Succession of Timothy Dupre Mosing

• Court: Louisiana Court of Appeal
• Decided: April 21, 2021
• Docket: CA-0021-0009
• Status: Unknown

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

CA 21-9

SUCCESSION OF

TIMOTHY DUPRE MOSING

**********

APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. 2008-0461 HONORABLE THOMAS R. DUPLANTIER, DISTRICT JUDGE

BILLY H. EZELL

JUDGE

Court composed of Billy H. Ezell, Candyce G. Perret and Sharon D. Wilson, Judges.

MOTION TO CONSOLIDATE DENIED. Jack Marks Alltmont Sessions, Fishman & Nathan, L.L.C. 400 Poydras Street, Suite 2550 New Orleans, LA 70130 (504) 582-1500 COUNSEL FOR PLAINTIFFS/APPELLANTS: Carmen Bergeron Mosing, individually, and Midge Keller, as the tutrix of minor children, Chase and Chloe Mosing

Michael R. Allweiss Lowe, Stein, Hoffman, Allweis & Hauver, L.L.P. 701 Poydras Street, #3600 New Orleans, LA 70139 (504) 581-2450 COUNSEL FOR PLAINTIFFS/APPELLANTS: Carmen Bergeron Mosing, individually, and Midge Keller, as tutrix of minor children, Chase and Chloe Mosing

Richard Charles Stanley Eva J. Dossier Stanley, Reuter, Thornton & Alford, L.L.C. 909 Poydras Street, Suite 2500 New Orleans, LA 70112 (504) 523-1580 COUNSEL FOR PLAINTIFFS/APPELLANTS: Carmen Bergeron Mosing, individually, and Midge Keller, as tutrix of minor children, Chase and Chloe Mosing

Max N. Tobias Jr. Liska, Exnicios & Nungesser 1515 Poydras Street, Suite 1400 New Orleans, LA 70112 (504) 410-9611 COUNSEL FOR PLAINTIFFS/APPELLANTS: Carmen Bergeron Mosing, individually, and Midge Keller, as tutrix of minor children, Chase and Chloe Mosing

Jeffrey K. Coreil Frank X. Neuner, Jr. Neuner Pate 1000 West Pinhook Road, Suite 200 Lafayette, LA 70503 (337) 237-7000 COUNSEL FOR DEFENDANTS/APPELLEES: Frank’s Casing Crew & Rental Tools,Inc. Frank’s International, LLC Daniel J. Finch Randazzo, Giglio & Bailey, L.L.C. 900 East St. Mary Blvd, Suite 200 Lafayette, LA 70503 (337) 291-4900 COUNSEL FOR DEFENDANTS/APPELLEES: Sharon Mosing Miller

Gary McGoffin Durio, McGoffin, Stagg & Ackermann 220 Heymann Boulevard Lafayette, La 70503 (337) 233-0300 COUNSEL FOR DEFENDANTS/APPELLEES: Michael Frank Mosing Steven Brent Mosing EZELL, Judge.

Defendants-Appellees, Steven Brent Mosing (Brent) and Michael Frank

Mosing (Mike), filed a motion to consolidate the instant appeal (the Damages

Action) with consolidated appeals, docket numbers 20-632 and 20-633 (the

Annulment Action). For the following reasons, we deny the motion to consolidate.

The instant appeal arises from the death of Timothy Mosing who passed on

April 1, 2008. In 2018, Mr. Mosing’s surviving spouse, as tutor for their two

minor children, filed a claim for damages in the succession against her late

husband’s sister, the Independent Administrator of the succession. In 2019, the

petition was amended to join Mr. Mosing’s two brothers, Brent and Mike.

Defendants-Appellees argue that there is a single transaction underlying the

Damages Action and the Annulment Action—the 2008 dation of Frank’s Casing

Crew stock shares on behalf of the minors to Sharon Mosing Miller, Brent, and

Mike, in satisfaction of their loan of $1.65 million to the Mosing Succession to

satisfy its IRS tax obligation. The dation was confirmed in the Homologation of

the Independent Administrator’s final accounting on March 19, 2019. Defendants-

Appellees conclude that the three appeals concern the same parties, arise out of the

same case, concern the same transaction, and will require reference to all three

records for a complete adjudication.

Plaintiffs-Appellants, Carmen Bergeron Mosing, individually, and Midge

Keller, as tutrix of minor children, Chloe Bella Mosing and Chase Dupre Mosing,

assert that this court correctly consolidated docket numbers 20-632 and 20-633, the

Annulment Action, because both appeals are from the same district court case and

arise from the same Petition to Annul Judgment of Homologation. Also, both appeals involve allegations of ill practice that occurred in 2019 and 2020 and

concern judgments entered by the Honorable Laurie A. Hulin on July 2, 2020.

In contrast, Plaintiffs-Appellants aver, the motion to consolidate the instant

appeal, the Damages Action, with the two consolidated appeals is subject to two

fundamental errors. First, the instant appeal is the subject of a separate district

court case, different operative pleadings, and different operative facts which

occurred about a decade prior to those at issue in the Annulment Action. Further,

the instant appeal concerns a judgment entered by the Honorable Thomas

Duplantier on August 19, 2020, following an entirely separate hearing from the

one in the Annulment Action. In short, Plaintiffs-Appellants conclude that the

Damages Action and the Annulment Action were based on different facts and

proceeded entirely separate in district court from the beginning to the end.

Second, Plaintiffs-Appellants argue that the motion to consolidate comes too

late. Plaintiffs-Appellants state that they suggested consolidation of the matters

when the parties were in district court. Defendants-Appellees, however, repeatedly

refused to agree to consolidation, resulting in the development of two entirely

separate records for separate cases which now present different sets of legal issues

on appeal. Plaintiffs-Appellants urge that Defendants-Appellees should not now

be allowed to “reverse course” and potentially prejudice Plaintiffs-Appellants,

especially since Defendants-Appellees waited until after Plaintiffs-Appellants

submitted their briefs in these separate appeals, addressing two distinct sets of legal

issues. The briefing deadlines, Plaintiffs-Appellants point out, were known to

Defendants-Appellees, yet they waited until after the deadlines passed to file their

motion.

2 Plaintiffs-Appellants state that they have no objection to the appeals

proceeding before the same panel but urge there is no need to conflate the briefing

and records at this late stage. Doing so, Plaintiffs-Appellants aver, would confuse

the issues on appeal and potentially prejudice them. Plaintiffs-Appellants add that

the need to reference all three records for a complete adjudication can be

accomplished without the need for consolidation. Pursuant to Uniform Rules—

Courts of Appeal, Rule 2-1.14 provides that “[a]ny record lodged in this court may,

with leave of court, be used, without necessity of duplication, in any other case on

appeal or on writ.”

Although the Damages Action and the Annulment action originate from the

same district court case and arise from the same Petition to Annul Judgment of

Homologation, we find that the instant appeal, known as the Damages Action,

involves a separate district court case, different operative pleadings, and different

operative facts from the consolidated appeal cases known as the Annulment Action.

Additionally, at this late date in the appellate process, we find that the consolidation of

the cases may potentially prejudice Plaintiffs-Appellants who have already submitted

appellate briefs in both appeals. Accordingly, we deny the motion to consolidate.

MOTION TO CONSOLIDATE DENIED.

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION. Uniform Rules―Courts of Appeal, Rule 2-16.3.