Succession of John Phillip Barbee, Jr..

Opinion

SUCCESSION OF JOHN * NO. 2019-CA-0575 PHILLIP BARBEE, JR. * COURT OF APPEAL * FOURTH CIRCUIT * STATE OF LOUISIANA *******

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2018-05429, DIVISION “J” Honorable D. Nicole Sheppard ****** Judge Regina Bartholomew-Woods ****** (Court composed of Judge Roland L. Belsome, Judge Regina Bartholomew-Woods, Judge Dale N. Atkins)

BELSOME, J., CONCURS IN THE RESULT

Christy M. Howley M. Elizabeth Bowman BOWMAN & HOWLEY 629 Lafayette Street Gretna, LA 70053

COUNSEL FOR PLAINTIFF/APPELLANT, ROSE BARBEE

Steven E. Hayes CHEHARDY SHERMAN WILLIAMS One Galleria Blvd. Suite 1100 Metairie, LA 70001

COUNSEL FOR PLAINTIFF/APPELLANT, SUCCESSION OF JOHN PHILLIP BARBEE, JR.

REVERSED AND REMANDED NOVEMBER 27, 2019 This civil appeal arises from the trial court’s decision to deny the probate of

the last will and testament of decedent, John Phillip Barbee, Jr., as well as the

denial of the judgment of possession. Although no party to the succession

challenged the testament, the trial court, sua sponte, contested the validity of

decedent’s signature. Despite affidavits from decedent’s attorney of more than ten

(10) years, two (2) witnesses attesting to the testament at issue, the affirming

testimony of decedent’s spouse of more than twenty (20) years, and evidence that

decedent frequently revised his last will and testament, the trial court insisted that

decedent’s signature looked different on two separate testaments, and therefore,

denied Appellants’ judgment of possession and order of probate. For the reasons

that follow, we find that the trial court abused its discretion in taking said action.

Accordingly, we reverse the ruling of the trial court and remand for further

proceedings consistent with this opinion.

1 FACTUAL BACKGROUND

Plaintiff-Appellant, Rose Aleta Barbee, is the surviving spouse and heir to

the succession of her deceased husband, John Phillip Barbee, Jr. (“decedent”)

Plaintiff-Appellant, Janet Lynn Barbee, (Rose Aleta Barbee and Janet Lynn Barbee

hereinafter collectively “Appellants”) is Mr. Barbee’s daughter and, as provided in

Mr. Barbee’s testament, the independent executrix of the estate.

PROCEDURAL HISTORY

On June 1, 2018, an original petition for order of probate was filed in Civil

District Court for the Parish of Orleans. Attached to the petition, was a purported

last will and testament of decedent dated February 13, 2014. After filing this

purported last will and testament, the attorney handling the succession, realized

that an earlier last will and testament had been filed, as opposed to the latest and

most recent will and testament, which was executed by decedent and dated October

20, 2016. As a result, on November 2, 2018, Appellants filed a “Petition for Order

of Probate to Correct Clerical Error.” Appellants also filed a petition to probate the

October 20, 2016 last will and testament. Appellants requested that the trial court

sign the order probating the latter testament and the judgment of possession.

However, on February 4, 2019, the trial court denied relief for both pleadings,

notwithstanding the fact that there had been no contest to decedent’s testament.

The trial court, sua sponte, believed that decedent’s signatures on the two

testaments “varied drastically.” Appellants filed affidavits executed by decedent’s

attorney and the attesting witnesses to the 2016 testament, and also filed previous

2 testaments1 to evince the similarity of decedent’s signatures on each of the

testaments. Despite the presentation of the various testaments, the trial court

maintained its denial.

On February 11, 2019, Appellants filed a motion and order for new trial and

to vacate denial of judgment; a hearing was held on April 1, 2019. On May 31,

2019, the trial court granted, in part, and denied, in part, Appellants’ motion for

new trial. Among other actions, the trial court ordered Appellants to deposit

$150,000 into the registry of the court, and granted a partial judgment of

possession. In its September 9, 2019 reasons for judgment,2 the trial court explains

that despite the fact that decedent’s testament is uncontested by any party, the trial

court “found that a purported signature of the decedent located on the first page of

the testament varied drastically from previous wills as well as the signature on

every other page of the same will,” and for that reason, the trial court “finds the

signature invalid” and refused to sign both the order of probate, as well as the

judgment of possession. This appeal follows.

1 Appellants attached testaments executed by decedent in the following years: 2003, 2004, 2007, 2010, 2011, 2013, 2014, and 2016. 2 The Louisiana Supreme Court explained that “[a] judgment and reasons for judgment are two separate and distinct documents. La. C.C.P. art.1918. Appeals are taken from the judgment, not the written reasons for judgment.” Greater New Orleans Expressway Comm’n v. Olivier, 2002- 2795, p. 3 (La. 11/18/03); 860 So.2d 22, 24. This Court further explained that “[t]he written reasons for judgment are merely an explication of the trial court’s determinations. Dawson v. Gray & Gray, 2018-0380, 9 (La. App. 4 Cir. 10/24/18); --- So.3d ----.

3 DISCUSSION

Assignment of Error

While Appellants raise as an assignment of error whether the trial court

erred in denying, in part, the motion for a new trial and ordering Appellants to

deposit $150,000 into the registry of the court, this appeal hinges on whether the

trial court erred in challenging, sua sponte, the validity of decedent’s signature,

despite the testament being unchallenged by any party to the succession.

Standard of Review

“[I]t is well settled that a court of appeal may not set aside a trial court’s or

a jury’s finding of fact in the absence of ‘manifest error’ or unless it is ‘clearly

wrong.’” Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989). However, “[w]here one

or more trial court legal errors interdict the fact-finding process, the manifest error

standard is no longer applicable, and, if the record is otherwise complete, the

appellate court should make its own independent de novo review of the record and

determine a preponderance of the evidence.” Ferrell v. Fireman’s Fund Ins.

Co., 1994-1252, p. 7 (La. 2/20/95); 650 So.2d 742, 747. The Louisiana Supreme

Court explained that “legal error occurs when a trial court applies incorrect

principles of law and such errors are prejudicial” and thereby “materially affect the

outcome and deprive a party of substantial rights.” Evans v. Lungrin, 1997-0541, p.

7 (La. 2/6/98); 708 So.2d 731, 735 (citations omitted).

Notarial Testament

4 At the hearing on the motion for a new trial, Appellants presented the trial

court with decedent’s 2016 notarial testament in accordance with the formalities

set forth by La. C.C. arts. 1577-1580.1. Specifically, La. C.C. art. 1577 provides

The notarial testament shall be prepared in writing and dated and shall be executed in the following manner. If the testator knows how to sign his name and to read and is physically able to do both, then:

(1) In the presence of a notary and two competent witnesses, the testator shall declare or signify to them that the instrument is his testament and shall sign his name at the end of the testament and on each other separate page.

(2) In the presence of the testator and each other, the notary and the witnesses shall sign the following declaration, or one substantially similar: “In our presence the testator has declared or signified that this instrument is his testament and has signed it at the end and on each other separate page, and in the presence of the testator and each other we have hereunto subscribed our names this __ day of ____, __.”

See In re Succession of Holbrook, 2013-1181, pp. 3-4 (La. 1/28/14); 144 So.3d

845, 848. In the present case, decedent’s testament met the requirements as spelled

out by the aforementioned codal article. It was executed in the presence of a

notary and two (2) competent witnesses; decedent’s signature appeared on each

page of his testament, as well as, at the end of his testament; and the attestation

clause at the conclusion of the testament was typed and executed exactly as

contemplated by La. C.C. art. 1577(2).

No party to the succession challenged the validity of decedent’s testament.

However, the trial court, sua sponte, challenged the validity of decedent’s

signature because it opined that decedent’s signature varied; and for that reason,

5 the trial court refused to grant Appellants’ order to probate and judgment of

possession. Appellants assert that the trial court committed legal error in reaching

this conclusion. In support of this argument, Appellants rely on Succession of

Squires, 640 So.2d 813, 815 (La. App. 3rd Cir. 1994), which references Succession

of Guezuraga, 512 So.2d 366 (La.1987), and provides “there were no allegations

of fraud. Here the testimony of the notary and one of the witnesses is that they saw

the testator initial the first page and sign his name to the last two pages. There is no

evidence to the contrary. Clearly the decedent intended this to be his Last Will and

Testament.” Similarly, in the present case, in addition to the affidavits of

decedent’s attorney and the two (2) attesting witnesses, decedent’s wife testified

that the signature on the testament was, in fact, that of decedent and that he “had a

variety of ways that he would write, and it would depend on how tired or irritated

he was about who was asking for the signature.” She further testified that she had

“seen his signature look like this in the past” and that there was no reason for

decedent’s signature to have been forged.

