Succession of Salvatore

216 So. 3d 1065, 16 La.App. 5 Cir. 435, 2016 La. App. LEXIS 2336
CourtLouisiana Court of Appeal
DecidedDecember 21, 2016
DocketNO. 16-CA-435
StatusPublished

This text of 216 So. 3d 1065 (Succession of Salvatore) 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
Succession of Salvatore, 216 So. 3d 1065, 16 La.App. 5 Cir. 435, 2016 La. App. LEXIS 2336 (La. Ct. App. 2016).

Opinion

CHAISSON, J.

hln this succession proceeding, defendant appeals a summary judgment that set aside the Judgment of Possession previously rendered in this matter. Plaintiffs, who are the children of the decedent, answer defendant’s appeal seeking a declaration that they are forced heirs of their mother, Kathleen Joy Salvatore. For the reasons that follow, we affirm the summary judgment setting aside the Judgment of Possession previously rendered in this matter, and we dismiss plaintiffs’ answer to this appeal. We further remand this matter to the district court for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

Kathleen Theresa Joy Martin Salvatore (“Mrs. Salvatore”) died on September 4, 1997. Over fourteen years later, on December 15, 2011, her surviving husband, Joseph M. Salvatore, filed a Petition to [1067]*1067Probate Mrs. Salvatore’s last will and testament. In his petition, Mr. Salvatore acknowledged that Mrs. Salvatore had three children from a prior marriage, and that in her last will and testament, Mrs. Salvatore bequeathed those children the forced portion of her estate. He further alleged, however, that because Mrs. Salvatore died during the transitional period after the abolition of forced heirship in Louisiana, “the applicable transitional statute, La. R.S. 9:2501 et seq., mandated removal of decedent’s children as forced heirs thus leaving decedent’s husband as the universal legatee of her estate.” Mr. Salvatore did not request that any notice of this proceeding be given to Mrs. Salvatore’s children, and they now contend that they were given no notice and were not aware that their mother’s estate had been opened. On January 17, 2012, Mr. Salvatore filed a Petition for Possession, making the same allegations regarding Mrs. Salvatore’s children that he had made in his Petition to Probate. On that same date, the district court rendered adjudgment of Possession recognizing Mr. Salvatore as the sole heir and legatee of Mrs. Salvatore and sending him into possession of the assets of her estate.

When Mrs. Salvatore’s children from her prior marriage, John R. Raines, Kathleen Raines Beckmann and Lisa Dawn Raines (“the Salvatore children”), subsequently learned of the Judgment of Possession, they filed a Petition to Annul Judgment of Possession and to Reopen Succession, in which they named Michael M. Salvatore, in his capacity as universal heir and independent executor of the estate of Joseph Salvatore, as defendant.1 In that petition, the Salvatore children prayed for judgment “vacating and annulling the judgment of possession signed herein on January 17, 2012” and reopening the succession and confirming John R. Raines as executor. As the grounds for annulling the Judgment of Possession, they alleged that it was procured by fraud and ill practices in that they were not given notice of the proceedings and an opportunity to be heard, and they were forced heirs of their mother and deprived of their inheritance based upon an erroneous interpretation of the forced heirship law and therefore improperly excluded from the Judgment of Possession. Although they alleged their status as forced heirs as a ground for annulling the Judgment of Possession, they did not specifically pray for a declaratory judgment recognizing them as such,

The Salvatore children thereafter filed a Motion for Summary Judgment praying for judgment annulling the previously rendered Judgment of Possession on the grounds that it was based upon an unjustified legal assumption that they were not entitled to their forced portion. Although the Salvatore children state in their memorandum in support of their motion that they were not provided notice of the succession proceeding, they do not argue lack of notice as the grounds that the Judgment of Possession should be annulled. Like their Petition to Annul, their | ¡¡Motion for Summary Judgment did not specifically pray for a declaratory judgment recognizing them as forced heirs of their mother’s estate.

On March 29, 2016, a hearing was held on the Salvatore children’s summary judgment motion. Neither party raised or argued the issue of lack of notice, however, the district judge questioned counsel for [1068]*1068both parties regarding this issue and expressed his concern regarding the lack of notice. Thereafter, the district court granted summary judgment in favor of the Salvatore children “only insofar as setting aside the judgment of the Court dated January 17, 2012.” The district judge did not provide ■written reasons for judgment, but it is clear from the transcript of the hearing that, even though the Salvatore children did not argue lack of notice of the succession proceeding as the grounds upon which they sought annulment of the judgment, the district judge set aside the Judgment of Possession due to lack of notice. The district judge specifically stated that there needed to be a subsequent hearing regarding interpretation of Mrs. Salvatore’s last will and testament, to determine whether she intended to leave her children something over and above their forced portion. The district court therefore did not resolve the question of whether or not the Salvatore children are forced heirs of their mother’s estate.

It is from this judgment that Michael M. Salvatore now appeals, assigning as error the district court’s granting of the summary judgment.2 The Salvatore children answer Michael M. Salvatore’s appeal, objecting to the district court’s reasons for setting aside the Judgment of Possession, without resolving the question of whether they are forced heirs of their mother’s estate under the law and therefore entitled to the forced portion of her estate. They therefore request, in effect, that the district court’s March 29, 2016 judgment be amended by this Court |4to declare that they are forced heirs of their mother’s estate, and that in all other respects the judgment be affirmed.

DISCUSSION

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. Bell v. Parry, 10-369 (La. App. 5 Cir. 11/23/10), 61 So.3d 1, 2. The summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of every action. La. C.C.P. art. 966(A)(2). A motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B)(2).

Appellate courts review a judgment granting or denying a motion for summary judgment de novo. Thus, appellate courts ask the same questions the trial court does in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Breaux v. Fresh Start Properties, L.L.C., 11-262 (La.App. 5 Cir. 11/29/11), 78 So.3d 849, 852.

In this case, there are no material facts in dispute. Resolution of the Salvatore children’s Motion for Summary Judgment involves only an interpretation and [1069]*1069application of the pertinent statutes relating to forced heirship, and an interpretation of Mrs. Salvatore’s last will and testament in accordance with those statutes. We therefore analyze the Salvatore children’s Motion for Summary Judgment accordingly, utilizing a

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Related

Bell v. Parry
61 So. 3d 1 (Louisiana Court of Appeal, 2010)
Millet v. Braud
179 So. 3d 849 (Louisiana Court of Appeal, 2015)
Breaux v. Fresh Start Properties, L.L.C.
78 So. 3d 849 (Louisiana Court of Appeal, 2011)
Mathes v. Schwing
123 So. 156 (Louisiana Court of Appeal, 1929)

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Bluebook (online)
216 So. 3d 1065, 16 La.App. 5 Cir. 435, 2016 La. App. LEXIS 2336, Counsel Stack Legal Research, https://law.counselstack.com/opinion/succession-of-salvatore-lactapp-2016.