Succession of Betty Jean Parker

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

15-463

CONSOLIDATED WITH

15-464

SUCCESSION OF BETTY JEAN PARKER

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, DOCKET NOS. 53,782 c/w 53,794
HONORABLE CLAYTON DAVIS, DISTRICT JUDGE

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JAMES T. GENOVESE
JUDGE

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Court composed of James T. Genovese, Shannon J. Gremillion, and Phyllis M.
Keaty, Judges.

Gremillion, J., concurs and assigns written reasons.

REVERSED AND REMANDED.

Annette Roach
Roach & Roach, APLC
724 Moss Street
Lake Charles, Louisiana 70601
(337) 436-2900
COUNSEL FOR PLAINTIFF/APPELLANT:
Curtis J. Parker, Sr.

Wilford D. Carter
1025 Mill Street
Lake Charles, Louisiana 70601
(337) 564-6990
COUNSEL FOR PLAINTIFF/APPELLANT:
Curtis J. Parker, Sr.

Timothy O’Dowd
921 Ryan Street, Suite D
Lake Charles, Louisiana 70601
(337) 310-2304
COUNSEL FOR DEFENDANTS/APPELLEES:
Sheryl R. Parker, Tracie Y. Blanchette,
Karen D. Parker, Curtis J. Parker, Jr., and
Joy N. Parker, individually and as Independent
Executrix of the Succession of Betty Jean Parker

Leslie Q. Knox
Post Office Box 2266
Lake Charles, Louisiana 70602-2266
(337) 990-0015
COUNSEL FOR DEFENDANT/APPELLEE:
Joy N. Parker

GENOVESE, Judge.

Plaintiff, Curtis J. Parker, Sr., suspensively appeals the dismissal of the

petition to annul testament he filed against Defendants, Sheryl R. Parker, Tracie Y.

Blanchette, Karen D. Parker, Curtis J. Parker, Jr., and Joy N. Parker, individually

and as Independent Executrix of the Succession of Betty Jean Parker, pursuant to

the trial court’s grant of Defendants’ motion for directed verdict. The trial court

entered judgment dismissing, with prejudice, Plaintiff’s petition to annul testament

when his counsel was absent on the day of trial. Plaintiff challenges the dismissal,

arguing that he, though present at trial, was denied due process of law. For the

following reasons, we reverse and remand.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff, Curtis J. Parker, Sr., alleges that his wife, Betty Jean Parker, died

intestate on February 5, 2014. Defendants claim that Betty Jean Parker validly

executed a last will and testament prior to her demise.1 The present appeal,

however, centers on the trial court’s dismissal of Plaintiff’s petition to annul

testament,2 with prejudice.3

This matter was set for trial on November 12, 2014. When court convened

on the date of trial, Plaintiff was present; however, his counsel, Wilford Carter,

1
Plaintiff, Curtis J. Parker, Sr., petitioned for appointment of an administrator in the
succession of his deceased wife, Betty Jean Parker under docket number 53,782. Defendant, Joy
N. Parker, petitioned to be appointed the executrix of her mother’s succession under docket
number 53,794.
2
Curtis J. Parker, Sr., disputes the validity of the purported last will and testament of
Betty Jean Parker, which is dated January 12, 2014, alleging mental incapacity and physical
infirmity.
3
“A judgment of dismissal with prejudice shall have the effect of a final judgment of
absolute dismissal after trial.” La.Code Civ.P. art. 1673.

was not. Defendants moved for and were granted a directed verdict.4 Plaintiff

sought a new trial, which was also denied. Plaintiff has filed a suspensive appeal.

ASSIGNMENTS OF ERROR

Plaintiff raises the following assignments of error:

1. The trial court erred in denying [his] Motion for Continuance
submitted to the court between October 23, 2014[,] and October
27, 2014.

2. The trial court erred in denying [his] Motion for Continuance
submitted to the court on or about November 7, 2014.

3. The trial court erred in denying [him] due process of law.

4. The trial court erred in granting a directed verdict, with
prejudice, in this case.

5. The trial court erred in denying [his] Motion for New Trial.

LAW AND DISCUSSION

In assignments of error numbered three and four, Plaintiff argues that he was

denied due process of law when the trial court granted Defendants’ request for

directed verdict and dismissed, with prejudice, his petition to annul testament. We

address this issue first, since a finding of merit would preclude the necessity of

considering the remaining assignments of error.

Due process of law is guaranteed by the Fourteenth Amendment to the

United States Constitution, which restricts the government from depriving a person

of the right to be heard. The Fourteenth Amendment to the United States

Constitution provides in pertinent part, “nor shall any state deprive any person of

life, liberty, or property, without due process of law.” The 1974 Louisiana

4
Although a directed verdict was advanced by Defendants and granted by the trial court,
we note that the appropriate procedural device is an involuntary dismissal pursuant to La.Code
Civ.P. art. 1672. A directed verdict, pursuant to La.Code Civ.P. art. 1810, is the procedural
device that is used after the close of evidence in a jury trial. See Bonnet v. Lafayette Parish
Sheriff’s Office, 11-676 (La.App. 3 Cir. 11/9/11), 80 So.3d 32.

2

Constitution Article 1, § 2 echoes this provision. Louisiana Constitution Article 1,

§ 2 provides “[n]o person shall be deprived of life, liberty, or property, except by

due process of law.”

Plaintiff contends that due process was denied when “he was denied his day

in court.” He alleges that he was not given “an opportunity to present his case in

the absence of counsel[.]” Considering the record before us, we find merit in

Plaintiff’s contention.

The record before us confirms that Plaintiff was present in the courtroom on

November 12, 2014—both the transcript and the judgment reflect this fact. It is

also clear that Plaintiff’s counsel, Wilford Carter, though in the courthouse, was

not present in the courtroom. After Mr. Carter’s absence was discussed in open

court with Plaintiff present, Defense counsel stated: “Your Honor, in failing on the

part of the plaintiff to move -- to proceed, we’d ask for a directed verdict failing to

meet the burden of proof.” The trial court granted Defendants’ motion.

Pertinent to our review of this matter is whether Plaintiff was given any

opportunity to be heard. Our examination indicates that he was not. The trial court

summarily verified Plaintiff’s presence, then entertained and granted Defendants’

motion. The right of self-representation was never posed. Fairness and due

process dictate that Plaintiff, who was present, should have been informed of the

impending consequences sought by Defendants, and he should have been given the

opportunity of self-representation, affording him the opportunity to have his claim

heard. “Our courts have recognized the right of litigants in civil proceedings to

represent themselves in court.” Farrington v. Law Firm of Sessions, Fishman, 96-

1486, p. 3 (La. 2/25/97), 687 So.2d 997, 999. “The right of self-representation has

been recognized even in criminal cases. Faretta v. California, 422 U.S. 806, 95

3

S.Ct. 2525, 45 L.Ed.2d 562 (1975).” Green v. Gary Mem’l Hosp., 505 So.2d 196,

198 (La.App. 3 Cir. 1987). The opportunity to be heard must be granted in a

meaningful manner. See LaPointe v. Vermilion Parish Sch. Bd., 15-432 (La.

6/30/15), 173 So.3d 1152.

In this case, Plaintiff was penalized for his counsel’s absence in the strictest

manner—dismissal, with prejudice, of his claim. This does not constitute due

process as mandated by the Fourteenth Amendment to the United States

Constitution and Article 1, § 2 of the 1974 Louisiana Constitution. Consequently,

we reverse the judgment of the trial court, and we remand this matter to the trial

court for further proceedings consistent with this opinion.

DECREE

For the foregoing reasons, we find that Mr. Parker’s due process rights were

violated because there is no proof in the record that he was given the opportunity to

be heard at the November 12, 2014 trial. Accordingly, we reverse and remand for

further proceedings consistent with this opinion. All costs of this appeal are

assessed against Defendants/Appellees, Sheryl R. Parker, Tracie Y. Blanchette,

Karen D. Parker, Curtis J. Parker, Jr., and Joy N. Parker, individually and as

Independent Executrix of the Succession of Betty Jean Parker.

REVERSED AND REMANDED.

4

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

15-463

CONSOLIDATED WITH

15-464

SUCCESSION OF BETTY JEAN PARKER

Gremillion, J., concurs.

I write separately because I find that the majority opinion does not

adequately address the facts leading to the trial court’s dismissal, nor does it

address what the trial court should have done to properly deal with those facts.

Louisiana Code of Civil Procedure article 221 defines a “contempt of court”

as “any act or omission tending to obstruct or interfere with the orderly

administration of justice, or to impair the dignity of the court or respect for its

authority.” That article also tells us that there are two kinds of contempt of court:

direct and constructive.

The critical event in this matter was the November 12, 2014 trial. That trial

date was agreed upon by all the parties. It was affirmed and reaffirmed by way of

email exchanges among all the parties. Thereafter, the court formalized the date by

both mailing and emailing notice to all the parties. Even after that, the court sent

additional notices to the parties referencing the November 12, 2014 trial date.

On November 7, 2014, counsel for Curtis Parker, Sr., filed a Motion to

Continue the trial, pledging to the court that he was required to be in another room

in the same courthouse regarding a matter that had been fixed prior to the trial in

this matter. The trial court, however, determined that this assertion on the part of

counsel was false. Therefore, the trial court denied counsel’s Motion to continue

the trial, and sent yet another notice thereby nailing down the November 12, 2014

trial date.

The trial court’s “per curiam” indicates that on the morning of trial, counsel,

Mr. Wilford Carter, sat idly in another courtroom in the same building and refused

to even make an appearance in this courtroom, even when expressly ordered to do

so by the trial court, and even when a bailiff instructed Mr. Carter that his client’s

matter was going to proceed with or without him.

Mr. Carter was clearly in contempt of court. He clearly interfered with the

orderly administration of justice, and his actions were calculated to impair the

dignity of the court and show disdain, rather than respect, for its authority.

Louisiana Revised Statute 13:4611 lays out the punishment for contempt of

court. For an attorney at law such as Mr. Carter, he could have been fined up to

$100 or imprisoned for up to 24 hours. This is the punishment that should have

been meted out to him. His client’s case should not have been dismissed.

To utterly refuse to even enter the courtroom while his client’s trial is being

conducted is unconscionable. To refuse to enter that courtroom to spite the trial

judge is contemptible.