In the Matter of the Succession of Wayne Edmond Breen

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

NUMBER 2021 CA 0806

THE MATTER OF THE SUCCESSION OF WAYNE EDMOND BREEN

W consolidated with

NUMBER 2021 CA 0807

DOCTORS FOR WOMEN MEDICAL CENTER, L.L.C., CRAIG M.
LANDWEHR, M.D., L.L.C., AND CRAIG M. LANDWEHR, M.D., IN HIS
CAPACITY AS A TRUSTEE OF THE DOCTORS FOR WOMEN MEDICAL
CENTER, L.L.C. PROFIT SHARING PLAN & TRUST

VERSUS

PATRICK VERNON BREEN, RYAN MICHAEL BREEN, DEVIN THOMAS
BREEN, BRIDGET BREEN DUNBAR, SEAN MICHAEL BREEN, KACIE
BREEN, INDIVIDUALLY AND IN HER CAPACITY AS TUTOR OF THE
MINOR CHILD A.B., HUB INTERNATIONAL GULF SOUTH LIMITED, A
DIVISION OF HUB INTERNATIONAL MIDWEST LIMITED, MERRILL
LYNCH, FENNER & SMITH, INC., AND WAYNE E. BREEN, M.D., LLC

Judgment Rendered: JUL 112023

Appealed from the
Twenty -Second Judicial District Court
In and for the Parish of St. Tammany
State of Louisiana
Suit Number 2015- 30176 c/ w 2015- 12925

Honorable William H. Burris, Judge Presiding

Richard Ducote Counsel for Defendant/ Appellee
Covington, Louisiana Kacie M. Breen

Antonio Le Mon Counsel for Defendant/ Appellant
Covington, Louisiana Aaron Dylan Knapp
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canae Breen
ter:
Defendant/ Appellee
MaWeville, Louisiana Self -represented Litigant

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J. Craig Diamond Counsel for Defendants/ Appellees
Covington, Louisiana Bridget Breen Dunbar, Ryan Breen,
Patrick Breen, and Devin Breen

Darryl T. Landwehr Counsel for Plaintiff/Appellee
New Orleans, Louisiana Doctors for Women Medical Center,
LLC

BEFORE: GUIDRY, C.J., McCLENDON, WELCH, THERIOT,
HOLDRIDGE, CHUTZ, PENZATO, LANIER, WOLFE, HESTER,
MILLER, AND GREENE, JJ.

2

HOLDRIDGE, J.

This is an appeal from a trial court judgment granting a motion for summary

judgment in favor of Kacie M. Breen, declaring that she is the sole beneficiary of

the Doctors for Women, L.L.C. Profit Sharing Plan and Trust (the Plan) and is the

sole owner of the proceeds of the Plan held in the registry of the trial court. For the

reasons that follow, we reverse in part and remand.

FACTS AND PROCEDURAL HISTORY

On March 1, 2015, Kacie Breen shot and killed her husband, Wayne Edmond

Breen, a physician in St. Tammany Parish. Dr. Breen was survived by: Kacie; their

minor child, A.B.; Sean Michael Breen, Ryan Michael Breen, Patrick Vernon Breen,

Devin Thomas Breen, and Bridget Marie Breen Dunbar ( the adult children from a

prior marriage collectively referred to as " the adult Breen children"); and Aaron

Dylan Knapp (an adult son from an extra -marital relationship).'

On May 22, 2015, Kacie filed a Petition to Probate/ Execute Original Last Will

and Testament, docketed in the trial court as suit number 2015- 30176. On July 17,

2015, Doctors for Women Medical Center, L.L.C., Craig M. Landwehr, M.D.,

L.L.C., and Craig M. Landwehr, M.D., in his Capacity as a Trustee of the Plan

collectively referred to as " Doctors for Women") filed a Petition for Concursus

Proceeding, which was docketed as suit number 2015- 12925, naming as defendants

Kacie, individually and in her capacity as the tutor of the minor child, A.B., and the

adult Breen children.' Doctors for Women sought to resolve the defendants' claims

I Kacie alleged the shooting was in self-defense, and she was never charged or convicted for the
killing of Dr. Breen, On May 1, 2015, Sean filed a wrongful death suit naming Kacic as a
defendant in suit number 2015- 11809, which was later amended on February 21, 2018, to include
Aaron as a plaintiff. Dunbar v. Breen, 2019- 1687, 2019- 1688 ( La. App. 1 Cir. 11/ 6/ 20), 2020
WL 6536426 at * I ( unpublished opinion). In July of 2015, the remaining adult Breen children
filed a separate wrongful death suit against Kacie, which was docketed as suit number 2015- 13096,
consolidated with Sean' s suit, and later voluntarily dismissed with prejudice. Dunbar, 2020 WL
6536426 at * 1 n. 2. Related appeals involve the dismissal of the wrongful death litigation. Breen
v. Breen c/w Dunbar v. Breen, 2021- 1583, 2021- 1585 ( La. App. 1 Cir. 7/ 6/ 23), So. 3d

2 The Petition for Concursus Proceeding also named the following additional defendants who are
not relevant to these proceedings: HUB International Gulf South Limited, a Division of HUB

3

to the Plan proceeds and attached a copy of the Plan and a 2002 beneficiary

designation by Dr. Breen as exhibits to the petition.'

Thereafter, on August 12, 2015, the adult Breen children filed a Petition for

Declaration of Unworthiness in the succession proceeding, naming Kacie as a

defendant and asserting that she was an unworthy successor as set forth in La. G. C.

art. 941 because she participated in the intentional, unjustified killing of Dr. Breen.'

The adult Breen children alleged they had filed petitions for damages for wrongful

death naming Kacie as a defendant, and that there was an ongoing criminal

investigation and determination of civil liability that had not yet concluded, which

would have an effect on Kacie' s worthiness to inherit from the succession of Dr.

Breen. By way of a consent judgment signed on December 7, 2015, the concursus

proceeding was consolidated with the succession proceeding.

