Duskin v. Mahalia Jackson Residual Family Corp.
| Decision Date | 19 November 2014 |
| Docket Number | No. 2014–CA–0236.,2014–CA–0236. |
| Citation | 153 So.3d 567 |
| Parties | SUCCESSION OF Manuel DUSKIN Emanuel Duskin aka Emanuel Durskin and Edison Lazard Bishop Frank E. Lott v. The Mahalia Jackson Residual Family Corporation XYZ Shareholders and XYZ Directors, individually Bishop Frank E. Lottjohnson v. The Notary Shoppe et al Inc., Corporation Individually Kathleen D. Bondio, and Ora L. Davis Individually and as a Notary Public. |
| Court | Court of Appeal of Louisiana — District of US |
Bishop Frank E. Lott–Johnson, Stateboro, GA, Plaintiff/Appellant/In Proper Person.
Edgar D. Gankendorff, Christophe Szapary, Keelie M. Broom, Provosty & Gankendorff, LLC, New Orleans, LA, Wanda Anderson Davis, Leefe, Gibbs, Sullivan, Dupre and Aldous, L.L.C., Metairie, LA, for Defendants/Appellees.
(Court composed of Judge ROLAND L. BELSOME, Judge DANIEL L. DYSART, Judge SANDRA CABRINA JENKINS ).
This appeal arises from prolonged litigation pertaining to the succession of Manuel Duskin. Appellant appeals the trial court's judgment granting appellees' motion to annul a previously signed order, sustaining appellees' exceptions, and overruling appellant's exceptions. For the reasons set forth below, we affirm.
Manuel Duskin (“Mr. Duskin”) died testate on March 19, 2004. On June 23, 2004, his daughters, Lawanda Otis and Rose Duskin Champagne (“daughters”), filed a petition to probate their father's March 12, 2004 testament and place them into possession of his estate. At the time of his death, Mr. Duskin owned twenty percent (equal to one hundred shares) of the Mahalia Jackson Family Corporation (“the Corporation”). Mr. Duskin's March 12, 2004 testament granted his ownership interest in the Corporation to his daughters. A judgment of possession was signed on June 24, 2004, and amended for a typographical error on September 27, 2004, awarding each daughter ten percent interest in the Corporation.
On May 9, 2007 appellant, Bishop Frank E. Lott, initiated a new action involving Mr. Duskin's succession by filing a petition to probate, which was later denied for failure to “follow form required by law.” Appellant filed numerous other petitions over the next several months which were likewise denied for failure to follow form. On August 7, 2007, appellant filed an amended petition to probate a document from 1994 (“the 1994 Document”) allegedly executed by Mr. Duskin. An order granting this petition was signed and entered into the record on September 7, 2007. Appellant then filed a petition for ification on September 13, 2007 seeking to invalidate the last will and testament the daughters probated. The petition for ification was denied for its nonconformity with the mandates of La. C.C.P. art. 2931.1 Appellant filed an additional pleading attempting to remedy the deficiency along with a written request asking the court to view a videotape which he contends automatically validates the 1994 Document because the video shows Mr. Duskin signing the instrument. The court did not act on this request.
The court consolidated the two actions on its own motion on July 14, 2009. A contradictory hearing on appellant's motion to nullify the testament was scheduled for July 17, 2009, but was continued without date at the appellant's request. Appellant filed another petition to ify the testament on May 3, 2011, to which appellees filed an exception of prescription. The exception was initially sustained, but the court granted a new trial on its own motion and ultimately overruled appellees' exception.
On February 14, 2012, appellant instituted a new action by filing a petition for damages against appellees, alleging that the testament offered for probate by the daughters was forged and that he is a rightful legatee under the 1994 Document.2 In response to this petition, appellees filed exceptions of prescription, no right of action, and no cause of action. Appellees also filed a Motion to Vacate or in the Alternative, Annul an Order Previously Signed (“motion to annul”), in reference to the September 7, 2007 order probating the 1994 Document. Appellant filed exceptions to appellees' motion to annul on the grounds of no cause of action, no right of action, and prescription.
Appellant's exceptions and appellees' exceptions and motion were heard on September 6, 2013. On September 10, 2013, the trial court rendered judgment: (1) overruling appellant's exceptions of prescription, no right of action, and no cause of action; (2) granting appellees' motion to annul; (3) sustaining appellees' exception of no right of action; and (4) sustaining appellees' exception of no cause of action concerning the contractual action. Appellant timely filed a motion for new trial, which was subsequently denied, and this appeal followed.
