Succession of Ray E. Romero

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

18-923

SUCCESSION OF

RAY E. ROMERO

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, NO. 22906
HONORABLE LEWIS H. PITMAN, JR., DISTRICT JUDGE

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D. KENT SAVOIE
JUDGE

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Court composed of D. Kent Savoie, Candyce G. Perret, and Jonathan W. Perry,
Judges.

AFFIRMED.

Ian A. Macdonald
Jones Walker LLP
600 Jefferson Street, Suite 1600
Lafayette, Louisiana 70501
(337) 593-7617
COUNSEL FOR DEFENDANT-APPELLANT:
Douglas E. Waters

Tyler J. Rench
Jones Walker LLP
201 St. Charles Ave., Suite 5100
New Orleans, LA 70170
(504) 582-8336
COUNSEL FOR DEFENDANT-APPELLANT:
Douglas E. Waters

Raymond A. Beyt
Aaron D. Beyt
P.O. Box 52157
Lafayette, LA 70503
(337) 233-6771
COUNSEL FOR PLAINTIFFS-APPELLEES
Clifford Gerard Ellender, et. al.

Clifford Gerard Ellender, et al.
c/o Larry Lovas
216 Kees Circle
Lafayette, LA 70506
PRO SE PLAINTIFFS-APPELLEES
Clifford Gerard Ellender, et al.

Porteus R. Burke
Burke & Cestia
P. O. Box 10337
New Iberia, LA 70562-0337
(337) 365-6628
COUNSEL FOR OTHER APPELLEE:
Carolyn Romero Rink

SAVOIE, Judge.

In connection with this court’s docket number 18-923, the Defendant-

Appellant Douglas Waters (“Mr. Waters”), who is the Executor of the Succession of

Ray Romero, appeals the trial court’s judgment dismissing Plaintiffs’ Petition for

declaratory relief without prejudice, arguing that the Petition should have been

dismissed with prejudice. For the following reasons, we affirm.1

FACTUAL AND PROCEDURAL BACKGROUND

The decedent, Ray Romero passed away on November 13, 2016. On October

20, 2017, a group of eighteen of Mr. Romero’s purported nieces and nephews

(“Plaintiffs”) filed a Petition for Declaratory Judgment concerning their inheritance

rights with respect to Mr. Romero’s estate. They named as Defendants, Mr. Waters,

individually and as Executor of Mr. Romero’s succession, and Carolyn Rink, who

was Mr. Romero’s only biological child and born of Mr. Romero’s first marriage.

Plaintiffs further alleged that after Mr. Romero’s first marriage ended, Mr. Romero

married Martha Waters Romero. Mr. Romero and Martha did not have any

biological children together, however, Martha had two children from prior

relationships: Mr. Waters, who is the Executor herein, and Virginia Waters Johnson.

In their Petition, Plaintiffs further alleged that Mr. Romero died testate, noting

a Will dated October 14, 1993 (“the Will”), which left Mr. Romero’s assets to the

Trustees of the Romero Living Trust of 1991 (“the 1991 Trust”). However,

according to Plaintiffs, the 1991 Trust terminated pursuant to a document dated

September 17, 2007. They also alleged that Martha had predeceased Mr. Romero

and the Will disinherited Ms. Rink. Therefore, according to Plaintiffs, Mr. Romero’s

estate should be divided among them as the surviving children of Mr. Romero’s four

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We do not consider at this time the merits of docket numbers 18-924 and 18-982, which
have been consolidated herewith, per the request of counsel who have noted a potential settlement.

deceased siblings pursuant to the rules of intestacy. According to Plaintiffs, the only

estate asset is a Merrill Lynch account, which was formerly held in the 1991 Trust,

but had been returned to Mr. Romero by virtue of the termination and distribution of

the 1991 Trust property on September 1, 2007. Both Mr. Waters and Ms. Rink filed

separate Answers to Plaintiffs’ Petition.

On March 16, 2018, Mr. Waters filed a Motion for Summary Judgment

seeking dismissal of Plaintiffs’ Petition with prejudice insofar as it sought a

determination that the Merrill Lynch account was part of Mr. Waters’ estate. He

argued that the account and its proceeds were property of The Romero Living Trust

of 2007 (“the 2007 Trust”), which replaced the 1991 trust. Mr. Waters further

described the various transactions that replaced the 1991 Trust with the 2007 Trust

and transferred the Merrill Lynch Account to the 2007 Trust. He also noted that

after Mr. Romero passed away on November 13, 2016, he was named Executor at

the time of probate in March 2017 in accordance with the Will, and under the terms

of the 2007 Trust, he also became the successor trustee and liquidated the Merrill

Lynch account. Mr. Waters’ Motion for Summary Judgment also sought dismissal

of Plaintiffs’ claims arguing that “the small amount of property owned by the estate”

could not be distributed to Plaintiffs because “they have not sufficiently proven their

relatedness to the decedent[.]” Mr. Waters did not seek a hearing date with respect

to his Motion for Summary Judgment, no hearing date was set, and Plaintiffs did not

file any opposition thereto.