While the Petition for Declaration of Unworthiness was pending, a federal

interpleader action was initiated by two life insurance companies to settle claims to

the proceeds of two life insurance policies taken out by Dr. Breen naming Kacie as

beneficiary. See Pruco Life Insurance Co, v. Breen, 289 F. Supp. 3d 777, 778- 79

E. D. La. 2017), aff' d, 734 F.Appx. 302 ( 51h Cir. 2018) ( per curiam). The adult

Breen children and the administratrix of Dr. Breen' s estate opposed Kacie' s receipt

of the life insurance proceeds pursuant to La. R.S. 22: 901( D)( 1)( b), which provides

International Midwest Limited ( the Plan administrator); Merrill Lynch, Pierce, Fenner & Smith,
Inc. ( holder of the Plan proceeds); and Wayne E. Breen, M.D., LLC ( Plan trustee, employee, and
participant). We note that Merrill Lynch, Pierce, Fenner & Smith, Inc, was misnamed in the
caption of the concursus petition as " MERRILL LYNCH, FENNER & SMITH, INC."

3 Doctors for Women also attached to its petition a beneficiary designation, a beneficiary claim by
Kacie, and a letter from the adult Breen children' s counsel to Doctors for Women asking it to
refrain from distributing the Plan proceeds to Facie.

4 Louisiana Civil Code article 941 provides, in part:

A successor shall be declared unworthy if he is convicted of a crime involving the
intentional killing, or attempted killing, of the decedent or is judicially determined
to have participated in the intentional, unjustified killing, or attempted killing, of
the decedent. An action to declare a successor unworthy shall be brought in the
succession proceedings of the decedent.

4

in part that a beneficiary cannot receive life insurance proceeds if she is " b] udicially

determined to have participated in the intentional, unjustified killing of the

individual insured." Pruco Life Insurance Co., 289 F. Supp.3d at 788. Aaron

attempted to intervene in the interpleader proceeding on February 6, 2017, but his

motion was denied as untimely, given the impending trial date of March 20, 2017.

Following a trial in the interpleader action, the federal district court found that the

adult Breen children and the administratrix did not meet their burden under La. R.S.

22:901( D)( 1)( b) to establish that Kacie " participated in the intentional, unjustified

killing of the individual insured, i. e., her husband" and entered judgment in favor of

5
Kacie, finding that she was entitled to the life insurance proceeds. Pruco Life

Insurance Co., 289 F. Supp.3d at 798- 99.

Following the rendition of the federal court judgment, Kacie filed a

peremptory exception raising the objection of res judicata on June 27, 2017, as to

the Petition for Declaration of Unworthiness filed by the adult Breen children.'

Kacie asserted that in order to succeed in their claim, the adult Breen children were

required to prove that she was judicially determined to have participated in the

intentional, unjustified killing of Dr. Breen. She contended that the identical issue

was involved in the federal interpleader action, and that in rendering judgment in her

s Louisiana Revised Statutes 22: 901( D)( 1) provides in pertinent part that:

No beneficiary ... under any personal insurance contract shall receive from the
insurer any benefits under the contract accruing upon the death, disablement, or
injury of the individual insured when the beneficiary... is either:
a) Held by a final judgment of a court of competent jurisdiction to be criminally
responsible for the death, disablement, or injury of the individual insured.
b) Judicially determined to have participated in the intentional, unjustified killing
of the individual insured.

6 We note that although the concursus and succession proceedings were consolidated, the parties
correctly captioned the pleadings they filed with the suit number to which the pleadings pertained.
Kacie also filed a motion for attorney fees, court costs, and expenses pursuant to La. R.S.
9: 2800. 19, which provides for that award if the trial court finds that a defendant is entitled to tort
immunity in a civil action against one who used " reasonable and apparently necessary or deadly
force or violence" in preventing a forcible offense against the person or his property in accord with
La. R.S. 14: 20.

5

favor, the federal district court found the adult Breen children and Dr. Breen' s estate

failed to prove Kacie participated in the intentional, unjustified killing of the

individual insured, Dr. Breen. Kacie further contended that because the legal and

factual issues adjudicated in the federal interpleader action were the same as those

upon which the unworthy successor declaration was premised, the federal court

judgment acted as res judicata and barred subsequent claims between the parties.

Following a hearing, the trial court signed a judgment on August 29, 2017, sustaining

Kacie' s peremptory exception raising the objection of res judicata and dismissing

Sean' s claims that Facie was an unworthy successor under La. C. C. art. 941.' Sean

and Aaron appealed the August 29, 2017 judgment. This court dismissed the appeal

because the judgment was a nonappealable final judgment due to the lack of decretal

language in the judgment and the absence of the designation required by La. C. C.P.

art. 1915( B). Doctors for Women Medical Center, L.L.C. v. Breen, 2019- 0582

La. App. 1 Cir. 5111120), 303 So. 3d 667, 671- 72.

On December 29, 2017, Kacie filed the motion for summary judgment with

an incorporated memorandum in the concursus proceeding that is at issue in this

appeal.
She sought a declaration that she was the sole beneficiary of the Plan and

the disbursement of all Plan funds held in the registry of the court. Kacie asserted

that there were no genuine issues of material fact that she was married to Dr. Breen

and was his spouse at the time of his death and that she was his designated

beneficiary under the Plan. Additionally, Kacie asserted that because the trial court

had entered a final judgment sustaining her peremptory exception raising the

objection of res judicata and dismissed with prejudice Sean' s claim that Kacie was

an unworthy successor pursuant to La. C.C. art. 941, and the other adult Breen

children had voluntarily dismissed their claims, there was no legally viable pending

7 On August 9, 2017, Patrick, Ryan, Devin, and Bridget filed a motion to dismiss with prejudice
their claims of unworthiness, and the motion was granted on August 14, 2017.

6

claim that Kacie was disqualified as the designated beneficiary of the Plan.

