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Succession of Anderson

Court of Appeals of Louisiana, Second Circuit

January 16, 2019


          Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 599, 312-B Honorable Craig O. Marcotte, Judge

          THE McGLOTHEN LAW FIRM, LLC By: Terry McGlothen Counsel for Appellant, Shelia Marie Anderson Miller

          WALTER D. WHITE, APLC By: Walter D. White Counsel for Appellees, Robin Nicole Ambercrombie Gordon, Tutrix of the Minor Francheska A. Anderson; Cortez Frank Anderson; and Sharetta Latonya Cooks Anderson, Tutrix of the Minor Frankayla Johnnie Ruth Anderson; And Chad Garland, CPA, Ind. Administrator

          Before PITMAN, GARRETT, and BLEICH (Pro Tempore), JJ.

          PITMAN, J.

         Shelia Marie Anderson Miller ("Shelia"), sister of the decedent, Frank Anderson ("Decedent), seeks review of the trial court's judgment that nullified the testament in which she had been appointed independent testamentary executrix, denied her exception of res judicata and recalled a judgment of possession previously rendered. She also appeals the trial court's failure to hold contradictory hearings on motions filed and her removal as administratrix without a contradictory hearing. For the following reasons, we affirm the judgment of the trial court.


         On February 4, 2017, Decedent died at the age of 45. On March 15, 2017, Shelia sought to probate a testament purportedly executed by him. The testament, dated January 11, 2013 ("2013 Testament"), directed that his estate be donated to Shelia and to his only two children he had at the time the testament was written. On July 21, 2017, the trial court signed a judgment of possession per the terms of the testament, and Shelia was appointed independent testamentary executrix of the estate.

         On August 8, 2017, Sharetta Anderson ("Sharetta"), Decedent's wife, filed a petition to annul the probated testament and requested a temporary restraining order and preliminary injunction enjoining Shelia from disposing of any assets of the succession. Attached to Sharetta's petition was a purported testament by Decedent, dated February 2, 2016 ("2016 Testament"), which revoked any and all other previous testaments and directed that his estate be donated to Sharetta and his then three children, including his child with Sharetta, Frankayla Anderson. The trial court granted Sharetta's request for a temporary restraining order, and the 2016 Testament was examined by an expert who opined that the signature on the testament presented by her was a forgery.

         On October 5, 2017, the trial court sustained exceptions of no right of action and no cause of action filed by Shelia and denied Sharetta's petition to annul the 2013 Testament based on the invalid 2016 Testament.

         On January 29, 2018, Sharetta filed a motion entitled "Ex parte Motion to Authorize Inspection and Examination of Probated Testament," requesting that her expert be allowed to examine the 2013 Testament to ensure its validity. The trial court granted the motion, ordering that Shelia's counsel be present for the examination if he so wished. In response, Shelia filed exceptions of no right and no cause of action, as well as an exception of res judicata based on the denial of Sharetta's petition to annul the 2013 Testament.

         On February 6, 2018, Sharetta's expert, Robert Foley, examined the 2013 Testament and opined that the signatures on the first two, of three, pages of the testament were color copies.

         Based on Foley's opinion, on February 22, 2018, Sharetta, on behalf of her minor child, Frankayla; Robin Nicole Ambercrombie Gordon, the tutrix for the decedent's second minor child, Francheska A. Anderson; and Decedent's adult child, Cortez Frank Anderson; filed a petition entitled "Petition to Annul Probated Testament and Judgment of Possession; Dismissing Independent Executrix, and Appointing Independent Administrator." In response, Shelia filed another exception of res judicata based on the trial court's denial of Sharetta's first petition to annul.

         Also on February 22, 2018, Shelia filed a notice of intent notifying the trial court of her desire to seek supervisory review of the January 30, 2018 order allowing Sharetta to have an expert examine the 2013 Testament. The trial court set a return date of March 19, 2018, and the writ application was filed with this court on March 19, 2018, under Docket No. 52, 222-CW. Shelia did not request a stay (either with the trial court or this court) pending resolution of her writ application and did not seek expedited consideration at that time.

         A hearing was held on the merits of the case on March 28, 2018. Prior to the close of testimony at the proceeding on the annulment, Shelia's attorney raised the issue that some of his exceptions and motions had not been heard, including the exception of res judicata. In response to this issue being raised, the trial court stated:

Right. Let's do this. I'll get my opinion out on those. Depending on what happens with this, we need a hearing obviously, or at least a petition to reopen the succession, as well as a petition to remove the executrix.

         On April 17, 2018, the trial court rendered a judgment granting Sharetta's second petition to annul, denying Shelia's exception of res judicata, annulling the 2013 Testament and the July 21, 2017 Judgment of Possession and declaring Decedent's succession to be an intestate succession.[1] In its reasons for judgment, the trial court found that the 2013 Testament, presented by Shelia, was invalid since pages one and two were not actually signed by the testator, as required by law, but were photocopied signatures of the testator. The trial court found that the signatures substantially deviated from the form requirements of La. C.C. art. 1577. It discussed the purpose behind the legislature's requirements of testamentary form, which was to avoid fraud, and the fact that these signatures were not original ink signatures. For those reasons, it granted Sharetta's petition to annul the 2013 Testament and the judgment of possession of July 21, 2017.

         The trial court's reasons for judgment also addressed Shelia's exception of res judicata and pointed out that the mere order of the judge for the probate of a will does not have the effect of a binding judgment on the parties so as to preclude them from subsequently contesting the validity of the will unless the question of its validity was expressly put at issue at the time the will was probated. It found that the doctrine of res judicata does not apply in this case since the two petitions to annul did not involve the same parties in the same capacities. Sharetta's first petition to annul was filed by her in her capacity as surviving spouse. The second petition was filed by her in her capacity as the court-appointed tutrix of one of ...

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