Succession of Willie Hickman, Jr. .

• Court: Louisiana Court of Appeal
• Decided: March 15, 2023
• Docket: 2022-CA-0730
• Status: Published

Opinion

SUCCESSION OF WILLIE * NO. 2022-CA-0730 HICKMAN, JR. * COURT OF APPEAL * FOURTH CIRCUIT * STATE OF LOUISIANA *******

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2018-10047, DIVISION “A” Honorable Ellen M Hazeur, Judge ****** Judge Paula A. Brown ****** (Court composed of Judge Joy Cossich Lobrano, Judge Rosemary Ledet, Judge Paula A. Brown)

Bryan C. Reuter Patrick M. Bollman STANLEY REUTER ROSS THORNTON & ALFORD, LLC 909 Poydras Street, Suite 2500 New Orleans, LA 70112

COUNSEL FOR PETITIONER/APPELLANT

Elsbet C. Smith William Macaluso CHEHARDY, SHERMAN, WILLIAMS, MURRAY, RECILE, STAKELUM & HAYES, P.L.C. 111 N. Oak Street Suite 200 Hammond, LA 70401

COUNSEL FOR INDEPENDENT EXECUTRIX/APPELLEE

REVERSED AND REMANDED MARCH 15, 2023 PAB

JCL

RML

This is a succession proceeding. Appellant, Debbie Hickman (“Debbie”),

appeals the district court’s January 24, 2022 judgment, which granted Appellee’s,

Sandra Hickman’s (“Mrs. Hickman”), motion for summary judgment. Mrs.

Hickman alleged in the motion for summary judgment that Debbie could not meet

her burden of proof that her father, Willie Hickman Jr. (“Decedent”), lacked

testamentary capacity at the time he executed his last will and testament (the

“testament”). For the reasons that follow, we reverse the judgment of the district

court and remand for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

On May 23, 2017, Decedent, a resident of Orleans Parish, died testate.

Decedent executed the testament on November 7, 2013, and appointed his wife,

Mrs. Hickman, as the independent executrix of his estate. On October 5, 2018,

Mrs. Hickman filed, in the district court, a petition seeking to probate Decedent’s

testament (the “petition to probate”) and letters of independent administration of

Decedent’s estate. In the petition to probate, Mrs. Hickman alleged Decedent was

married to her at the time of his death. From his first marriage to Ruth W.

Hickman, Decedent had two children, Debbie and Katrina Hickman-Lynch.

1 Katrina Hickman-Lynch predeceased Decedent and had six descendants of her

own.1 Mrs. Hickman attached to her petition to probate an affidavit of death,

domicile and heirship; Decedent’s testament; and a sworn oath as independent

executor. On the same day, the district court named, appointed and confirmed

Mrs. Hickman as the independent executrix of Decedent’s estate.

On February 27, 2019, Debbie filed a motion to annul testament and remove

independent executrix (“motion to annul”) for the Decedent’s lack of testamentary

capacity. Debbie alleged that Decedent suffered from Alzheimer’s disease for

years before his death and was not competent at the time he executed the

testament. As such, Debbie contended that the testament was invalid. Debbie

attached to the motion to annul an affidavit she executed that indicated Decedent

was suffering from dementia and Alzheimer’s disease.2 Thereafter, Mrs. Hickman

1Katrina’s children are: Lavar Hickman-Lynch, Monet Hickman-Lynch, Simone Hickman- Lynch, Mia Hickman-Lynch, Marrie Hickman-Lynch, and Micholet Hickman-Lynch. Micholet Hickman-Lynch’s name is spelled as written in Mrs. Hickman’s pleadings and is spelled as Micolette in Debbie’s pleadings. 2 Specifically, Debbie attested:

That her father lacked capacity in 2013 because by 2012, Mr. Hickman was confusing his children and having trouble recognizing them. In 2012, Mr. Hickman was unable to recognize his first wife, Ruth Hickman, to whom he was married for 20 years[;]

Around the same time, Mr. Hickman was regularly confused and agitated. He began to disrupt his regular church services at the church where he was an elder and where had attended services for more than 60 years. Due to his behavior related to his dementia and Alzheimer’s, the church asked Mr. Hickman to sit in the back of the church, and the church assigned someone to sit with him during the services;

On or around the same time that the purported will was executed, her father still believed he was serving in the Air Force, even though he had been honorably discharged more than 50 years before;

Her father stopped working for Entergy prior to 2005. On or around the same time that the purported will was executed, her father still believed that he was working for Entergy even though he had retired more than 7 years previously;

2 filed an opposition to the motion to annul, a peremptory exception of nonjoinder

for Debbie’s failure to join Katrina Hickman-Lynch’s surviving children, and a

dilatory exception of vagueness. The motion to annul was originally scheduled for

hearing on April 12, 2019, but was continued several times. On May 13, 2020,

Debbie’s attorney filed a motion to withdraw as counsel of record, which the

district court granted on May 26, 2020.