Furthermore, Kacie relied on the federal court judgment as the basis for her earlier

objection of res judicata; she contended that the federal court' s prior findings that

she did not participate in the intentional, unjustified killing or attempted killing of

Dr. Breen, and as such, was not a disqualified beneficiary under La. C.C. art. 941 or

La. R.S. 22: 901( D)( 1), were res judicata and res judicata was a proper basis for the

granting of the motion for summary judgment. Therefore, Kacie asserted that, as the

only designated beneficiary of the Plan, she was entitled to immediate disbursement

to her of the Plan funds held in the registry of the court.

Sean and Aaron ( designated as an intervenor) filed several oppositions to

Kacie' s motion for summary judgment.' Sean and Aaron asserted that the federal

interpleader judgment could not form the basis of res judicata because ( at that time)

it was pending on appeal before the U.S. Fifth Circuit Court of Appeals and further,

that Aaron was not a party to the interpleader action, was denied participation in the

action due to the objection of Kacie, and had no interest in the federal action' s

outcome; therefore, there was no interest of Aaron' s that could have been protected.

Additionally, Sean and Aaron asserted that the August 29, 2017 res judicata

judgment, dismissing Sean' s unworthiness claims with prejudice, was an

s Sean and Aaron filed a " MEMORANDUM IN OPPOSITION TO [ KACIE' S] MOTION FOR
SUMMARY JUDGMENT DECLARING HER THE SOLE BENEFICIARY OF THE [ PLAN],
AND INCORPORATED MEMORANDUM" on March 14, 2018; a " REPLY TO
SUPPLEMENTAL] MEMORANDUM OF [ KACIE] IN SUPPORT OF HER MOTION FOR
SUMMARY JUDGMENT" on March 26, 2018; a " MEMORANDUM IN OPPOSITION TO
KACIE' S] MOTION TO STRIKE REPLY TO SUPPLEMENTAL MEMORANDUM OF
AARON] AND [ SEAN] IN OPPOSIT[ I] ON TO [ KACIE' S] MOTION FOR SUMMARY
JUDGMENT" on March 29, 2018; a " FIRST SUPPLEMENTAL AND AMENDING
MEMORANDUM IN OPPOSITION TO [ KACIE' S] MOTION FOR SUMMARY JUDGMENT
DECLARING HER THE SOLE BENEFICIARY OF THE [ PLAN], AND INCORPORATED
MEMORANDUM" on April 13, 2018; a " FIRST SUPPLEMENTAL AND AMENDING REPLY
MEMORANDUM IN RESPONSE TO SUPPLEMENTAL MEMORANDUM OF [ KACIE] IN
SUPPORT OF HER MOTION FOR SUMMARY JUDGMENT" on April 13, 2018; and a
MEMORANDUM IN OPPOSITION TO [ KACIE' S] MOTION FOR SUMMARY JUDGMENT
DECLARING HER THE SOLE BENEFICIARY OF THE [ PLAN] AND INCORPORATED
MEMORANDUM" on April 20, 2018.

7

interlocutory judgment because it was not designated as a final judgment and

violated Louisiana succession law.

In response, Kacie filed a " REPLY MEMORANDUM IN SUPPORT OF

HER MOTION FOR SUMMARY JUDGMENT DECLARING HER THE SOLE

BENEFICIARY OF THE [ PLAN], AND INCORPORATED MEMORANDUM,"

on March 23, 201 S.

On March 28, 2018, Aaron filed his own Petition for Declaration of

Unworthiness, naming Doctors for Women, Kacie, the Succession of Dr. Breen, and

Wayne M. Breen, M.D., L.L. C., as defendants. 9 Aaron asserted that he timely

instituted a filiation action on February 26, 201 b, and in a February 13, 2017 consent

judgment, Dr. Breen was recognized as Aaron' s biological father, such that Aaron

was entitled to all of the civil effects of filiation under the law. Aaron asserted that

Kacie had no right to any of the funds comprising the Plan because she was alleged

to have intentionally and without legal justification killed her husband, Dr. Breen.

Also, on March 18, 2018, Doctors for Women filed a First Supplemental and

Amending Petition for Concursus Proceeding, adding Aaron as a defendant.

The trial court held a hearing on Kacie' s motion for summary judgment and

Doctors for Women' s motion for leave of court to file the First Supplemental and

Amending Petition for Concursus Proceeding. Following the hearing, the trial court

signed a " JUDGMENT AND INCORPORATED WRITTEN REASONS FOR

JUDGMENT" on May 23, 2018, wherein the trial court granted Doctors for

Women' s motion for leave to file an amended petition adding Aaron as a defendant,

granted the motion for summary judgment filed by Kacie, and designated the

judgment as final pursuant to La. C. C. P. art. 1915. Sean and Aaron appealed from

Aaron also named Craig M. Landwehr, M.D., L.L.C., and Craig M. Landwehr, M.D., as

defendants.

8

the May 23, 2018 judgment? In Doctors for Women Medical Center, L.L.C. v.

Breen, 19- 0584, 19- 0585 ( La. App. 1 Cir. 611/ 20), 2020 WL 2832627 at * 3

unpublished opinion), this court dismissed the appeal after finding that it lacked

appellate jurisdiction because the May 23, 2018 judgment was defective and could

not be considered a final judgment for purposes of appeal due to the absence of

appropriate decretal language stating the party against whom the ruling was ordered

or granting any specific relief.

On June 2, 2020, Aaron filed his own motion for summary judgment based

on Kacie' s alleged unworthiness. Additionally, on July 27, 2020, Aaron filed an

exception raising the objection of failure to join an indispensable party, asserting

that Kacie failed to include the minor child of her and Dr. Breen as a party in this

matter with independent legal counsel. Aaron stated that he had previously filed an

exception in the appellate court in conjunction with the appeal from the May 23,

2018 judgment, but the appellate court pretermitted discussion of his exception. As

such, he requested that the trial court consider his re -urged exception.

