In re Derby

261 So. 3d 1092
CourtLouisiana Court of Appeal
DecidedDecember 28, 2018
Docket18-381
StatusPublished

This text of 261 So. 3d 1092 (In re Derby) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Derby, 261 So. 3d 1092 (La. Ct. App. 2018).

Opinion

COOKS, Judge.

On September 19, 2005, Virginia Derby Jordan, filed an interdiction proceeding in the Fourteenth Judicial District Court. The interdict was Ms. Jordan's mother, Virginia Hardin Derby. At the time of the interdiction proceedings, Ms. Derby was a ninety (90) year-old resident of a nursing home in New Orleans. Ms. Derby suffered from dementia and other physical problems that prevented her from caring for herself. At the pertinent time, Ms. Derby had been evacuated under emergency conditions prompted by the impending arrival of Hurricane Katrina. She was transported from St. Anna's Residence in New Orleans to the Holly Hill House Nursing Home in Sulphur, Louisiana.

Ms. Jordan maintained she was forced to initiate the interdiction proceeding because her older sister, Bessie Derby Miller, who had Ms. Derby's power of attorney, made no effort to evacuate Ms. Derby from harm's way as Hurricane Katrina approached New Orleans.

At the interdiction determination, the trial judge temporarily interdicted Ms. Derby and appointed Ms. Jordan as temporary curator. The trial judge further authorized the withdrawal of $10,000.00 from Ms. Derby's bank account for her transportation and care expenses. Two days prior to Hurricane Rita making landfall in Southwest Louisiana, Ms. Jordan drove Ms. Derby to her home in Virginia.

*1094Hurricane Katrina caused substantial property damage and loss of life for those who resided in Southern Louisiana. Hurricane Rita, only a few weeks following Katrina, caused substantial damage to property and threatened the lives of those who lived in Southwest Louisiana

On October 13, 2005, Ms. Miller, who was a resident of Maryland, filed an "Answer and Reconventional Demand" in the Fourteenth Judicial District Court. Ms. Miller asked to be appointed curator and noted she had, prior to the interdiction proceedings, a valid power of attorney over her mother. She also denied her mother faced any imminent harm as a result of any inaction on her part.

After a telephone conference, the trial court continued in effect the previous order interdicting Ms. Derby. The trial court found the appointment of Ms. Jordan as temporary curator had expired and appointed Ms. Miller the temporary curator. Ms. Jordan's expenditures to date were approved, and the trial court authorized further expenditures by Ms. Jordan, who was housing Ms. Derby, up to the remainder of the $10,000.00 previously withdrawn.

On March 6, 2007, Ms. Jordan filed a "Motion to Remove Bessie Derby Miller as Temporary Curator and Substitute Virginia T. Derby Jordan as Preliminary Curator." Ms. Jordan alleged her mother was moved from her home in Virginia to the home of Ms. Miller's daughter's next-door neighbor in North Carolina. She further alleged that, Ms. Miller thereafter moved her mother back to another New Orleans nursing home in 2006, largely because of Ms. Miller's refusal to pay for services performed by Ms. Derby's prior nursing home. That same day, Ms. Jordan also filed for a Permanent Injunction Prohibiting the Sale of Personal Property, which sought to prohibit the sale of certain property of Ms. Derby at auction. A hearing was held on the request and a preliminary injunction was issued prohibiting the sale of those items.

On April 24, 2007, Ms. Miller filed a petition to have herself appointed and confirmed as permanent curator. A reconventional demand was also filed against Ms. Jordan for damages, as well as an opposition to the motion to remove Ms. Miller as temporary curator. Ms. Miller requested court costs and attorney fees incurred in setting aside Ms. Jordan's appointment as temporary curator.

A hearing was held beginning on May 29, 2007 and the court ruled on all issues. The Motion to Remove Bessie Derby Miller as Temporary Curator and Substitute Virginia T. Derby Jordan as Preliminary Curator was denied by the trial court. Ms. Miller was appointed permanent curator for Ms. Derby. Ms. Miller was ordered to submit to the court a motion and documentation to have damages and appropriate costs assessed against Ms. Jordan, and Ms. Jordan was provided the opportunity to oppose said motion. Ms. Jordan was ordered to present written proof to the court of her ownership of any items which were the subject of the temporary restraining order enjoining the sale of various items of Ms. Derby at auction.

On January 17, 2008, after continued disagreement as to the access and physical housing of Ms. Derby, as well as property ownership issues, the trial court issued judgment casting Ms. Jordan with various attorney fees and court costs in the amount of $122,220.76. The judgment also reserved "to the Curator, Bessie Derby Miller, on behalf of the estate of the Interdict, to pursue [sic] all claims for damages resulting from the issuance of a Temporary Restraining Order stopping the EBay action [sic] of certain items belonging to the estate of the Interdict, subject to a *1095further ruling on this court regarding the ownership of said items." The trial court then hand wrote on the Judgment the notation "[t]o be set at hearing on March 11, 2008 at 9:00 a.m."

Ms. Miller filed a Motion for Partial Summary Judgment on February 14, 2008 to which Ms. Jordan filed an Opposition. The trial court set a hearing on the motion for partial summary judgment for March 11, 2008, which was rescheduled to April 7, 2008. That hearing was never held, as Ms. Derby passed away on April 4, 2008.

On August 27, 2008, a "Closing Order" was entered by the trial court, which stated in pertinent part as follows:

The court having been informed that the interdict, Virginia Hardin Derby, died on the 4th day of April, 2008, in the Parish of Orleans, and having been provided with a certified copy of the certificate of death attesting to such fact, which certified copy is attached hereto, there being no dispute in law that an interdiction proceeding abates on the death of the interdict but that the curatrix remains responsible to file with the court a final account pursuant to [La.Code Civ.P.] arts. 3333, 4393, 4398, and 4569.
IT IS ORDERED that this matter be deemed ABATED as of April 4, 2008, the date of the interdict's death;
IT IS FURTHER ORDERED that Bessie Derby Miller, curatrix at the time of the interdict's death, file a final account with the court on or before the 31st day of October, 2008; and
IT IS FURTHER ORDERED that the Clerk hold this matter open only for the filing of the final accounting and treat it otherwise as having been CLOSED as of April 4, 2008,

Apart from the final accounting by Ms. Miller, there was no other action taken, including any collection efforts, until the revival action at issue in this appeal.

On December 27, 2017, Ms. Miller filed an "Ex Parte Motion for Revival" seeking to revive the judgment of January 17, 2008. Attached to the motion was an "Affidavit of Holder & Owner of Judgment of January 17, 2008." That same day, the trial court granted the ex parte motion and revived the judgment in favor of Ms. Miller. This appeal followed. Ms. Jordan argues the trial court erred in granting the ex parte motion for revival.

ANALYSIS

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Related

In re Lambert
39 So. 447 (Supreme Court of Louisiana, 1905)
In re Jones
41 So. 431 (Supreme Court of Louisiana, 1906)
Ruiz v. Pons
74 So. 713 (Supreme Court of Louisiana, 1916)
Interdiction of Cahn
523 So. 2d 4 (Louisiana Court of Appeal, 1988)

Cite This Page — Counsel Stack

Bluebook (online)
261 So. 3d 1092, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-derby-lactapp-2018.