NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2014 CA 0606 SUCCESSION OF

Transcription

1 NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2014 CA 0606 SUCCESSION OF CAROLE STOKLEY' HERNDON On Appeal from the 22nd Judicial District Court Parish of St. Tammany, Louisiana Docket No , Division " B" Honorable August J. Hand, Judge Presiding D. Douglas Howard, Jr. Attorneys for Appellant Danyelle Taylor Jonathan C. Pedersen Lacy M. Smith New Orleans, LA Cindy Giardelli Hoerner Jane L. Triola Pearl River, LA Attorneys for Appellee Michael Edward Giardelli, Independent Executor and Randy P. Russell Mandeville, LA BEFORE: PARRO, McDONALD, AND CRAIN, JJ. Judgment rendered DEC We note that in the caption of the original petition, and in the caption of the will itself, the testratrix's middle name is spelled" Stokely." Her signature on the will, particularly clear on page 11 of the appellate record, and other references in the record, indicate the correct spelling is" Stokeey."

2 PARRO, J. This is a contested last will and testament case. Cindy Ann Giardelli Hoerner appeals a district court judgment that denied her petition to nullify the notarial testament of her mother, Carole Stokley Herndon. The district court found that, despite the defects Ms. Hoerner claimed that the testament contained, the testament was valid. For the following reasons, we affirm. BACKGROUND On August 25, 2012, Ms. Herndon signed her last will and testament. The will, in the form of a notarial testament, bears the signature of Ms. Herndon, the signatures of two witnesses, and a notarization by Stacy L. Bragg. Several weeks later, Ms. Herndon passed away. Subsequently, her son, Michael Edward Giardelli, filed a pleading in the 22nd Judicial District Court to probate Ms. Herndon' s will and to appoint him executor of her estate. In response, Ms. Hoerner challenged the validity of the will in a petition to nullify, which she later supplemented and amended. The district court conducted a hearing on that petition, and subsequently rendered written reasons and a judgment denying and dismissing Ms. Hoerner' s petition to nullify. In the wake of that judgment, Ms. Hoerner filed a suspensive appeal, asserting two assignments of error: 1. The district court committed legal error when it concluded that the purported notary public, Stacy Bragg' s, ' notarization" of Mrs. Herndon' s testament was valid even though [ Stacy] Bragg was ineligible to practice law and perform notarial functions when she " notarized" the decedent' s testament. 2. The district court was manifestly erroneous and committed legal error when it concluded that Mrs. Herndon' s testament was valid, even though an alleged witness to the signing and notarization of the testament could not be identified in order to authenticate same. APPLICABLE LAW Standard of Review The appellate jurisdiction of courts of appeal in civil cases encompasses both law and facts. LSA- Const. art. V, 10( B). A court of appeal assesses questions about factual issues decided below using the manifest error standard of review. Rosell v. 2

3 ESCO, 549 So. 2d 840, 844 ( La. 1989). Under that standard, " reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable." Id. By contrast, legal issues decided below are assessed by a court of appeal using the de novo standard of review. Kevin Associates, L. L. C. v. Crawford, ( La. 1/ 30/ 04), 865 So. 2d 34, 43. Under that standard, the decision by a tribunal below about the interpretation or application of the law is not entitled to deference. Id. Notarial Testament Louisiana law provides that a person wishing to dispose of his or her property upon death by donating it to others may do so only through the proper execution of a last will or testament. Kathryn Lorio, La. Civil Law Treatise, Successions and Donations, 12. 1, p. 392 ( 2d ed. 2009). 2 The Civil Code provides for certain requirements in the form of a testament, which " serve as evidence of the requisite intent necessary to confect a will." Id. In 1997, the legislature amended the Civil Code and reduced the number of types of testaments from five to two: olographic and notarial. Id.; see LSA- C. C. art The notarial testament is similar to one of the previous types, the statutory will. Successions and Donations, 12. 1, p One way the statutory will differed from the four other pre testament forms is that those four other forms were in the Civil Code, while the statutory will was in Title 9 of the Revised Statutes, at LSA- R. S. 9: Due to the similarity of the statutory will and the notarial testament, the Louisiana Supreme Court has noted that jurisprudence interpreting the statute for the old statutory will form is useful when interpreting the law concerning the newer notarial testament. See, e. a., In re Succession of Holbrook, ( La. 1/ 28/ 14), 144 So. 3d 845, 849 n. 2. The legislature had created the statutory will form to provide " an Z This treatise is cited subsequently as Successions and Donations. 3 See 1952 La. Acts, No. 66, 1, effective July 30, 1952; and see Successions and Donations, 12. 1, p. 392 n. 9. 3

