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Succession of Foster

Court of Appeals of Louisiana, Fourth Circuit

May 16, 2018

SUCCESSION OF CHARLES EDWARD FOSTER

          APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2014-08853, DIVISION "D-12" Honorable Nakisha Ervin-Knott, JUDGE

          John A. E. Davidson DAVIDSON & DAVIDSON, COUNSEL FOR PLAINTIFF/APPELLEE

          C. Hunter King COUNSEL FOR DEFENDANT/APPELLANT

          (Court composed of Judge Edwin A. Lombard, Judge Joy Cossich Lobrano, Judge Tiffany G. Chase)

          EDWIN A. LOMBARD, JUDGE.

         The 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., [1] Donna Foster Zeno ("Ms. Zeno"), Melvin Foster, Larry Foster and Etheridge Foster.

         Allegedly, 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.

         In 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.

         In 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.

         The 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.

         Thereafter, 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").[2] 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.

         The 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[3] and granted Ms. Zeno a devolutive appeal from the same.

         Jurisdiction

         As 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 ...


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