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In re McCauley

Court of Appeals of Louisiana, Second Circuit

September 26, 2018

IN RE: THE MINORS: LINA NICOLE MCCAULEY VASH ALEXANDER MCCAULEY KAI VICTOR MCCAULEY

          Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 588, 938 Honorable Ramon Lafitte, Judge.

          PETTIETTE, ARMAND, DUNKELMAN, WOODLEY, BYRD & CROMWELL, LLP By: Donald Armand, Jr., Trey W. Carter, Counsel for Mover-Appellant, Centenary College of Louisiana.

          GILLEY & GILLEY, By: Patricia A. Gilley Counsel for Appellee, Deborah McCauley.

          Before BROWN, STONE, and STEPHENS, JJ.

          BROWN, C.J.

         Centenary College of Louisiana ("Centenary") and several of its police officers are the defendants in an action filed in federal court by Deborah McCauley on behalf of her three minor grandchildren. Ms. McCauley sought and obtained an ex parte order of provisional tutorship in the 1st J.D.C. to file the lawsuit, which seeks damages arising out of the death of her son, Marcus McCauley. Centenary has taken the instant appeal from the trial court's adverse ruling on Centenary's motion to vacate the provisional tutorship appointment of Ms. McCauley. For the reasons set forth below, we reverse the trial court's judgment and vacate the provisional tutorship appointment.

         FACTS/PROCEDURAL BACKGROUND

         Jennifer Spears and Marcus McCauley were married on May 3, 2009, and divorced on February 14, 2013. During their time together, they had three children: LNM, VAM, and KVM. In 2013, a Texas court granted Ms. Spears a divorce from Marcus on the grounds of cruelty and a felony conviction. The Texas court specifically found that Marcus had committed multiple acts of "family violence" against Ms. Spears and the children and issued a protective order. The court awarded Ms. Spears sole custody of the children and permanently enjoined Marcus from further contact with Ms. Spears and the children. Since that time, Ms. Spears has had sole custody of the children, and they lived in Texas before moving to Oklahoma.

         Marcus died on November 20, 2014.[1] On November 19, 2015, his mother Deborah McCauley filed an ex parte petition for appointment of provisional tutor in the 1st J.D.C. In her petition, Ms. McCauley alleged that this appointment was sought for the sole purpose of acquiring procedural capacity so that she could, on behalf of her minor grandchildren, file a civil suit for damages arising out of the death of the children's father. The trial court signed an ex parte order appointing Ms. McCauley as provisional tutor and her ex-husband Larry as provisional undertutor, and the federal suit against Centenary was filed in federal court the same day.

         Centenary filed a motion to vacate the provisional tutorship on February 5, 2016. It was supported by an affidavit (attached to a supplemental memorandum in support of the motion) dated February 16, 2016, by Jennifer Spears, in which, inter alia, she attested that:

5. I am aware that Deborah McCauley filed a petition in Caddo Parish Court to have herself appointed as "provisional tutrix" of my children. I was not contacted by Deborah McCauley or anyone on her behalf before that proceeding was filed and I received no notice of her intention to file it. Had I been contacted or notified, I would not have given Mrs. McCauley permission to file that proceeding or to attempt to take any action on behalf of my children.
6. Sometime after that petition was filed, I was contacted by Patricia Gilley, who identified herself as the attorney of Deborah and Larry McCauley. Ms. Gilley informed me that Deborah McCauley had obtained the order of provisional tutorship and that she had filed a lawsuit against Centenary College and some of its security officers, alleging that those officers were legally liable for the death of Marcus McCauley. I told Ms. Gilley the following:
(1) I did not and do not authorize Deborah or Larry McCauley to seek any "tutorship" or to attempt to take any action on behalf of my children.
(2) I object to the order of provisional tutorship and would have objected before it was entered if I had been notified that the ...

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