On May 8, 2018, Plaintiffs submitted a Motion and Order to Dismiss, seeking

the voluntary dismissal of their action without prejudice. Mr. Waters filed an

opposition on May 9, 2018, arguing that Plaintiffs’ Petition should be dismissed with

prejudice, rather than without prejudice. The trial court signed an order on May 11,

2018, granting Plaintiffs’ motion and dismissing their Petition without prejudice.
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Mr. Waters appeals. In his sole assignment of error, he states: “The Trial

Court abused its discretion when it dismissed [Plaintiffs’] petition without prejudice

in the face of a then-pending Motion for Summary Judgment, which sought

dismissal of the same petition with prejudice.”

ANALYSIS

Louisiana Code of Civil Procedure Article 1671 states as follows with respect

to a voluntary dismissal:

A judgment dismissing an action without prejudice shall be
rendered upon application of the plaintiff and upon his payment of all
costs, if the application is made prior to any appearance of record by
the defendant. If the application is made after such appearance, the
court may refuse to grant the judgment of dismissal except with
prejudice.

“After the defendant has appeared, the trial judge has wide discretion to

dismiss without prejudice, and such a decision will not be set aside absent clear abuse

of discretion. In short, [La.Code Civ.P. art.] 1671 leaves to the discretion of the trial

court the decision to dismiss without prejudice.” LaRocca v. Bailey, 01-618, p. 11

(La.App. 3 Cir. 11/7/01), 799 So.2d 1263, 1270 (internal citations omitted). The

“only rule which must be followed by the court in the exercise of its discretion” is

that it “cannot dismiss an action without prejudice, after the defendants have made

an appearance of record, if substantive rights of the defendant would be lost by the

dismissal or if the dismissal would deprive the defendant of a just defense.” Mowad

v. General Motors Corp., 02-1189, p. 2 (La.App. 3 Cir. 3/5/03), 839 So.2d 1089,

1091.

Mr. Waters argues on appeal that dismissal of Plaintiffs’ claims without

prejudice deprives him “of the opportunity to defend against the claims in a timely

and efficient manner.” He further argues that “[i]n the face of a motion or exception

that threatens to permanently end a plaintiff’s case, a plaintiff is not permitted to

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avoid responding by voluntarily dismissing his case and reserving the right to re-file

at a later date.” (footnote omitted). In support of this argument, Mr. Waters cites to

Borrello v. City of Kenner, 99-420 (La.App. 5 Cir. 11/30/99), 750 So.2d 230;

however, we conclude that Borrello does not support Mr. Water’s argument.

In Borrello, the plaintiffs filed a petition on July 1, 1997, arising out of a July

3, 1996 accident wherein a child was injured on a playground. The plaintiffs named

the City of Kenner and the Recreational Director of the City of Kenner as Defendants,

but asked that service be withheld. The City was not served until July 9, 1998. The

defendants responded with prescription exceptions, arguing that under then-

applicable La.R.S. 13:5107(D), dismissal was appropriate because the plaintiffs had

failed to serve the City within ninety days of filing the petition. However, on the

day prior to the scheduled hearing on the exceptions, the plaintiffs instituted a second

action nearly identical to the first, but this time requested service on the City. The

day after filing the second action, the trial court allowed the plaintiffs to voluntarily

dismiss their first action without prejudice. The defendants filed res judicata and

prescription exceptions in the second action, which were denied. The defendants

appealed the voluntary dismissal, and their supervisory writ application regarding

the denials of their exceptions in the second action was consolidated with their

appeal.

In finding that the trial court abused its discretion in granting the plaintiffs’

motion for voluntary dismissal of the first action, it noted that the timeliness of the

first action directly affected the timeliness of the second action. The second action

was prescribed on its face, and its timeliness was dependent upon a determination

that the first action had interrupted the prescriptive period. As noted by the Borrello

court, had the defendants obtained a judgment of dismissal in the first action due to

untimely service, the first action would not have been deemed to interrupt
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prescription as specifically set forth in then-applicable La.R.S. La.R.S. 13:5107(D),

and the second action would be prescribed. Therefore, the Borrello court found that

the voluntary dismissal deprived the defendants of a prescription defense in the

second action.

Contrary to Mr. Waters’ assertion, Borrello does not state that it is an abuse

of discretion for a trial court to grant a voluntary dismissal without prejudice when

a motion or exception that would otherwise end the litigation is pending. Rather, the

Borrello court found that the voluntary dismissal was improper because it deprived

the defendants of a prescription defense. In the instant case, Mr. Waters does not

allege that the voluntary dismissal of Plaintiffs’ claims deprives him of a prescription

defense, or any other defense; therefore, we find Borrello is inapplicable. Instead,

Mr. Waters is concerned that Plaintiffs may file the same claim for declaratory relief

in the future. However, the mere possibility that Plaintiffs may seek declaratory

relief in the future is not a basis for us to find an abuse of discretion on the part of

the trial court when there has been no showing that Mr. Waters would be deprived

of any defense or substantive rights. Therefore, we affirm the ruling of the trial court.

CONCLUSION

For the reasons set forth above, we affirm the trial court’s ruling in this matter.

Costs of this appeal are assessed to Defendant-Appellant, Douglas Waters.

AFFIRMED.

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