Succession of Theodule Noel v. Catherine Noel

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 17-663

SUCCESSION OF THEODULE NOEL

VERSUS

CATHERINE NOEL

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF VERMILION, NO. 102492
HONORABLE PATRICK LOUIS MICHOT, DISTRICT JUDGE

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SYLVIA R. COOKS

JUDGE

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Court composed of Sylvia R. Cooks, Elizabeth A. Pickett, and Billy H. Ezell,
Judges.

APPEAL DISMISSED AND CASE REMANDED.

Thomas Reginald Hightower, Jr.
Attorney at Law
Post Office Drawer 51288
Lafayette, Louisiana 70505
(337) 233-0555
COUNSEL FOR APPELLEES:
Bryan E. Lege
Ralph E. Kraft
Kraft, Lege, L.L.C.

R. Chadwick Edwards, Jr.
Edwards & Edwards
Post Office Box 217
Abbeville, Louisiana 70511-0217
(337) 893-2884
COUNSEL FOR APPELLANTS:
Samuel J. Noel, Succession Executor for Theodule P. Noel
Samuel J. Noel
Samuel J. Noel, Mandatary of Irene Noel

Ralph Edward Kraft
Bryan E. Lege
Kraft Lege, L.L.C.
600 Jefferson Street, #410
Lafayette, Louisiana 70501
(337) 706-1818
COUNSEL FOR APPELLEE:
Catherine A. Noel

Charles R. Sonnier
The Sonnier Firm
2 South Magdalen Square
Abbeville, Louisiana 70510
(337) 893-5973
COUNSEL FOR APPELLEE:
Catherine A. Noel

R. Chadwick Edwards, Jr.
Post Office Box 217
Abbeville, Louisiana 70511-0217
(337) 893-2884
IN PROPER PERSON

COOKS, Judge.

This court issued, sua sponte, a rule ordering the Plaintiff-Appellant, Samuel

J. Noel (individually and as independent executor of the Succession of Theodule P.

Noel and as the mandatary of Irene Joyce Noel), to show cause 1) why the appeal

should not be dismissed as premature under La.Code Civ.P. art. 2087(D), and 2)

why the appeal should not be dismissed for having been taken from a judgment

lacking proper decretal language. For the reasons given herein, we hereby dismiss

this appeal and remand this case for further proceedings in accordance with this

court’s ruling.

Theodore P. Noel, Sr., and Joyce Trahan Noel, both now deceased, were

husband and wife who owned immovable property located in Vermilion Parish.

The following four children, who are now adults, were born of the Noels’ marriage:

Catherine A. Noel; Samuel J. Noel; Christine Noel Davenport; and Theodule P.

Noel, Jr. During their lifetime, Irene and Theodule, Sr., established estate

distribution plans for distributing their property to their children. The family

attorney, Chadwick Edwards, was hired to prepare acts of donation, farm leases,

and wills for the Noels. Each child was given an intervivos donation of a piece of

property, and the properties were then leased to Irene and Theodule, Sr. Also,

pursuant to the wills, which were prepared in 2005, Theodule, Jr.; Christine; and

Catherine were supposed to inherit property via Irene’s will, and Samuel Noel was

supposed to inherit via Theodule, Sr.’s will.

On January 12, 2006, Irene executed a power of attorney making her son,

Samuel, her mandatary with the authority to conduct various acts, including the

sale and transfer of property, on her behalf. Between 2008 and 2011, Thoedule, Sr.,

and Samuel, in his capacity as Irene’s mandatary, executed several sales of Irene

and Theodule, Sr.’s property. The property sold included separate and community

property that had been listed in Irene’s will as mortis causa donations for Irene’s

other three children, namely, Theodule, Jr.; Christine; and Catherine. The property

was sold to Samuel; his wife, Pamela Andrepont Noel; his business partner, Ross

Hebert; and Dr. Samuel Schuffler. Samuel also sublet some of Irene’s farm

property to third parties.

