STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
NUMBER 2019 CA 0719
IN RE: SUCCESSION OF HAZEL NELL MORAN FOGG
Judgment Rendered: FEB 2 12020
Onappeal from the Twenty -Second Judicial District Court In and for the Parish of St. Tammany State of Louisiana Docket Number 2017- 30993
Honorable Peter Garcia, Judge Presiding
Gary L. Fogg In Proper Person, Defendant/Appellant Angie, LA Gary L. Fogg
Gary J. Williams Counsel for Plaintiff/Appellee Slidell, LA Glynne Jones, III
BEFORE: WHIPPLE, C. J., GUIDRY, AND BURRIS,' JJ.
1 Judge William J. Burris, retired, serving pro tempore by special appointment of the Louisiana Supreme Court. GUIDRY, J.
The Appellant appeals from a judgment dismissing his petition to annul a
testator' s will due to lack of testamentary capacity and undue influence. For the
reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
The decedent, Hazel Nell Moran Fogg, died on October 9, 2017. She was
survived by four adult children, namely, Glynne Jones, III ( Mr. Jones); Milton
Fogg, Jr.; Gary L. Fogg ( Mr. Fogg); and Charles Fogg; she was predeceased by a
daughter, Elizabeth Fogg.
In a last will and testament dated October 28, 2008, the decedent named as
beneficiaries her daughter, Elizabeth Fogg, and son, Gary L. Fogg. Subsequently,
the decedent executed a last will and testament, in notarial form, dated October 6,
2017, which is the subject of this appeal. In the latter will, the decedent expressly
disinherited her son, Gary L. Fogg, and bequeathed her estate to her three
remaining children: Glynne Jones, III; Milton Fogg, Jr.; and Charles Fogg. The
testament also named son Glynne Jones, III as executor of the estate.
On or about November 2, 2017, Mr. Jones filed a petition to probate the
testament of his mother and confirm his appointment as executor of the estate.
Attached to the petition was a copy of the decedent' s October 6, 2017 Last Will
and Testament, which was admitted to probate by order of the court dated
November 13, 2017. By order of the same date, the court also confirmed the
appointment of Mr. Jones as the independent executor.
Thereafter, on May 16, 2018, Mr. Fogg filed a petition to annul the October
6, 2017 testament, asserting that the decedent lacked capacity when she signed the
testament, and in doing so, was unduly influenced by her son, Mr. Jones. A
hearing was held before the trial court on August 15, 2018, at which time Mr. Fogg
presented evidence in support of his petition. Following the presentation of Mr. 2 Fogg' s evidence, Mr. Jones moved for an involuntary dismissal. In its oral ruling,
the trial court reasoned that Mr. Fogg had not met his burden of proof, and as such,
the court was obligated to grant Mr. Jones' motion to dismiss, pursuant to La.
C. C. P. art. 1672. A judgment to that effect was signed on September 4, 2018,
dismissing Mr. Fogg' s petition with prejudice. Mr. Fogg now appeals, contending
that the trial court erred in denying his petition to contest probate and annul the
testament. Mr. Jones filed an answer to the appeal.
DISCUSSION
Louisiana Code of Civil Procedure article 1672( B) provides the basis for an
involuntary dismissal at the close of a plaintiffs case in a bench trial, when a
plaintiff has shown no right to relief based on the facts and law. In determining
whether involuntary dismissal should be granted, the appropriate standard is
whether the plaintiff has presented sufficient evidence in its case -in -chief to
establish a claim by a preponderance of the evidence, which means taking the
evidence as a whole, the fact or cause sought to be proved is more probable than
not. Lakeshore Chrysler Dodge Jeep, Inc. v. Windstream Communications, Inc.,
17- 0841, p. 4 ( La. App. 1st Cir. 12/ 21/ 17), 240 So. 3d 939, 942- 943. When
considering a motion for involuntary dismissal, a plaintiff is entitled to no special
inferences in his favor. However, absent circumstances in the record casting
suspicion on the reliability of the testimony and sound reasons for its rejection,
uncontroverted evidence should be taken as true to establish a fact for which it is
offered. Lakeshore Chrysler Dodge Jeep, Inc., 17- 0841 at pp. 4- 5, 240 So. 3d at
943.
