Succession of Donnie Dewayne Carlton

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-288

SUCCESSION OF DONNIE DEWAYNE CARLTON

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 38,767
HONORABLE MARY LAUVE DOGGETT, DISTRICT JUDGE

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PHYLLIS M. KEATY
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Marc T. Amy, and
Phyllis M. Keaty, Judges.

REVERSED AND REMANDED.

Thomas O. Wells
Attorney at Law
1254 Dorchester Drive
Alexandria, Louisiana 71315
(318) 445-4500
Counsel for Appellees:
Monica Player
Roy A. Carlton
Margie Prather
Shirley Manuel
Shonna Vilo

Gwenda R. Lamb
Attorney at Law
434 Dove Cove
Alexandria, Louisiana 71303
(318) 448-1533
Counsel for Appellant:
Melba Stuckey Phillips

KEATY, Judge.

This is an appeal from a judgment sustaining an exception of res judicata in

favor of the movant, decedent’s sister, and against decedent’s aunt. For the

following reasons, we find that the movant did not meet her burden of proving that

the claim at issue was barred by res judicata. Accordingly, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

Decedent, Donnie Dwayne Carlton, died in September, 2008. In July, 2009,

two of his aunts, Ellen Wise and Melba Phillips, filed a petition for probate of

notarial testament and a petition for possession. The trial court granted a judgment

of possession in August, 2009. Also in August, 2009, decedent’s sister, Monica

Player, filed to annul the probated testament. In September, 2009, she filed a

motion for summary judgment, alleging that decedent’s testament was null because

it lacked an attestation clause. The trial court granted the motion, declared the

testament null and annulled its August 2009 order for probate and judgment of

possession. Wise and Phillips appealed to this court, and we affirmed the trial

court’s grant of summary judgment. See Succession of Carlton, 09-1339 (La.App.

3 Cir. 4/7/10), 34 So.3d 1015.

In April, 2010, decedent’s wife and illegitimate son filed a joint petition for

possession in a new suit which spurred Player to file a “Motion for New Trial,

Exception of Peremption or In The Alternative Petition to Annul Judgment of

Possession, Contempt and Perjury.”

Meanwhile, Phillips was allegedly given decedent’s Bible, in which she

found a second page of decedent’s will. Phillips and Wise then filed a petition for

probate of notarial testament on July 12, 2010, alleging that the newly-found

second page contained a valid attestation clause1 and was signed by decedent and

the same notary and witnesses on the same date as the first page of the will.

Phillips and Wise filed this document and sought to have it read in

conjunction with the previously filed single-page testament that was the subject of

our review and ruling in Succession of Carlton, 34 So.3d 1015. The petition for

probate was denied by the trial court with a note that a conference would be

scheduled upon request.

On September 9, 2010, Player filed an exception of res judicata, alleging that

the validity of the will had already been adjudicated in the other suit and was a

final judgment, and that Phillips and Wise were, therefore, precluded from asking

the court to probate the will as a two-page document under the doctrine of res

judicata.

On October 11, 2010, at a hearing on Player’s rule to annul the probated

testament,2 the trial court discussed the pending exception of res judicata on the

record and made several statements concerning its position on the validity of that

exception. It did not rule on the exception.

On November 8, 2010, the trial court presided over a hearing on the

exception of res judicata. Evidence was not introduced. After hearing argument

from counsel for the respective parties, the trial court granted the exception on

January 14, 2011.

Phillips now appeals that judgment which sustained Player’s exception of

res judicata. Additional assignments of error are also before us: that the trial court

improperly considered matters not before it on October 11, 2010 and that the trial

1
The single-page will that was the subject of the previous suit was deemed invalid
because it did not contain an attestation clause.
2
This rule was actually a rule to show cause why a public inventory should not be
ordered. It was incorrectly captioned.
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court improperly denied the order of probate filed July 15, 2010. Finally, Player

filed a motion to dismiss a portion of the record and that issue is also before us.

DISCUSSION

We will begin our discussion with the issue concerning the October hearing.

Judgments beyond the pleadings are nullities. Benware v. Means, 98-203 (La.App.

1 Cir. 5/12/00), 760 So.2d 641, writ denied, 00-2215 (La. 10/27/00), 772 So.2d 650.

In this case, the judgment stems from a November 8, 2010 hearing on Player’s

exception of res judicata. At that hearing, the matter of res judicata was properly

before the court, and the subsequent judgment deals exclusively with the matters

discussed in the November hearing. There is no relief that we can provide for

matters discussed at the October hearing, as that judgment is not before us on

appeal. We note that the matters appellant objects to from the October hearing

were discussed and then set for a hearing on November 8. They were not decided

on October 11. This assignment of error lacks merit.

Player filed a motion to dismiss the portions of this appeal related to the trial

court’s order dated July 15, 2010, which denied the probate of the testament.

Player complains that an appeal of this order is untimely. This court has

previously held that “although an interlocutory judgment may itself not be

appealable, it is nevertheless subject to review by an appellate court when a

judgment which is appealable is rendered in the case.” Firemen’s Pension and

Relief Fund for City of Lake Charles v. Boyer, 420 So.2d 1323, 1324 (La.App. 3

Cir. 1982). An interlocutory judgment is defined by La.Code Civ.P. art. 1841 as

“[a] judgment that does not determine the merits but only preliminary matters in

the course of the action.” We find that this order was interlocutory and is subject

to our review because it is encompassed within the appealable judgment of

January 14, 2011. Accordingly we deny Player’s motion to dismiss.
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Having determined that a review of the July 15 Order is appropriate, we now

turn to the question of whether the trial court improperly denied Phillips’ motion

and order to probate filed on July 12, 2010. Phillips cites La.Code Civ.P. art. 2891

in support of her complaint that the trial court erroneously denied her order of

probate. Louisiana Code of Civil Procedure Article 2891 states that “[a] notarial

testament . . . [does] not need to be proved. Upon production of the testament, the

court shall order it filed and executed and this order shall have the effect of

probate.” Problematic with this line of reasoning is Phillips’ failure to produce the

testament. As noted previously, the instant suit is a separate and distinct suit from

that involving the single-page testament previously filed for probate. The two suits

were not consolidated. The only document filed into the record in support of the

petition to probate was the alleged second page of the testament. Reference is

made to the first page, but it was not filed into the record in any form. The second

page of the testament, containing only an attestation clause, is not “a testament.”

Therefore, the trial court had no obligation to “order it filed and executed” giving

the order the effect of probate. This assignment of error is without merit.

Finally, we must determine whether the trial court erred in granting Player’s

exception of res judicata. “The res judicata effect of a prior judgment is a question

of law that is reviewed de novo.” Morales v. Parish of Jefferson, 10-273, p. 6

(La.App. 5 Cir. 11/9/10), 54 So.3d 669, 672 (citations omitted).

In order for an exception of res judicata to be sustained, the mover must

prove that

(1) the judgment is valid; (2) the judgment is final; (3) the parties are
the same; (4) the cause or causes of action asserted in the second suit
existed at the time of final judgment in the first litigation; and (5) the
cause or causes of action asserted in the second suit arose out of the
transaction or occurrence that was the subject matter of the first
litigation.

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Burguieres v. Pollingue, 02-1385, p. 8 (La. 2/25/03), 843 So.2d 1049, 1053.

At the hearing on the exception of res judicata, evidence was not admitted.

Although it is obvious from the record that the trial court was familiar with the

initial proceedings concerning the validity of the will, a final judgment was not

admitted into evidence. “Evidence not properly and officially offered and

introduced cannot be considered, even if it is physically placed in the record.

Documents attached to memoranda do not constitute evidence and cannot be

considered as such on appeal.” Denoux v. Vessel Mgmt. Servs., Inc., 07-2143, p. 6

(La. 5/21/08), 983 So.2d 84, 88.

“The burden of proof is on the party pleading the exception to establish the

essential facts to sustain the plea of res judicata.” Bond v. Bond, 35,971, p. 3

(La.App. 2 Cir. 4/3/02), 813 So.2d 1148, 1149 (citations omitted). “The

cornerstone of res judicata is a valid and final judgment and La. R.S. 13:4231 sets

out the circumstances under which a valid and final judgment shall be conclusive

between the same parties. When, however, there is no proof of such facts in the

record, the plea cannot be sustained.” Id. at 1149-50 (citation and footnote

omitted). Because Player failed to introduce a final judgment into evidence at the

hearing on her exception, she failed to prove an essential element of res judicata,

defeating the exception. The trial court erred when it sustained the exception of res

judicata, and we reverse the judgment.

DECREE

For the foregoing reasons, the judgment of the trial court is reversed and this

matter is remanded for further proceedings. Costs are assessed against Monica

Player.

REVERSED AND REMANDED.

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