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Succession of Griffin

Court of Appeals of Louisiana, Fifth Circuit

May 30, 2018

SUCCESSION OF JAMES MCRAE GRIFFIN

          ON 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. Webster

          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

          Panel composed of Judges Marc E. Johnson, Robert A. Chaisson, and Marion F. Edwards, Judge Pro Tempore

          MARC E. JOHNSON, JUDGE.

         In this 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.

         FACTS & PROCEDURAL HISTORY

         James 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 court.

         According 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.

         On 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.

         Later, 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 Fund.[1]

         In the 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.

         Within 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.[2]

         Thereafter, 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.[3] 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.

         Both 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."

         On May 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.

         ISSUES

         On 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.

         DISCUSSION

         Petition of Intervention - No Right of Action/No Cause of Action

         We 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.[4] 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.

         There 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.

         An 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 ...


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