At a hearing conducted on August 5, 2020, the trial court initially stated that

it was considering the motion for summary judgment filed by Aaron and the rule for

disbursement of funds held in the registry of the court filed by Kacie. Aaron' s

counsel argued the merits of his summary judgment motion, but he also raised

procedural issues that he contended precluded the trial court from hearing the

summary judgment motion at that time. 11 Kacie' s counsel asked the trial court to

10 Aaron answered the concursus petition on June 8, 2018,

11 At the hearing, Aaron argued the merits of his motion for summary judgment but also pointed
out procedural irregularities as to holding the summary judgment hearing. He argued that he filed
his motion on May 2, 2020, and the trial court set it for hearing on August 5, 2020. ( We note that
while the certificate of service is dated May 2, 2020, he actually filed the motion on June 2, 2020)
He stated that he had service instructions in the motion for all of the parties in interest, but the
record did not show a return of service as to Doctors for Women Medical Group and showed a
return of service as to the other parties for July 23, 2020, less than 15 days before the hearing. See
La. C. C. P. art. 966( B)( 2).

W

deny Aaron' s motion for summary judgment and grant Katie' s motion for the

disbursement of the Plan proceeds.

In its oral reasons, the trial court referred to its earlier 2018 ruling granting

summary judgment in favor of Kacie, which this court determined was not a final

appealable judgment. The trial court stated that it "upheld" its prior ruling and would

sign a written judgment to that effect with proper decretal language. The trial court

commented that the granting of Kacie' s motion for summary judgment " basically

does away with" Aaron' s motion for summary judgment. The trial court stated that

its prior ruling granting Kacie' s summary judgment motion also applied to Aaron

and that the ruling on the peremptory exception raising the res judicata objection

applied to Aaron. In ordering the parties to submit proposed judgments, the court

stated that the judgment was to reflect the " rulings that I issued on, back in 2018,

that were the subject of the May 23' judgment." The trial court then stated that on

Aaron' s summary judgment motion, it agreed that service had not been perfected on

all named parties based on Aaron' s counsel' s procedural arguments, but stated:

I' m not going to specifically deny [his summary judgment motion]. But
I' m going to say I' m upholding the summary judgment from Kacie .. .
So obviously, there is a massive genuine issue of material fact that I
think should be deemed moot and not reset. But that' s up to the parties.
12
The trial court added that it was continuing the matter. The trial court also withheld

ruling on Kacie' s motion for disbursement of funds until the suspensive appeal

delays had lapsed with regard to the yet -to -be signed fnal judgment granting Kacie' s

motion for summary judgment.

In a judgment signed on August 18, 2020, the trial court stated that, as to the

matter taken up on May 10, 2018, on Kacie' s motion for summary judgment filed

on December 29, 2017, for the reasons assigned orally and in writing on May 23,

12 At one point, the trial court stated that if it were to give written reasons in the suit, they would
be identical to those given by the trial court in the wrongful death suit and it would adopt that
ruling, as the ruling applied to Aaron for his summary judgment motion.

10

2018, and orally on August 5, 2020, it granted Kacie' s summary judgment motion

in her favor and against Sean and Aaron. In the judgment, the trial court also decreed

that Kacie was the sole beneficiary of the Plan and that Kacie was the sole owner of

the proceeds of the Plan held in the registry of the court, and it designated the

judgment as final.13 The minute entry for August 5, 2020, stated that Aaron' s motion

for summary judgment and Kacie' s rule for disbursement of funds were continued

without date. Aaron subsequently filed a motion for suspensive appeal of the trial

court' s August 18, 2020 judgment on September 3, 2020. 14 After the appeal was

lodged, Aaron filed an exception raising the objection of nonjoinder of an

indispensable party with this court.

DISCUSSION

Motion for Summary Judgment

Appellate courts review the granting of a summary judgment de novo using

the same criteria governing the trial court' s consideration of whether summary

judgment is appropriate, i.e., whether there is any genuine issue of material fact and

whether the mover is entitled to judgment as a matter of law. See La. C. C. P. art.

966( A)(3); Lucas v. Maison Insurance Co., 2021- 1401 ( La. App. 1 Cir. 12/ 22/ 22),

358 So. 3d 76, 83- 84.

The summary judgment procedure is favored and is designed to secure the

just, speedy, and inexpensive determination of every action. See La. C. C.P. art.

13 The trial court noted that, notwithstanding the La. C. C.P. art. 1915( B) designation, the judgment
appeared to be a final judgment under La. C. C. P. art. 1915( A)(3). Consolidation pursuant to La.
C. C. P. art. 1561 is a procedural convenience designed to avoid a multiplicity of actions and does
not cause a case to lose its status as a procedural entity. Dodson & Hooks, APLC v. Louisiana
Community Development Capital Fund, Inc. " Capfund," 2019- 1516 ( La. App. 1 Cir.
12/ 30120), 318 So. 3d 939, 945 n. 3. The consolidation of actions does not merge them unless the
records clearly reflect an intention to do so. Dodson & Hooks, APLC, 318 So. 3d at 945 n. 3. On
the records before us, we find no evidence reflecting an intention to merge the succession and
concursus actions.

14 In his motion for appeal, Aaron also requests an appeal from the earlier May 23, 2018 judgment.
We also note that although Sean filed an appellant brief, he did not file a motion and order for
appeal from the judgment signed on August 18, 2020.

966( A)(2). After an adequate opportunity for discovery, a motion for summary

judgment shall be granted if the motion, memorandum, and supporting documents

show that there is no genuine issue as to material fact and that the mover is entitled

to judgment as a matter of law. La. C. C. P. art. 966( A)(3). The only documents that

may be filed in support of or in opposition to the motion are pleadings, memoranda,

affidavits, depositions, answers to interrogatories, certified medical records, written

stipulations, and admissions. La. C. C.P. art. 966( A)(4).

