In re Succession of Bernat

• Decision Date: 09 October 2013
• Docket Number: No. 13–277.,13–277.
• Citation: 123 So.3d 1277
• Parties: SUCCESSION OF Frank BERNAT.
• Court: Court of Appeal of Louisiana — District of US

123 So.3d 1277

SUCCESSION OF Frank BERNAT.

No. 13–277.

Court of Appeal of Louisiana, Third Circuit.

Oct. 9, 2013.

Gregory Brian Upton, Gregory B. Odom, II, Gold, Weems, Bruser, Sues & Rundell, Alexandria, LA, for Defendants/Appellees: Carolyn Dianne Tuma, JoAnne Kotar McClain, Succession of Frank Bernat.

Gwenda R. Lamb, Alexandria, LA, for Appellant: Henry A. Bernat.

Court composed of BILLY HOWARD EZELL, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.

EZELL, Judge.

[3 Cir. 1]Henry A. Bernat appeals a trial court judgment granting an exception of res judicata. The co-executrices of the Succession of Frank Bernat filed the exception of res judicata in response to Henry's petition to annul the testament. Henry also raises issues relating to a judgment of homologation. For the following reasons, we affirm the trial court's judgment.

FACTS

On January 19, 2010, Frank executed a will at Cabrini Hospital in Alexandria, Louisiana. The facts surrounding the execution of the will were set forth in this court's opinion in a previous appeal, In re Succession of Bernat, 11–368, pp. 1–2 (La.App. 3 Cir. 11/2/11), 76 So.3d 1287, 1289,writ denied,12–263 (La.3/30/12), 85 So.3d 122:

The testator, and his attorney, Mark Watson, composed a will which was executed on January 19, 2010. The statutory will was executed at Cabrini Hospital in Alexandria, Louisiana, in the presence of two witnesses, Connie Lawrence and Chastity Stroud, and was notarized by Watson.

Watson read the will to Bernat. Afterwards, Watson asked Bernat if the contents of the will were what Bernat had wished. Bernat responded in the affirmative in the presence of the witnesses. Watson then asked Bernat to sign the five page will. Being unsteady due to his ailments, Bernat signed the end of the first page with a shaky hand. Because of Bernat's shakiness, Watson decided to direct Bernat to sign an “X” at the end of the second page. Bernat proceeded to sign the third, fourth, and fifth pages with his signature. The fourth and fifth pages both contained two signature lines for the testator: one line in the middle or top two-thirds of the page, and the other at the very end of the page. On the fourth and fifth pages, Bernat signed each upper signature line with his signature, and each lower signature line with an “X.” As a result, the first and third pages contain Bernat's signature, the second page contains only an “X,” and the fourth and fifth pages, the fifth bearing the attestation clause contain both a signature and an “X.” The entire process of signing was conducted in the presence of Watson, who notarized and signed the attestation clause, and the witnesses, who also signed the attestation clause.

[3 Cir. 2]Frank died two days later on January 21, 2010. His net estate was valued at just over a million dollars. Frank was never married and had no children of his own. The will named his nieces, Carolyn Tuma and JoAnne McLain, as co-executrices. Carolyn and JoAnne filed a petition to probate the will on April 14, 2010. They asked that Frank's assets be divided equally among his eleven surviving nieces and nephews.

Henry, one of the testator's nephews, intervened in the probate proceedings, challenging the interpretation of the will. Henry sought a declaratory judgment contending that Frank's estate should be divided into thirds, with one-third going to the children of each of Frank's three siblings; two of whom had one child each and the third sibling, who had nine children. Under this scenario, Henry would receive one-third of Frank's estate, JoAnne would receive one-third, and the other nine nieces and nephews would receive one-third. The trial court interpreted the testator's will as leaving equal shares to each of the eleven legatees, and Henry appealed to this court. In In re Succession of Bernat, 76 So.3d 1287, this court found no error in the trial court's determination that the testator intended to divide his estate equally between the eleven legatees.

After the trial court's hearing and oral ruling on its interpretation of the will on December 13, 2010, Henry then filed a petition to annul the testament on January 5, 2011, setting forth several abnormalities with the will which he claimed rendered it null. He first claimed that Frank had not signed the testament as required by La.Civ.Code art. 1577 because he made an “X”. He also claimed that a different attestation clause was required for Frank arguing he did not read the will and did not sign each page of the testament. Finally, he asserted that the witnesses to the will did not read along on an exact copy of the will as provided by La.Civ.Code art. 1579.

[3 Cir. 3]The trial court signed the final judgment on January 14, 2011. In his first appeal to this court, Henry also asserted that the will was not in proper form. This court declined to address the issue at the time because it had not been raised in the trial court.

