June Lewis VS Joseph E. Lewis

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NOT DESIGNATED FOR PUBLICAT ON STATE OF LOUISIANA COURT F APPEAL FIRST CIRCUIT N0 2011 CA 1001 JUNE LEWIS VERSUS JOSEPH E LEWIS udgment rendered G A 2 Za U Appealed from the 21st udicial District Court in and for the Parish of Livingston Louisiana Trial Court No 122750 Honorable Br Bedsole Ricks Judge nda MARLISE 0 HARRELI HAMMONb ATTORNEY FOR LA APPELLEE PLAINTIFF JUNE LEWIS ATTORNEY FOR DAVID BAND NEW ORLEANS LA 4PPELLANT DEFENDANT JOSEPH E LEWIS BEFORE PETTIGREW McCLENDON AND WELCH J icu2 s PETTIGREW This is an appeal by 7aseph E Lewis of a cammunity property partitian and reimbursement claim judgment in favor of his farrr wife June L signed by the trial er ewis court on July 7 2010 For the reasons that follow we vacate the judgment of July 7 2010 and remand the matter to the trial court for further proceedings FACTS AND PROCEDURAL HISTORY Ta understand the facts and procedural posture of this case and its deficiencies we must understand and examine two separate proceedings in th lower court The first case is the divorce action between June and Joseph filed in docket No 118505 of the 21st Judicial District Caurt Tangipahoa Parish State of Louisiana later transferred to the 21st Judicial District Court of Livingston Parish by order dated December 14 2007 The second case is the actual partition suit filed by une against Joseph on January 29 2009 in dacket No 122750 of the 21st Judicial District Court Livingston Parish State of Louisiana These two cases were never consalidated by the trial court At the trial of the partitian suit on June 28 2010 in docket No 122750 June at introduced as s arney evidence the entire record of the divorce actian in docket No 118505 The udgment af Partition in docket No 122750 was r in open court on June 28 ZO10 and signed ndered by the trial court on uly 7 2010 The Clerk af Court date and time stamp on the face s of said judgment reflects the da June 30 2010 Accarding to the record there was no e appearance at the trial of the merits by Joseph or his alleged attarney The partition judgmen was mail by the C of Court office on July 9 2p10 d erk s Natice was mailed to Marlise 0 Harrell the alleged attorney for June and Benjamin N Gibson the alleged attorney for oseph Assuming this notice was correct and proper the 1 At oral argument on February 8 2012 this court recognized the record was deficient in that it did not contain all the exhibits introduced 118505 and ordered the appellaCe record be supplemented with same That supplementation occurred at the trial court in particular the record of the trial court in docket No February 17 2012 2 deadline for to seek an arder of Joseph appeal was September 0 2010 See La Code Civ P arts 1974 2Q and 2121 7 In docket No 122750 an or about September 20 or 22 2010 Joseph by pro se motion filed a document entitled Motion and Ord for Designatian of Record Th is r re uncertainty if this motian was filed on September 0 or 22 2010 becaus it contains two Clerk of Court tim and date One reflects that the motion stamps was filed September 20 2010 at 8 a while the other indicates it was filed September 2 44 m i 2010 i at 11 a 32 m Pursuant to said mation the trial court signed an order on Sept 27 2010 mber which reads as follows ORDER The Premise Considered If mover posts the appropriate bond and fees then it is ordered that the Clerk far this Court prepare the fallowing listed document and log same with the State of Louisiana Caurt of Appeal First Circuit on or before the 28th day of October 2010 1 Verbatim transcript af the proceedings held on June 28 2010 2 Judgment rendered and signed on July 7 2010 3 Partition of community properLy reimbursement claims of June Lewis Roth contempt of Court for disposing of community assets attorney fees and Court costs and related xhibits 4 Sworn Detailed Descriptive List and S Caurt notice given to attorney Benjamin N Gibson on April 12 Z010 Read and Signed in Chambers on th 7th day of Sept 2010 at Livingston Louisiana Based on the above order a Natice of Appeal was issued by the Clerk of Court on October 21 ZO10 Said natice in part reads as follows 27 2010 UPON MOTION OF DEFENDANT AN ORDER OF APPEAL WAS ENTERED ON NOTICE IS BY HER GIVEN THAT ON PTEMBER S MBER SEPT 22 2010 GRANTING AN APPEAL FROM THE JUDGMENT SIGNED JULY 7 2010 URNABLE RE TO THE IRST CIRCUIT COURT OF APPEAL IN ACCORDANCE WTTH THE LAW THIS IS A DEVOLUTIVE APPEAL In docket No 12Z750 upon motian by June the trial court dismissed the appeal with prejudice on April 18 2011 by an ex parte order without contradictory hearing On that same date through counsel of record Joseph filed a and Order for Motion 3 Devolutive Appeal Nunc Pro Tunc which was granted ex parte by the trial court on April 19 2011 Said prder provided in part as