STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
NO. 2019 CA 0562
IN THE MATTER OF THE SUCCESSION OF YVONNE EDNA MORRIS
Judgment Rendered. JUN 17 2020
Appealed from the 19th Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Case No. P102353
The Honorable Todd Hernandez, Judge Presiding
Lon E. Roberson Counsel for Appellant
Derek E. Elsey Heather M. Morris Baton Rouge, Louisiana
Andrew B. Ezell Counsel for Appellee Andrew K. Nicolas Sandra Dykes Watkins Baton Rouge, Louisiana
BEFORE: McDONALD, THERIOT, AND CHUTZ, JJ. THERIOT, J.
In this succession proceeding, the decedent' s adult granddaughter appeals a
judgment dismissing her forced heirship claims with prejudice as a sanction for her
failure to comply with a discovery order. For the reasons set forth herein, we affirm.
FACTS AND PROCEDURAL HISTORY
Yvonne Edna Morris died on December 21, 2016. On December 29, 2016,
Morris' s granddaughter, Heather M. Morris (" Heather") filed a Petition for
Possession. Heather alleged that Morris had died testate,' but that all legatees in
Morris' s will had predeceased her, eliminating the need for an administration or for
probate of the will. Heather further alleged that she is Morris' s only surviving heir,
over the age of twenty- four, and " a competent adult capable of caring for herself and
managing her own affairs," and requested a judgment sending her into possession of
Morris' s estate.
On January 4, 2017, Sandra Dykes Watkins filed an exception to Heather' s
petition, raising an objection of no right of action. Watkins' exception alleged that
Morris had executed a subsequent valid notarial will on September 1, 2009, in which
she ( Watkins) was the sole universal legatee, and therefore Heather did not have a
right of action to seek possession of Morris' s estate. Watkins also filed a Petition
for Filing of Notarial Will and for Possession, and attached Morris' s 2009 will
thereto. In the 2009 will, in addition to bequeathing her entire estate to Watkins,
Morris specifically expressed her intention not to leave any part of her estate to
Heather. To this end, Morris stated that Heather was not a forced heir, noting that
she was not mentally incapacitated or physically infirmed such that she was
permanently incapable of taking care of her person or administering her estate, and
declared her intent to " leave her nothing as allowed by Louisiana law."
Heather filed a copy of Morris' s April 25, 2002 notarial testament with her Petition for Possession.
2 Heather opposed both Watkins' petition for possession and the exception of
no right of action, alleging for the first time that she is a forced heir. Several months
later, Heather amended her own Petition for Possession, acknowledging the
existence of the 2009 will, but contesting its validity on the basis of a lack of
testamentary capacity and forced heirship.' With regard to her claim of forced
heirship, Heather alleged:
According to medical documentation, Petitioner, HEATHER M. MORRIS, suffers from pancreatic cancer, which is an inherited, incurable disease that renders her incapable of caring for her person or administering her estate in the future.
On August 30, 2017, Watkins propounded discovery requests on Heather,
through her counsel of record, including the following requests pertinent to her 3 claims of forced heirship:
Interrogatory No. 7: Identify and explain any and all illnesses, diseases, conditions, and/ or sicknesses suffered by you that existed at the time of the Decedent' s death.
Interrogatory No. 8: Identify any and all medical records, histories, and/ or
documentation which prove and/ or substantiate the existence, at the time of the Decedent' s death, of any illness, diseases, condition, and/ or sickness identified in response to Interrogatory No. [ 7].
Interrogatory No. 9: Identify any and all medical records, histories, and/ or
documentation which prove and/or substantiate that any illness, disease, condition, and/ or sickness identified in response to
Interrogatory No. [ 7] is inherited and incurable.
Interrogatory No. 10: Identify and explain how any illness, disease, condition, and/or sickness identified in response to Interrogatory No. [ 7] renders you incapable of caring for yourself or administering your estate in the future.
Heather' s claim that Morris lacked the requisite mental capacity to execute a valid will was later dismissed on summary judgment without opposition, leaving only Heather' s forced heirship claim at issue in these proceedings. The remaining discovery requests concerned Heather' s claims that Morris lacked testamentary capacity to execute the 2009 will, which were later dismissed on summary judgment.
3 Interrogatory No. 11: Identify any and all medical records, histories, and/ or documentation which proves and/ or substantiates that any illnesses, diseases, conditions, and/ or sicknesses identified in response to
Interrogatory No. [ 7] renders you incapable of caring for yourself or administering your estate in the future.
Interrogatory No. 13: Identify any and all documents or other exhibits you intend on offering as evidence at the trial of this matter and, with respect to such documents or exhibits, please identify the following information: 1) A description of the document or exhibit; and 2) Who, if anyone, will be used to authenticate such document or exhibit.
Request for Production No. 4: Produce any and all medical records, histories, and/ or
documentation concerning any illness, disease, condition, and/ or sickness suffered by you that existed at the time of Decedent' s death.
Request for Production No. 5: Produce any and all medical records, histories, and/ or
documentation concerning the incurable and inherited nature of any illness, disease, condition, and/ or sickness suffered by you that existed at the time of Decedent' s death.
Request for Production No. 6: Produce any and all medical records, histories, and/ or
documentation concerning your inability to care for yourself or administer your estate in the future caused by any illness, disease, condition, and/ or sickness suffered by you that existed at the time of Decedent' s death.
Request for Production No. 7:
In response to Interrogatory No. 13, produce copies of any documents or other exhibits you intend on offering as evidence at the trial of this matter.
Heather did not respond to Watkins' August 30, 2017 discovery requests
within thirty days, as required by La. C. C. P. art. 1458. On October 25, 2017, counsel
for Watkins sent a letter to Heather' s attorneys, stating that he had still not received
any response to discovery, despite their assurances on October 11, 2017 that the
responses were being prepared. Watkins' counsel expressed his intent to initiate a
Rule 10. 1 discovery conference on November 3, 2017 if the discovery responses
4 Louisiana District Court Rules Rule 10. 1( a) provides that before filing a motion to compel discovery, the moving attorney shall confer in person or by telephone with opposing counsel for the purpose of amicably resolving the discovery dispute.
0 were not received by that date. Watkins' attorney then attempted, without success,
to initiate the Rule 10. 1 conference with Heather' s attorneys on November 3.
According to Watkins' attorney, he contacted Heather' s counsel on November 3 as
scheduled, but was told by one of Heather' s attorneys that they were unavailable and
would return his call later in the day. When no return call was received, Watkins'
attorney attempted to contact Heather' s attorneys again, but his calls were
unanswered. Thereafter, he sent a written notice to Heather' s attorneys that he would
file a motion to compel if the discovery responses were not received by November
9, 2017. No discovery responses were received, and Watkins filed a motion to
compel discovery on November 14, 2017, which was set for hearing on December
18, 2017.
On the evening of Sunday, December 17, 2017, the night before the hearing,
Heather' s attorney emailed discovery responses to opposing counsel, along with a
note stating that he would not be present at the hearing on the motion to compel due
to a " schedule conflict." The attached discovery responses contained very minimal
information related to Heather' s forced heirship claims. The only substantive
information provided pertinent to her forced heirship claims was in response to
Interrogatory No. 7, asking her to "[ i] dentify and explain" any and all illnesses,
diseases, conditions, and/ or sicknesses from which she suffered at the time of
Morris' s death. To this interrogatory, Heather' s response was simply that there were
several ... including but not limited to pancreatic cancer." In response to Nos. 8-
11, which asked her to identify any medical records or documents that would
substantiate that any such illness, disease, condition, or sickness existed at the time
of Morris' s death, is inherited and incurable, and will render Heather incapable of
caring for herself or administering her estate in the future, Heather responded that
she was not in possession of the requested information, objected on the grounds that
the interrogatory sought a legal conclusion and/ or expert medical opinion that she is
M not qualified to render, and deferred to her treatment records and treating physicians
which were neither provided nor identified). Further, Heather objected to
Interrogatory No. 13 ( requesting that she identify any documents or exhibits to be
offered as evidence at the trial, as well as the person who will be used to authenticate
the document or exhibit, where applicable) on the grounds of "prematurity" and
stated that " all exhibits will be circulated and identified in accordance with the
Court' s Pretrial Order." Likewise, with regard to Request for Production Nos. 4- 7,
requesting that she produce the medical records, documents, and exhibits identified
in response to the Interrogatories, Heather responded to Nos. 5 and 6 by stating that
she was " not in possession of the requested information at this time," and omitted
Nos. 4 and 7 entirely. No documents were produced in response to Watkins'
discovery requests.