On a motion for summary judgment, the initial burden of proof rests with the

mover. See La, C. C. P. art. 966( D)( 1); Lucas v. Maison Insurance Co., 2021- 1401

La. App. 1 Cir. 12122122), 358 So -3d 76, 84. Nevertheless, if the mover will not

bear the burden of proof at trial on the issue that is before the court on the motion

for summary judgment, the mover' s burden on the motion does not require him to

negate all essential elements of the adverse party' s claim, action, or defense. Instead,

after meeting his initial burden of showing that there are no genuine issues of

material fact, that mover may point out to the court that there is an absence of factual

support for one or more elements essential to the adverse party' s claim, action, or

defense. Thereafter, summary judgment shall be granted unless the adverse party

can produce factual evidence sufficient to establish the existence of a genuine issue

of material fact or that the mover is not entitled to judgment as a matter of law. See

La. C. C.P. art. 966( D)( 1). The court may consider only those documents filed in

support of or in opposition to the motion for summary judgment and shall consider

any documents to which no objection is made. Any objection to a document shall

be raised in a timely filed opposition or reply memorandum. The court shall consider

all objections prior to rendering judgment. The court shall specifically state on the

record or in writing which documents, if any, it held to be inadmissible or declined

to consider. La. C. C. P. art. 966( D)( 2).

12

Summary judgment is seldom appropriate for determinations based on the

subjective facts of intent, motive, malice, good faith, or knowledge. See Jones v.

Estate of Santiago, 2003- 1424 ( La. 4114/ 04), 870 So. 2d 1002, 1006. These

subjective facts call for credibility evaluations and the weighing of testimony.

Lucas, 358 So. 3d at 84- 85. A trial court cannot make credibility decisions on a

motion for summary judgment. Lucas, 358 So. 3d at 85.

In the instant case, Kacie sought summary judgment seeking a declaration that

she was the sole beneficiary of the Plan because of a prior ruling dismissing the

claim that she was an unworthy successor and seeking disbursement of all Plan

funds. As such, Kacie bore the burden of establishing that there were no genuine

issues of material fact and as a matter of law she had the status of beneficiary and

was entitled to the Plan funds. See La. C. C. P. art. 966( A)(3). We note that Kacie

sought to establish her claims in a motion for summary judgment. Therefore, her

claims were required to be properly supported by the exclusive list of documents

listed in article 966( A)( 4) and all of the time periods and rules provided for in articles

966 and 967 were required to be followed. See La. C. C. P. art. 966, Comments -

2015, comment ( c).
The court is not allowed to weigh any of the documentary

evidence presented nor is it allowed to grant judgment unless there are no genuine

issues of material fact. See Cypress Heights Academy v. CHA Investors, LLC,

2021- 0820 ( La. App. 1 Cir. 617122), 343 So. 3d 736, 745, writs denied, 2022- 01284

La. 11/ 8/ 22), 349 So. 3d 574 & 2022- 01247 ( La. 11/ 8/ 22), 349 So. 3d 576. Also, on

appellate review as previously noted, this court reviews the decision of the trial court

de novo, as if it is sitting as the trial court. Lucas, 358 So. 3d at 83- 84.

We note that Kacie chose to raise the res judicata issue in a motion for

summary judgment instead of by way of the peremptory exception raising the

objection of res judicata. The objection of res judicata may be raised by the filing

of a peremptory exception ( La. C. G. P. art. 927( 3)) or in a motion for summary

13

judgment (La. C. C. P. art. 966). See Charles v. Moore Petroleum, Inc., 2017- 0909

La. App. 1 Cir. 1123118), 241 So. 3d 1022, 1025, writ denied, 2018- 0456 ( La.

5111118), 242 So. 3d 567. If the objection of res judicata is raised in a peremptory

exception, different rules apply than if it is raised in a motion for summary judgment.

The facts and evidence supporting and opposing the exception, including oral

testimony, may be introduced at the hearing on the exception. La. C. C. P. art. 931.

The trial court can weigh the evidence and decide whether to reject any evidence

that is not credible. The burden of proof is more probable than not ( unlike the high

standard of no genuine issue of material fact in a motion for summary judgment) and

the trial court can weigh the conflicting testimony and documentary evidence to

decide the issue based upon its review of all of the evidence presented. Lastly, the

standard of review by an appellate court may also be different. Review of a motion

for summary judgment is a de novo review, whereas review for a peremptory

exception raising the objection of resjudicata may be a manifest error review of the

evidence produced at the hearing. Horrell v. Alltmont, 2019- 0945 ( La. App. 1 Cir.

7131120), 309 So. 3d 754, 758 n. 6.

Noting the stark difference between a peremptory exception raising the

objection of res judicata and a motion for summary judgment, we will review the

evidence presented in this case. In support of her motion, Kacie submitted the

following: two pages of the Plan, the first page stating that the effective date of the

plan was January 1, 2010, and the page entitled " ARTICLE 9 BENEFICIARIES,"

which contains the provision that the surviving spouse is the beneficiary of the Plan

absent a contrary designation (Exhibit A); her affidavit (Exhibit B); an affidavit from

a handwriting expert attesting that there was a strong probability that the signature

on a 2002 Plan beneficiary designation (purportedly designating Dr. Breen' s " issue"

as his beneficiaries) was not his signature ( Exhibit C); a copy of the August 29, 2017

judgment in the succession suit sustaining Kacie' s peremptory exception raising the

14

objection of res judicata and dismissing Sean' s petition for unworthiness, a copy of

the exception raising the objection of res judicata and its " INCORPORATED

MEMORANDUM" filed without the federal court Pruco opinion and judgment

referred to as an attached exhibit in the memorandum, and a copy of the

memorandum in opposition to the exception raising the objection of res judicata

filed by Sean and Aaron (Exhibit D); and a copy of the motion to voluntarily dismiss

the petition for unworthiness filed in the succession suit by four of the adult Breen

children, Patrick, Ryan, Devin, and Bridget, and the order dismissing their petition

Exhibit E).

