In re Breen

IN THE MATTER OF THE SUCCESSION OF WAYNE EDMOND BREEN

2018 CA 0002

C/W 2018 CA 0003

STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT

December 13, 2018

NOT DESIGNATED FOR PUBLICATION

APPEALED FROM THE 22^nd JUDICIAL DISTRICT COURT ST. TAMMANY PARISH, LOUISIANA

DOCKET NUMBER 2015-30176 c/w 2015-12925

HONORABLE SCOTT GARDNER, JUDGE

Richard Ducote

Covington, Louisiana

Attorney for Appellant

Kacie Magee Breen

Barbara L. Irwin

Timothy E. Pujol

Gonzales, Louisiana

Attorneys for Appellee

Alyce B. Landry, Independent

Administrator of the Succession

of Wayne E. Breen

BEFORE: McDONALD, CRAIN, and HOLDRIDGE, JJ.

McDONALD, J.

In this appeal, the surviving spouse of a testator challenges a judgment awarding compensation to the former independent administrator of the testator's succession. Recognizing our lack of appellate jurisdiction, we dismiss the appeal.

FACTUAL AND PROCEDURAL BACKGROUND

Dr. Warren E. Breen died testate on March 1, 2015, survived by his spouse, Kacie Magee Breen; their minor son; five adult children from a previous marriage (Breen adult children); and one adult son from a previous extra-marital relationship. In the highly contentious succession proceeding that followed, the trial court signed a consent order on July 28, 2015, appointing Alyce B. Landry, an attorney and certified public accountant, as independent administrator of Dr. Breen's succession. Mrs. Breen and the Breen adult children agreed to Ms. Landry's appointment, and their attorneys signed an engagement letter acknowledging and agreeing to certain terms of her appointment, including her hourly rate of pay.

In November 2016, Ms. Landry filed a motion for an interim payment of $87,762.86 in independent administrator fees and $30,795.46 in attorney fees, totaling $118,558.32, representing amounts billed through October 2016. Mrs. Breen opposed the motion, contending Ms. Landry's requested compensation was unreasonable. Ms. Landry supplemented her motion multiple times to add additional billing through January 2017. After a hearing, the trial court signed a judgment on March 14, 2017: (1) granting Ms. Landry's motion in part and finding her entitled to $115,675.82 in administrator and attorney fees; and (2) relieving Ms. Landry of her responsibilities as independent administrator, with no mention of an effective date.

Three days later, on March 17, 2017, and on Mrs. Breen's motion, the trial court stayed that part of the March 14^th judgment terminating Ms. Landry's appointment, pending completion of an imminent trial in related federal court litigation involving two of Dr. Breen's life insurance policies naming Mrs. Breen as beneficiary. Ms. Landry, representing Dr. Breen's estate, was a party to the federal litigation, wherein she and the Breen adult children opposed Mrs. Breen's receipt of the life insurance proceeds. After the federal trial, the federal district court rendered judgment in late June 2017, inMrs. Breen's favor, as claimant to the proceeds of the life insurance policies. Pruco Life Insurance Company v. Kacie Breen & The Estate of Wayne Edmond Breen, 289 F.Supp.3d 777, 798-99 (E.D. La. 2017), aff'd, 734 F. Appx. 302 (5^th Cir. 2018) (per curiam).

In May 2017, Mrs. Breen filed a motion for appeal from the March 14^th judgment's administrator/attorney fee award to Ms. Landry. (Notably, the trial court's prior stay of the March 14^th judgment did not include a stay of the administrator/attorney fee award.) In August 2017, after the federal court judgment was rendered, Ms. Landry filed a motion in this suit to lift the stay of the March 14^th judgment and to dismiss Mrs. Breen's appeal for failure to pay the appeal costs. The trial court held a hearing on the motion, and then on November 13, 2017, signed a judgment: (1) granting Ms. Landry's motion to lift the stay, and terminating her appointment and obligations as independent administrator of Dr. Breen's succession, effective October 26, 2017 (the date of the motion hearing); and (2) denying her motion to dismiss the appeal. The trial court's November 13th judgment made no reference to the March 14^th judgment's administrator/attorney fee award.

In her appeal from the March 14^th judgment's administrator/attorney fee award to Ms. Landry, Mrs. Breen contends the trial court erred in denying her attorney the opportunity to cross examine Ms. Landry on the reasonableness of her compensation. Because we dismiss this appeal, we do not reach the merits of this argument.

DISCUSSION

A judgment is the determination of the rights of the parties in an action and may award any relief to which the parties are entitled. LSA-C.C.P. art. 1841. A judgment may be final or interlocutory. Id. A final judgment is one that determines the merits, in whole or in part, and an interlocutory judgment is one that does not determine the merits but only preliminary matters in the course of the action. Id. A final judgment is appealable in all causes in which appeals are given by law, and an interlocutory judgment is appealable only when expressly provided by law. LSA-C.C.P. art. 2083.

Ordinarily, the compensation of a succession representative shall be due upon the homologation of her final account. LSA-C.C.P. art. 3351. The court may, however,allow an administrator or executor an advance upon her compensation at any time during the administration. Id. The March 14^th judgment from which Mrs. Breen appeals awarded Ms. Landry interim compensation for her services as the independent administrator of Dr. Breen's succession, as authorized by LSA-C.C.P. art. 3351, but the judgment does not state the time period for which the award is made. Considering that the trial court stayed the March 14^th judgment during the pendency of the federal litigation, and Ms. Landry continued to represent the Breen estate through October 26, 2017, it appears that Ms. Landry has outstanding fees that have not been paid, and the March 14^th judgment does not award her compensation for her full tenure as the Breen succession administrator.¹ Thus, the March 14^th judgment's administrator/attorney fee award to Ms. Landry was an advance upon her compensation during the administration of Dr. Breen's estate and constitutes an interlocutory judgment, which is appealable only when expressly provided by law. LSA-C.C.P. arts. 1841 and 2083. We have found no express law, in the succession provisions or otherwise, nor has Mrs. Breen referenced such, that allows an appeal from such an interlocutory judgment. Generally, see LSA-C.C.P. art. 1915; Succession of Jaga, 16-1291 (La. App. 1 Cir. 9/1/17), 227 So.3d 325, 327-28. Thus, we do not have appellate jurisdiction to review this interlocutory judgment.²

Although this court has discretion to convert an appeal to an application for supervisory writs, it may only do so if the appeal would have been timely had it been filed as a supervisory writ application. A party applying to this court for a supervisory writ shall give notice of such intention by requesting a...