The trial court' s grant of an involuntary dismissal is subject to the manifest
error standard of review. Broussard v. Voorhies, 06- 2306, p. 4 ( La. App. 1 st Cir.
9/ 19/ 07), 970 So. 2d 1038, 1041, writ denied, 07- 2052 ( La. 12/ 14/ 07), 970 So. 2d
535. Accordingly, in order to reverse the trial court' s grant of involuntary 3 dismissal, we must find that there is no factual basis for the trial court' s finding or
that the finding is clearly wrong. Broussard, 06- 2306 at p. 4, 970 So. 2d at 1042.
Because an involuntary dismissal of an action pursuant to Article 1672( B) is
based on the " facts and law," a review of the substantive law applicable to the
plaintiff' s case is necessary. Lakeshore Chrysler Dodge Jeep, Inc., 17- 0841 at p. 5,
240 So. 3d at 943. Here, Mr. Fogg asserts a lack of testamentary capacity and
undue influence by Mr. Jones, as at the time of the execution of the testament in
question, the decedent was " disoriented, feeble- minded, ... and suffering from a
debilitating illness which seriously calls into question [ d] ecendent' s testamentary
capacity, making the alleged will absolutely null."
Testamentary Capacity
To have capacity to make a donation mortis causa, a person must be able to
comprehend generally the nature and consequences of the disposition that he is
making. La. C. C. art. 1477. This capacity must exist at the time the testator
executes the testament. La. C. C. art. 1471.
There is a presumption in favor of testamentary capacity. In re Succession
of Crawford, 04- 0977, p. 8 ( La. App. 1st Cir. 9/ 23/ 05), 923 So. 2d 642, 647, writ
denied, 05- 2407 ( La. 4/ 17/ 06), 926 So. 2d 511. A person who challenges the
capacity of a donor must prove by clear and convincing evidence that the donor
lacked capacity at the time the donor executed the testament. La. C. C. art.
1482( A). To prove a matter by clear and convincing evidence means to
demonstrate that the existence of a disputed fact is highly probable, that is, much
more probable than its nonexistence. In re Succession of Crawford, 04- 0977 at p.
8, 923 So. 2d at 647. Comment ( f)of Article 1477 further provides, in part:
Cases involving challenges to capacity are fact -intensive. The courts will look both to objective and subjective indicia. Illness, old age,
delusions, sedation, etc. may not establish lack of capacity but may be important evidentiary factors. If illness has impaired the donor' s mind M and rendered him unable to understand, then that evidentiary fact will establish that he does not have donative capacity.... The courts will look to the medical evidence that is available, such as the medical records and the testimony of treating doctors, and to other expert testimony, and to the testimony of lay witnesses.
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STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
NUMBER 2019 CA 0719
IN RE: SUCCESSION OF HAZEL NELL MORAN FOGG
Judgment Rendered: FEB 2 12020
Onappeal from the Twenty -Second Judicial District Court In and for the Parish of St. Tammany State of Louisiana Docket Number 2017- 30993
Honorable Peter Garcia, Judge Presiding
Gary L. Fogg In Proper Person, Defendant/Appellant Angie, LA Gary L. Fogg
Gary J. Williams Counsel for Plaintiff/Appellee Slidell, LA Glynne Jones, III
BEFORE: WHIPPLE, C. J., GUIDRY, AND BURRIS,' JJ.
1 Judge William J. Burris, retired, serving pro tempore by special appointment of the Louisiana Supreme Court. GUIDRY, J.