We note that Kacie did not attach the federal court Pruco opinion and

judgment to her motion for summary judgment. In her motion for summary

judgment and incorporated memorandum, she stated in Paragraph 4:

Pursuant to C. C. P. art. 853,
Kacie Breen fully adopts by
reference and re -urges in extenso herein her July 26, 2017, Expedited
Emergency Motion for Disbursement of Registry Funds and
Incorporated Memorandum and all exhibits attached thereto, and her
August 9, 2017, Memorandum on the Issue of the Rightful Benef clary
of the " Plan". See, Frisard v. Autin, 747 So. 2d 813 ( La.App. ls' Cir.
1999), writ den. 756 So. 2d 1145 ( La. 2000).

The record before this court was supplemented with the July 2017 Motion for

Disbursement and the August 2017 Memorandum. Attached to the Motion for

Disbursement was a copy of the federal court' s judgment and reasons for judgment

in the Pruco interpleader action.

Under La. C. C. P. art. 966, parties must attach all documents in support of or

in opposition to the motion for summary judgment to their motion or opposition, and

the court cannot consider other materials in the record. La. C. C. P. art. 966,

Comments - 2015, comments ( c) and ( k); Troncoso v. Point Carr Homeowners

Association, 2022- 0530 ( La. App. 1 Cir. 1110123), 360 So. 3d 901, 914. Thus, this

court cannot consider the July 2017 Motion for Disbursement and the August 2017

Memorandum because the motion and memorandum were not attached to Kacie' s

IN

summary judgment motion and were elsewhere in the record. See Troncoso, 360

So. 3d at 914- 15. Clearly, a party cannot supplement the record in the appellate court

with documents that should have been filed in the trial court pursuant to La. C. C. P.

art. 966. Moreover, in the absence of consent by the parties, a trial court has no

discretion to extend the fifteen -day deadline in article 966( B)( 2) for filing an

opposition to a motion for summary judgment. See Hooper v. Lopez, 2021- 1442

La. App. 1 Cir. 6122122), 344 So. 3d 656, 663, writ denied, 2022- 01421 ( La.

11122122), 350 So. 3d 501. Thus, the deadlines set for filing documents in a motion

for summary judgment proceeding are mandatory. See Auricchio v. Harriston, 20-

01167 ( La. 12110121), 332 So. 3d 660, 661; Hooper, 344 So. 3d at 6623. Without

these exhibits, the federal court judgment in Pruco cannot be considered on this

motion for summary judgment because it was not filed with the summary judgment

motion. This court also cannot take judicial notice of the Pruco judgment. See

Horrell, 309 So. 3d at 759- 761 ( the request in movers' memorandum that the court

take judicial notice of court decisions in prior litigation between the parties did not

satisfy the requirements of La. C. C. P. art. 966( A)(4) or 966( D)( 2); the judgments

and suit record from the prior litigation must be filed with the motion for summary

judgment in order for the court to consider them). Therefore, this court cannot

consider the Pruco opinion and these exhibits in determining whether Kacie

satisfied her initial burden on the summary judgment motion.

From our review of the summary judgment evidence that was properly filed

and that we can consider, we find that Kacie presented evidence establishing that

she was married to Dr. Breen at the time of his death and that as his surviving spouse,

she was his designated beneficiary for the Plan benefits. 15 In her affidavit, Kacie

15 We note that through her affidavit, Kacie attested that she did not consent to any designation by
Dr. Breen of any beneficiary to the Plan other than herself, as required by the contents of the Plan.
Furthermore, Kacie presented the affidavit of a forensic document examiner, who opined that the
signature on a purported beneficiary designation ( which designated Dr. Breen' s " issue" as his

16

stated that she had not been convicted or arrested for any crime involving the

intentional killing or attempted killing of Dr. Breen, nor had she been judicially

determined to have participated in the intentional, unjustified killing or attempted

killing of Dr. Breen. She then stated that she had not participated in the intentional,

unjustified killing or attempted killing of Dr. Breen. She concluded by stating that

she shot and killed Dr. Breen " in an act of lawful justifiable self-defense and justified

use of deadly force, as defined and permitted by Louisiana law." Furthermore, Kacie

presented the trial court' s judgment maintaining the peremptory exception raising

the objection of resjudicata and stating that Sean' s claims that she was an unworthy

successor under La. C. C. art. 941 were dismissed with prejudice, and the trial court' s

judgment dismissing with prejudice the remaining adult Breen children' s

unworthiness allegations.

In opposing Kacie' s motion, Aaron asserted that he was not a party to the

federal interpleader action, upon which the res judicata judgment was based, and

therefore his claim regarding Kacie' s unworthiness could not be barred by res

judicata. 16 Aaron and Sean did not file any evidence in opposition to Kacie' s

summary judgment motion.

beneficiaries) was not consistent with his known signature and that a strong probability existed
that Dr. Breen did not sign that form. Neither Aaron nor Sean contradicted this evidence.
We note that unless properly authenticated by an affidavit or deposition to which they are
attached, contracts generally are not proper summary judgment evidence. See La. C. C. P. art. 966,
Comments - 2015, comment ( c). The two pages of the Plan, which was also attached to the
concursus petition, were not authenticated. In Tennie v. Farm Bureau Property Insurance Co.,
2020- 1297 ( La. App. 1 Cir. 614121), 327 So. 3d 1020, 1027 n.6, writ denied, 2021- 00949 ( La.
10119121), 326 So. 3d 231, this court pretermitted the issue of whether the policy could be

considered when filed in support of the motion for summary judgment, without authentication by
affidavit or deposition, because the policy was also attached to the opposition to the motion for
summary judgment. In this case, because there were no objections to the excerpts raised in a timely
filed opposition memorandum and because the Plan was attached to the petition for concursus, we
will consider the excerpts under La. C. C. P. art. 966( D)( 2).

