Succession of Robert Gunter

• Court: Louisiana Court of Appeal
• Decided: March 1, 2006
• Docket: CA-0005-1122
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

CA 05-1122

SUCCESSION OF ROBERT GUNTER

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APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 35,343 HONORABLE BENJAMIN CLYDE BENNETT, DISTRICT JUDGE

BILLY HOWARD EZELL JUDGE

Court composed of Sylvia R. Cooks, Billy Howard Ezell, and James T. Genovese, Judges.

AFFIRMED.

Richard E. Lee Attorney at Law 810 Main Street Pineville, LA 71360 (318) 448-1391 Counsel for Appellants: Glenn Edward Belgard Johnna Sue Haynes Belgard Ricky L. Sooter Attorney at Law P. O. Drawer 1791 Alexandria,, LA 71309-1791 (318) 445-3631 Counsel for Appellee: Estelle Wiggins Gunter Ryder

Zebulon M. Winstead Provosty, Sadler, deLaunay P. O. Drawer 1791 Alexandria, LA 71309-1791 (318) 445-3631 Counsel for Third-Party Appellee: Ricky L. Sooter EZELL, JUDGE.

This appeal presents the issue of the right of parties to demand annulment of

a judgment of possession rendered in a succession proceeding when they are neither

heirs nor creditors. For the following reasons, we affirm.

FACTS

Estelle Wiggins Gunter a/k/a Estelle Wiggins Gunter Ryder (hereinafter

referred to as Ms. Ryder) filed a petition to probate a statutory will and for possession

on August 4, 2004. Her husband Robert Gunter died on January 24, 1958, but no

succession had been opened until the filing of this petition. A judgment of possession

was signed on August 4, 2004.

Subsequently, on August 23, 2004, Glenn and Johnna Belgard filed a petition

to annul the probated testament and judgment of possession, asserting that the will

was not a legally-proper statutory will. The only interest the Belgards had in the

probate proceedings was their claim that they had an interest in two tracts of land

which were listed in the judgment of possession. The Belgards’ petition stated that

the possession and ownership of the tracts of land were being litigated in two other

suits. In addition to Ms. Ryder, her attorney, Ricky L. Sooter, was named a defendant

in the petition.

Both Ms. Ryder and Mr. Sooter filed exceptions of no cause of action, no right

of action, and prematurity. A hearing was held on October 11, 2004. Judgment

granting the exceptions on behalf of Mr. Sooter was signed on October 22, 2004.

Judgment granting the exception of no right of action on behalf of Ms. Ryder was

signed on June 20, 2005. The Belgards appealed the judgments.

1 LAW AND ANALYSIS

This case was recently addressed by this court in Ryder v. Belgard, 05-452

(La.App. 3 Cir. 11/2/05), 915 So.2d 408. That appeal involved a judgment of the

lower court in a petitory action declaring Ms. Ryder to be owner of one of the tracts

of land. In addition to appealing the trial court’s decision regarding ownership of the

land, the Belgards appealed the trial court’s failure to find the judgment of possession

in the succession proceeding null and void “due to the fact that Robert’s testament

failed to satisfy the requirements for a nuncupative will by public act.” Id. at 414.

Citing LeGlue Buick, Inc. v. Smith, 390 So.2d 262 (La.App. 3 Cir. 1980), this court

ruled that the Belgards could not attack Mr. Gunter’s will collaterally.

The case before us now involves a direct attack on Mr. Gunter’s will in the

succession proceeding itself, asking that the judgment of possession be annulled.

La.Code Civ.P. art. 2931. Therefore, we will address the merits of the Belgards’

claim regarding the trial court’s decision to grant Mr. Sooter’s and Ms. Ryder’s

exceptions of no right of action.

The trial court granted exceptions of no right of action on behalf of both Mr.

Sooter and Ms. Ryder. Article 681 of the Louisiana Code of Civil Procedure provides

that “an action can be brought only by a person having a real and actual interest

which he asserts.” An exception of no right of action is used in order to determine

whether a plaintiff belongs to a class of individuals to which the law grants the cause

of action advanced. Reese v. State Dept. of Pub. Safety, 03-1615 (La. 2/20/04), 866

So.2d 244. In considering the exception, the court determines “whether the particular

plaintiff has a right to bring the suit, but it assumes that the petition states a valid

cause of action for some person and questions whether the plaintiff in the particular

case is a member of the class that has a legal interest in the subject matter of the

2 litigation.” Id. at 246.

The Belgards seek to have the judgment of possession annulled alleging that

the statutory testament is void ab initio, has no existence in law, and can be attacked

by anyone against whom it is sought to be enforced. They claim the will is void ab

initio due to the fact that at the time the will was executed a statutory testament could

be executed only by an individual who could sign his name, and Mr. Gunter signed

the will with an “X.”

In finding that an ex-wife had no right of action to annul a testament the fourth

circuit stated:

Appellant is not an heir or legatee of the deceased by means of any law or other purported testament. If the probated testament were annulled, there being no other purported testament, then decedent’s estate would devolve under our laws of intestacy. If decedent was declared to have died intestate because his only testament was declared invalid, appellant would not be among those persons who would inherit from the deceased’s estate.

Succession of Moran, 485 So.2d 623, 625 (La.App. 4 Cir.), writ denied, 488 So.2d

204 (La.1986).

In Succession of Gardiner, 366 So.2d 1065 (La.App. 3 Cir.), writs denied, 366

So.2d 154, 156 (La.1979), this court recognized the right of a legal heir to contest the

validity of a will. This court reasoned that a legal heir who would inherit, or share

in the inheritance, if a will was declared null, had a right of action to contest the

validity of the testament.

In Guidry v. Dufrene, 96-194 (La.App. 1 Cir. 11/8/96), 687 So.2d 1044, the

court held that the father of an heir who had never been married to the mother may

have an interest in the assets of the mother’s succession, but had no interest in the

succession itself. The first circuit held that the father had no standing to assert an

action for nullity of the judgment of possession.

3 A similar situation exists in this case. While the Belgards may have an interest

in the property that is part of the succession proceedings, they have no interest

whatsoever in the succession of Robert Gunter. We, therefore, agree with the trial

court’s decision to grant the exceptions of no right of action filed by both Mr. Sooter

and Ms. Ryder.

For the foregoing reasons, we affirm the judgment of the trial court sustaining

the exceptions. Costs of this appeal are assessed to Glenn and Johnna Belgard.