The Appellant appeals from a judgment dismissing his petition to annul a
testator' s will due to lack of testamentary capacity and undue influence. For the
reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
The decedent, Hazel Nell Moran Fogg, died on October 9, 2017. She was
survived by four adult children, namely, Glynne Jones, III ( Mr. Jones); Milton
Fogg, Jr.; Gary L. Fogg ( Mr. Fogg); and Charles Fogg; she was predeceased by a
daughter, Elizabeth Fogg.
In a last will and testament dated October 28, 2008, the decedent named as
beneficiaries her daughter, Elizabeth Fogg, and son, Gary L. Fogg. Subsequently,
the decedent executed a last will and testament, in notarial form, dated October 6,
2017, which is the subject of this appeal. In the latter will, the decedent expressly
disinherited her son, Gary L. Fogg, and bequeathed her estate to her three
remaining children: Glynne Jones, III; Milton Fogg, Jr.; and Charles Fogg. The
testament also named son Glynne Jones, III as executor of the estate.
On or about November 2, 2017, Mr. Jones filed a petition to probate the
testament of his mother and confirm his appointment as executor of the estate.
Attached to the petition was a copy of the decedent' s October 6, 2017 Last Will
and Testament, which was admitted to probate by order of the court dated
November 13, 2017. By order of the same date, the court also confirmed the
appointment of Mr. Jones as the independent executor.
Thereafter, on May 16, 2018, Mr. Fogg filed a petition to annul the October
6, 2017 testament, asserting that the decedent lacked capacity when she signed the
testament, and in doing so, was unduly influenced by her son, Mr. Jones. A
hearing was held before the trial court on August 15, 2018, at which time Mr. Fogg
presented evidence in support of his petition. Following the presentation of Mr. 2 Fogg' s evidence, Mr. Jones moved for an involuntary dismissal. In its oral ruling,
the trial court reasoned that Mr. Fogg had not met his burden of proof, and as such,
the court was obligated to grant Mr. Jones' motion to dismiss, pursuant to La.
C. C. P. art. 1672. A judgment to that effect was signed on September 4, 2018,
dismissing Mr. Fogg' s petition with prejudice. Mr. Fogg now appeals, contending
that the trial court erred in denying his petition to contest probate and annul the
testament. Mr. Jones filed an answer to the appeal.
DISCUSSION
Louisiana Code of Civil Procedure article 1672( B) provides the basis for an
involuntary dismissal at the close of a plaintiffs case in a bench trial, when a
plaintiff has shown no right to relief based on the facts and law. In determining
whether involuntary dismissal should be granted, the appropriate standard is
whether the plaintiff has presented sufficient evidence in its case -in -chief to
establish a claim by a preponderance of the evidence, which means taking the
evidence as a whole, the fact or cause sought to be proved is more probable than
not. Lakeshore Chrysler Dodge Jeep, Inc. v. Windstream Communications, Inc.,
17- 0841, p. 4 ( La. App. 1st Cir. 12/ 21/ 17), 240 So. 3d 939, 942- 943. When
considering a motion for involuntary dismissal, a plaintiff is entitled to no special
inferences in his favor. However, absent circumstances in the record casting
suspicion on the reliability of the testimony and sound reasons for its rejection,
uncontroverted evidence should be taken as true to establish a fact for which it is
offered. Lakeshore Chrysler Dodge Jeep, Inc., 17- 0841 at pp. 4- 5, 240 So. 3d at
943.
The trial court' s grant of an involuntary dismissal is subject to the manifest
error standard of review. Broussard v. Voorhies, 06- 2306, p. 4 ( La. App. 1 st Cir.
9/ 19/ 07), 970 So. 2d 1038, 1041, writ denied, 07- 2052 ( La. 12/ 14/ 07), 970 So. 2d
535. Accordingly, in order to reverse the trial court' s grant of involuntary 3 dismissal, we must find that there is no factual basis for the trial court' s finding or
that the finding is clearly wrong. Broussard, 06- 2306 at p. 4, 970 So. 2d at 1042.
