Succession of Thelma Cummings Guilbeau

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

10-1200

SUCCESSION OF THELMA CUMMINGS GUILBEAU

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APPEAL FROM THE
TWENTY-SEVENTH JUDICIAL DISTRICT COURT
PARISH OF ST. LANDRY, NO. 06-P-5457-A
HONORABLE, JAMES PAUL DOHERTY, JR., DISTRICT JUDGE

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J. DAVID PAINTER
JUDGE

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Court composed of John D. Saunders, J. David Painter, and David E. Chatelain*,
Judges.

APPEAL DISMISSED ON RULE TO SHOW CAUSE.
MOTION TO DISMISS APPEAL FILED BY CO-TRUSTEES OF THE
JAMES H. GUILBEAU CHARITABLE TRUST DENIED.

Lester Joseph Zaunbrecher
Paul Daniel Gibson
Amy E. Bringing
Gibson, Gruenert & Zaunbrecher
Post Office Box 3663
Lafayette, LA 70502-3663
(337) 233-9600
COUNSEL FOR APPELLEE:
University of Louisiana at Lafayette Foundation

Harry Joseph Philips, Jr.
Taylor, Porter, et al.
451 Florida St., 8th Floor
Baton Rouge, LA 70801
(225) 387-3221
COUNSEL FOR APPELLEE:
Special Counsel of Succession of Thelma Cummings Guilbeau
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*Judge David E. Chatelain participated in this decision by appointment of
the Louisiana Supreme Court as Judge Pro Tempore.

Richard Lee Becker
Jeremy A. Hebert
Becker and Associates
910 Harding St.
Lafayette, LA 70503
(337) 233-1987
COUNSEL FOR APPELLANT:
Sunset Bancorp, Inc.

Armand J. Brinkhaus
Olivier and Brinkhaus
Post Office Drawer E
Sunset, LA 70584
(337) 662-5242
COUNSEL FOR APPELLEE:
Elsie Caillouet

Jimmy L. Dauzat
Dauzat, Falgoust, Caviness
505 S. Court Street
Opelousas, LA 70570
(337) 942-5811
COUNSEL FOR APPELLEE:
Special Counsel of Succession of Thelma Cummings Guilbeau

Marc W. Judice
Francine A. Elliot
Judice & Adley
Post Office Drawer 51769
Lafayette, LA 70505-1769
(337) 235-2405
COUNSEL FOR APPELLEES:
June Visser
Dr. Lewis C. Cummings
George Cummings

Michael Sean Walsh
Lee & Walsh
257 Maximilian St.
Baton Rouge, LA 70802
(225) 344-0474
COUNSEL FOR APPELLEES:
Darryl and Kalina Cormier

Lawrence Lee Lewis, III
Onebane Law Firm
Post Office Box 3507
Lafayette, LA 70502-3507
(337) 237-2660
COUNSEL FOR APPELLANTS:
Lynette Elliot
P. Andy Dakin
Caroline D. Bonin
Employee Stock Ownership Trust (ESOP)

Leslie J. Schiff
Schiff Law Corp.
Post Office Box 10
Opelousas, LA 70571-0010
(337) 942-9771
COUNSEL FOR APPELLEE:
University of Louisiana at Lafayette Foundation

Carl M. Duhon
Attorney at Law
Post Office Box 52566
Lafayette, LA 70505
(337) 237-9868
COUNSEL FOR APPELLEE:
Special Counsel of Succession of Thelma Cummings Guilbeau

Shelton Dennis Blunt
Phelps, Dunbar
Post Office Box 4412
Baton Rouge, LA 70821-4412
(225) 346-0285
COUNSEL FOR APPELLEE:
Karl Brent Vidrine

Brad Jeffrey Axelrod
McGlinchey, Stafford, PLLC
301 Main St., 14th Floor
Baton Rouge, LA 70825
(225) 383-9000
COUNSEL FOR APPELLEE:
Co-Trustees of the James H. Guilbeau, Jr., Charitable Trust

PAINTER, Judge.

On October 5, 2010, this court, sua sponte, issued a rule for the appellants to

show cause, by brief only, why the instant appeal should not be dismissed as having

been taken from a partial, final judgment not designated immediately appealable with

express reasons pursuant to La.Code Civ.P. art. 1915(B), citing R.J. Messinger, Inc.

v. Rosenblum, 04-1664 (La. 3/2/05), 894 So2d 1113. On October 8, 2010, the co-

trustees of the James H. Guilbeau Charitable Trust (James H. Guilbeau Trust) filed

a Motion to Dismiss Appeal asserting that the appellants’ appeal should be dismissed

for failure to post the suspensive appeal bond timely, or, alternatively, that this court

should dismiss the suspensive appeal and maintain the appeal as devolutive. For the

reasons discussed below, we dismiss this appeal as having been taken from a non-

appealable, interlocutory order, thereby rendering moot the Motion to Dismiss Appeal

filed by the James H. Guilbeau Trust.