16 We note that Sean and Aaron filed a joint opposition to Kacie' s motion for summary judgment
and raised several arguments in opposition to the motion, as detailed supra. However, the only
argument applicable to Aaron and which Aaron assigned as error on appeal is whether the
judgment in the federal interpleader action was res judicata and precluded any claim by him, a
nonparty to the federal action, as to Kacie' s unworthiness in the concursus proceeding.
Additionally, we note that Aaron raises several arguments on appeal, which he did not raise
in the trial court, most of which relate to procedural irregularities. Specifically, Aaron contends

17

In her motion for summary judgment, Kacie attempted to show that she was

not disqualified as a beneficiary because the federal interpleader judgment, the res

judicata judgment, and the dismissal of the unworthiness allegations, which are final

judgments regarding her alleged unworthiness as a beneficiary, barred relitigation of

any underlying claims regarding Kacie' s shooting of Dr. Breen and defeated any

claim that Kacie was disqualified. However, as earlier noted, Kacie failed to submit

the federal court judgment. The other judgments that Kacie submitted in support of

her summary judgment motion were the judgment dismissing Sean' s claims that she

was an unworthy successor under La. C. C. art. 941 on the basis of her peremptory

exception raising the objection of res judicata and the judgment of voluntary

dismissal of the remaining adult Breen children' s unworthiness claims. Thus, in

determining whether Kacie met her burden of proving her entitlement to summary

judgment based on res judicata, this court can only consider the state court

judgments that were submitted with the summary judgment motion, not the federal

court judgment in Prueo. l7

The Louisiana Supreme Court has emphasized that all of the following

elements must be satisfied in order for res judicata to preclude a second action: ( 1)

the judgment is valid; ( 2) the judgment is final; ( 3) the parties are the same; ( 4) the

cause( s) of action asserted in the second suit existed at the time of final judgment in

the first litigation; and ( 5) the cause( s) of action asserted in the second suit arose out

that he was never served with the motion for summary judgment, that he was not made a party to
the motion, and that the form of the evidence submitted in support of Kacie' s motion was not
proper. However, we note that Aaron, who was an intervenor in the proceeding and who had been
named as a defendant in the concursus proceeding by Doctors for Women pending court approval,
joined with Sean in filing multiple oppositions to the motion for summary judgment and his
counsel was present at the hearing. Furthermore, Aaron failed to raise any objection to the lack of
service or to the form of the evidence in the trial court and as such, waived any objection. See
State v. Kee Food, Inc., 2017- 0127 ( La. App. 1 Cir. 9/ 21/ 17), 232 So. 3d 29, 32, writ denied,
2017- 1780 ( La. 1215117), 231 So. 3d 632; see also La. C. C. P. art. 966( D)( 2). See also footnote 14
as to the Pian excerpts specifically.

L7 We note that if res judicata is based on a prior federal court judgment, Louisiana courts apply
the federal law of resjudicata. Webb v. Morella, 2016- 1153 ( La. App. 1 Cir. 6/ 21/ 17), 224 So. 3d
406, 409.

18

of the transaction or occurrence that was the subject matter of the first litigation.

Burguieres v. Pollingue, 2002- 1385 ( La. 2125103), 843 So. 2d 1049, 1053, citing La.

R.S. 13: 4231. The parties are the same for purposes of res judicata only when they

appear in the same capacities in both suits. Burguieres, 843 So. 2d at 1054. The

burden of proving the facts essential to support the objection of res judicata is on

the party pleading the objection. Jefferson v. Board of Supervisors of Southern

University & Agricultural & Mechanical College, 2021- 0716 ( La. App. 1 Cir.

3/ 3/ 22), 341 So. 3d 603, 607.

Identity of parties is satisfied when a privy of one of the parties is involved.

Burguieres, 843 So. 2d at 1054 n. 3. In its broadest sense, " privity" is the mutual or

successive relationship to the same right of property, or such an identification in

interest of one person with another as to represent the same legal right. Matherne

v. TWH Holdings, L.L.C., 2012- 1878 ( La. App. 1 Cir. 12/ 6113), 136 So. 3d 854,

861, writ denied, 2014- 0854 ( La. 6120114), 141 So. 3d 810.

Initially, we note that the August 29, 2017 judgment in favor of Kacie

dismissing Sean' s unworthiness claims was arguably not a final judgment as it

simply dismissed those claims in the succession proceeding. Moreover, Kacie did

not meet her burden of proof as to the element of the identity of parties. Aaron was

not a party to the actions brought by Sean and the other adult Breen children to have

Kacie declared an unworthy successor. In the present case, Kacie failed to introduce

any evidence to establish the relationship between Aaron and the adult Breen

children was sufficiently close to permit the application to him of the preclusive

effect of the judgment dismissing Sean' s claims that Kacie was an unworthy

successor. See Chastant v. Chastant, 2013- 1402 ( La. App. 3 Cir. 4123114) 1, 138

So. 3d 801, 807 ( reversing a summary judgment dismissing a wrongful death action

due to an unresolved issue concerning whether the relationship between the plaintiffs

non-parties in the prior litigation] and their uncle [ a named party in the prior

R

s
litigation] was sufficient to establish privity for purposes of res judicata).' Res

judicata does not apply unless the party sought to be barred had a full and fair

opportunity to litigate the claim in the prior action. Morales v. Wilder, 2020- 0861

La. App. 1 Cir. 3116122), 2022 WL 804294, at * 3 ( unpublished opinion). In this

case, it was not shown that Aaron had such an opportunity. 19 Therefore, the trial

court erred in rendering summary judgment against him.

Since there are genuine issues of material fact as to whether Aaron' s interests

were adequately represented, Kacie' s motion for summary judgment fails and the
20
matter is remanded for further proceedings.