Irene died on January 19, 2012, and her succession was opened on January

30, 2012. On January 15, 2013, Theodule, Jr.; Christine; and Catherine filed a

lawsuit, which is related to the instant lawsuit and which is referred to as the “Suit

to Cancel Real Estate Transactions”, against Theodule, Sr., and Samuel Noel,

seeking rescission of the real estate transactions on the ground that Irene had

lacked the capacity to give Samuel her power of attorney. Theodule, Sr., filed a

reconventional demand seeking to revoke intervivos donations that he had made to

Theodule, Jr.; Christine; and Catherine on grounds of ingratitude. Although

Irene’s succession is not and has never been under administration, the parties

agreed to have Catherine appointed as a special executrix for the Succession of

Irene so that the succession could intervene in the “Suit to Cancel Real Estate

Transactions.” The “Suit to Cancel Real Estate Transactions” has previously come

before this court on appeal under this court’s docket numbers 15-37 and 16-734.

Theodule, Sr., has now passed away also. The instant lawsuit was filed on

October 20, 2016, by Plaintiff-Appellant, Samuel, both in his capacity as Irene’s

mandatary and in his capacity as the independent executor for the Succession of

Theodule, Sr. The named Defendants for the instant lawsuit are: 1) Catherine, in

her capacity as executrix for Irene’s succession; 2) Kraft Lege, L.L.C. (Kraft Lege),

formerly Kraft Gatz, L.L.C., and individual attorneys from that law firm, namely,

Ralph E. Kraft and Bryan E. Lege, who had provided legal representation for

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Theodule, Jr.; Christine; and Catherine in connection with the “Suit to Cancel Real

Estate Transactions”; and 3) the legal malpractice insurer for Kraft Lege. Also,

Theodule, Jr., and Christine intervened in the instant lawsuit raising claims against

Samuel and Chadwick Edwards, Jr. (the family attorney), and Catherine filed a

third party demand against Chadwick Edwards, Jr., for breach of fiduciary duty.

In the petition for the instant lawsuit, Samuel (hereinafter “Appellant”)

alleges that Catherine, as the executrix of Irene’s estate, had a fiduciary duty to

defend the titles and warranty deeds that were at issue in the “Suit to Cancel Real

Estate Transactions” and a duty to disclose to Irene’s legatees, creditors, and heirs

the facts giving rise to any defects in the other lawsuit. Appellant accuses

Catherine of breaching her fiduciary duties. Appellant contends that although

Catherine, in her capacity as executrix for the Succession of Irene, intervened in

the “Suit to Cancel Real Estate Transactions,” the succession’s claim has been

dismissed and that ruling is final. Appellant maintains that because Catherine, in

her individual capacity, was one of the Plaintiffs in the “Suit to Cancel Real Estate

Transactions”, and because those Plaintiffs had interests adversarial to the interests

of Irene’s succession, there was a conflict of interest between Catherine acting in

her individual capacity and Catherine acting in her capacity as the executrix for

Irene’s succession. Therefore, Appellant asserts that with regard to the “Suit to

Cancel Real Estate Transactions,” Catherine should have obtained separate legal

counsel to represent Irene’s succession, instead of letting Mr. Kraft and Mr. Lege

provide legal representation for both Irene’s succession and the Plaintiffs

(Theodule, Jr.; Christine; and Catherine).

Additionally, Appellant alleges that Kraft Lege and its individual attorneys,

Mr. Kraft and Mr. Lege, provided substandard legal representation to the

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Succession of Irene in connection with the “Suit to Cancel Real Estate

Transactions.” Thus, Appellant asserts that he (in his capacity as Irene’s

mandatary and in his capacity as Theodule, Sr.’s executor) is a third party

beneficiary to the contract between the executrix and Kraft Lege. Appellant also

asserts that he is entitled to reimbursement for the expenses that Theodule, Sr.,

incurred in defending the interest of Irene’s succession. Also, Appellant asserts

that since Irene’s succession is not and has never been under administration,

Appellant can directly bring an action against Kraft Lege, Mr. Kraft, and Mr. Lege

for legal malpractice. Alternatively, Appellant seeks to bring an oblique action,

under La.Civ.Code art. 2044, to force Catherine to assert a legal malpractice action

against Kraft Gatz, Mr. Kraft, and Mr. Lege to pay for damages sustained by the

Succession of Irene.

