SUCCESSION OF ESTELLE AMELIA COLE, WIDOW OF FRANK CORNELIUS COLE, SR.
FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2002-08971,
DIVISION "M" Honorable Paulette R. Irons, Judge
L. Bisso Robert G. Miller, Jr. BISSO & MILLER, L.L.C.
Favrot & Shane Building COUNSEL FOR APPELLANT
Susanne W. Jernigan THE JERNIGAN LAW FIRM, L.L.C. COUNSEL FOR
composed of Judge Joy Cossich Lobrano, Judge Rosemary Ledet,
Judge Regina Bartholomew-Woods)
Cathy Hightower and William James Hightower, IV, appeal the
February 27, 2018 judgment of the district court. The
judgment contains eleven rulings on various issues relating
to the succession of Estelle Amelia Cole. On May 2, 2018,
Appellants were mailed the notice of judgment; and Appellants
moved for a new trial. On August 17, 2018, the district court
denied Appellants' motion for new trial, and judgment was
mailed to Appellants on the same date. An order granting
Appellants' motion for suspensive appeal was signed by
the district court on August 28, 2019. An extension of time
to pay estimated costs was granted, and costs were paid
timely in accordance with the order. Appellants furnished a
suspensive appeal bond on October 29, 2019.
Debra Cole, filed a motion to dismiss appeal based upon,
among other things, untimeliness of the filing of the bond.
Pursuant to La.C.C.P. art. 2123, Appellants were required to
furnish security for their suspensive appeal no later than
thirty days after mailing of notice of the court's denial
of Appellant's application for a new trial; that is, no
later than September 17, 2019.
the failure to timely furnish security would result in
conversion of the suspensive appeal to a devolutive appeal.
However, only two of the eleven rulings are final, appealable
judgments - those homologating tableaus of distribution. As
provided in La.C.C.P. art. 3308, "[o]nly a suspensive
appeal as provided in Article 2123 shall be allowed from a
judgment homologating a tableau of distribution."
Accordingly, Appellants' failure to timely furnish
security requires dismissal, as it cannot be converted to a
suggest that dismissal would be inappropriate given the
Louisiana Supreme Court's holding in Succession of
Daste, 254 La. 403, 223 So.2d 848 (1969). However,
Daste concerned the applicability of art. 3308 in
the context of a lower court's ruling ordering an
executor to file an amended tableau of distribution. The
Supreme Court explained:
[T]he court of appeal judgment was actually based upon the
theory that the . . . judgment of the trial court was a
judgment homologating the tableau of distribution from which
only a suspensive appeal was permissible under the mandate of
Article 3308 of the Code of Civil Procedure. . . . If the
Court of Appeal had adopted either of the two alternatives to
this result, it should have either dismissed the appeal as an
unappealable interlocutory decree or it should have
considered the merits of the issues presented by the valid
devolutive appeal. The result the Court of Appeal did reach
could only be reached if the judgment appealed from was
considered a judgment homologating a final tableau of
distribution, for only in that instance is a suspensive
. . .
The trial court judgment . . . was not a judgment
homologating a tableau of distribution, as contemplated in
Article 3308 of the Code of Civil Procedure, because it
neither ordered, adjudged nor decreed that the tableau be
approved or homologated. To the contrary, the judgment
ordered the testamentary executor to 'file an Amended
Final Tableau of Distribution in accordance with this
judgment and in accordance with law.' Moreover, the
judgment did not pass upon some of the issues presented by
the tableau, and it adjudicated issues presented by pleadings
other than the petition to homologate the tableau. In other
words, the judgment decided some controverted questions
presented by the tableau and other questions at issue by the
pleadings, and, since these adjudications would after [sic]
the computations and distribution proposed by the tableau,
the judgment ordered the filing of an amended tableau as an
alternative to the homologation.
Id., 254 La. at 410-12, 223 So.2d at 851-52. Here,
the tableaus were indeed homologated, and per art. 3308 and
Daste, a suspensive appeal was mandatory.
noted, the judgment appealed contains other, interlocutory
rulings. Absent a related, appealable ruling in the judgment
for this Court to consider, we must decide whether it would
be appropriate to convert Appellant's appeal to a writ on
those interlocutory rulings. "[T]he decision to convert
an appeal to an application for supervisory writs is within
the discretion of the appellate courts." Stelluto v.
Stelluto, 2005-0074, p. 7 (La. 6/29/05), 914 So.2d 34,
39. This Court, however, only does so "when the motion
for appeal has been filed within the thirty-day time period
allowed for the filing of an application for supervisory
writs under Rule 4-3 of the Uniform Rules, Courts of
Appeal." Delahoussaye v. Tulane Univ. Hosp. &
Clinic, 2012-0906, p. 5 (La.App. 4 Cir. 2/20/13), 155
So.3d 560, 563. Furthermore, "the filing of a motion for
new trial seeking reconsideration of an interlocutory
judgment cannot interrupt the 30-day period for filing an
application for supervisory writs established by Rule 4-3 of
the Uniform Rules-Courts of Appeal. . . . [T]he provisions of
the Louisiana Code of Civil Procedure are ...