ROSEMARY LEDET, Judge.
This is a succession proceeding. The appellant, the Estate of Quiana Jones through its administrator Derrick Jones, Sr.
On March 10, 2010, a vehicle driven by a Harrah's New Orleans employee struck Quiana Jones, Mr. Jones' wife. Mrs. Jones died later that day. Following her death, three suits were instituted: (i) the Tort Suit — Mr. Jones, individually and on behalf of their three minor children, filed a petition for damages against Harrah's on March 9, 2011; (ii) the Succession Proceeding — Mr. Jones filed a petition for appointment as administrator on October 18, 2011; and (iii) the Tutorship Proceeding — Mr. Jones filed a petition for confirmation as natural tutor and for appointment of undertutrix on July 31, 2012.
On October 23, 2013, Mr. Lucien, pro se and as agent for various legal entities,
On January 23, 2014, a hearing was held on Mr. Lucien's motion for summary judgment. Although Mr. Jones' counsel opposed the motion for summary judgment at the hearing, his counsel failed to file a formal opposition to the motion. During the hearing, Mr. Lucien's counsel incorrectly informed the trial court that Mr. Jones' acknowledgment of the debt was in the Succession Proceeding record. At the conclusion of the hearing, the trial court granted Mr. Lucien's motion for summary judgment. On February 3, 2014, the trial court rendered judgment granting Mr. Lucien's motion for summary judgment and ordered the administrator of the Estate of Quiana Jones to pay Mr. Lucien $200,000.00.
Mr. Lucien's motion to dismiss enumerates eleven reasons why he contends the appeal should be dismissed.
Mr. Jones, as the legal representative of his wife's estate, has the right to appeal an appealable judgment by the trial court in the Succession Proceeding. See La. C.C.P. art. 2084.
One limit is set forth in La. C.C.P. art. 2085, which provides that "[a]n appeal cannot be taken by a party who confessed judgment in the proceedings in the trial court or who voluntarily and unconditionally acquiesced in a judgment rendered against him." While Mr. Lucien contends that Mr. Jones acquiesced in the judgment by failing to file a formal opposition, Mr. Jones' counsel contested the motion at the hearing. Further, while Mr. Lucien contends that Mr. Jones acquiesced in the judgment by signing an acknowledgment, Mr. Jones contends that the acknowledgment was never filed into the trial court record. Accordingly, we find Mr. Lucien's contention that this appeal should be dismissed based on the grounds that Mr. Jones acquiesced in the judgment unpersuasive.
There are also certain irregularities or errors that mandate a dismissal of an appeal under La. C.C.P. art. 2161.
Appeals may also be dismissed by consent of the parties, lack of jurisdiction, or abandonment under La. C.C.P. art. 2162.
This court recently noted that "[t]he standard of review of a trial court's ruling granting a motion for summary judgment, pursuant to La. C.C.P. arts. 966 and 967, and the jurisprudence, is well-settled." Chapital v. Harry Kelleher & Co., 13-1606, p. 5 (La.App. 4 Cir. 6/4/14), 144 So.3d 75, 81. This court summarized the standard of review as follows:
Chapital, 13-1606 at pp. 5-6, 144 So.3d at 81-82 (quoting Mandina, Inc. v. O'Brien, 13-0085, p. 5 (La.App. 4 Cir. 7/31/13), ___
On appeal, Mr. Jones asserts the following five assignments of error: 1) the trial court erred in ruling on summary judgment prior to ruling on outstanding exceptions; 2) the trial court erred in allowing Mr. Lucien to proceed individually when the claim filed only lists Mr. Lucien as an agent; 3) the trial court erred by using summary rather than ordinary proceeding; 4) the trial court erred in ruling that there are no genuine issues of material fact; and 5) the trial court erred in granting summary judgment in favor of a non-party. Because we find Mr. Jones' fourth assignment of error dispositive, we do not reach his remaining assignments of error.