In the course of litigating this succession matter, an issue arose as to the

valuation of certain Sunset Bancorp, Inc., stock. The trial court conducted a hearing

on the issue and rendered a written judgment on July 12, 2010. On August 23, 2010,

the appellants, Sunset Bancorp, Inc., and P. Andy Dakin, Caroline D. Bonin, and

Lynette Elliot, trustees of the Sunset Bancorp, Inc., Employee Stock Ownership Trust,

filed their Petition/Motion and Order for Suspensive Appeal with Request for Setting

of Bond for Suspensive Appeal. The appeal record was lodged in this court, and this

court issued its rule for the appellants to show cause why the appeal should not be

dismissed. Further, as discussed above, the James H. Guilbeau Trust filed their

motion seeking a complete dismissal of the appeal as untimely perfected or,

alternatively, seeking dismissal of the suspensive appeal, with this court maintaining

the appeal as devolutive only.

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The appellants filed a brief responding to this court’s rule to show cause.

Although no party disputes that other matters remain to be decided, the appellants

argued that this court should not dismiss this appeal. First, they argued that since the

judgment adjudicates the fair market value of the stock, this court should find that the

judgment is final. Alternatively, the appellants argue that if the judgment was

required to be designated as immediately appealable, the trial court had, in effect,

designated the judgment appealable by signing the order of appeal. Consequently,

the appellants ask that this court find that the factors are present which support a

designation of appealability from this judgment pursuant to R.J. Messinger.

As to the appellants’ first argument in support of permitting this appeal, a

review of the record reveals that the judgment appealed is a partial judgment that falls

under the provisions of La.Code Civ.P. art. 1915(B). After adjudicating the valuation

of the shares of stock and other matters related to the stock, the judgment concludes,

“IT IS FURTHER ORDERED that the Alternative Motion to Distribute Stock to

the Charitable Trust filed by the Trustees of the James H. Guilbeau Charitable Trust

and the University of Louisiana at Lafayette Foundation is set for hearing on

September 17, 2010, at 9:00 a.m.” Moreover, even appellants recognize that this

judgment was only another step in the litigation of this succession. Therefore, this

court finds no basis for holding that the appealed judgment is appealable without

designation pursuant to any subparagraph of La.Code Civ.P. art. 1915(A).

Accordingly, we hold that this judgment cannot be appealed without first being

designated as appealable with express reasons.

As stated above, the appellants advance the alternative argument that this court

should hold that the trial court designated the judgment as appealable by signing the

order of appeal. Several Louisiana courts of appeal have held that this argument is

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without merit. See for instance Pitts v. Fitzgerald, 2001-543 (La.App. 1 Cir.

5/10/02), 818 So.2d 847, and Deal v. Housing Authority of New Orleans, 1998-1530

(La.App. 4 Cir. 2/17/99), 735 So.2d 685. Likewise, we find that the signing of the

order of appeal in this case did not constitute a proper designation of this judgment

as immediately appealable.

Finally, the appellants make the argument that this court should find that the

judgment appealed meets the criteria of appealability set forth in R.J. Messinger, 894

So2d 1113. However, unlike the instant case, in R.J. Messinger the trial court had

designated the partial judgment as final and appealable; the trial court, however, had

failed to provide express reasons why the designation was appropriate. Thus, the

court specifically stated, “The limited and narrow issue before us is what constitutes

an express determination by the court.” Id. at 1117. It was in that context, then, that

the supreme court wrote:

In order to assist the appellate court in its review of designated
final judgments, the trial court should give explicit reasons, either oral
or written, for its determination that there is no just reason for delay.
However, if the trial court fails to do so, we find the appellate court
cannot summarily dismiss the appeal. For purposes of judicial
efficiency and economy, we approve the approach taken by the First,
Third and Fifth circuits, and hold the proper standard of review for an
order designating a judgment as final for appeal purposes when
accompanied by explicit reasons is whether the trial court abused its
discretion. If no reasons are given but some justification is apparent
from the record, the appellate court should make a de novo
determination of whether the certification was proper. Of course, if after
examination of the record the propriety of the certification is not
apparent, the court of appeal may request a per curiam from the trial
judge. Alternatively, the court of appeal could issue a rule to show
cause to the parties requiring them to show why the appeal should not
be dismissed for failure to comply with La.Code Civ. P. art.1915, when
the propriety of the certification is not apparent and the trial court has
failed to give reasons for its certification.

Id. at 1122. Since we find that the appealed judgment is not appealable without a

designation and without express reasons for the designation, we dismiss this appeal

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at appellants’ cost.

Having ordered the complete dismissal of the appellants’ appeal, we find that

the Motion to Dismiss Appeal filed by the James H. Guilbeau Trust has been rendered

moot.

APPEAL DISMISSED ON RULE TO SHOW CAUSE.
MOTION TO DISMISS APPEAL FILED BY CO-TRUSTEES OF THE JAMES H.
GUILBEAU CHARITABLE TRUST DENIED.

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