In response to the instant lawsuit, Kraft Lege, Mr. Kraft, and Mr. Lege filed

exceptions of no right of action, no cause of action, res judicata, and lack of

procedural capacity. Catherine filed exceptions of res judicata, lack of procedural

capacity, improper joinder of a party, prescription, no cause of action, and no right

of action. Catherine also filed a motion to dismiss on the ground of judicial

estoppel. Additionally, Appellant filed a motion to disqualify Kraft Lege, Mr.

Kraft, and Mr. Lege from serving as counsel for any party other than themselves in

the instant lawsuit.

On March 1, 2017, the trial court held a hearing to address some of the

exceptions and motions that had been filed by the parties. On April 11, 2017, the

trial court signed a judgment granting the exceptions of no cause of action and

denying the motion to dismiss on the ground of judicial estoppel. Also, the trial

court deferred ruling on the exceptions of res judicata, lack of procedural capacity,

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improper joinder of a party, and no right of action pending resolution of a separate

appeal that had been filed under this court’s docket number 16-734 in connection

with “Suit to Cancel Real Estate Transactions.” Although the April 11, 2017

judgment states that the trial court had denied the motion to disqualify counsel, the

trial court subsequently issued a minute entry ruling, wherein it indicated that it did

not intend to rule on the motion to disqualify until after a hearing is held on that

motion at a later date. The notice for the April 11, 2017 judgment was mailed on

April 17, 2017.

On April 24, 2017, Kraft Lege, Mr. Kraft, and Mr. Lege filed a motion for

new trial arguing that the April 11, 2017 judgment should reflect that the

exceptions of no right of action were granted along with the exceptions of no cause

of action. That motion for new trial was originally scheduled to be heard on July 3,

2017. However, that hearing date has been continued, and the parties have advised

this court that that motion for new trial is currently scheduled to be heard on

December 11, 2017.

On April 6, 2017, Appellant filed, under this court’s docket number 17-342,

an application for supervisory writs, seeking review of the trial court’s April 11,

2017 ruling which granted the exceptions of no cause of action filed by Catherine

and the exception of no cause of action filed by Kraft Lege, Mr. Kraft, and Mr.

Lege. In response to that writ application, this court rendered the following ruling

on May 2, 2017:

WRIT DENIED. We note that the judgment granting the exceptions
of no cause of action fails to state which claims are being dismissed.
Therefore, we find that the judgment is ambiguous and lacks proper
decretal language. See Johnson v. Mount Pilgrim Baptist Church, 05-
337 (La.App. 1 Cir. 3/24/06), 934 So.2d 66. Nonetheless, we find that
once the judgment at issue is amended to include the proper decretal
language, the judgment will either constitute a final judgment or

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constitute a partial judgment under La.Code Civ.P. art. 1915(B). As
such, Relator, Samuel J. Noel, will have adequate appellate remedy
because he can appeal the judgment of right if the entirety of the suit
is dismissed or is dismissed as to certain parties or he can request that
the trial court designate the judgment as an appealable, final judgment
if the judgment falls under the provisions of Article 1915(B).
Appellate courts generally will not exercise their supervisory
jurisdiction when an adequate remedy exists by appeal. Douglass v.
Alton Ochsner Medical Found., 96-2825 (La. 6/13/97), 695 So.2d 953.
Therefore, we deny the instant writ application.

On May 15, 2017, Appellant herein filed a motion for reconsideration of

writ application number 17-342. That motion was denied by this court on May 17,

2017. Appellant has filed with the Louisiana Supreme Court a writ application that

is currently pending.

Meanwhile, in response to this court’s ruling on writ application number 17-

342, the trial court signed a minute entry on May 5, 2017, ordering the parties to

submit an appropriate amended judgment. However, the record does not indicate

that an amended judgment containing the proper decretal language was submitted

by the parties to the trial court. Rather, it appears that Appellant sought to have the

judgment amended by filing a “Motion for Ex Parte Order Granting New Trial” on

May 23, 2017.

By that motion, Appellant requests a rehearing on the exceptions that were

previously heard and on all other related matters. Appellant appears to imply that

his “Motion for Ex Parte Order Granting New Trial” is related to the motion for

new trial which was previously filed on April 24, 2017, by Kraft Lege, Mr. Kraft,

and Mr. Lege. However, in a letter dated May 22, 2017, counsel for Kraft Lege,

Mr. Kraft, and Mr. Lege oppose Appellant’s “Motion for Ex Parte Order Granting

New Trial”, asserting that Appellant’s motion, which seeks to address “all related

matters”, goes beyond the scope of their motion for new trial, which addresses only

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the exceptions of no right of action. On June 1, 2017, the trial court apparently

attempted to deny Appellant’s “Motion for Ex Parte Order Granting New Trial” by

writing the word “Denied” diagonally across the proposed order for setting the

previously-heard and the other pending matters for hearing.

