APPELLEE: Leslie Ray Self.

          Court composed of Billy Howard Ezell, Van H. Kyzar, and Candyce G. Perret, Judges.

          VAN H. KYZAR, JUDGE.

         The 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.

         DISCUSSION OF THE RECORD

         On May 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.

         This 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.

         The 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.

         Thereafter, 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 summary judgment.

         Following 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.

         On 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 prematurity.
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 ...

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