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In re Succession of Adams

Court of Appeals of Louisiana, Second Circuit

April 11, 2018

IN THE MATTER OF THE SUCCESSION OF WENONA NIX ADAMS

          Appealed from the Fifth Judicial District Court for the Parish of Franklin, Louisiana Trial Court No. 44849 Honorable James Mark Stephens, Judge

          BARRY W. DOWD Counsel for Appellants

          RHETT ROBERT RYLAND CARMEN ELYSE RYLAND Counsel for Appellee

          Before BROWN, MOORE, and STONE, JJ.

          STONE, J.

         Appellant, Bette Adams Griffing, appeals the trial court judgment overruling her dilatory exception of improper use of summary proceedings. Appellant also appeals the trial court judgment ordering that the $58, 994.05 returned to the estate of Wenona Nix Adams be evenly distributed among five heirs. For the following reasons, we amend the trial court judgment to vacate the distribution of the estate, and as amended, we affirm.

         FACTUAL BACKGROUND AND PROCEDURAL HISTORY

         On November 5, 2015, Wenona Nix Adams ("Adams") died intestate at a nursing home in Winnsboro, Louisiana. She is survived by five adult children. On August 22, 2016, Adams' daughter Beverly Adams Deumite ("Deumite") was appointed administrator of Adams' succession. The estate mainly consists of a joint checking account ("joint account") between Adams and her daughter Bette Adams Griffing ("Griffing") whom Adams granted a power of attorney prior to her death. After being appointed administrator, Deumite noticed multiple withdrawals from the joint account made by Griffing during the year and a half preceding Adams' death.

         On October 4, 2016, Deumite filed a rule to show cause ("petition") requesting Griffing and her husband, John Griffing, Jr., be ordered to appear and show cause why certain funds withdrawn from the joint account should not be returned to Adams' estate pending a determination of the estate's assets and liabilities. On November 4, 2016, Griffing filed a dilatory exception of unauthorized use of summary proceedings alleging that since Deumite wanted the trial court to conclude who owned the monies from the joint account, summary proceedings were improper. Both the petition and the exception were set for a hearing on December 12, 2017. The trial court denied Griffing's exception and found portions of the funds withdrawn by Griffing from the joint account belonged to Adams' estate. The trial court stated it is "obvious [Griffing] used assets of the Estate of Ms. Adams for her personal expenses, and that [Griffing] had converted assets of Ms. Adams to her personal use and possession." The trial court ordered Griffing to return $58, 994.05 to Deumite for inclusion in Adams' estate. Griffing now appeals.

         DISCUSSION

         Griffing first contends the trial court failed to rule on her dilatory exception of unauthorized use of summary proceedings. Alternatively, Griffing argues if the trial court did deny the exception, the ruling is incorrect because summary proceedings are not allowed unless specifically provided for in La. C. C. P. art. 2592, and determination of ownership of funds is not encompassed.

         A dilatory exception is a procedural device to delay the progress of the action, not defeat it. La. C.C.P. art. 923. All objections that may be raised through the dilatory exception are waived unless pleaded therein. La. C. C. P. art. 926. See also Boyd v. Boyd, 499 So.2d 164 (La.App. 2 Cir. 1986). The exception must be tried before the trial of the case. La. C. C. P. art. 929(A). Even if he files a dilatory exception, the defendant must insist upon a hearing and ruling; failure to do so, or to object to going forward on the day of trial, is deemed a waiver of the exception. Steed v. St. Paul's United Methodist Church, 31, 521 (La.App. 2 Cir. 02/24/99), 728 So.2d 931, and citations therein.

         The record reveals the trial court, after apparently discussing the matter with counsel in chambers, overruled Griffing's exception in open court prior to the hearing on Deumite's rule to show cause. No hearing was held on the merits of Griffing's exception. Griffing neither insisted the trial court conduct a hearing on the exception prior to trial nor did she object to the trial court's overruling the exception. The exception is, therefore, deemed waived, and we shall not disturb the trial court's ruling on appeal. Steed, supra.

         Next, Griffing contends the trial court abused its discretion and was clearly wrong when it mandated the monies transferred into the estate be equally distributed to Adams' 5 heirs. Griffing asserts Deumite's petition only requested the transfer "pending a determination of assets and liabilities of the estate, " ...


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