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IN RE SUCCESSION OF GILBERT, 2016-CA-0609 (2017)

Court: Court of Appeals of California Number: inlaco20171109322 Visitors: 1
Filed: Nov. 08, 2017
Latest Update: Nov. 08, 2017
Summary: NOT DESIGNATED FOR PUBLICATION DANIEL L. DYSART , Judge . Dean Gilbert seeks review of two judgments rendered by the trial court. In No. 2016-0609, appellant seeks review of a Judgment of Possession rendered by the trial court in the proceedings relative to his mother's succession. In No. 2017-0147, appellant seeks review of a judgment finding him in both direct and constructive contempt of court. For the reasons that follow, we affirm both judgments. Bernadette Gaines Gilbert died intesta
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NOT DESIGNATED FOR PUBLICATION

Dean Gilbert seeks review of two judgments rendered by the trial court. In No. 2016-0609, appellant seeks review of a Judgment of Possession rendered by the trial court in the proceedings relative to his mother's succession. In No. 2017-0147, appellant seeks review of a judgment finding him in both direct and constructive contempt of court. For the reasons that follow, we affirm both judgments.

Bernadette Gaines Gilbert died intestate on December 9, 2011, in Orleans Parish. Appellant petitioned the court to be appointed administrator of her estate, which the trial court granted. On April 26, 2012, appellant's two brothers, Dwight and Darryl Gilbert, moved to have the appointment revoked. The trial court subsequently appointed Dwight Gilbert as the administrator.

As administrator, Dwight filed a petition for possession and a sworn descriptive list of the estate's assets and liabilities. In May of 2012, the trial court signed a partial judgment of possession. During the course of several years, other accountings were filed, culminating in a Judgment of Final Possession signed on October 12, 2015. This judgment is the basis for the appeal in No. 2016-0609.

During the course of the litigation, appellant filed a multitude of pleadings, all containing abusive and discourteous language toward the judges of Civil District Court and the law firm representing the succession. Several motions to recuse the various judges involved in this case (duty judges and judges who replaced prior judges on the bench) were filed by appellant.1 As a result of the abusive and discourteous language contained in his court filings, as well as contact with members of the district court's staff, the court ordered appellant to only communicate with the court through written pleadings, and to stop harassing court personnel. The court also advised appellant to cease using abusive language, giving appellant specific examples of what type of language was prohibited.

In April 2015, the court held a contempt hearing based on appellant's continued use of insulting, abusive, discourteous language in his pleadings, as well as his direct contact with court staff. The court found him in contempt and sentenced him to 48 hours in Orleans Parish Prison, but suspended the sentence.

In May 2015, the trial court again found appellant in contempt of court. The judgment of contempt is the basis for the consolidated appeal in this matter, 2017-0147.

DISCUSSION:

First, we consider appellant's pro se status. We recognize that litigants appearing pro se should generally be given wide latitude, as they are at a disadvantage having no formal training in the law and rules of procedure. See, In Re: Medical Review Panel Claim of Scott, 16-0145, pp. 14-15 (La.App. 4 Cir. 12/14/16), 206 So.3d 1049, 1058. Nevertheless, a pro se litigant assumes responsibility for his lack of knowledge of the law, and must carry his burden of proof to be entitled to relief. Id.

Addressing appellant's appeal in No. 2016-0609, we note that he has made 25 assignments of error and 12 issues of review. While his assignments of error clearly state his criticism of the trial court's ruling, his brief does not contain any argument, does not cite to any jurisprudence to support his position, and is generally lacking in substance. Thus, although this Court has carefully read his brief and has thoughtfully considered his oral argument, we cannot grant him the relief he seeks. Because of the shortcomings of his brief, we cannot find merit in his arguments.

Uniform Rules — Courts of Appeal 2-12.4 B(4) provides that "[a]ll assignments of error and issues for review must be briefed. The court may consider as abandoned any assignment of error or issue for review which has not been briefed." Accordingly, this Court must affirm the ruling of the trial court.

Appellant's brief filed in connection with No. 2017-0147, does contain argument sufficient for this Court to consider two of his assignments of error.

First, appellant argues that he was denied a public trial. A reading of the transcript on the day of the underlying ruling reveals that the trial court closed the proceedings as the record in this case had been sealed. The decision to seal the record was never appealed, and therefore became final long before the subject contempt hearing. We find no merit to appellant's complaint.