4 efficient, simpler alternative to the forms provided in the Civil Code." Successions and Donations, 12. 1, p Holbrook points out that comment ( a) to LSA- C. C. art. 1577, the article setting forth the requirements. of form for a notarial testament, explains that this article reproduces the substance of R, S. 9: It does not change the law." Id. Louisiana Civil Code article 1576 provides that a notarial testament is one executed in accordance with the formalities contained in Civil Code articles 1577 through Holbrook states that "[ t] he notarial testament must be executed in accordance with" those Civil Code articles. Holbrook, 144 So. 3d at 848. Given that the notarial testament " does not change the law" from that for the statutory will, the jurisprudence interpreting the legal requirements for a notarial testament has often taken the same functional approach that the courts had used to interpret the legal requirements for a statutory will. Holbrook illustrates that. It held that a notarial testament's incompletely-dated attestation clause, located between two unambiguous references to the full date when the testament was executed, did not invalidate the testament. Holbrook, 144 So. 3d at 853. The court' s conclusion also rested on this additional reasoning: "[ t] here is no indication of fraud in the record before us, and in all other respects, Mr. Holbrook`s testament and the attestation clause comply with La. Civ. Code art " Id. This functional approach to interpreting a statutory will has been articulated by the supreme court this way: " courts liberally construe and apply the statute, maintaining the validity of the will if at all possible, as long as it is in substantial compliance with the statute." Succession of Guezuraaa, 512 So. 2d 366, 368 ( La. 1987). That expression by the supreme court echoes an earlier statement by the court in a case contesting a different type of testament, an olographic will, in which the testament's date was in the form of slash dating, rather than in words and numbers. In finding that testament valid, due to extrinsic evidence removing the ambiguity of the slash date, the court reasoned that "[ t] he object of the law is surely not to frustrate the will of the testator." Succession of Boyd, 306 So. 2d 687, 692 ( La. 1975). 4

5 DISCUSSION Validity of Notarization Ms. Hoerner argues in her first assignment of error that Ms. Herndon' s testament is invalid because its notarization is defective, and cites this court's statement in In re Hendricks: "[ i] f the formalities prescribed for the execution of a testament are not observed, the testament is absolutely null." In re Hendricks, ( La. App. 1st Cir. 9/ 23/ 09), 28 So. 3d 1057, 1060, writ not considered, ( La. 3/ 26/ 10), 29 So. 3d 1256 ( holding that the absence of the testator's signature on a page of a notarial testament containing dispositive provisions invalidated the testament). Here, Ms. Hoerner contends that, when Ms. Herndon, signed the will, Ms. Bragg, the notary, had become ineligible to practice law for failure to attend requisite continuing education courses. Ms. Hoerner then argues that, because Ms. Bragg' s right to serve as a notary derived from her eligibility to practice law, the lapse of her eligibility to practice law had likewise caused her status as a notary to lapse under LSA- R. S. 35: 14. That statute provides that an attorney " disbarred or suspended from the practice of law due to charges filed by the Committee on Professional Responsibility... shall not be qualified or eligible nor shall he exercise any functions as a notary public.. as long as he remains disbarred or suspended LSA- R. S. 35: 14. Ms. Hoerner also cites a more general statute, LSA- R. S. 35: 602( A)( 4), which provides that, for anyone whose notarial authority derives from holding another position, and who loses that position, then he or she may no longer serve as a notary. In sum, Ms. Hoerner contends that when Ms. Bragg notarized the testament, she had lost her eligibility to practice law, and thus also lost her eligibility to act as a notary, which meant the testament lacked a valid notarization, which therefore made the testament invalid. In response, Mr. Giardelli contends that Ms. Hoerner failed to prove to the district court that Ms. Bragg was ineligible to act as a notary when Ms. Herndon signed her will. Mr. Giardelli notes that LSA- C. C. P. art. 2932( 6) provides that'"[ i] n an action to annul a notarial testament..., the plaintiff always has the burden of proving the invalidity of the testament." He further points out that, at the hearing of the petition to 5