The hearing was held as scheduled on Watkins' motion to compel on
December 18, 2017. Counsel for Heather was not present, but notified the trial court
by fax prior to the hearing that the outstanding discovery responses had been
provided to opposing counsel the night before, thereby rendering the hearing on the
motion to compel moot. Following oral argument by Watkins' attorney, the trial
court granted the motion to compel and ordered Heather to provide " sufficient"
responses to Watkins' discovery requests within thirty days of the date of the
hearing.
Despite the court' s order that Heather provide " sufficient" responses by
January 17, 2018, Heather' s supplemental responses, dated January 18, 2018,
provided little to no additional information. Heather amended her answer to
Interrogatory No. 7 to state that she suffered from " several illnesses, diseases,
conditions, and/ or sicknesses including but not limited to pancreatic cancer, more
specifically the effects of a pancreatic neuroendocrine tumor." She did not
supplement her original non -responses to Nos. 8- 11, and in response to No. 13, which requested that she identify any documents or exhibits to be introduced in
evidence at trial, she listed only the following, reserving the right to add additional
exhibits as she deems necessary and proper:
1. Any statement taken by any other party of any person with information relevant to the underlying cause of action;
2. Any and all pleadings, discovery submitted by plaintiff or any other party and responses thereto;
3. Any deposition taken in this matter to the extent admissible;
4. Any impeachment or rebuttal exhibits that may become necessary;
5. Any exhibit listed by any other party and not objected to by Heather Morris;
6. Any expert report along with supporting documentation; and
7. Any other relevant documents, as they are generated or discovered.
Heather' s only supplement to her original responses to the requests for
production (wherein she produced no documents whatsoever) was in response to No.
4, which requested any medical records or documentation regarding any identified
medical condition. Heather' s supplemental response was simply " Please see
attached." However, the record before us contains no such attachment, and it
appears that no attachment existed. Heather again failed to respond in any way to
Request No. 7, which sought production of any documents or exhibits to be
introduced in evidence at trial.
Trial on the matter was scheduled for September 28, 2018, almost two years
after Morris' s death. On July 11, 2018, Watkins filed a motion seeking to have
Heather' s forced heirship claims dismissed for failure to comply with the trial court' s
order compelling discovery, or alternatively, to prohibit her from introducing any
evidence in support of her forced heirship claims. Heather filed an untimely
opposition to Watkins' motion, and a hearing was held on September 17, 2018 on
7 the motion.' Counsel for Heather appeared at the hearing and argued that sanctions
were not appropriate because supplemental discovery responses were sent in January
2018 in response to the trial court' s order compelling discovery. He also argued that
Watkins should be aware of the identity of Heather' s treating physician( s) and
should depose them. With the trial date less than two weeks away, Heather' s counsel
suggested that the trial court grant a continuance in order to allow Watkins to
prepare a defense to what [ Heather' s] witnesses are going to testify to." At the
conclusion of the hearing, the trial court granted Watkins' motion and dismissed
Heather' s forced heirship claims with prejudice as a sanction under La. C. C. P. art.
1471 for failure to comply with the trial court' s discovery order. Since the forced
heirship claims were the only remaining issue for trial, the trial court also dismissed
the scheduled bench trial as moot.
Heather filed a devolutive appeal. Her appellate brief, which was due on May
21, 2019, was not received timely, and this court issued a notice of abandonment in
accordance with URCA Rule 2- 8. 6, noting that her appeal would be dismissed if no
brief was received by July 4, 2019. A brief was electronically filed on Heather' s
behalf on June 30, 2019, but was marked as non-compliant by this court for failure
to comply with URCA Rule 2- 12. 2( D)( 2), which requires in part that briefs be in
Roman or Times New Roman 14 point or larger computer font, normal spacing."