On December 1, 2020, Mrs. Hickman filed a motion to withdraw her

dilatory exception of vagueness and to reset her peremptory exception of non-

joinder for hearing at the next available date. The matter was scheduled for

hearing on February 19, 2021, but was continued by an Ex Propio Motu Order of

the district court to May 14, 2021 via Zoom. Debbie filed a pro se motion for a

continuance on May 12, 2021, wherein she alleged that because she was caring for

her ill mother in Florida, she had not received any of the service notices that were

sent to her residence in New York, and she needed additional time to retain an

attorney. On May 14, 2021, the district court heard argument on Mrs. Hickman’s

peremptory exception of non-joinder and Debbie’s motion to continue. Debbie was

self-represented. Following, the district court rendered judgment denying

Debbie’s motion for continuance, maintaining Mrs. Hickman’s peremptory

exception of non-joinder and ordering Debbie to amend her motion to annul to join

the necessary parties within 45 days of the judgment. Debbie, through new

counsel of record, filed her amended motion to annul on July 7, 2021, naming

Katrina Hickman-Lynch’s descendants to the action.

This was unusual behavior for her father who was an accountant during his professional life and was a very detailed and responsible person. Affiant believes that this erratic and confused behavior demonstrates that her father was incompetent before 2013[.]

3 On October 11, 2021, Mrs. Hickman filed a motion for summary judgment,

seeking a determination that Debbie could not establish that Decedent lacked the

requisite mental capacity at the time he executed the testament. Mrs. Hickman

asserted that the testament was prepared and notarized on November 7, 2013, by

Steven Hayes, a partner at Chehardy Sherman Williams and witnessed by C. Kay

Boutte and Marilyn Aleman, who were also employed by the law firm Chehardy

Sherman Williams. In support of her motion for summary judgment, Mrs.

Hickman introduced as evidence the testament, her affidavit and the affidavits of

Steven Hayes, C. Kay Boutte, and Marilyn Aleman.

Debbie filed an opposition to the motion for summary judgment on

December 22, 2021, contending that additional discovery was necessary because

the only medical records available to her at the time began on January 10, 2014,

after the Decedent had executed the testament. In support, Debbie attached several

exhibits, including copies of the Decedent’s 2014 and 2016 medical records—that

indicated Decedent had been memory loss and later dementia—along with a copy

of the subpoena duces tecum filed into the court record on December 22, 2021,

directed to Ochsner Health Partners Hospital (“Ochsner”) with a return date of

January 5, 2022. Debbie argued that the medical records provided and attached to

her opposition revealed the Decedent received previous medical care by doctors at

Ochsner since 2012, hence the need for the additional medical records.

The motion for summary judgment came for hearing on January 7, 2022,

and on January 24, 2022, the district court rendered judgment granting the motion

and dismissing Debbie’s motion to annul with prejudice. The district court,

acknowledging the outstanding subpoena for additional medical records, found that

Debbie had adequate opportunity to conduct discovery, but waited until less than

4 three weeks before the hearing to issue the subpoena to Ochsner. The district court

further found that based on the evidence admitted into the record, Debbie failed to

produce any factual support sufficient to establish by clear and convincing

evidence that the Decedent lacked testamentary capacity.

Debbie filed a motion for new trial on February 2, 2022, arguing that she

was legally entitled to conduct additional discovery regarding the Decedent’s

testamentary capacity and that she would soon obtain newly discovered medical

evidence from the Ochsner medical records, warranting a new trial on the issue of

Decedent’s testamentary capacity. The matter came for hearing on July 22, 2022,

and on August 1, 2022, the district court rendered judgment denying Debbie’s

motion. This timely suspensive appeal followed.

DISCUSSION

On appeal, Debbie argues that the district court erred in granting Mrs.

Hickman’s motion for summary judgment and in denying her motion for new trial.

Debbie raises three assignments of error:

(1) The district court erred by granting the motion for summary judgment rather than allowing Debbie to conduct additional discovery;

(2) The district court erred in denying Debbie’s motion for new trial by failing to consider what would have been newly-discovered Ochsner medical records; and

(3) The district court erred in denying Debbie’s motion for new trial by failing to consider Dr. Behar’s affidavits instead of exercising its discretion under Article 1973.

“Before considering the merits of any appeal, an appellate court has ‘the

duty to determine sua sponte whether [proper] jurisdiction exists, even when the

parties do not raise the issue.’” Lirette v. Adams, 22-0552, 22-0553, p. 17 (La.