Exception -Nonjoinder of Indispensable Party

Aaron filed an exception raising the objection of nonjoinder of an

indispensable party with this court. The joinder of parties needed for just

adjudication is addressed in La. C. C. P. art. 641, which provides:

A person shall be joined as a party in the action when either:

a The facts in Chastant bear striking similarities to the instant matter. After Dr. Chastant was
murdered, his widow (who was the primary beneficiary under his retirement plans and insurance
policies) filed suit to obtain the proceeds of her husband' s retirement plans and policies. Based on
diversity jurisdiction, the suit was transferred to federal court. The defendants were the decedent' s
brother, Paul ( in his capacity as trustee of the decedent' s testamentary trust) and the companies
administering the decedent' s retirement plans and life insurance policies. The defendants
challenged the widow' s right to receive the proceeds by alleging she was a co- conspirator in the
decedent' s murder. A jury rejected those claims and she prevailed in federal court. Thereafter,
the decedent' s adult children from prior marriages, who were not parties in the federal litigation,
filed a wrongful death suit against the widow. She responded by filing a motion for summary
judgment asserting collateral estoppel barred the plaintiffs from relitigating the issue of whether
she participated in the decedent' s murder. The trial court granted summary judgment in favor of
the widow and dismissed the plaintiffs' claims. Chastant, 138 So. 3d at 801- 04. On appeal, the
Third Circuit reversed the summary judgment, finding an issue of fact existed regarding privity,
i.e., whether the relationship between the plaintiffs and their uncle, Paul, was sufficient to establish
privity. Chastant, 138 So. 3d at 807.

19 At oral argument, counsel for Aaron alleged that Aaron was precluded from intervening in the
federal case upon the objection of Kacie. Aaron' s counsel also alleged that the adult Breen
children were not allowed to present an expert witness to attempt to prove Kacie' s involvement in
the killing of Dr. Breen. These facts would create genuine issues of material fact as to whether the
adult Breen children adequately represented Aaron' s interest, which would preclude the trial court
from granting summary judgment in accordance with La. C. C. P. art. 966( A)(3).
20
Nothing in this opinion prohibits Kacie from filing an exception raising the objection of res
judicata or another motion for summary judgment with the proper documents and evidence that
may entitle her to a judgment in her favor.

20

1) In his absence complete relief cannot be accorded among those
already parties.
2) He claims an interest relating to the subject matter of the action and
is so situated that the adjudication of the action in his absence may
either:

a) As a practical matter, impair or impede his ability to protect that
interest.

b) Leave any of the persons already parties subject to a substantial risk
of incurring multiple or inconsistent obligations.

In the instant case, Aaron asserts that the minor child of Kacie and Dr. Breen

was an indispensable party who was not joined in the concursus proceeding.

However, according to the record, Doctors for Women named as a defendant Kacie,

individually and as the tutor for the minor child. Accordingly, we find any argument

that the minor child was not made a party to this action is without merit.'

CONCLUSION

For the foregoing reasons, we reverse that part of the August 18, 2020

judgment granting the motion for summary judgment filed by Kacie M. Breen as to

Aaron Dylan Knapp insofar as it decrees that Kacie M. Breen is the sole beneficiary

of Doctors for Women, L.L.C. Profit Sharing Plan and Trust and is the sole owner

ofthe proceeds of the Doctors for Women, L.L.C. Profit Sharing Plan and Trust held

in the registry of the trial court. Additionally, we overrule Aaron Dylan Knapp' s

peremptory exception raising the objection of nonjoinder of an indispensable party.

We remand this matter for further proceedings. All costs of this appeal are to be

split equally between Kacie M. Breen and Aaron Dylan Knapp.

REVERSED IN PART; EXCEPTION OVERRULED; REMANDED.

21 Aaron filed a similar exception in the trial court following the dismissal of the previous appeal
in this matter; however, there is no evidence in the record that the trial court ruled on Aaron' s
exception prior to entering a final judgment on August 18, 2020.
21

STATE OF LOUISIANA

COURT OF APPEAL

FIRST C
CIRCUIT
IT

2021 CA 0806

IN THE MATTER OF THE SUCCESSION OF WAYNE EDMOND BREEN

consolidated with

2021 CA 0807

DOCTORS FOR WOMEN MEDICAL CENTER, L. L. C., CRAIG M. LANDWEHR M. D.,
L. L. C., AND CRAIG LANDWEHR, M. D. IN HIS CAPACITY AS A TRUSTEE OF THE
DOCTORS FOR WOMEN MEDICAL CENTER, L. L. C. PROFIT SHARING
PLAN & TRUST

VERSUS

PATRICK VERNON BREEN, RYAN MICHAEL BREEN, DEVIN THOMAS BREEN,
BRIDGET BREEN DUNBAR, SEAN MICHAEL BREEN, KACIE BREEN,
INDIVIDUALLY AND IN HER CAPACITY AS TUTOR OF THE MINOR CHILD
AIDEN BREEN, HUB INTERNATIONAL GULF SOUTH LIMITED, A DIVISION OF
HUB INTERNATIONAL MIDWEST LIMITED, MERRILL LYNCH, FENNER &
SMITH, INC., AND WAYNE E. BREEN MD, LLC

McClendon, J., concurs and assigns reasons.

I concur with the opinion of the majority based on the unique facts of this case.

I also write separately to point out that the majority incorrectly cites Louisiana Code of

Civil Procedure Article 966( D)( 1), by adding additional language not found in the article.

The majority states:

4n a motion for summary judgment, the burden of proof rests with
the mover. La. C. C. P. art. 966( D)( 1). Nevertheless, if the mover will not
bear the burden of proof at trial on the issue that is before the court on
the motion for summary judgment, the mover's burden on the motion
does not require him to negate all essential elements of the adverse
party's claim, action, or defense. Instead, after meeting his initial burden
of showing that there are no genuine issues of material fact, that mover
may point out to the court that there is an absence of factual support for
one or more elements essential to the adverse party's claim, action, or

defense. Thereafter, summary judgment shall be granted unless the
adverse party can produce factual evidence sufficient to establish the
existence of a genuine issue of material fact or that the mover is not
entitled to judgment as a matter of law. La. C. C. P. art. 966( D)( 1).

Emphasis added). The majority refers to Article 966( D)( 1) as the authority for the

italicized language found above. However, while this may be a jurisprudential

interpretation of the requirements for summary judgment under the article, this

language does not appear in Article 966( D)( 1).