Because an involuntary dismissal of an action pursuant to Article 1672( B) is
based on the " facts and law," a review of the substantive law applicable to the
plaintiff' s case is necessary. Lakeshore Chrysler Dodge Jeep, Inc., 17- 0841 at p. 5,
240 So. 3d at 943. Here, Mr. Fogg asserts a lack of testamentary capacity and
undue influence by Mr. Jones, as at the time of the execution of the testament in
question, the decedent was " disoriented, feeble- minded, ... and suffering from a
debilitating illness which seriously calls into question [ d] ecendent' s testamentary
capacity, making the alleged will absolutely null."
Testamentary Capacity
To have capacity to make a donation mortis causa, a person must be able to
comprehend generally the nature and consequences of the disposition that he is
making. La. C. C. art. 1477. This capacity must exist at the time the testator
executes the testament. La. C. C. art. 1471.
There is a presumption in favor of testamentary capacity. In re Succession
of Crawford, 04- 0977, p. 8 ( La. App. 1st Cir. 9/ 23/ 05), 923 So. 2d 642, 647, writ
denied, 05- 2407 ( La. 4/ 17/ 06), 926 So. 2d 511. A person who challenges the
capacity of a donor must prove by clear and convincing evidence that the donor
lacked capacity at the time the donor executed the testament. La. C. C. art.
1482( A). To prove a matter by clear and convincing evidence means to
demonstrate that the existence of a disputed fact is highly probable, that is, much
more probable than its nonexistence. In re Succession of Crawford, 04- 0977 at p.
8, 923 So. 2d at 647. Comment ( f)of Article 1477 further provides, in part:
Cases involving challenges to capacity are fact -intensive. The courts will look both to objective and subjective indicia. Illness, old age,
delusions, sedation, etc. may not establish lack of capacity but may be important evidentiary factors. If illness has impaired the donor' s mind M and rendered him unable to understand, then that evidentiary fact will establish that he does not have donative capacity.... The courts will look to the medical evidence that is available, such as the medical records and the testimony of treating doctors, and to other expert testimony, and to the testimony of lay witnesses. Clearly, no quick litmus -paper test exists to apply to the evaluation of mental capacity in all cases.
In the instant case, Mr. Fogg presented as witnesses to the court Tim
Yazbeck, an attorney representing him in his matter of post -conviction relief, and
Tammy Nick, an attorney who worked with the decedent on a succession and the
decedent' s 2008 last will and testament. Mr. Fogg also testified.
Mr. Yazbeck was retained by the decedent to work on Mr. Fogg' s criminal
matter. According to Mr. Yazbeck, the decedent adamantly and continuously
worked to exonerate her son, Mr. Fogg. Mr. Yazbeck also stated that the decedent,
Mrs. Fogg, was " lucid and clear" in his last telephone conversation with her, which
occurred in September of 2017. When asked if the " disinherison" of Mr. Fogg in
the 2017 testament was consistent with the actions of the decedent, Mr. Yazbeck
replied, "[ N] ot for one second, not even close."
Ms. Nick stated in her testimony that she worked on the decedent' s late
husband' s succession, starting in 2000, and that Mrs. Fogg' s three sons, Glynne
Jones, Milton Fogg, and Charles Fogg, fought Mrs. Fogg " relentlessly for the
entire four years for every penny she needed to survive," until a resolution was
reached on that succession. Ms. Nick also stated that Mrs. Fogg came to her in
confidence to draft the 2008 testament, which excluded three of her sons. She
stated that the decedent and Mr. Fogg had a very close relationship. Regarding the
2017 testament, Ms. Nick stated that the clause disinheriting Mr. Fogg was " a red
flag." While she believed the signature on the testament to be that of Mrs. Fogg' s,
she stated that " obviously she was having some trouble." Ms. Nick had last
spoken to and seen Mrs. Fogg in 2016.
