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
W. DOWD Counsel for Appellants
ROBERT RYLAND CARMEN ELYSE RYLAND Counsel for Appellee
BROWN, MOORE, and STONE, JJ.
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
BACKGROUND AND PROCEDURAL HISTORY
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.
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certain funds withdrawn from the joint account should not be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found portions of the funds withdrawn by Griffing from the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.
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.
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
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.
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, " ...