Landry v. Gibbens

665 So. 2d 1176, 95 La.App. 4 Cir. 0379, 1995 La. App. LEXIS 3121, 1995 WL 684812
CourtLouisiana Court of Appeal
DecidedNovember 16, 1995
DocketNo. 95-CA-0379
StatusPublished
Cited by1 cases

This text of 665 So. 2d 1176 (Landry v. Gibbens) 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
Landry v. Gibbens, 665 So. 2d 1176, 95 La.App. 4 Cir. 0379, 1995 La. App. LEXIS 3121, 1995 WL 684812 (La. Ct. App. 1995).

Opinions

| BYRNES, Judge.

As set forth in Burk v. Gibbens, 620 So.2d 478 (La.App. 4 Cir.1993) this case concerns a dispute among descendants of Rezin Bowie. In Burk v. Gibbens this Court maintained Nora Redmann’s exception of lack of jurisdiction to claims asserted by Burk as the Administrator of the Succession of Gwendolyn Moore.

Subsequent to the rendering of our opinion in Burk, Robert Landry replaced William Gibbens as executor of the Succession of Muriel Yernet Moore. Landry is also the administrator of the succession of Muriel Moore’s father, John Seyborne Moore. Landry, acting in his representative capacity of both successions brought this claim against William and May Gibbens and their daughter, Nora Redmann who were the defendants in the Burk case. Landry asserted basically the same claims to Jim Bowie heirlooms in this case as were asserted in Burk, with the addition of claims to recover funds allegedly belonging to . the late Muriel Moore. Nora Redmann, a California resident, excepted to the jurisdiction of the court just as she had done successfully in Burk. Prior to the trial of her exception to the jurisdiction, Redmann filed an exception of prescription. The trial court ^maintained Redmann’s exception of lack of jurisdiction and dismissed Landry’s claims against her with prejudice. Landry appeals. We affirm.

I. Appellee, Nora Redmann, did not waive her exception of lack of jurisdiction when she subsequently filed an exception of prescription.

Landry contends that when Nora Red-mann filed an exception of prescription it constituted a general appearance and consequently a waiver of her previously filed decli-natory exception of lack of personal jurisdiction. Landry relies on Foster v. Breaux, 263 La. 1112, 270 So.2d 526, 529 (1972) and sever[1178]*1178al Supreme Court and Fourth Circuit cases following Foster. However, we note that all of those cases ante-date both Bickham v. Sub Sea International, 617 So.2d 483 (La.1993) and Delay v. Charbonnet, 627 So.2d 720 (La.App. 4 Cir.1993).

In Bickham the Supreme Court held that the subsequent filing of interrogatories and requests for production of documents did not waive a previously filed exception of improper venue. Landry argues that Bickham “does not cite a single law or case to support the opinion.” It is nonetheless the opinion of our Supreme Court and it was followed by this Court in the Delay case.

Landry argues that Bickham does not apply to subsequently filed peremptory exceptions (such as Nora Redmann’s exception of prescription in this case) which should constitute a waiver of previously filed decli-natory exceptions (such as Nora Redmann’s exception of lack of personal jurisdiction). However, in Delay this Court ruled that a subsequently filed peremptory exception of res judicata did not waive a previously filed declinatory exception to personal jurisdiction. Following Delay, Nora Redmann’s filing of a peremptory exception subsequent to her filing | gsubsequent to her filing of her exception to the personal jurisdiction of the court did not constitute a waiver of her exception to the jurisdiction.

II. Nora Redmann did not submit to the jurisdiction of Louisiana courts when she advertised the sale of copies of Jim Bowie’s portrait in national magazines.

Landry contends that Nora Redmann is subject to the personal jurisdiction of this state because she advertised the sale of the portrait of Jim Bowie in three magazines. Landry’s attorney acknowledged in oral argument that Redmann had sold no copies of the portrait in Louisiana. Landry does not dispute the fact that they are magazines with a national, though perhaps specialized, readership. He argues that because they are only available by mail and not on the newsstand that they should not be treated like national magazines for jurisdictional purposes. This is a distinction without a difference. Redmann’s advertisements in these magazines do not subject her to the personal jurisdiction in the state of Louisiana. J. Wilton Jones Co., Inc. v. Touche Ross and Co., 556 So.2d 67 (La.App. 4 Cir.1989). In Jones this Court relied on Charia v. Cigarette Racing Team, Inc., 583 F.2d 184 (5 Cir.1978) which held that advertising in a national boating magazine (a specialized readership) was not a “significant contact for jurisdictional purposes.” Jones, 556 So.2d at 70.

III. Nora Redmann did not have an interest in a real right in Louisiana.

Landry contends that Louisiana has jurisdiction over Nora Redmann because she has an ownership interest in a mortgage on Louisiana real property which is a real right in Louisiana. LSA-R.S. 13:3201(A)(5). Red-mann counters that Comment (e) under this statute indicates that the real rights referred to in that ^statute were limited to mineral rights as set forth in LSA-C.C. art. 3664.1 If it had been the intention of the legislature to limit the real rights referred to in LSA-R.S. 13:3201(A)(5) to only those referred to LSA-C.C. art. 3364, it failed to do so. The clear and unambiguous language of LSA-R.S. 13:3201(A)(5) places no limitation on the term “real rights” either explicitly or implicitly. When the wording of a Section is clear and free of ambiguity, the letter of it shall not be disregarded under the pretext of pursuing its spirit. LSA-R.S. 1:4. When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature. LSA-C.C. art. 9. If the legislature erred in expressing its intention, it is not the function of the judicial branch to correct such an error, unless the error creates an ambiguity. Such an error (if one occurred) should be corrected by the legislature. River Marine Contractors, Inc. v. Board of Com’rs for St. Bernard Port, Har[1179]*1179bor and Terminal Dist., 605 So.2d 654 (La.App. 4 Cir.1992) writ den. 607 So.2d 568 (La.1992). There is no basis for adopting Redmann’s very narrow definition of real rights as that term is used in LSA-R.S. 13:3201(A)(5). The language is broad enough to include a mortgage interest.

But Redmann argues that she has no interest in a mortgage on Louisiana real property. The record contains Nora Redmann’s affidavit stating in pertinent part:

“Similarly, my parents designated me as a co-payee on the Johnson & Theriot mortgage at their own initiative and so that the mortgage would be in my name if and when they predeceased me. My parents were in them seventies when the mortgage was made, and given the fifteen year 15payout period, felt it prudent to have me named as one of two mortgagees. As best I can recall, I did not even learn that I was named as a co-mortgagee until sometime afterwards (I do not recall the exact date that I first learned of the existence of the mortgage), as I did not even personally sign the mortgage instrument. Nor have I realized any income from the mortgage, as the revenue derived from the same has been deposited into my parents’ bank accounts, including the mortgage payment checks that have been made payable to me.

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Cite This Page — Counsel Stack

Bluebook (online)
665 So. 2d 1176, 95 La.App. 4 Cir. 0379, 1995 La. App. LEXIS 3121, 1995 WL 684812, Counsel Stack Legal Research, https://law.counselstack.com/opinion/landry-v-gibbens-lactapp-1995.