In Re: Interdiction of Carroll Leblanc Constance

IN RE: INTERDICTION OF CARROLL NO. 23-C-307
LEBLANC CONSTANCE
FIFTH CIRCUIT

COURT OF APPEAL

STATE OF LOUISIANA

July 13, 2023

Linda Wiseman
First Deputy Clerk

IN RE KIMBERLY CONSTANCE

APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT,
PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE DANYELLE M.
TAYLOR, DIVISION "O", NUMBER 810-004

Panel composed of Judges Stephen J. Windhorst,
Cornelius E. Regan, Pro Tempore, and Jason Verdigets, Pro Tempore

WRIT GRANTED; ORDER VACATED; REMANDED

In this writ application, relator/intervenor, Kimberly Constance

(“Kimberly”), seeks review of the trial court’s May 26, 2023 Order, which

dismissed her “Emergency Ex Parte Limited Motion to Stay Pending Appeal” with

prejudice, ordered her to comply with the requirements of the curator, Louisiana

Guardianship Services, Inc. (“LGSI”), and ordered her to pay costs and attorney

fees to LGSI. For the following reasons, we grant the writ application, vacate the

trial court’s May 26, 2023 Order, and remand for a contradictory hearing.

On February 14, 2023, the trial court rendered a judgment ordering that

Carroll Constance (“Carroll”), Kimberly’s mother, be placed under a full and

permanent interdiction. In this judgment, the trial court also appointed LGSI as

curator for Carroll. Counsel for Carroll filed a Motion for Appeal, which was

granted on March 6, 2023.

On May 3, 2023, the trial court issued reasons for judgment. The writ

application includes an email dated May 17, 2023 from counsel for LGSI to

Kimberly stating that, after reviewing the reasons for judgment, LGSI determined

that it is in Carroll’s best interest that no one involved in the interdiction

proceedings live in her home. The email provided that Kimberly was to move out

of Carroll’s home within 14 days. The next day, May 18, 2023, Kimberly filed an

Emergency Ex Parte Limited Motion to Stay Pending Appeal, in which she

requested that the trial court issue an Order staying LGSI’s demand that she move

out of Carroll’s home and ordering LGSI to allow her to continue to reside with

Carroll during the pendency of the appeal. Kimberly stated that she had been

living with and caring for her mother since 2020. Although it was labeled “Ex

Parte,” the motion included a proposed rule to show cause order to set the matter

for hearing.

On May 24, 2023, counsel for LGSI filed a memorandum in opposition to

Kimberly’s motion, asking the trial court to dismiss the motion with prejudice on

the grounds that the law does not allow a curator’s decision to be stayed, pursuant

to La. C.C.P. art. 4555. LGSI also sought an order of attorney fees and costs for

defending the motion. The trial court denied Kimberly’s motion on the merits and

dismissed it without a contradictory hearing or issuing a rule to show cause.

La. C.C.P. art. 4555 provides that a judgment of interdiction or a judgment

appointing or removing a curator is not suspended during the pendency of an

appeal. Kimberly has not sought to suspend the judgment of interdiction or the

appointment of LGSI as curator. Rather, the relief sought in her motion was an

order staying the curator’s demand that she move out of her mother’s home.

Relator asserts that the trial court erred by rendering its decision on her

motion without holding a contradictory hearing. We agree.

La. C.C.P. art. 963 provides:

If the order applied for by written motion is one to which
mover is clearly entitled without supporting proof, the court
may grant the order ex parte and without hearing the adverse
party.

If the order applied for by written motion is one to which
the mover is not clearly entitled, or which requires
supporting proof, the motion shall be served on and tried
contradictorily with the adverse party.

The rule to show cause is a contradictory motion.

While we express no opinion on the merits of Kimberly’s Emergency Ex

Parte Limited Motion to Stay Pending Appeal, we find that the trial court erred by

dismissing her motion with prejudice without first affording her an opportunity to

be heard at a contradictory hearing as requested. Accordingly, we grant this writ

application, vacate the May 26, 2023 Order in its entirety, and remand for a

contradictory hearing.

Gretna, Louisiana, this 13th day of July, 2023.

CER
SJW
JMV

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
JOHN J. MOLAISON, JR.
CORNELIUS E. REGAN, PRO TEM FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
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GRETNA, LOUISIANA 70054 (504) 376-1400

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COUNSEL, AS LISTED BELOW:

23-C-307
E-NOTIFIED
24th Judicial District Court (Clerk)
Honorable Danyelle M. Taylor (DISTRICT JUDGE)
Randall A. Smith (Respondent) Matthew A. Sherman (Relator)
Dylan T. Leach (Respondent)

MAILED
Jason D. Asbill (Respondent) Vincent F. Wynne, Jr. (Respondent) Anna M. Singleton (Relator)
Colin Leonard (Respondent) Attorney at Law Attorney at Law
Attorney at Law 410 North Jefferson Avenue One Galleria Boulevard
2121 North Causeway Boulevard Covington, LA 70433 Suite 1100
Suite 172 Metairie, LA 70001
Metairie, LA 70001

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D. Is delively address different from it8m 1? 0 Yes
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Jason D. Asbill
Attorney at Law
212 l North Causeway Boulevard
Suite 1 /2
Metairie, LA 70001
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1. Article Addl9588d to:
Vincent F. Wynne, Jr.
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4 l 0 North Jefferson Avenue
Covington, LA 70433
23-C-307 07-13-23
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SENDER: COMPLETE THIS SE:.C rtON

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1. ArUcJe Addressed to:
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0~ r. illeria Boulevard
Suite 1100
Metairie, LA 7000 I
23-C-307 07-13-23
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