In addition to filing the writ application under this court’s docket number

17-342, Appellant also sought review of the trial court’s April 11, 2017 judgment

via an appeal. The motion for a devolutive appeal was filed on May 1, 2017, and

the order of appeal was signed on May 8, 2017. The appeal was lodged in this

court on July 21, 2017. As stated above, upon the lodging of the record in this

appeal, this court issued a rule for Appellant to show cause why the appeal should

not be dismissed as premature under La.Code Civ.P. art. 2087(D), and why the

appeal should not be dismissed as having been taken from a judgment lacking the

proper decretal language.

We find that the instant appeal is not properly before this court because the

judgment sought to be appealed is ambiguous and lacks proper decretal language.

In that regard, we note that this court has stated that “[a] valid judgment must be

precise, definite, and certain. A final appealable judgment must contain decretal

language, and it must name the party in favor of whom the ruling is ordered, the

party against whom the ruling is ordered, and the relief that is granted or denied.”

State v. White, 05-718 (La.App. 3 Cir. 2/1/06), 921 So.2d 1144, 1146. Moreover, a

judgment cannot require reference to extrinsic documents or pleadings in order to

discern the court’s ruling. Vanderbrook v. Coachmen Industries, Inc., 01-809

(La.App. 1 Cir. 5/10/02), 818 So.2d 906.

In the instant case, although the judgment at issue states that the exceptions

of no cause of action are granted, the judgment fails to state which claims, if any,

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are being dismissed. Therefore, we find that the judgment is ambiguous and lacks

appropriate decretal language. See Johnson, 934 So.2d 66. Accordingly, we find

that this case should be remanded to the trial court for the preparation of an

amended judgment which includes proper decretal language.

Further, we note that if the amended judgment serves to dismiss only some

of Appellant’s claims, as opposed to dismissing the entire case or one or more of

the parties, the judgment would constitute a partial judgment, thus requiring a

designation of immediate appealabilty under La.Code Civ.P. art. 1915(B) before an

appeal can be taken.

Additionally, we note that once the case is remanded and the April 11, 2017

judgment is amended to include proper decretal language, there are two

outstanding motions for new trial which need to be addressed by the trial court

before the case can proceed to an appeal. In that regard, we note that La.Code

Civ.P. art. 2087(D) provides that “[a]n order of appeal is premature if granted

before the court disposes of all timely filed motions for new trial or judgment

notwithstanding the verdict. The order becomes effectively upon denial of such

motions.”

The first motion for new trial that was filed in the instant case is the motion

for new trial which was filed by Kraft Lege, Mr. Kraft, and Mr. Lege on April 24,

2017. We note that the parties have advised this court that a hearing on that

motion for new trial is currently scheduled for December 11, 2017. Any appeal

taken prior to the rendition of a judgment on that motion for new trial would be

premature. See La.Code Civ.P. art. 2087(D).

The second motion for new trial that was filed in this this case was filed by

Appellant on June 1, 2017. However, we note that the purported judgment on

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Appellant’s motion for new trial only includes the word, “denied,” written across

the proposed order for a hearing. In Egle v. Egle, 05-0531 (La.App. 3 Cir. 2/8/06),

923 So.2d 780, this court held that the notation “Denied,” written across a

proposed order for a hearing which had been attached to a motion for new trial is

insufficient to satisfy the statutory requirement that a final judgment be “identified

as such by appropriate language.” See La.Code Civ.P. art. 1918. Thus, in the

instant case, we find the purported judgment on Appellant’s motion for new trial to

be insufficient to constitute a valid judgment on that motion.

For the foregoing reasons, we dismiss this appeal and remand this case to the

trial court for further proceedings in accordance with this ruling.

APPEAL DISMISSED AND REMANDED.

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION.
Rule 2-16.3 Uniform Rules, Court of Appeal.

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