As no compliant brief was filed within the abandonment period, Heather' s appeal
was dismissed as abandoned on July 17, 2019. Thereafter, Heather filed a motion
for rehearing, seeking to have her appeal reinstated on the grounds that her June 30,
2019 brief was actually compliant with Rule 2- 12. 2( D)( 2) when submitted
Under Louisiana District Court Rules Rule 9. 9( c), an opposition memorandum shall be furnished to the trial judge and served on all other parties so that it is received at least eight calendar days before the scheduled hearing date. Heather' s opposition memorandum was filed with the trial court on September 12, 2018, and Watkins' counsel informed the court that he had to contact Heather' s attorney to obtain a copy of the opposition on Thursday, September 13, 2018. At the hearing, counsel for Watkins informed the trial court that Heather' s attorney had provided him with two pages of documents, presumably in response to discovery, several days before the hearing along with the tardy opposition memorandum. Watkins' counsel did not assert that his discovery requests were satisfied by these two unidentified pages of documents, but merely informed the court that a total of two pages of documents had been received. These documents are not contained in the record.
8 electronically and urging that the apparent non- compliance must have been due to
the electronic transmission process. This court granted the application for rehearing
and reinstated Heather' s appeal on September 3, 2019, with new briefing delays to
be set by the Clerk' s office. In Re Succession ofMorris, 2019- 0562 ( La.App. 1 Cir.
9/ 3/ 19) ( unpublished). On October 11, 2019, this court again issued a notice of
abandonment of appeal, stating that Heather' s appellate brief had not been received
by the September 28, 2019 deadline and her appeal would be dismissed if a brief
was not filed with this court on or before November 10, 2019. Heather' s brief was
finally filed with this court on November 9, 2019.
DISCUSSION
The only remaining issue before the trial court at the time of the September
17, 2018 hearing was Heather' s status as a forced heir. To qualify as a forced heir,
a descendent over the age of twenty-three must be permanently incapable of taking
care of his or her person or administering his or her estate at the time of the
decedent' s death, due to a mental incapacity or physical infirmity. La. C. C. art.
1493( A). Although Heather alleged in her December 29, 2016 petition that she was
over the age of twenty- four and " a competent adult capable of caring for herself and
managing her own affairs," a descendent is considered to be permanently incapable
of taking care of his or her person or administering his or her estate at the time of the
decedent' s death for forced heirship purposes if the descendent has, at the time of
the decedent' s death, according to medical documentation, an inherited, incurable
disease or condition that may render him or her incapable of caring for his or her
person or administering his or her estate in the future. La. C. C. art. 1493( E).
Parties may obtain discovery regarding any matter, not privileged, which is
relevant to the subject matter involved in the pending action, whether it relates to the
claim or defense of the party seeking discovery or to the claim or defense of any
other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and
location of persons having knowledge of any discoverable matter. La. C. C. P. art.
1422. To this end, Watkins sought to discover the factual basis and evidentiary
support for Heather' s forced heirship claims; i.e., that Heather has an inherited and
incurable disease or condition, that it existed at the time of Morris' s death, that it
may render Heather incapable of caring for her person or administering her estate in
the future, and that medical documentation supports each of these criteria.
Where a party fails to answer an interrogatory or respond to a request for
production, a trial court may issue an order compelling discovery on the motion of
a party. La. C. C. P. art. 1469( 2). For these purposes, an evasive or incomplete
answer is to be treated as a failure to answer. La. C. C. P. art. 1469( 3). Thereafter,
where a party fails to obey a trial court order compelling discovery, the trial court
may make such orders in regard to the failure as are just, including any of the
following:
1) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order.
2) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence.
3) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a final default judgment against the disobedient party upon presentation of proof as required by Article 1702.
4) In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical or mental examination.
5) Where a party has failed to comply with an order under Article 1464, requiring him to produce another for examination, such orders as are listed in Subparagraphs ( 1), ( 2), and ( 3) of this Paragraph, unless the party failing to comply shows that he is unable to produce such person for examination.