In response to Henry's petition to annul the will, the co-executrices filed several exceptions, including an exception of res judicata, which was filed on February 24, 2011. Judgment denying the exception of res judicata was signed on June 20, 2012, because the original final judgment of the trial court was not introduced at the trial on the exception. On July 3, 2012, the co-executrices filed another exception of res judicata, this time attaching the trial court's January 14, 2011 judgment. The co-executrices argued that Henry should have sought an annulment of the will at the same time he sought a declaratory judgment on the interpretation of the will. A hearing was held on August 6, 2012. On October 11, 2012, the trial court rendered judgment sustaining the co-executrices exception of res judicata. Henry then filed the present appeal.

RES JUDICATA

The co-executrices filed the exception of res judicata, claiming that Henry should have also raised the issue of nullity of the will when he sought a declaratory judgment regarding the interpretation of the will. In reviewing this case, we must determine whether the trial court committed manifest error when it sustained the exception of res judicata because it was prior to the case being submitted and evidence was received from both parties. Steckler v. Lafayette Consol. Gov't, 11–427 (La.App. 3 Cir. 11/2/11), 76 So.3d 161,writs denied,11–2639, 11–2677 (La.2/10/12), 80 So.3d 477, 487.

The doctrine of res judicata is set forth in La.R.S. 13:4231. Quoting Burguieres v. Pollingue, 02–1385, p. 7 (La.2/25/03), 843 So.2d 1049, 1053, the [3 Cir. 4]supreme court reiterated the five elements that must be established in order for a judgment to have a res judicata effect on a second action:

(1) the judgment is valid; (2) the judgment is final; (3) the parties are the same; (4) the cause or causes of action asserted in the second suit existed at the time of final judgment in the first litigation; and (5) the cause or causes of action asserted in the second suit arose out of the transaction or occurrence that was the subject matter of the first litigation.

Henry claims that his petition to annul should have been addressed by the trial court before considering the exception of res judicata because a valid and final judgment had not been rendered when he filed his petition to annul. Henry first argues that absolutely null judgments are considered never to have existed and, therefore, cannot have a preclusive effect. He claims that the declaratory judgment is predicated upon an absolutely null order of probate thereby rendering it absolutely null also.

Pursuant to La.Code Civ.P. art. 1872 a person interested under a will “may have determined any question of construction or validity arising under the instrument ... and obtain a declaration of rights, status, or other legal relations thereunder.” Furthermore, La.Code Civ.P. art. 1874(3) provides that an heir may have a declaration of rights or legal relations to determine questions concerning the construction of wills. A declaratory judgment can serve as a basis for res judicata to another action so long as the two proceedings involved the same transaction or occurrence and the parties existed in the same capacity in both suits. Travacal Props., LLC v. Logan, 10–323 (La.App. 3 Cir. 10/6/10), 49 So.3d 466.

Valid Judgment

Res judicata is provided for in La.R.S. 13:4231. In explaining what constitutes a valid judgment, comment (d) provides, in pertinent part:

[3 Cir. 5]To have any preclusive effect a judgment must be valid, that is, it must have been rendered by a court with jurisdiction over subject matter and over parties, and proper notice must have been given. The judgment must also be a final judgment, that is, a judgment that disposes of the merits in whole or in part.

See also Kelty v. Brumfield, 93–1142 (La.2/25/94), 633 So.2d 1210; and Interdiction of Wright, 10–1826 (La.10/25/11), 75 So.3d 893.

In conjunction with this concept, La.Code Civ.P. art.2002 provides that judgments are absolutely null which are rendered (1) against an incompetent person, (2) against a defendant who had not been served with process as required by law and who has not waived objection to jurisdiction, or against whom a valid judgment by default has not been taken, or (3) by a court which does not have subject matter jurisdiction over the subject matter of the suit. An action to annul a judgment on these grounds can be brought at any time. La.Code Civ.P. art. 2002(B).

There is no time limitation for attacking an absolutely null judgment because it is not a valid judgment. Defects that render a judgment absolutely null are incurable by prescription. Warner v. Garrett, 268 So.2d 92 (La.App. 1 Cir.), writ refused,263 La. 987, 270 So.2d 123 (1972); Trahan v. Bertrand, 06–1271 (La.App. 3 Cir. 2/21/07), 952 So.2d 809,writ denied,07–631 (La.5/4/07), 956 So.2d 612. Whereas, defects that render a judgment relatively null are curable by prescription. Id.

It is the declaratory judgment which formed the basis for the...