App. 4 Cir. 1/31/23), ___So.3d____, ____, 2023 WL 1252737, at *9 (citing Jones

5 [v. Whips Electric, LLC], 22-0095, p. 2 (La. App. 4 Cir. 9/16/22), 348 So.3d 849,

851). Louisiana Code of Civil Procedure Article 2083 provides that “a final

judgment is appealable in all causes in which appeals are given by law, whether

rendered after hearing, by default, or by reformation under Article 1814” and that

“[a]n interlocutory judgment is appealable only when expressly provided by law.”

“A judgment that does not determine the merits but only preliminary matters in the

course of the action is an interlocutory judgment.” La. C.C.P. art. 1841. Thus, “the

denial of a motion for new trial is not a final, appealable judgment.” New Orleans

Fire Fighters Pension & Relief Fund v. City of New Orleans, 17-0320, p. 5 (La.

App. 4 Cir. 3/21/18), 242 So. 3d 682, 688, n. 12 (citing 9029 Jefferson Highway,

L.L.C. v. S & D Roofing, L.L.C., 15-686, p. 4 (La. App. 5 Cir. 2/24/16), 187 So.3d

522, 524). “However, an appellate court may consider interlocutory judgments,

such as the denial of a motion for new trial, as part of an unrestricted appeal from a

final judgment.” Id. (citing Henry v. Sullivan, 16-0564, p. 7 (La. App. 1 Cir.

7/12/17), 223 So.3d 1263, 1272). In other words, the reviewing court “consider[s]

an appeal of the denial of a motion for new trial as an appeal of the judgment on

the merits of the case as well when . . . it is clear from the appellant’s brief that

[they] intended to appeal the merits of the case.” Clotworthy v. Scaglione, 11-

1733, p. 3 (La. App. 4 Cir. 5/23/12), 95 So.3d 518, 520 (citing Smith v. Hartford

Acc. & Indem. Co., 254 La. 341, [348-49], 223 So.2d 826, 828-29 (La. 1969)).

In the case sub judice, review of the record and appellate briefs clearly

demonstrate that Debbie intended to appeal the merits of the underlying motion for

summary judgment. Thus, we conclude that this Court has jurisdiction to address

the merits of the appeal.

6 Turning to the merits of this appeal, Debbie argues that the district court

erred as a matter of law in granting Mrs. Hickman’s motion for summary judgment

and denying Debbie the opportunity to complete her pending discovery.

Conversely, Mrs. Hickman contends that Debbie had adequate time to conduct

discovery in the years since the litigation was instituted. Mrs. Hickman submits

that Debbie made no request for a continuance and despite her request to conduct

additional discovery in her opposition, the district court has broad discretion to

grant motions for summary judgment prior to completion of discovery.

“‘Appellate courts review a judgment granting or denying a motion for

summary judgment de novo.’” Francois v. Ports Am. Louisiana, L.L.C., 20-0440,

pp. 3-4 (La. App. 4 Cir. 3/10/21), 314 So.3d 894, 897 (quoting Serpas v. Univ.

Healthcare Sys., 16-0948, p. 2 (La. App. 4 Cir. 3/8/17), 213 So.3d 427, 428).

“Ordinarily, a motion for summary judgment may be granted only ‘[a]fter an

opportunity for adequate discovery . . .’” Id. (quoting La. C.C.P. 966(A)(3)).

“When discovery is alleged to be incomplete, a trial court has the discretion

either to hear the summary judgment motion or to grant a continuance to allow

further discovery.” Roadrunner Transportation Sys. v. Brown, 17-0040, p. 11 (La.

App. 4 Cir. 5/10/17), 219 So.3d 1265, 1272 (citing Simoneaux v. E.I. du Pont de

Nemours and Co., 483 So.2d 908, 912 (La. 1986); Eason v. Finch, 32,157, p. 7

(La. App. 2 Cir. 8/18/99), 738 So.2d 1205, 1210). “In this procedural context, a

trial court’s choice to hear a motion for summary judgment or to grant a

continuance is reviewed under an abuse of discretion standard.” Id. at p. 11, 219

So.3d at 1272-73 (citing Rivarde v. City of New Orleans, 15-0655, p. 5 (La. App. 4

Cir. 3/9/16), 190 So.3d 400, 403).

7 “Although the language of [Louisiana Code of Civil Procedure] article 966

does not grant a party the absolute right to delay a decision on a motion for

summary judgment until all discovery is complete, the law does require that the

parties be given a fair opportunity to present their case.” Francois, 20-0440, p. 5,

314 So.3d at 897 (quoting Serpas, 16-0948, p. 2, 213 So.3d at 429). “‘Unless

plaintiff shows a probable injustice a suit should not be delayed pending discovery

when it appears at an early stage that there is no genuine issue of fact.’” Id.