10 La. C. C. P. art. 1471( A).
Louisiana law distinguishes between the sanctions available for failure to
comply with discovery requests and sanctions for disobedience of court- ordered
discovery. BancorpSouth Bank v. Kleinpeter Trace, L.L.C., 13- 1396, p. 23 ( La.App.
1 Cir. 10/ 1/ 14), 155 So. 3d 614, 630, writ denied, 14- 2470 ( La. 2/ 27/ 15), 159 So. 3d
1067. A party may seek a court order compelling a response to discovery under La.
C. C. P. art. 1469, and if the order is granted, the mover may recover the reasonable
costs and attorney fees incurred in obtaining the order. La. C. C. P. art. 1469( A)(4).
However, if a party fails to obey such an order by the trial court to provide or permit
discovery, the trial court may impose the more severe sanctions set forth in La.
C. C. P. art. 1471. By its express terms, article 1471 grants these remedies only when
a trial court order compelling discovery is in effect and a party has failed to obey the
order. BancorpSouth Bank, 13- 1396 at p. 23- 24, 155 So. 3d at 630- 31.
Criteria to be considered in imposing sanctions under article 1471 are the
prejudice to the other party and the willfulness of the disobedient party. Horton v.
McCary, 93- 2315 ( La. 4/ 11/ 94), 635 So. 2d 199, 204. The trial court has much
discretion in imposing sanctions for failure to comply with discovery orders, and its
rulings should not be reversed absent an abuse of discretion. Hutchinson v. Westport
Insurance Corporation, 04- 1592, p. 2 ( La. 11/ 8/ 04), 886 So. 2d 438, 440. Despite
this wide discretion, the Louisiana Supreme Court has cautioned that dismissal for a
discovery violation is a draconian penalty that should only be applied in extreme
circumstances. Hutchinson, 04- 1592 at p. 2, 886 So. 2d at 440 (per curiam); Horton,
635 So. 2d at 203. A sanction of dismissal involves property rights; therefore, such
a sanction should be reserved for the most culpable conduct. Lirette v. Babin Farm,
Inc., 02- 1402 ( La.App. 1 Cir. 4/ 2/ 03), 843 So. 2d 1141, 1143. Dismissal is a sanction
of last resort only to be imposed where a party has failed to comply with a court
11 order of discovery and only after an opportunity to be heard has been afforded the
litigant. Hutchinson, 04- 1592 at p. 2, 886 So. 2d at 440.
Before taking the drastic action of dismissal for violation of a discovery order,
a trial court should consider the following four factors: ( 1) whether the violation was
willful or resulted from inability to comply; ( 2) whether less drastic sanctions would
be effective; ( 3) whether the violations prejudiced the opposing party' s trial
preparation; and ( 4) whether the client participated in the violation or simply
misunderstood a court order or innocently hired a derelict attorney. BancorpSouth
Bank, 13- 1396 at p. 25, 155 So. 3d at 631.
The sanctions provided by article 1471( A) were available to the trial court in
this matter, since the trial court had previously issued an order compelling Heather
to provide sufficient discovery responses. Thus, the trial court' s imposition of a
particular sanction under article 1471( A) is reversible only if the trial court abused
its discretion.
The discovery at issue in this case was initially propounded on August 30,
2017. Despite numerous attempts over the course of more than a year to obtain the
information sought, which information concerned the essential elements of the only
remaining issue before the court, Heather' s responses were untimely, evasive, and
incomplete at best. Heather argues on appeal that the trial court erred in imposing
sanctions against her, since her attorneys responded to discovery on December 17,
2017, and then supplemented her original responses with " more substantive
responses" on January 18, 2018. However, as noted above, evasive or incomplete
answers are treated as a failure to answer, and there is no question that Heather' s
responses to discovery in this matter were evasive and incomplete. At the time of
the September 17, 2018 sanction hearing, less than two weeks before the trial date,
Heather had still not provided adequate responses to Watkins' August 30, 2017
12 Although dismissal was the harshest sanction available to the trial court for
Heather' s failure to comply with its order compelling discovery, most of the less -
severe alternatives available under La. C. C. P. art. 1471 would have yielded
essentially the same result. For instance, the trial court could have chosen to order
that certain facts relating to Heather' s forced heirship claims were established as
proven for purposes of the litigation in Watkins' favor (La. C. C. P. art. 1471( A)( 1));
it could have prohibited Heather from presenting evidence in support of her forced
heirship claims ( La. C. C. P. art. 1471( A)(2)); or it could have chosen to strike her
allegations of forced heirship from the pleadings ( La. C. C. P. art. 1471( A)(3)).