Mr. Jones contends that the trial court erred in granting the motion for summary judgment because there are genuine issues of material fact. He contends that the affidavit of the administrator confessing judgment is not in the record. He thus contends that the record neither contains evidence of an indebtedness of the succession to the claimants, nor evidence of the sum owed to each claimant individually or collectively.
Mr. Lucien concedes that the acknowledgment was not filed in the Succession Proceeding record; however, he contends that the trial court had sufficient evidence to rule on the motion for summary judgment. He contends that he was allowed to use parol evidence to prove Mrs. Jones' indebtedness to him under La. R.S. 13:3721.
Even in the absence of a formal opposition to a motion for summary judgment, the moving party must show that he is entitled to summary judgment. Baker v. Ingram, 447 So.2d 101, 102 (La.App. 4th Cir.1984).
Mr. Lucien failed to prove that no genuine issue of material fact existed, and that he was entitled to a judgment as a matter of law for $200,000.00. Even assuming, arguendo, that Mr. Lucien was allowed to use parol evidence to prove the debt,
In Succession of Flach, the only testimony offered to prove the alleged debt of the estate was that of the creditor himself. Id. at 382. The only corroborating evidence offered was a series of checks written to the decedent and tendered by the creditor containing the notation "loan" on the bottom. Id. Citing La. R.S. 13:3722, this court reasoned that "[b]oth the statute itself and the jurisprudence which interpret it clearly state that the `creditable witness' whose testimony is used to prove the existence of the debt must be someone other than the claimant, so as to eliminate the possibility of fraud or perjury by witnesses who have a direct pecuniary or proprietary interest in the claim." Id. at 381-82 (citing Savoie v. Estate of Rogers, 410 So.2d 683 (La.1981)). This court concluded that even if parol evidence was admissible under La. R.S. 3721, the evidence offered was insufficient to prove indebtedness of the decedent to the alleged creditor. Id. at 382.
As in Succession of Flach, the only testimony in the record of this case offered to prove the alleged debt was an affidavit of Mr. Lucien, the creditor himself. Further, the only corroborating evidence offered to prove the debt was the fraud claim that Mr. Lucien filed with the police and copies of checks written by Mr. Lucien to Mrs. Jones. According to the jurisprudence and the statute, without testimony of another credible witness attesting to the debt, this evidence was insufficient to prove the alleged $200,000.00 debt. See La. R.S. 13:3722.
Mr. Lucien also contends that because Mr. Jones signed an acknowledgment of the debt, this alone was sufficient proof of the debt and the other evidence he offered was simply confirming this acknowledgment. However, the acknowledgment was neither filed into the record of the Succession Proceeding, nor introduced into evidence at the hearing on the motion for summary judgment.
This court is a court of record; hence our review is restricted to evidence in the record before us. La. C.C.P. art. 2164. It is well-settled that attachments to briefs are not a part of the record on appeal and cannot be considered in resolving issues on appeal. Miller v. Crescent City Health Care Ctr., 08-1347, p. 8 (La.App. 4 Cir. 5/28/09), 24 So.3d 891, 898-99, (Tobias, J., concurring) (collecting cases). Further, an appellant cannot supplement the record on appeal with memorandum and attachments that were not introduced into evidence at the hearing on the motion for summary judgment. Louisiana Onshore Properties,
Based on the above principles, we cannot consider the acknowledgment in reviewing the trial court's ruling on the motion for summary judgment. While the acknowledgment was attached to Mr. Lucien's appellee brief, it was not properly filed in the trial court. Although Mr. Lucien supplemented this appeal with the record of the Tort Suit, which also contains a copy of the acknowledgment, the Tort Suit has not been consolidated with the Succession Proceeding and is not properly before us.
Accordingly, Mr. Lucien failed to establish the lack of any genuine issues of material fact and that he is entitled to judgment as a matter of law. Thus, the trial court's judgment granting the motion for summary judgment is reversed.
For the foregoing reasons, the judgment of the trial court is reversed.
La. C.C.P. art. 968 provides: