Horrell v. Alltmont

340 So.3d 909

Walter HORRELL, et al.

v.Jack Marks ALLTMONT, et al.

2021 CA 0566

Court of Appeal of Louisiana, First Circuit.

Judgment Rendered: DECEMBER 22, 2021

Walter J. Horrell, Covington, Louisiana, Counsel for Plaintiffs/Appellants, Walter J. Horrell and Edna Horrell

Jack M. Alltmont, New Orleans, Louisiana, Counsel for Defendants/Appellees, Jack M. Alltmont, Eric M. Schorr, Gaye H. Coffer, Edward A. Horrell, Jr., Michael J. Horrell and Marie Elise LeCour

BEFORE: LANIER, WOLFE, AND BURRIS,¹ JJ.

LANIER, J.

Plaintiffs, Walter J. Horrell and Edna R. Horrell, appeal from a district court judgment granting a motion for summary judgment in favor of defendants, Jack M. Alltmont, Eric M. Schorr, Gaye H. Coffer, Edward A. Horrell, Jr., Marie Elise LeCour, and Michael J. Horrell, and dismissing plaintiffs' claims with prejudice. For the reasons that follow, we affirm the judgment of the district court.

FACTS AND PROCEDURAL BACKGROUND

This matter has been before this court and the Louisiana Fourth Circuit Court of Appeal on numerous occasions.² In one of the more recent cases, Horrell v. Barrios, 2016-1547 (La. App. 1 Cir. 3/15/18), 2018 WL 1373653, (unpublished), writ denied, 2018-0931 (La. 9/28/18), 253 So.3d 144 (Horrell I) , this court discussed, in depth, the factual and procedural history of the parties and affirmed the dismissal of plaintiffs' possessory action.³ We adopt by reference that which was set forth in Horrell I regarding the factual background and procedural history of this case.

Pertinent to the matter before us now, the record reveals that on November 2, 2017, plaintiffs filed an "Action for Damages, Possessory Actions, Relief by Ordinary Proceedings and Injunctive Relief" against defendants. Plaintiffs argued that they corporeally possessed the immovable property located at Square 1807 of the New Covington Addition to the Town of Covington in St. Tammany Parish ("the Property") prior to being evicted on November 17, 2016, by defendants. Plaintiffs requested damages for the wrongful eviction and that the trial court recognize them as the possessors of the Property.⁴

On October 9, 2018, defendants filed a motion for summary judgment, requesting the dismissal of plaintiffs' claims because the basis of those claims had been adjudicated by the Twenty-Second Judicial District Court in prior litigation. Specifically, defendants argued that plaintiffs' claims were barred by res judicata and collateral estoppel because the Twenty-Second Judicial District Court previously rendered judgment dismissing plaintiffs' possessory action. In support of their motion, defendants filed a memorandum requesting the district court to take judicial notice of prior litigation from the Twenty-Second Judicial District Court, this court, and the Louisiana Supreme Court concerning the parties and property at issue. No supporting documents were attached to defendants' memorandum. Following a December 18, 2018 hearing on the motion for summary judgment, the district court signed a judgment on January 14, 2019, granting summary judgment in favor of defendants. Plaintiffs appealed.

In Horrell v. Alltmont, 2019-0945 (La. App. 1 Cir. 7/31/20), 309 So.3d 754, 761 ( Horrell II ) , this court found that the district court erred in granting summary judgment in favor of defendants as defendants had failed to submit any evidence in support of their motion for summary judgment. Noting that without the appropriate supporting documentation in the record, there was nothing to review, this court vacated the district court's judgment and remanded the matter for further proceedings. Horrell, 309 So.3d at 761-762.

On remand, defendants refiled the identical motion for summary judgment, this time attaching the affidavit of Jack M. Alltmont, attesting that he had "personal knowledge that Exhibits A through H filed with the supporting memorandum are true and correct copies of the court issued orders, judgments and opinions entered in the several matters captioned in those exhibits." In response, plaintiffs filed a memorandum in opposition to the motion for summary judgment, attaching their original memorandum in opposition, along with the original affidavit and documents that were attached to it. The matter proceeded to hearing on December 8, 2020, at which time the district court heard arguments from respective counsel. Thereafter, the district court entered judgment on January 8, 2021, granting the motion for summary judgment "filed by Jack M. Alltmont and others" and dismissing, with prejudice, plaintiffs' petition. Plaintiffs filed a timely motion for new trial, which was denied. This appeal by plaintiffs followed.