Appellant also complains that he was not aware of the charges against him. The record in this case, including transcripts of the various hearings during which the trial court cautioned appellant about his use of discourteous, harassing, and abusive language makes it clear that appellant had clear knowledge of what the trial court considered contemptuous. Despite the numerous warnings issued by the trial court, appellant continued to file offensive pleadings and to personally contact court staff.

The judgment on the second rule for contempt indicates that the trial court considered the entire record, specifically its own Order to Show Cause on Rule for Contempt, the prior Judgment of Contempt, and emails to members of the court's staff. The trial court found appellant's behavior to be willful and intentional.

Based on our review of the complete record of this case, we cannot say that the trial court erred in finding appellant in contempt of court. To the trial court's credit, it is apparent that it too gave appellant much latitude in the proceedings below.

For the reasons assigned, we affirm both judgments of the trial court.

AFFIRMED.

BROUSSARD, J., PRO TEMPORE DISSENTS WITH REASONS.

I would not consider the instant appeal.

First, I would give great consideration to the appellant's status as pro se litigant throughout the sensitive and contentious history of this litigation. The appellant has shown a considerable effort as a pro se litigant to perfect his appeal and epitomize his legal rights. Not only does the appellant have to show this Court that he is assertive in his desire to litigate and protect his rights, which has been demonstrated herein; he must show this Court that he is worthy of a legal resolution in his favor, but needs to be aware that the obligation imposed upon him as a pro se litigant he must assume the responsibility for his lack of k knowledge of the law. See Food Perfect, Inc. v. United Fire and Cas. Co., 2016-0145, (La. 1/18/13) 106 So.3d 107. I agree that the majority is correct in also looking to In re Med. Review Panel Claim of Scott, 2016-0145, p.15 (La. App. 4 Cir. 12/14/16), 206 So.3d 1049, 1058, by stating:

We recognize that pro se plaintiffs should generally be given more latitude than plaintiffs represented by counsel because they lack formal training in the law and rules of procedure. See Dowl v. Redi Care Home Health Ass'n, 09-1300, 09-1301, pp. 16-17 (La. App. 4 Cir. 2/3/10), 31 So.3d 596, 608. Nevertheless, a pro se litigant assumes responsibility for her lack of knowledge of the law, and must carry her burden of proof to be entitled to relief.

The appellant offers more than twenty assignments of error and twelve issues of review for this Court's analysis. The core of the appellant's argument is that the trial court abused its discretion in sentencing him to eleven days in jail finding him in contempt of court1, thus violating his due process rights. Although he argues that his Sixth Amendment rights were violated, his dispute is not properly raised in the instant appeal.

Critically, the appellant fails to identify the precise judgment from which he seeks relief. The timeframe within which to appeal his incarceration for contempt has lapsed and his appeal is untimely. The length of time between the judgment and the appeal suggests that the appellant abandoned his appeal and that he failed to pursue his rights. Failure of a pro se litigant to comply with established court procedures, timeframes or standards is fatal to the appellant's cause since a pro se litigant is presumed to be responsible for his lack of knowledge of the law. Food Perfect, Inc. v. United Fire and Cas. Co., 2016-0145 (La. 1/18/13) 106 So.3d 107.

I am unable to discern from the appellate brief either the judgment from which the appellant seeks this Court's review, or the relief that the appellant seeks. He has failed to comply with Rule 2-12.4 of the Uniform Rules, Courts of Appeal. "According to Uniform Rules, Courts of Appeal Rule 2-12.4, an argument on an assignment of error in a brief shall include a suitable reference by volume and page to the place in the record which contains the basis for the alleged error. This Court may disregard an argument on that error in the event suitable reference to the record is not made. . . ." State v. Rouser, 14-0613, p. 18 (La. App. 4 Cir. 1/7/15), 158 So.3d 860, 873, n. 13; Uniform Rules, Courts of Appeal Rule 2-12.4(A)(4) and (7).

The appellant's assignments of error are not properly briefed and/or proffered. I do not think this Court is in a position to affirm a judgment or judgment(s) not properly identified in the record by the appellant and not timely appealed.

FootNotes


1. None of the motions to recuse in the trial court involved Judge Bartholomew-Woods; however, appellant did file a motion to recuse Judge Bartholomew-Woods with this Court. Judge Bartholomew-Woods left the bench prior to oral argument, the motion was heard by the remaining two members of this panel, and denied prior to oral argument on the merits.
1. On May 6, 2016, the trial court ordered that the appellant be incarcerated after finding him guilty of direct and constructive contempt of court. His consecutive sentences placed him in the custody of the Orleans Parish Sheriff's Office to serve in Orleans Parish Prison for eleven days.
Source:  Leagle

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