Further in line with the jurisprudential presumption in favor of validity of

testaments, La. C.C.P. art 2891 provides that “[a] notarial testament, a nuncupative

testament by public act, and a statutory testament do not need to be proved. Upon

production of the testament, the court shall order it filed and executed and this

order shall have the effect of probate” (emphasis supplied). Based on the

aforementioned alone, once presented with the notarial testament, the trial court,

hearing no contest from the parties to the succession, was under a mandatory

6 obligation to probate it, and enter a judgment of possession in accordance with the

mandates set forth in the testament.

Moreover, decedent’s uncontested notarial testament was an authentic act as

contemplated by La. C.C. art. 1833,3 and “the very goal envisioned by authentic

acts…is ‘to prevent contestations concerning the proof or evidence’ that the

signatures are indeed those of the parties” was satisfied in this case. Succession of

Robin, 2019-0405, p.8 (La. 10/22/19) (quoting Acurio v. Acurio, 2016-1395, p. 6

(La. 5/3/17), 224 So.3d 935, 939).

Uncontested Testament

Appellants argue that there had been no contest to the validity or probate of

decedent’s testament other than that raised by the trial court, sua sponte, which was

inappropriate; to that end, Appellant rely on Succession of Flynn, 161 La. 707, 709;

109 So. 395, 396 (1926), in which the Louisiana Supreme Court reasons

‘an action can only be brought by one having a real and actual interest.’ No one is permitted to question the right of another in respect to a certain subject-matter unless he has a legal interest therein himself. The province of the 3 La. C.C. art. 1833 provides:

A. An authentic act is a writing executed before a notary public or other officer authorized to perform that function, in the presence of two witnesses, and signed by each party who executed it, by each witness, and by each notary public before whom it was executed. The typed or hand-printed name of each person shall be placed in a legible form immediately beneath the signature of each person signing the act.

B. To be an authentic act, the writing need not be executed at one time or place, or before the same notary public or in the presence of the same witnesses, provided that each party who executes it does so before a notary public or other officer authorized to perform that function, and in the presence of two witnesses and each party, each witness, and each notary public signs it. The failure to include the typed or hand-printed name of each person signing the act shall not affect the validity or authenticity of the act.

C. If a party is unable or does not know how to sign his name, the notary public must cause him to affix his mark to the writing.

7 judiciary is to interpret the law and determine the controversy only where there is a real and actual issue in contest between the litigants.

Similarly, this Court, in In re Succession of Duskin explained “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.” 2014-0236, pp. 4-5 (La. App.

4 Cir. 11/19/14); 153 So.3d 567, 571-72; In re Succession of Vickers, 2004-0887,

p. 12 (La. App. 4 Cir. 12/22/04), 891 So.2d 98, 106 (Love, J., concurring). Based

on the aforementioned, the trial court lacked standing to challenge the validity or

veracity of decedent’s signature when there was no such challenge raised by any

party. The trial court exceeded its role as a gatekeeper and an impartial referee to

the proceeding when it inserted itself as an active participant by challenging the

validity of decedent’s signature despite no challenge from the parties to the

succession.

Accordingly, we find Appellants’ assignment of error meritorious and

reverse the trial court.

CONCLUSION

For the aforementioned reasons, we find that the trial court committed legal

error, and reverse the trial court’s denial of Appellants’ order to probate and

judgment of possession. Further, we order that the testament of decedent dated

October 20, 2016, be probated, the $150,000 deposited into the registry of the court

8 be returned to Appellants, and a judgment of possession be entered in accordance

with the terms of decedent’s testament dated October 20, 2016.

REVERSED AND REMANDED