follows IT IS ORDERED hat devolutive appeal be granted to the defendant in pro se Nunc Pro Tunc efFectively and retroactively to the date of September 22 201 with the appeal b now returnable to the Court of Q Appeal First Circuit 2011 on The appeal and record in docket No 122750 was Iodged with this court on June 6 2011 Qn uly 6 2011 oseph through counsel of record filed a mation to supplement the record in this proceeding That mation is still pending On August 11 2p11 this court x propria motu issued a Rule to Show Cause Order requesting that the parties show cause why the appeal should not be dismissed due to untimeliness Subsequent to said order on November Z1 2011 a writ panel of this court referred the rule to show cause to the panel to which the appeal was assigned Thus the issue of the timeliness of the appeal is still outstanding In his appeal Joseph raises the following assi of error and statement of nments issues ASSIGNMENT OF ERRORS I The Caurk adjudicated complicated community praperty partition issues by default without having followed the provisions of La R 9 S 2801 relating to the procedure for Partition of Cammunity Property II The court failed ta give th Mandatory cut ofFs and procedural instructians mandated by La S R 801 9 provisian relating to the procedure for Partition of Community Property in its scheduling orders in a scheduling confer which is fatal tv the observance of due process and nce natice to Mr Lewis as to the natur of he upcaming proceedings III The court improperly dismiss by ex parte motion Plaintiffs Appeal d during a period befare he had retained counsel STATEMEIVT OF THE ISSUES I Whether the 7udgment in the nature of a default on June 28 2010 without compliance wi La RS 9 is valid considering that there was h 01 Z never compliance with the procedural articles in partitioning cammunity property highly irregular notices to the defendant and his attorney or waivers or whatever the caurt might consider then The cor issue is reafly the question of whether oseph was afForded due process and reasanable notice when June obtained a judgment of partition by praceeding in the nature of a default against his attorney on the day the matter had b set for trial en 4 Whether the evidence in the trial record supports the default II judgment i is there sufficient evidence in the recard e Was Ben Gibson enrolled into the case such that the caurt afForded III Mr Lewis due process by conducting the hearing against the absent attorney or was Ms Harrell obligated to tell the court that there was perhaps another attorney Ray Maughan wha might be enrolling Is the failure of June Lewis to file a Rule to Show Cause why her SDL should not be deemed to constitute a judicial determination of the TV cammunity assets and liabilities fatal to her non compliance with the procedural requirements of La R 9 S Z801 Is the mere fact of a generic scheduling order in the wrong case V sufFicient notice to the defendant and his attorney Ben Gibson that the s wife SDL is likely ta be deemed a judicial determination of the wife SDL s on the day of trial and that a judgment could likely be summarily entered against his client giving the wife all of the property in her separate name VI Do basic equities of the circumstances warrant reversal VII Is a pro se litigant entitled to special treatment by the trial and the appellate caurts DISCUSSION Before we address the issues raised on appeal by Joseph we must first address the jurisdiction of this caurt A court lack of jurisdiction can be noticed by the court on s its own motion at any time La Code Civ P art 2162 Strickland v Layrisson 128Q 96 p 4 App 1 Cir 6 696 So 621 6Z4 writ denied 97 La La 97 ZO 2d 1940 97 14 11 704 So 228 Tt is well settl that appeals are favored in the law Castillo 2d d v 2d 06 Russell 2005 p 1 2 920 So 863 2110 La 10 An appeal is taken by obtaining an ord therefor within the delay allowed from the court which rend the r red judgment La Code Civ P art 2121 According to La Code Civ P art 2p87 a devolutive appeal must be fled 1 A within sixty days of the expiration of the delay far applying for a new trial if no application has been filed timely The appeal delays found in Article 2087 are not prescriptive periods that are subject to interruption these ime limits are jurisdictional An appellant sfailure to file a devalutive appeal timely is a jurisdictional defect in that neither the court of appeal nor any other court has jurisdictional power and authority to reverse revise or modify a final judgment after the time for filing a devolutive appeal has elapsed Everett v Baton Rouge Student Housing L 2010 p 4 C 0856 La 5 App 1 Cir 5 64 So 8 886 writ denied 2011 La 9 69 So 11 6 3d 3 1169 11 15 3d 1149 As previously noted assuming the notice of judgment mailed July 9 2010 was correct and praper the deadline for Joseph ta seek an order of appeal was September 20 2010 See La Code Civ P arts 1974 2087 and 2121 If we consider Joseph pro se mation and order for designation of records as s properly filed on September 20 2012 we cannot say that it was a motion and order for an appeal because in paragraph one of said motian he states An appeal having been granted on or about September 10 201Q in the above captianed matter In examining the appellate record in docket Na 122750 we note that the first trial court order cancerning appeal issues is the September 27 2010 trial order which addresses Joseph pro se motion and order for designation of records filed on either s ptember S 20 or 22 2010 Since aseph mo did not seek an order af appeal the s ion mber Sept 27 2010 order granting an appeal did not correct the deficiencies in aseph s pleading The next motion far appeal in docket Na 12275Q was Joseph motion through s legal counsel far devolutive appeal nuncpro tunc filed April 1 2011 with attached arder granting same deadline of by the trial caurt dated April 19 01 ptember S 20 010 and untimely s Joseph appeal is This too is outside of the It would appear at first glance that untimely pursuant to the jurisprudence of this State See Nelson v Teachers Retiremen System of Louisiana 2010 pp 5 La App 1 Cir 1190 6 1 11 2 57 So 58 589 3d 590 However this does not end our inquiry about the timeliness of oseph sappeal As previously indicated at the rial of the merits of the partition proceeding in docket No 122750 the divorce proceeding bearing docket No 118505 was offered and introduced as evidence into this matter After conducting a thorough review of the record in docket No 118505 we note that there are several pleadings motions and orders of the court that were misfiled by the Clerk of Court office the lawyers and the trial court There are several pleadings s 6 filed in docket Na 118505 the divorce proceeding that should have been filed into docket No 12Z750 the partitian suit These pleadings are as follows 1 Request for Trial on Merits filed September 25 2009 2 An order signed on October 7 2009 s tting pretrial canference for Octaber 26 2009 3 Request for Trial on Merits by June for contempt of court and reimbursement of separate funds paid to imprave community property filed November 9 2009 4 An order dated November 13 2009 setting the matter for status conference in chambers January 11 2010 5 Motion to Enroll by Benjamin Gibson as attorney for Joseph filed D 3 2009 6 Scheduling Order cember dated April 21 2010 for parkition suit filed by the trial court on April 14 2010 setting the er mat for bench trial the week of June 28 2010 with a final pre conference at 00 trial m p on Monday June 28 2010 7 Pre Order filed by June attorney on May 28 trial s 2010 8 Memorandum of Law in Support af Cammunity Property Division and Reimbursement Claims of June Lewis filed May 28 2010 9 Motion to Withdraw as Counsel for Jaseph by Benjamin N Gibson filed June 24 2010 with an order granting said motion signed June 28 2010 10 Notice af Appeal to Seek Writs filed August Intent 4 2010 pro se by Joseph seeking appeal af judgment entered in this action on June 30 2010 with an arder granting said appeal signed by th trial court September 7 Z010 11 Notic of Appeal filed September 13 2010 12 Transcript of trial on merits June 28 2010 filed Decemb 22 201p r After examining the rof docket No 118505 the divorce action it is cord immediately abvious that Joseph by pro se motion filed a Notice of Appeal to Intent Seek Writs from th judgment entered in this action on June 28 2010 The order of appeal was signed September 7 2010 The appeal order itself does nat specifically state which trial judgment was being appealed In examining the actual judgment rendered by the trial caurt in docket No 122750 the partitian suit we nate the hearing was June 28 2010 the judgment was signed in chambers uly 7 201p and the judgment has the Clerk of Court date stamp of s une 30 2010 at 3 p We further observe that the Notice of Appeal to Seek 57 m Intent Writs filed by Jos by pra se motion in docket No 18505 refers to a judgment ph 7 entered in this actian on June 30 2010 A reasanable interpretation of this is that Joseph is referring to the date and time stamped on the judgment signed July 7 2p10 which reflects a date and time of June 57 m 30 2010 at 3 p urther examination of both recards b trial docket Nos 118505 and 122750 reflect no other judgments entered aring around this time by the trial court We find that the Notice of Appeal to Seek Writs and appeal order signed Intent September 7 2010 filed in docket No 1 is an appeal order ofi th judgment signed 8505 by the trial court July 7 2010 in docket No 122750 The order of appeal was signed September 7 2010 priar to the deadline of September 20 2010 and therefore was timely An additianal reason for maintaining Joseph appeal is that there is a sErious s question concerning whether Joseph actually received legal notice of the judgment rendered by the trial court on July 7 2010 Priar to and during the trial af une 28 2010 Joseph was in prison He had been represented by Benjamin N Gibson On June 24 2010 prior to the trial of June 28 2010 Mr Gibson filed a motion to withdraw as counsel of record for oseph This motion was erroneously filed in docket No 118505 in lieu of being fil in the partitian suit docket No iZZ750 The trial court granted this motion to d withdraw on June 28 2010 the same day as the trial of the merits The notice of judgment from the June 28 2010 trial concerning the July 7 2010 judgment was mailed out s by the Clerk of Court office on July 9 2010 That notice was sent to Marlise 0 Harrell attorney for 7une and to Mr Gibson On July 9 2010 Mr Gibson was no longer the attorney of record for Joseph nor had he been since une Z8 010 the day of the trial There is nathing in the recard that reflects legal notice of the July 7 2010 judgment on Jaseph which would mean the time delays fior appeal never began Therefore for the above reasons we maintain as sappeal in this matter and ph vacate the trial court sApril 18 2011 ex parte order dismissing same In Statement of Issues I II and V oseph raises issues af due process violatians concerning proper notice to Joseph for the June 28 2010 trial on the merits S The faundation af the right to due process in Louisiana is found in Art I Sec 2 of the Louisiana State Canstitution and the Fourteenth Amendment of the United States Constitution Art I Sec 2 of the Louisiana State Constitutian provides Na persan shall be deprived of life liberty or property except by due process of law Under the Fourteenth Amendment ta the United States Constitution and La Const Art I 2 a person is protect against a deprivation of his life liberty or d praperty without due process of law Very generally due process requires som kind of hearing and notice thereof Fields v State Through Dept of Public Safety and Corrections 98 p 7 7 714 So 1244 1250 The requirement Q611 La 8 9 2d of a hearing before a final action can b reached stems from the principle that all persons are 84 So 2d entitled ta their day in court Parker v Board of Barber xaminers 80 86 La App 1 Cir 1955 Likewise the requirement of a rEasonably calculated notice under all the circumstances is an elementary and fundamental requirement of due process to apprise interested parties of he pendency of the action and to afford them an opportunity to present their 0611 objections ields 98 at 0 714 So at 1Z58 2d Pursuant to La Code Civ P art 1571 the district courts of Louisiana have the power and authority to prescribe the procedures far assigning cases for trial subject ta the limitations as established in said article requirement that all parties receive One such limitation found in Article 1571 is the adequate notice La Code Civ P art a 1 A 1571 The Lauisiana District Court Rules also establish guidelines for setting matters for trial At all times pertinent hereto these were found in Rule 9 and 14 Appendix 8 Rule 9 provided in part as follows 14 a The date on which a motion to fix for trial on the m may rits be made and the method of setting a date for trial or hearing of a matter including deadlines for scheduling orders pre briefs cantact with trial jurors or any ather matter shall be determined by each district court as set farth in Appendix 8 Z These rules have since been amended and although there are no substantive changes Appendix 8 has been redesignated as Appendix 9 14 9 Appendix 8 provided in part for the 21 Judicial District as follows 1 Any party requesting assignment of a civil case for trial on the merits shall file a written request for a telephone status conference The reques shall contain the correct name address and telephone number af all counsel of record At th conference the matt will be set for trial only if r the matter is ready to be heard An appropriate form for requesting trial on the merits appraved by the Court is faund below Part of that proposed form contained an order which read as follows ORDER IT IS ORDERED that this matter be set far trial ZO 20 on the day af clock o m the week of 20 at conference on the with a final pre day of trial m clock o Louisiana this at day 20 of Tn examining the record before us in docket No 118505 a request for trial an the merits was filed by June through her attorney on November 9 2009 The service request on Joseph was on him in proper person in Livingston Parish Jail as was the order for status conference setting the matter for anuary li 2010 The actual notice was mailed to Joseph at P O Bax 1000 Livingston La 7Q754 A motion to enroll as attarney for Joseph was fil by Mr Gibsan on December 3 2009 in docket No i The or d 18505 der was granted by the trial court an December 8 2009 The minute entry of January 11 2010 in docket No 1185Q5 reflects that only June counsel appeared and the matter s was continued to April 12 2010 for 1 p The April 12 2010 minute entry for the 00 m trial pre conference states that bath the attorneys far June and Joseph were present The minutes reflect the matter was set far pre conference on June 28 2010 at trial 00 m 1 p with discovery cut by May 31 2010 afF Pursuant to said pre confer a scheduling order was issued by the trial trial nce court dat April 21 2010 and a notice af such was mailed by the Clerk of Court office d s all of which occurred in docket No 118505 attorney for Joseph and Ms that proper notice of the trial This notice was mailed to Mr Gibsan Harrell attorney for was made upan une It would appear at first glance Joseph and further examina we note some problems and deficiencies ion 10 his y attorn However an I The scheduling order dated April 21 2010 in docket No 118505 anly provides three specific dates The order sets a definite date and time for the pre conference trial of 1 p on Monday the 28 day of June 201p It further sets a definite date for a 00 m final pre order and discovery cut date of May 28 2010 It sets a definite date for trial aff the parties to issue subpoenas far th trial an the merits which is Tuesday June 29 2010 The arder sets an approximate time and date for the trial the week of June 28 2010 The scheduling order further provides that all counsel and parties must attend the trial pre conference Thus according to the scheduling order the only definite judicial proceeding set for June 28 2Q10 was the pre canference hearing at 1 p And trial 00 m based an the order that subpoenas for witnesses were to be issued far Tuesday 7une 29 2010 a reasonable interpretatian of the scheduling order was that the rial was scheduled to begin on Tuesday June 29 2010 In reviewing the transcript of une 28 2010 and the minute entry for the pre trial conference set for June 28 ZO10 in civil docket No 118505 it appears that neither Joseph nar his attorney were in court on June 28 2010 Rather on that date Joseph 3 The scheduling order provides as follows SCHEDULING ORDER This mat ercame before the court on the 12th day of April ZO10 far a final pre trial conference Present in chambers une Lewis and her attorney Marlise 0 Harrell Joseph E Lewis represented by his attorney Benjamin N Gibson Pursuant to disGUSSions and representations made at the status conference IT IS ORDERED TMAT 1 The above entitled and numbered cause is set for bench trial the week of une 28 2010 with a final pre conference at 1 p on Monday the 28 day of une trial 00 m 2010 The nal pre conference must be attended in persan by all trial counsel and it is trial mandatory that the parties are present in open court this date 2 A final pre order in ane document signed by all punsel of record must be trial filed with the Clerk of Court by May 28 2010 Defense counsel is to submit to plaintiffs caunsel his inserts for the pre order on ar before May 18 2012 If said pre trial l tri arder i not nresented timelv the matter will be continued and sanctions may be imposed 3 No subpaenas are to be issued for MONDAY the day of the nal pre trial Instead subpoenas are to be issued for TU with a notation that SDAY witnesses should be contacted an MONDAY afternoon with more precise instructions conference 4 A memarandum of law must be submitted no later than May 28 2010 5 Discovery Cut is May 28 2010 aff Livingstan Louisiana this 21st day of April 2010 11 was in prison as was to by June in the presenc of the trial caur at the hearing stified an June 28 2010 We further note that no one issued a subpaena ar order to transport Joseph fram jail or prison for the June 28 2010 pre conference or for the week of trial June 28 2010 for trial as was previously done for a prior hearing on March 11 2009 We find no waiver of notice af trial in the record befare us filed by either Joseph or his attorney On the une 28 20 date when the trial of this matter occurred the trial court 0 also signed an ex parte order allowing Joseph attorney to withdraw as attorney of recard s for s Joseph We cannot tell from the record whether this motion to withdraw as Joseph attorney was signed by the rial court priar to during ar after the trial heard an June 28 2010 June We do know fram the scheduling order the pre conference was set for trial 28 2010 00 m at 1 p so the actual trial had to accur thereafter This ex parte motion to withdraw as Joseph attorney was filed into docket No 1185p5 by Mr Gibson s on une 24 2010 four days prior to June 28 2010 At the trial on June 28 2010 when the trial court inquired with th deputy clerk about natic on Joseph and his attorney the deputy clerk af court makes no mention of the June 24 2010 ex parte motian to withdraw by Joseph sattorney The procedure for withdrawal as caunsel of record is governed by Rule 9 of the 13 Louisiana District Court Rules Rule 9 is designed ta fully inform and provide 13 4 Rule 9 provides as follows 13 Enrolled attorneys have apart from their own interests continuing legal and ethical duties to their lients all adverse parties and the court Accordingly the following requirements govern any motion to withdraw as counsel of record a The withdrawing attorney who does not have written cansent from the client shall make a goad attempt to notify the client in writing of the withdrawal and of the faith status of the cas on the court sdocket The attorney shall deliver or mail this notice to the nt cli before filing any motion to withdraw b Tf the action or proceeding has been assigned to a particular section or division of the court then the motion to withdraw shall be submitted to the judge presiding over that section or division c Any motion to withdraw shall include the following information 1 The motion shall state current or last street address and mailing known address of the withdrawing attorney client The withdrawing attorney shall s also furnish this information to the clerk of caurt 12 quate ad notice af the attorney withdrawal and pending proceedings to the court to all s S i pal and to all attorneys of record The motion to withdraw filed in this matter on June 24 2010 in docket Na not 118505 does comply with any of the 13 requirements of Rule 9 In our opinion it was legal error for the trial court to have granted said motion to withdraw ex parte on June 28 2010 Louisiana Code af Civil Procedure art 2164 states in part The appellate court shall render any judgment which is just legal and proper upon the record on appeal As much as we may be reluctant to do so we are af the opinion that Art I Section 2 of the Louisiana State Constitution compels us ta find that there was no notice to Joseph for the Continued 2 If a scheduling arder is in effect a copy of it shall be attached to the motion 3 The motion shall state whether any conference hearing or trial is scheduled and if so its date 4 The m shall include a certificate that the withdrawing attorney has tion complied with paragraph a and with Rule 1 of the Rules of Professional 1fi Conduct Louisiana State Bar Association Articles of Incorporation Art 16 A copy of th written communication required by paragraph a shall be attached to the motion d The court may allow an attorney to withdraw by ex parte motion if 1 The attorney has been terminated by the client or Z The attorney has secured the written consent af the client and of all parties or their respective counsel or 3 No hearing or trial is scheduled or 4 The case has been concluded e If paragraph d does nat apply then an attorney may withdraw as counsel of cord r only after a contradictory hearing and for gpod cause All parties and the withdrawing attarney client shall be served with a capy of the motion and rule to show s cause why it should not be granted If counsel withdrawal would delay a scheduled hearing or trial the court will s not allaw the withdrawal unless exceptional circumstances exist g Paragraphs a through do not apply to an ex parte motion to substitute counsel signed by both the withdrawing attorney and the enrolling attorney 1 following he rules govern such a motion 1 The court may grant the motion withaut a hearing Movers shall furnish the court wiCh a propased order 2 Substitu of caunsel will not by itself be good cause ta alter or delay any ion scheduled matters ar deadlines 13 trial on the merits tha occurred on June 28 2010 and therefore we are compelled to vacate the judgment render by the trial court on June 28 2010 and remand this d matter to the trial court for further proceedings Concerning Joseph motion ta supplement the record w find it is maot due to s this court order to s supplement the recard issued February 8 2012 Accordingly s Jaseph motion to supplement the record is denied as moot oN us coNc For the above and foregoing reasons w vacate the trial court April 18 2011 s order dismissing Joseph appeal and hereby maintain s same We deny Joseph smotion to supplement as moot We vacate the trial court judgment rendered in open court on s June 28 2010 and signed in chambers July 7 2Q10 and remand this matter ta the trial r court for furth praceedings All costs af this appeal are assessed equally between Joseph E Lewis and June Lewis TRTAL COURT ORDER DATED APRIL 18 2011 VACATED APPEAL MAINTAINED MOTION TO SUPPLEMENT RECORD DENIED AS MOOT PARTITION UDGMENT RENDERED JUNE Z8 2010 AND SIGNED JULY 7 ZQ10 VACAT MAND DR D 5 In light of our findings herein we pretermit consideration of the other issues raised by Joseph in his appeal 14

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