5 Finally, Mr. Fogg testified and stated that he took care of his mother, had a
close relationship with her, and talked to her " just about every day." Mr. Fogg
stated that his mother loved his young son as much, or maybe even more, than she
loved him. He further stated that his relationship with his mother was much better
than the relationship between her and his brothers. When asked to describe his last
visit with his mother, Mr. Fogg stated that it occurred on October 8, 2017. Mr.
Fogg stated that he saw his mother incapacitated, and was told that she was on life
support and under heavy morphine.2
After evaluating the evidence before it, the trial court stated in its oral ruling:
I just don' t think you have presented any evidence to the Court that would give me grounds to believe that you have met your burden of proof under 1483, that you' re challenging the donation based on fraud, duress, or undue influence. I don' t think you meet the grounds for disinheriting, because there' s no forced heirship, and I don' t think that you have indicated that she was incapacitated in any way other than a reference to the fact that her signature may have been shaky, she may have been in the hospital, and she may have been under drugs.
We agree. After a thorough review of the record, we can find no evidence
offered by Mr. Fogg to establish a lack of diminished capacity by the decedent at
the time of the execution of the testament. With almost no evidence regarding the
decedent' s overall mental condition, condition in the hospital, or drugs that she
may have been taking when executing the testament, the evidence falls short of
being clear and convincing. Thus, we conclude that the trial court was not clearly
wrong in finding that the plaintiff failed to meet his burden of proof.
Undue Influence
A donation mortis causa shall be declared null upon proof that it was the
product of influence by the donee or another person " that so impaired the volition
of the donor as to substitute the volition of the donee or other person for the
2 Mr. Fogg also stated that when he saw his brother on October 8, 2017, his brother told him that he had no right to property because he is owned by the State. 6 volition of the donor." La. C. C. art. 1479. Comment ( b) 3 of Article 1479 further
provides:
T] he objective aspects of undue influence are generally veiled in secrecy, and the proof of undue influence is either largely or entirely circumstantial.... [ E] veryone is more or less swayed by associations
with other persons, so this Article attempts to describe the kind of influence that would cause the invalidity of a gift or disposition.... .
Generally, a person who challenges a donation because of fraud, duress, or
undue influence, must prove it by clear and convincing evidence. However, if at
the time the donation was made or the testament executed, a relationship of
confidence existed between the donor and the alleged wrongdoer and the alleged
wrongdoer was not then related to the donor by affinity, consanguinity or adoption,
the person who challenges the donation need only prove the fraud, duress, or undue
influence by a preponderance of the evidence. La. C. C. art. 1483.
Here, although the record clearly establishes that the decedent had
previously " disinherited" her three children, including Mr. Jones, who now stand
to inherit her estate, there was no evidence presented by Mr. Fogg, nor have we
found any, to indicate that Mr. Jones' volition was substituted for that of his
deceased mother' s. Having so found, we must conclude that the trial court did not
err in granting the motion for involuntary dismissal.
Answer to Appeal
The appellee herein filed an answer to the appeal seeking damages for a
frivolous appeal. Damages for frivolous appeal are only allowed when it is
obvious that the appeal was taken solely for delay or that counsel is not sincere in
the view of the law he advocates even though the court is of the opinion that such
view is not meritorious. Hampton v. Greenfield, 618 So. 2d 859, 862 ( La. 1993).
3 This article presumes a donor who has capacity. Obviously, if a donor lacks capacity, then the entire donation or will is invalid for that reason alone, and issues of fraud and undue influence are irrelevant. La. C. C. art. 1479, Comment ( b).
7 While we find the assignment of error lacking in merit, we also find the appellant
raised legitimate issues and seriously advocated his position. Therefore, we find
that damages for frivolous appeal are not warranted.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the trial court that
dismissed the claims of Gary L. Fogg against Glynne Jones, III. Damages and
attorney' s fees for frivolous appeal are denied. All costs of this appeal are assessed
to Appellant, Gary L. Fogg.
AFFIRMED; ANSWER TO APPEAL DENIED.