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Succession of Romero

Court of Appeals of Louisiana, Third Circuit

May 8, 2019

SUCCESSION OF RAY E. ROMERO

          APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT COURT PARISH OF IBERIA, NO. 22906 HONORABLE LEWIS H. PITMAN, JR., DISTRICT JUDGE

          Ian A. Macdonald Jones Walker LLP COUNSEL FOR DEFENDANT-APPELLANT: Douglas E. Waters

          Tyler J. Rench Jones Walker LLP COUNSEL FOR DEFENDANT-APPELLANT: Douglas E. Waters

          Raymond A. Beyt Aaron D. Beyt COUNSEL FOR PLAINTIFFS-APPELLEES Clifford Gerard Ellender, et. al.

          Clifford Gerard Ellender, et al. c/o Larry Lovas PRO SE PLAINTIFFS-APPELLEES Clifford Gerard Ellender, et al.

          Porteus R. Burke Burke & Cestia COUNSEL FOR OTHER APPELLEE: Carolyn Romero Rink

          Court composed of D. Kent Savoie, Candyce G. Perret, and Jonathan W. Perry, Judges.

          D. KENT SAVOIE JUDGE.

         In connection with this court's docket number 18-923, the Defendant-Appellant Douglas Waters ("Mr. Waters"), who is the Executor of the Succession of Ray Romero, appeals the trial court's judgment dismissing Plaintiffs' Petition for declaratory relief without prejudice, arguing that the Petition should have been dismissed with prejudice. For the following reasons, we affirm.[1]

         FACTUAL AND PROCEDURAL BACKGROUND

         The decedent, Ray Romero passed away on November 13, 2016. On October 20, 2017, a group of eighteen of Mr. Romero's purported nieces and nephews ("Plaintiffs") filed a Petition for Declaratory Judgment concerning their inheritance rights with respect to Mr. Romero's estate. They named as Defendants, Mr. Waters, individually and as Executor of Mr. Romero's succession, and Carolyn Rink, who was Mr. Romero's only biological child and born of Mr. Romero's first marriage. Plaintiffs further alleged that after Mr. Romero's first marriage ended, Mr. Romero married Martha Waters Romero. Mr. Romero and Martha did not have any biological children together, however, Martha had two children from prior relationships: Mr. Waters, who is the Executor herein, and Virginia Waters Johnson.

         In their Petition, Plaintiffs further alleged that Mr. Romero died testate, noting a Will dated October 14, 1993 ("the Will"), which left Mr. Romero's assets to the Trustees of the Romero Living Trust of 1991 ("the 1991 Trust"). However, according to Plaintiffs, the 1991 Trust terminated pursuant to a document dated September 17, 2007. They also alleged that Martha had predeceased Mr. Romero and the Will disinherited Ms. Rink. Therefore, according to Plaintiffs, Mr. Romero's estate should be divided among them as the surviving children of Mr. Romero's four deceased siblings pursuant to the rules of intestacy. According to Plaintiffs, the only estate asset is a Merrill Lynch account, which was formerly held in the 1991 Trust, but had been returned to Mr. Romero by virtue of the termination and distribution of the 1991 Trust property on September 1, 2007. Both Mr. Waters and Ms. Rink filed separate Answers to Plaintiffs' Petition.

         On March 16, 2018, Mr. Waters filed a Motion for Summary Judgment seeking dismissal of Plaintiffs' Petition with prejudice insofar as it sought a determination that the Merrill Lynch account was part of Mr. Waters' estate. He argued that the account and its proceeds were property of The Romero Living Trust of 2007 ("the 2007 Trust"), which replaced the 1991 trust. Mr. Waters further described the various transactions that replaced the 1991 Trust with the 2007 Trust and transferred the Merrill Lynch Account to the 2007 Trust. He also noted that after Mr. Romero passed away on November 13, 2016, he was named Executor at the time of probate in March 2017 in accordance with the Will, and under the terms of the 2007 Trust, he also became the successor trustee and liquidated the Merrill Lynch account. Mr. Waters' Motion for Summary Judgment also sought dismissal of Plaintiffs' claims arguing that "the small amount of property owned by the estate" could not be distributed to Plaintiffs because "they have not sufficiently proven their relatedness to the decedent[.]" Mr. Waters did not seek a hearing date with respect to his Motion for Summary Judgment, no hearing date was set, and Plaintiffs did not file any opposition thereto.

         On May 8, 2018, Plaintiffs submitted a Motion and Order to Dismiss, seeking the voluntary dismissal of their action without prejudice. Mr. Waters filed an opposition on May 9, 2018, arguing that Plaintiffs' Petition should be dismissed with prejudice, rather than without prejudice. The trial court signed an order on May ...


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