APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH
OF JEFFERSON, STATE OF LOUISIANA NO. 756-658, DIVISION
"G" HONORABLE E. ADRIAN ADAMS, JUDGE PRESIDING
COUNSEL FOR DEFENDANT/APPELLEE, THE JOCKEY CLUB SAFETY NET
FOUNDATION Ron A. Austin, Catherine H. Hilton, Wade P.
COUNSEL FOR DEFENDANT/APPELLANT, CAROLYN PATTERSON, JEAN
BRELAND, DONALD HERRIN AND JANELL LASETER Harold E. Molaison,
Justin E. Molaison, Jack E. Morris, Brad E. Harrigan
COUNSEL FOR DEFENDANT/APPELLEE, PERMANENTLY DISABLED JOCKEYS
FUND, INC. Daniel R. Martiny, Jeffrey D. Martiny
composed of Judges Marc E. Johnson, Robert A. Chaisson, and
Marion F. Edwards, Judge Pro Tempore
E. JOHNSON, JUDGE.
succession matter, Appellants seek review of the trial
court's judgments sustaining an "Exception of No
Right of Action and/or No Cause of Action, " dismissing
their petition of intervention with prejudice, and denying
their exception of no right of action against Appellee. For
the following reasons, we affirm in part, reverse in part,
and remand the matter for further proceedings.
& PROCEDURAL HISTORY
Griffin died on October 15, 2015, leaving a will dated July
12, 2001 with a codicil dated September 27, 2015. In January
2016, the executor, Thomas Graham, filed a petition to file
the statutory testament and to confirm his appointment as
testamentary executor, which was granted the same month.
Thereafter, the executor filed a sworn detailed descriptive
list of assets of the succession showing the total assets to
be $8, 238, 350.59, and began administering the succession by
liquidating assets and distributing funds as approved by the
to Mr. Griffin's will, he left 2 ½% of his gross
estate to his executor, Mr. Graham, and 2 ½% of his
gross estate to Brad Cashio. He also made particular bequests
to his cousins as follows: Janelle Laseter - $100, 000; Erwin
Graham - $100, 000; Carolyn Patterson - $25, 000; Jean
Breland - $25, 000; and Donald Herrin - $25, 000. Mr. Griffin
specifically provided that should any of the legatees, other
than Erwin Graham, predecease him or fail to survive him for
90 days, their legacy "shall lapse and become part of
the residue of [his] estate." He specified that if Erwin
Graham predeceased him or failed to survive him for 90 days,
his legacy was to be given to Erwin Graham's wife,
Evelyn. In the event Evelyn predeceased him or failed to
survive him for 90 days, the $100, 000 legacy was to fail and
fall into the residue of his estate. Mr. Griffin further left
$25, 000 to Sumrall United Methodist Church in Mississippi.
Thereafter, Mr. Griffin bequeathed "the rest and
remainder of [his] estate" in nine portions as follows:
the Disabled Jockeys Fund - 3/9ths; the Shoemaker Foundation
- 2/9ths; the Don MacBeth Memorial Fund - 2/9ths; and the
National Headquarters of the Salvation Army - 2/9ths.
January 27, 2017, the Jockey Club Safety Net Foundation
("Safety Net") filed a petition to be recognized as
a substitute legatee. In its petition, Safety Net alleged
that two of the four organizations to which the decedent made
bequests in his will, namely the Shoemaker Foundation
("Shoemaker") and the Don MacBeth Memorial Fund
("Don MacBeth"), were no longer in existence.
Safety Net asserted that it performs substantially the same
identical charitable work as the two terminated charities and
sought to be substituted in their place under the authority
of La. R.S. 9:2331. The executor answered Safety Net's
petition to be recognized as a substitute legatee and stated
that he neither agreed nor opposed the petition and deferred
any ruling on who should receive any bequests to the court.
on March 8, 2017, two additional organizations, the
Permanently Disabled Jockeys Fund, Inc. ("PDJF")
and the Jockeys Guild, Inc. ("the Guild"), filed a
joint petition to also be recognized as substitute legatees
under La. R.S. 9:2331 for the two terminated organizations
(Shoemaker and Don MacBeth). PDJF further sought to be
recognized as a substitute legatee for a third organization,
the Disabled Jockeys Fund, which it alleged ceased operations
in 2004 but was never formally dissolved. PDJG asserted it
was the successor in interest to the Disabled Jockeys
interim, on February 21, 2017, Appellants, Carolyn Patterson,
Jean Breland, Donald Herrin and Janell Laseter, filed a
petition for intervention asserting they were the
decedent's first cousins and his closest blood heirs and,
therefore, were intestate heirs should any of the
decedent's estate fall intestate. Appellants acknowledged
in their petition that they were also particular legatees
under the will, having been bequeathed $25, 000, $25, 000,
$25, 000 and $100, 000 respectively. Appellants further
acknowledged that the residual of the decedent's estate
was left to four entities. They asserted that in the event of
a lapsed legacy, the lapsed legacy would devolve to them by
intestacy because the decedent's will did not provide a
condition for a lapsed legacy.
their petition for intervention, Appellants asserted an
exception of no right of action to Safety Net's petition
to be recognized as a substitute legatee. Appellants alleged
Safety Net did not have a right of action under the clear
wording of La. R.S. 9:2331 because it did not meet the
statutory requirements regarding who can bring a petition
under the cy pres doctrine.
Safety Net filed an "Exception of No Right of Action
and/or No Cause of Action" to Appellants' petition
for intervention. Safety Net asserted that Appellants failed
to make a claim to any part of the decedent's patrimony
in their petition for intervention but rather only filed an
intervention to assert an exception. Safety Net argued
Appellants lacked standing to intervene on the basis they had
never been recognized by a judgment of possession to be the
appropriate heirs entitled to assert a claim to the estate.
Safety Net also averred that Appellants have no right of
action to be recognized as substitute legatees because the
decedent's intent was to leave the bulk of his estate to
charity. It further argued that Appellants have no
cause of action to seek to undo the decedent's bequest to
charities because the intent of the testator controls.
Appellants and Safety Net's exceptions were heard by the
trial court on April 24, 2017. The hearing consisted solely
of the argument of counsel - no evidence was offered during
the hearing. The trial court took the matter under advisement
and rendered judgment on May 22, 2017, overruling
Appellants' exception of no right of action and
sustaining Safety Net's "Exception of No Right of
Action and/or No Cause of Action."
31, 2017, Appellants filed both a motion for new trial and a
notice of intent to apply for supervisory writs. The trial
court denied the motion for new trial, and this Court denied
Appellants' writ application on the basis the judgment at
issue was a final, appealable judgment. Succession of
Griffin, 17-395 (La.App. 5 Cir. 9/1/17) (unpublished
writ disposition). This Court further noted that the May 22,
2017 judgment did not contain the necessary decretal language
and advised the parties that the judgment needed to be
amended before we could invoke our appellate jurisdiction.
Upon motion of Appellants, and consented to by Safety Net,
the trial court issued an amended judgment on September 12,
2017 to include the necessary decretal language, specifically
overruling Appellants' exception of no right of action as
to Safety Net's petition to be recognized as a substitute
legatee, sustaining Safety Net's "Exception of No
Right of Action and/or No Cause of Action, " and
dismissing Appellants' petition for intervention with
prejudice. Appellants appeal this judgment.
appeal, Appellants argue the trial court erred in sustaining
Safety Net's "Exception of No Right of Action and/or
No Cause of Action" and dismissing their petition of
intervention because they are intestate heirs and, as such,
they have a vested right for property of the estate that
devolves by intestacy due to a lapsed legacy. Next,
Appellants contend the trial court erred in overruling their
exception of no right of action against Safety Net's
petition to be recognize as a substitute legatee because La.
R.S. 9:2331, or the cy pres doctrine, does not apply
in this case.
of Intervention - No Right of Action/No Cause of Action
first address the trial court's sustaining of Safety
Net's "Exception of No Right of Action and/or No
Cause of Action, " dismissing Appellants' petition
of intervention. Based on the use of "and/or" in
the judgment, it is unclear from the trial court's ruling
whether it sustained an exception of no right of action or an
exception of no cause of action, or both.
is no single exception of no right and/or no cause of action.
Rather, the exceptions of no right of action and no cause of
action are separate and distinct, with each serving a
particular purpose with different procedural rules.
Hurricane Fence Co. v. Jensen Metal Products, 12-956
(La.App. 5 Cir. 5/23/13); 119 So.3d 683, 688. "[T]he
focus in an exception of no right of action is on whether the
particular plaintiff has a right to bring the suit, while the
focus in an exception of no cause of action is on whether the
law provides a remedy against the particular defendant."
Id., quoting Badeaux v. Southwest Computer
Bureau, Inc., 05-612 (La. 3/17/06); 929 So.2d 1211,
1216-17. Further, evidence is permitted to support or
controvert an exception of no right of action, but is not
allowed to support or controvert an exception of no cause of
action. La. C.C.P. art. 931; Ferguson v. Dirks,
95-560 (La.App. 5 Cir. 11/28/95); 665 So.2d 585, 587.
Accordingly, we will review the propriety of both an
exception of no right of action and an exception of no cause
of action as to Appellants' petition for intervention.
appellate court reviews a trial court's rulings on
exceptions of no right of action and no cause of action
de novo because the exceptions raise ...