6 nullify, his counsel repeatedly objected to the admissibility- of an unsworn letter from the state bar association about Ms. Bragg' s ineligibility to practice law due to a deficiency in continuing education and nonpayment of dues. Mr. Giardelli does not contend that the district court sustained his counsel' s objection on that issue, and our own review of the record finds no explicit ruling on that obje-tion. However, what we do find, in the district court's written reasons for judgment, is that the court concluded that "[ t]here was no evidence presented that any complaint had been filed against [ Ms. Bragg] to the Committee on Professional Responsibility. There was no indication that she had been ' suspended due to charges filed by the Committee on Professional Responsibility.' " The district court reasoned that this lack of evidence meant that Ms. Hoerner had: failed to prove that Ms. Bragg was disqualified as a result of the statutes Ms. Hoerner had cited, LSA- R. S. 35: 14 and 35: 602( A)( 4). As mentioned earlier, under LSA- R.S. 35: 14, disqualification of an attorney to serve as a notary requires charges to have been flied against the attorney by the Committee on Professional Responsibility. Our own review of the record finds no proof by Ms. Hoerner of charges against Ms. Bragg by the Committee on Professional Responsibility. Therefore, we find no error in the district court' s conclusion that Ms. Hoerner failed to prove her contention that LSA- R. S. 35: 14 and 35: 602( A)( 4) disqualified Ms. Bragg here. Accordingly, we find Ms. Hoerner' s first assignment of error lacks merit. Validity of Second Witness In her second assignment of error, Ms. Hoerner argues that one of the two witnesses to the testament can only be identified by his first-name because his surname is illegible, and therefore this constitutes a fatal defect in the form of the testament. The district court, in its written reasons for judgment, found that the name of the witness appeared to the court to be " Billy Boyles." In addition, the district court reasoned that whatever imperfection that might exist in the name of this witness did not rise to the level of a defect that would invalidate the will, noting that there had been " no challenge to the testament which would require the testimony of the witnesses." The district court found that this issue did not keep the testament from 6

7 being in substantial compliance with the requirements of form for a notarial testament, as set forth in LSA- C. C. art The text of LSA- C. C. art simply requires that, the witnesses shall sign a declaration that says, in their presence, the testator has declared that the document is his testament, that the testator has signed it at the end and on each page, and that the witnesses and the notary have signed in the presence of the testator and one another. Thus, the Civil Code article setting forth the formal requirements for a notarial testament does not contain any specific requirement about the legibility of the names of the witnesses. In addition, the parties have not directed us to any jurisprudence that specifically addresses whether the absence of a legible name of one of the witnesses to a notarial testament constitutes a defect in form sufficient to invalidate the testament, and we have found none. Further, we are mindful that the supreme court has expressed the view that "[ t] he object of the law is surely not to frustrate the will of the testator." Succession of Boyd, 306 So. 2d at 692. Thus, we find the law does not support Ms. Hoerner' s argument that the imperfect legibility of a witness' s last name to the testament here invalidates Ms. Herndon' s testament. Accordingly, Ms. Hoerner's second assignment lacks merit. CONCLUSION For the reasons set forth above, we affirm the district court's judgment denying and dismissing the petition to nullify the testament. Costs of this appeal are taxed to Cindy Ann Giardelli Hoerner. AFFIRMED. 7