Once the appeal was lodged with this court, an interim order was issued on October 14, 2021, noting a possible issue with the decretal language in the judgment. The matter was remanded to the district court for the limited purpose of supplementing the record with an amended judgment that specified which defendants filed the motion for summary judgment and in which specific defendants' favor the motion was granted. See La. Code Civ. P. art. 1918(A), as amended by 2021 La. Acts 259.

Thereafter, on November 3, 2021, the district court signed an amended judgment, which included the following language:

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the motion filed by Jack M. Alltmont, Eric M. Schorr, Gaye H. Coffer, Edward A. Horrell, Jr., Marie Elise LeCour and Michael J. Horrell is hereby GRANTED. Accordingly, the petition of Walter J. Horrell and Edna Horrell is hereby DISMISSED WITH PREJUDICE as to Jack M. Alltmont, Eric M. Schorr, Gaye H. Coffer, Edward A. Horrell, Jr., Marie Elise LeCour and Michael J. Horrell ....

The appeal record was supplemented with this amended judgment on November 9, 2021.⁵

LAW AND DISCUSSION

Motion to Substitute Parties

During the pendency of this appeal, we learned that two defendants, Edward A. Horrell, Jr. and Gaye H. Coffer, had passed away. Since then, defendants' counsel filed two separate motions to substitute with this court seeking to have parties substituted for the deceased defendants. A judgment rendered for or against a deceased person is a nullity. Rainey v. Entergy Gulf States, Inc., 2001-2414 (La. App. 1 Cir. 6/25/04), 885 So.2d 1193, 1197, writs denied, 2004-1878, 1883, and 1884 (La. 11/15/04), 887 So.2d 478 and 479. However, as an appellate court, we do have the authority to substitute a party when a party dies during the pendency of an appeal, if a motion is properly filed. Benware v. Means, 98-0203R (La. App. 1 Cir. 5/12/00), 760 So.2d 641, 645, writ denied, 2000-2215 (La. 10/27/00), 772 So.2d 650 ; La. Code Civ. P. art. 821.⁶ The Uniform Rules for the Louisiana Courts of Appeal provide that "[t]he rules and procedures for substitution of parties provided in [ La. Code Civ. P. arts.] 801 - 807 shall regulate the substitution of parties." Uniform Rules, Courts of Appeal, Rule 2-9.

Louisiana Code of Civil Procedure article 801 provides that:

When a party dies during the pendency of an action which is not extinguished by his death, his legal successor may have himself substituted for the deceased party, on ex parte written motion supported by proof of his quality.

As used in Articles 801 through 804, "legal successor" means:

(1) The survivors designated in Article 2315.1 of the Civil Code, if the action survives in their favor; and

(2) Otherwise, it means the succession representative of the deceased appointed by a court of this state, if the succession is under administration therein; or the heirs and legatees of the deceased, if the deceased's succession is not under administration therein.

With regard to the motion to substitute Edward Allen Horrell, III and Kim E. Horrell Lemoine in place of their deceased father Edward A. Horrell, Jr., attached to the motion is a Judgment of Possession dated December 10, 2021, indicating that Edward and Kim were sent into possession of an undivided one-half (1/2) interest each in and to all of the property of which Edward A. Horrell, Jr. died possessed. Concerning the motion to substitute Cole Timothy Coffer in place of his deceased mother Gaye H. Coffer, the motion indicates that the succession was opened and that Cole was appointed succession representative. Attached to the motion is a signed "Letters of Independent Administration" dated November 3, 2021, reflecting that Cole was appointed independent administrator of the succession and had fulfilled "all of the rights, powers, authorities, privileges and duties of a succession representative." Based on these documents, we are satisfied that Edward Allen Horrell, III, Kim E. Horrell Lemoine, and Cole Timothy Coffer are the legal successors to their deceased parents. The motions to substitute are granted.

Plaintiffs 1 Request for Written Reasons for Judgment

Assignment of Error Number Five

Plaintiffs argue on appeal that they requested written reasons for judgment "both in their filings and as part of their request for a new trial." Based on our review of the record, the only reference to a request for written reasons for judgment appears in plaintiffs' motion for new trial. Moreover, the district court provided written reasons for judgment following the hearing on the original motion for summary judgment hearing. Nonetheless, we are not persuaded by plaintiffs' argument on this issue.

As set forth in La. Code Civ. P. art. 966(C)(4), "In all cases, the court shall state on the record or in writing the reasons for granting or denying the motion. If an appealable judgment is rendered, a party may request written reasons for judgment as provided in Article 1917."⁷ However, as this matter comes before us on review of a summary judgment, we must consider the matter de novo. Thus, we note that even if written reasons had been provided by the district court, no deference would have been given to the findings or reasoning of the district court. King v. Allen Court Apartments II, 2015-0858 (La. App. 1 Cir. 12/23/15), ...