FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2014-08853,
DIVISION "D-12" Honorable Nakisha Ervin-Knott,
A. E. Davidson DAVIDSON & DAVIDSON, COUNSEL FOR
Hunter King COUNSEL FOR DEFENDANT/APPELLANT
composed of Judge Edwin A. Lombard, Judge Joy Cossich
Lobrano, Judge Tiffany G. Chase)
A. LOMBARD, JUDGE.
instant matter involves the nullification of the will of
decedent Charles Edward Foster ("Mr. Foster") by
the district court. Mr. Foster was married to Elizabeth
Foster ("Mrs. Foster") and five children were born
of their union: Charles E. Foster, Jr.,  Donna Foster Zeno
("Ms. Zeno"), Melvin Foster, Larry Foster and
on January 17, 1973, Mr. Foster authored an olographic will
wherein he named Mrs. Foster as his sole legatee. Mr. Foster
died on May 6, 1994. Subsequently, his widow, Mrs. Foster
passed away in October 2013. Prior to her death, Mrs. Foster
executed a statutory will naming Ms. Zeno as her testamentary
executrix and sole legatee.
August 2014, Ms. Zeno, as the executrix for the estate of
Mrs. Foster, filed a petition to probate the olographic
testament of Mr. Foster. The succession of Mr. Foster was
probated. Moreover, in a separate proceeding, a judgment of
possession was rendered on September 9, 2014, placing Ms.
Zeno in possession of the estate of Mrs. Foster.
August 2016, Etheridge Foster, Larry Foster and Melvin Foster
(collectively "the Foster Brothers"), filed a
petition to annul and set aside the probate of the purported
will and the judgment of possession of Mr. Foster. During a
hearing set for December 7, 2016, the district court
discovered that Mr. Foster's purported will was in fact a
copy. Thereafter, the district court vacated the probate of
the copy, and appointed a curator to search for Mr.
Foster's will at the expense of Ms. Zeno. The district
court further continued all other matters that were set for
hearing on that date. The district court signed an order to
this effect on December 16, 2016. Ms. Zeno, however, did not
pay for the appointment of the curator. She avers that she
searched for the will with other persons, but to no avail.
She contends that Mr. Foster's original testament was
destroyed during or after Hurricane Katrina.
Foster Brothers, in April 2017, moved to reset their petition
to annul. Following a hearing on June 30, 2017, the district
court rendered a judgment of possession on July 11, 2017,
wherein it: 1) vacated the appointment of an attorney to
search for Mr. Foster's original will; 2) granted the
petition to annul in favor of the Foster Brothers; 3) ordered
that the property be distributed under the rules of intestacy
among all descendants of Mr. Foster; and 4) nullified the
September 9, 2017 judgment of possession.
Ms. Zeno filed a "Motion to Request for Re-Hearing to
Annul Probated Testament by Revoking the Olographic Will and
for Judgment of Possession as Intestate Succession with the
Setting of an Evidentiary Hearing with Testimony of Heirs
with a Rule to Probate the Olographic Will (Copy)"
(hereinafter "motion to request
re-hearing"). Additionally, the Foster Brothers filed an
"Exception and/or Motion to Dismiss for Lack of Subject
Matter Jurisdiction." In their exception and/or motion
to dismiss, the Foster Brothers asserted that Ms. Zeno's
request for re-hearing should be dismissed for lack of
jurisdiction as a consequence of her failure to timely appeal
or otherwise seek supervisory relief from the December 16,
2016 judgment and because she did not oppose their Motion to
Reset Petition to Annul Probated Testament and for Judgment
of Possession as Intestate Succession.
district court rendered judgment on August 31, 2017, denying
Ms. Zeno's request for re-hearing and granting the Foster
Brothers' exception and/or motion to dismiss. The
district court later certified the August 31, 2017 judgment
as final and granted Ms. Zeno a devolutive appeal
from the same.
stated above, Ms. Zeno's appeal seeks review of the
August 31, 2017 judgment of the district court. We find that
this judgment is interlocutory and, thus, unappealable. An
interlocutory judgment is "a judgment that does not
determine the merits but only preliminary matters in the
course of the action is an interlocutory judgment." La.
Code Civ. Proc. art. 1841. "A judgment that determines
the merits in whole or in part is a final judgment."
Id. Ms. Zeno moved the district court ...