However, any of these sanctions, if imposed by the trial court, would ultimately
result in the dismissal of Heather' s claims, since Heather' s status as a forced heir
was the only issue remaining before the court. Although the trial court could have
chosen the least severe sanctions, such as staying the action pending compliance
with its discovery order (La. C. C.P. art. 1471( A)( 3)) or treating Heather' s failure to
comply with the discovery order as contempt of court (La. C. C.P. art. 1471( A)(4)),
this court has held that refusal to comply with court-ordered discovery is a serious
matter, and trial courts must have severe sanctions available to deter litigants from
flouting discovery orders. JP Morgan Chase Bank, N.A. v. Boohaker, 14- 0594, p.
12 ( La.App. 1 Cir. 11/ 20/ 14), 168 So. 3d 421, 429. Considering the nature of the
refusal to comply with discovery, the prejudice to Watkins in preparing a defense,
and the fact that dismissal would ultimately result even from imposition of several
less -severe sanctions, we cannot say that the trial court abused its discretion in
dismissing Heather' s forced heirship claims with prejudice.
13 CONCLUSION
The judgment of the trial court, granting Sandra Dykes Watkins' motion, and
dismissing Heather M. Morris' s claims with prejudice, is affirmed. Costs of this
appeal are to be borne by appellant, Heather M. Morris.
14 IN MATTER OF FIRST CIRCUIT
COURT OF APPEAL SUCCESSION OF STATE OF LOUISIANA
YVONNE EDNA MORRIS NO. 2019 CA 0562
L CHUTZ, J., dissenting.
G I respectfully disagree with the majority While the trial court has much
discretion in imposing discovery sanctions, dismissal is a severe penalty reserved
for the most culpable conduct. Horton v. McCary, 93- 2315 ( La. 4/ 11/ 94), 635
So. 2d 199, 203; Lirette v. Babin Farm, Inc., 02- 1402 ( La. App. 1st Cir. 4/ 2/ 03),
843 So. 2d 1141, 1143. Moreover, dismissal is generally reserved for only those
cases in which the client, as well as the attorney, is at fault. Both the Louisiana
Supreme Court and this court have held that the record must contain sufficient
evidence of the plaintiffs willful disobedience, bad faith, or fault, in order to
justify dismissal. See Horton, 635 So. 2d at 203; Conbeth, Inc. v. Kittock, 12- 0089
La. App. 1st Cir. 9/ 21/ 12) ( unpublished), 2012 WL 4335411, * 2- 3; Lirette, 843
So. 2d at 1143; In re Medical Review Panel, 99- 2088 ( La. App. 1 st Cir. 12/ 22/ 00),
775 So. 2d 1214, 1218. This court has explained that "[ i] f the record does not
contain evidence of plaintiffs, rather than counsel' s fault, the trial court, if it grants
dismissal, abuses the wide discretion afforded it by La. C. C. P. art. 1471." In re
Medical Review Panel, 775 So. 2d at 1218.
In the present case, the record clearly reflects the egregious conduct of the
plaintiff' s counsel. The record does not, however, appear to contain any evidence
whatsoever showing willful disobedience, bad faith, or fault of the plaintiff
personally. Given the lack of such evidence, I believe the trial court abused its
discretion in dismissing the plaintiffs claims. See Horton, 635 So. 2d at 203;
Conbeth, Inc., 2012 WL 4335411 at * 3; In re Medical Review Panel, 775 So. 2d
at 1218. For these reasons, I would vacate the judgment of dismissal and remand this
matter to the trial court for an evidentiary hearing to determine whether the
plaintiff also participated in or was at fault for the failure to comply with the
discovery order and, if so, to impose an appropriate sanction ( including possible
dismissal). See Horton, 635 So. 2d at 203; Conbeth, Inc., 2012 WL 4335411 at
3. Accordingly, I dissent.