Court: Louisiana Court of Appeal; June 5, 1986; Louisiana; State Appellate Court
On June 17, 1983, Jayne Album Glazer died, and her husband, Meyer Glazer, arranged for her burial in a family plot at Gates of Prayer Cemetery, New Orleans. Following the burial on June 19, 1983, Meyer Glazer was sued by his siblings (Abe, Harry, Pearl Glazer Horowitz) and Ben Glazer, Inc. They sought recognition of the burial plot ownership by the corporation, exhumation of Jayne's remains, and monetary damages for the burial conducted without permission. The funeral home, Tharp Sontheimer Tharp, became a third-party defendant, leading to the Congregation Gates of Prayer's involvement.
The trial court ruled that the burial plots were owned by the Glazer siblings in indivisión, ordering a partition by licitation and dismissing the funeral home and the cemetery from the case. The court postponed the ruling on damages until the ownership issue was resolved. Meyer Glazer appealed, arguing for a partition in kind instead of by licitation. The plaintiffs filed an untimely answer to the appeal, asserting Ben Glazer, Inc.'s ownership of the burial plots and seeking reversal of the dismissal of Tharp Sontheimer. They also moved to dismiss the appeal because the trial court had not resolved the damage issue.
Key legal questions included whether the trial court's judgment was final and appealable, the timeliness of the plaintiffs' response, and the appropriateness of partition by licitation. The plaintiffs contended that the judgment was not final due to the unresolved damage issue. However, referencing La.Code of Civil Procedure Articles 2083 and 1841, the court concluded that a judgment determining ownership, even if not fully resolving all claims, is final for appeal purposes. The court emphasized the importance of judicial economy and denied the motion to remand the case for further proceedings on damages.
Plaintiffs assert they timely answered Meyer Glazer's appeal; however, the "Formal Answer to Appeal" was submitted on April 15, 1986, which was beyond the 15-day deadline following the record's lodging on August 19, 1985. Plaintiffs contend that prior correspondence with the Court's Clerk demonstrates their intent to answer the appeal, including a request for notification of the record date and a request for oral argument citing grievances against the District Court's decision. According to Code of Civil Procedure Article 2133, an appellee must file an answer within 15 days if seeking modification, revision, or reversal of the judgment, clearly stating the relief sought. The Court finds that plaintiffs' correspondence does not meet these requirements and merely indicates an intent to respond, thus deeming their answer untimely.
Regarding the merits of partition by licitation, the trial court ordered the partition of seven burial plots, including those occupied by the plaintiffs' and defendant's parents. The Court notes that selling these plots could necessitate exhumation, which is against public policy and should only occur for good cause. The Court emphasizes adherence to public policy to keep the remains undisturbed. Civil Code Article 1289 allows co-owners to demand property division, with the law providing three alternatives for partition: in kind, by licitation, or prohibition of partition. Partitions in kind are preferred unless the property is indivisible or cannot be conveniently divided, and partition is not permitted if the use of the property is essential to co-owners.
The judgment of the trial court is deemed erroneous regarding the partition of burial plots. There are seven burial plots, three of which are occupied: two hold the remains of the plaintiffs’ and defendant’s parents, while the third contains the remains of the defendant’s wife. It is assumed the parties did not intend to partition the plots where their parents are interred. Civil Code Article 1303 prohibits partitioning the plots containing the remains of their parents due to their essential role for all owners in honoring their parents and potential religious practices. The remaining five plots, including the one with the defendant's wife, should be partitioned in kind. Although partitioning among the four co-owners poses challenges, it is feasible. Title to the plot with the defendant's wife will be granted to Meyer Glazer, while each plaintiff will receive title to one vacant plot. The remaining plot, jointly owned, cannot be divided in kind, necessitating a partition by licitation. The case is remanded to the trial court to identify the occupied and vacant plots and to determine any damages owed to the plaintiffs due to the burial of Meyer Glazer’s wife. The ruling is reversed in part, affirmed in part, and remanded. The relevant Civil Code Articles on partition apply broadly to all partition actions, as established in Bernardi v. Chesson.