(quoting Rivarde, 15-0655, p. 7, 190 So.3d at 405).

This court has listed the following four factors to consider for a claim of

inadequate discovery:

(i) Whether the party was ready to go to trial, (ii) whether the party indicated what additional discovery was needed, (iii) whether the party took any steps to conduct additional discovery during the period between the filing of the motion and the hearing on it, and (iv) whether the discovery issue was raised in the trial court before the entry of the summary judgment.

Roadrunner, 17-0040, pp. 11-12, 219 So.3d at 1273 (citing Bass P’ship v.

Fortmayer, 04-1438, p. 10 (La. App. 4 Cir. 3/9/05), 899 So.2d 68, 75; Greenhouse

v. C.F. Kenner Associates Ltd. P’ship, 98-0496, p. 3 (La. App. 4 Cir. 11/10/98),

723 So.2d 1004, 1006). In addition, this Court has recognized that “whether

discovery has been hindered by a circumstance beyond an opponent’s control” is

another factor that may be considered when addressing an adequate discovery

claim. Roadrunner, 17-0040, p. 13, 219 So.3d at 1274 (citing Bourgeois v. Curry,

05-0211, p. 10 (La. App. 4 Cir. 12/14/05), 921 So.2d 1001, 1008). Applying these

factors to the case sub judice, we find that there has not been an adequate time for

discovery.

8 First, it is unlikely either party was ready for trial because the case had not

been set for trial when Mrs. Hickman motioned for summary judgment nor had any

discovery deadlines been set. Second, Debbie indicated in her opposition that she

needed to conduct additional discovery to determine whether the Decedent had

capacity during the execution of the testament. Specifically, Debbie relayed that

she was awaiting the return of medical records from Ochsner—the healthcare

facility where Decedent received medical treatment before 2013. Third, the record

reflects that Debbie took several steps to conduct discovery, including propounding

written discovery on Mrs. Hickman on December 20, 2021, and serving a

subpoena duces tecum on Ochsner on December 22, 2021, for the Decedent’s

medical records—both of which occurred between the filing of the motion for

summary judgment and the hearing on the motion. Fourth, Debbie raised the issue

of lack of adequate discovery before the district court both in her memorandum in

opposition to the motion for summary judgment and by motioning for a new trial

based on the lack of adequate discovery.

Moreover, although more than a year elapsed between the filing of this

lawsuit and the filing of Mrs. Hickman’s motion for summary judgment, the record

reflects that many obstacles arose which prevented Debbie from completing

discovery. Specifically, in March 2020, Governor John Bel Edwards declared a

state of public health emergency due to the potential for the rapid spread of

COVID-19 throughout the State. Shortly afterwards, in May 2020, the relationship

between Debbie and her prior attorney ended. During litigation, Debbie moved to

Florida to care for her ailing mother. In May 2021, Debbie, despite being

domiciled in the state of New York and residing in Florida, appeared pro se on an

exception filed by Mrs. Hickman. It was not until July of 2021 that Debbie

9 retained her current counsel of record, who later propounded written discovery on

Mrs. Hickman and served a subpoena duces tecum on Ochsner.

This Court has previously held that summary judgment is premature when

“the information sought by appellant pertains directly to the unresolved factual

issue.” Leake & Andersson, LLP v. SIA Ins. Co. (Risk Retention Group), Ltd., 03-

1600, p. 4 (La. App. 4 Cir. 3/3/04), 868 So.2d 967, 969.3 Decedent’s medical

records prior to 2013 are the key component to whether he had testamentary

capacity at the time the testament was executed on November 7, 2013. The district

court explicitly stated in its oral reasons for judgment that “Ms. [Debbie] Hickman

presented evidence that Mr. Hickman suffered from dementia. However, the

medical records that establish this are all dated after November of 2013.”

Weighing the Roadrunner factors, we find that the facts and circumstances of this

case supports a finding that the district court failed to allow adequate time for

discovery—at the very least, the return of the subpoena ducus tecum from

Ochsner—before ruling on Mrs. Hickman’s motion for summary judgment.

This assignment of error has merit.

CONCLUSION

For the foregoing reasons, we reverse the district court’s January 24, 2022

judgment and remand the matter back to the district court for further proceedings

consistent with this opinion.

REVERSED AND REMANDED

3 See also Bass Partnership, wherein this Court held that the district court granted summary

judgment prematurely despite a case pending for over three years. Bass Partnership v. Fortmayer, 04-1438 (La. App. 4 Cir. 3/9/05), 899 So.2d 68.