Appellant asserts ten assignments of error on appeal, the majority of which are less than clear and essentially challenge the law itself on a futile basis rather than contesting the trial court's application of the applicable law. Rule 1–3 of the Uniform Rules of the Courts of Appeal, “Scope of Review,” dictates that a court of appeal may only review issues “which were submitted to the trial court and which are contained in specifications or assignments of error, unless the interest of justice clearly requires otherwise.” See KeyClick Outsourcing, Inc. v. Ochsner Health Plan, Inc., 11–0598, p. 6 (La.App. 4 Cir. 3/14/12), 89 So.3d 1207, 1211. To preserve appellate review for an alleged error in the trial court, a party must raise an objection, and state the grounds, contemporaneously with the occurrence of the alleged error. La.C.Cr.P. art. 841(A) ; see also State v. Green, 10–0454, p. 22 (La.App. 4 Cir. 3/16/11), 62 So.3d 229, 242 (citing State v. Jackson, 450 So.2d 621, 634 (La.1984) ). Accordingly, we will not entertain the issues raised for the first time in appellant's brief and will only address the specific assignments that ascend from the judgment that is being appealed—sustaining appellees' exceptions of no right of action and no cause of action, and granting appellees' motion to annul the September 7, 2007 order.
Exceptions of no right of action and no cause of action present questions of law and are reviewed by this Court under a de novo standard of review. St. Pierre v. Northrop Grumman Shipbuilding, Inc., 12–0545, p. 7 (La.App. 4 Cir. 10/24/12), 102 So.3d 1003, 1009 (citing Alderdice v. Bd. of Sup'rs of Louisiana State Univ. & Agr. & Mech. Coll., 12–0148, p. 4 (La.App. 4 Cir. 7/25/12), 107 So.3d 7, 10 ; Hornot v. Cardenas, 06–1341, p. 12 (La.App. 4 Cir. 10/3/07), 968 So.2d 789, 798 ). Thus, our review entails deciding whether the trial court's ruling sustaining the exceptions was legally correct. Id. (citing Peneguy v. Porteous, 01–1503, p. 6 (La.App. 4 Cir. 5/15/02), 823 So.2d 380, 384 ).
This Court recently discussed the concept of a peremptory exception of no right of action and stated that this exception assumes that the petition offers a valid cause of action and considers whether the instant plaintiff is a member of the class that has a legal interest in the underlying case. Weber v. Metro. Cmty. Hospice Found., Inc., 13–0182, p. 4 (La.App. 4 Cir. 12/18/13), 131 So.3d 371, 374 (citing Indus. Companies, Inc. v. Durbin, 02–0665, p. 12 (La.1/28/03), 837 So.2d 1207, 1216 ). La. C.C.P. art. 681 states “[e]xcept as otherwise provided by law, an action can be brought only by a person having a real and actual interest which he asserts.” Thus, one must have a justiciable interest in the succession proceeding in order to have standing to maintain an action to annul the testator's testament.
Here, appellant is not an heir or related to the decedent in any way. Appellant's only avenue of establishing an interest in Mr. Duskin's succession is through the 1994 Document. Appellant contends the 1994 Document is either a valid testament or, in the alternative and at the very least, an enforceable contract. Accordingly, in relation to the exception of no right of action, our consideration begins with determining whether the 1994 Document meets the requirements of a testament, and if not, turns to whether it can stand as a contract.
Before we determine whether the 1994 Document is a testament or perhaps a contract, a depiction of the document is warranted. The 1994 Document is a two-page, handwritten document titled “Irrevocable and Last Will and Testament.” The “testators” to the 1994 Document are Mr. Duskin and Mr. Edison Lazard,3 president and vice-president, respectively, of the Mahalia Jackson Family Resial [sic] Corporation. The 1994 Document attempts to bequeath appellant the rights relative to the Mahalia Jackson name, proceeds, and book belonging to Mr. Duskin and Mr. Lazard. The 1994 Document is not dated, but is notarized, and also signed by Mr. Duskin, Mr. Lazard, and one witness.
There are two forms of testaments in Louisiana, olographic and notarial.4 La. C.C. art. 1574. A valid testament can only be executed by one testator, regardless of whether it is olographic or notarial. La. C.C. art. 1571 (). Thus, the fact that the 1994 Document grants Mr. Duskin and Mr. Lazard's property together is fatal to it prevailing as a valid testament. Nevertheless, in the interest of completeness for appellant's sake, we will examine the formality requirements of an olographic and notarial testament.
An olographic testament must be entirely written, dated, and signed in the handwriting of the testator. La. C.C. art. 1575. If an olographic testament is probated, at least two credible witnesses must testify that the handwriting on the instrument is that of the testator. La. C.C.P. art. 2883.
Although the 1994 Document is handwritten and bears the...
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