Virginia Anne Gerace Benoist v. Jackson National Life Insurance Company, Norma Ford Gerace, and Mary Kathryn Gerace Carleton

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2022 CA 0292

VIRGINIA ANN GERACE BENOIST

VERSUS

JACKSONJACKSON NATIONALNATIONAL LIFELIFE INSURANCEINSURANCE COMPANY,COMPANY, NORMANORMA
FORDFORD GERACE,GERACE, ANDAND MARYMARY KATHRYNKATHRYN GERACEGERACE CARLETONCARLETON

DATEDATE OFJUDGMENT.*OFJUDGMENT.* NOVNOV 11 55 20222022

ONON APPEALAPPEAL FROMFROM THETHE NINETEENTHNINETEENTH JUDICIALJUDICIAL DISTRICTDISTRICT COURTCOURT
PARISHPARISH OFOF EASTEAST BATONBATON ROUGE,ROUGE, STATESTATE OFOF LOUISIANALOUISIANA
NUMBERNUMBER 710447,710447, SECTIONSECTION 2727

HONORABLEHONORABLE TRUDYTRUDY M.M. WHITE,WHITE, JUDGEJUDGE

JerryJerry F.F. PepperPepper CounselCounsel forfor PlaintiffPlaintiff
- -AppellantAppellant
BatonBaton Rouge,Rouge, LouisianaLouisiana VirginiaVirginia AnneAnne GeraceGerace BenoistBenoist

MichelleMichelle LorioLorio St.St. MartinMartin Counsel Counsel forfor DefendantDefendant
- - Appellee Appellee
DavidDavid Gregory Gregory KochKoch NormaNorma FordFord GeraceGerace

RileyRiley E.E. HuntingtonHuntington
BatonBaton Rouge,Rouge, LouisianaLouisiana

DawnDawn D.D. BonnecazeBonnecaze CounselCounsel forfor DefendantDefendant
- - AppelleeAppellee
F.F. CharlesCharles MarionneauxMarionneaux MaryMary KatherynKatheryn GeraceGerace CarletonCarleton
MelissaMelissa JadeJade AvantAvant
ThomasThomas C.C. NaquinNaquin
BatonBaton Rouge,Rouge, LouisianaLouisiana

BEFORE:BEFORE: THERIOT,THERIOT, CHUTZ,CHUTZ, ANDAND WOLFE,WOLFE, JJ.JJ.

Disposition:Disposition: AFFIRMED.AFFIRMED.

CHUTZ, J.

Plaintiff-appellant, Virginia " Ginny" Anne Gerace Benoist, appeals the trial

court' s judgment, granting a motion to dismiss her action to review the acts of a

mandatary ( action to review) serving under a power of attorney executed by

principal, defendant -appellee, Norma F. Gerace. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Ginny instituted this action to review on August 9, 2021, naming her sister,

Mary Kathryn " Mary Kay" Gerace Carlton, and her 91 -year- old mother, Mrs.

Gerace, as defendants.' According to the allegations of Ginny' s petition, in 2019,

Ginny' s daughter, Mary Turner (Mrs. Gerace' s granddaughter), was named as Mrs.

Gerace' s sole mandatary pursuant to a duly recorded power of attorney executed in

conjunction with an extensive estate plan set up for Mrs. Gerace. In February 10,

2020, Mrs. Gerace executed a new power of attorney that revoked Mary Turner' s

authority and named Mary Kay as Mrs. Gerace' s sole mandatary. Another power

of attorney was executed by Mrs. Gerace on May 5, 2021 that revoked the

February 2020 power of attorney in favor of Mary Kay and returned mandatary

authority to Mary Turner and also to Paul Benoist, Ginny' s husband ( Mary

Turner' s father). On June 29, 2021, Mrs. Gerace revoked the May 5, 2021 power

of attorney and executed a new one in favor of Mary Kay. In her August 9, 2021

petition, Ginny claimed that Mary Kay has exercised " undue and oppressive

influence" over their mother, using Mrs. Gerace' s assets as Mary Kay' s own.

1 In addition to the allegations of this action to review, Ginny levied other claims against her
sister, including one for the intentional interference with contractual rights. Ginny also named
Jackson National Life Insurance ( Jackson National) as a defendant. According to Ginny' s
petition, Jackson National issued an annuity to Mrs. Gerace wherein she and Mary Kay were
named as irrevocable beneficiaries such that Ginny was a third -party beneficiary of a stipulation
pour autrui, which endowed her with contractual rights and standing to assert a breach of
contract, challenging a liquidation of the annuity by Mrs. Gerace in January 2020. Although
Ginny avers that Mary Kay " caused" Mrs. Gerace' s divestment of the Jackson National annuity
and raises many complaints about Mary Kay' s conduct in conjunction with the liquidation of the
annuity, Ginny clearly alleges that Mary Kay' s actions were without proper authority, legal
mandate, or direction from Mrs. Gerace and, therefore, are outside the ambit of the action to
review claim before us in this appeal.

9

On October 1, 2021, Mrs. Gerace filed a motion to dismiss, seeking

dismissal from this litigation initiated by Ginny. After a hearing on October 28,
2021, the trial court granted the motion. A judgment was signed on November 12,

2021, dismissing Mrs. Gerace from the litigation and granting Mrs. Gerace' s

request for attorney fees. Ginny appeals.

ACTION TO REVIEW THE ACTS OF A MANDATARY

If a mandatary breaches his or her fiduciary obligations, Louisiana

contemplates two methods by which recourse may be sought: the direct action and

the action to review. Elizabeth R. Carter, Fiduciary Litigation in Louisiana:

Mandataries, Succession Representatives, and Trustees, 80 La. L. Rev. 661, 677

2020). The direct action refers to the traditional remedies available for mandatary

malfeasance. The action to review, however, grants various interested parties other

than the principal the right to bring an action during the life of the principal to

review the mandatary' s actions. Id. See also La. R.S. 9: 3851- 3856.

The chapter setting forth the provisions of an action to review was added by

Louisiana Acts 2014, No. 356, § 1, under the title " Powers of Attorney for the

Elderly — Action to Review the Acts of a Mandatary." It is an attempt by

Louisiana, like many other states, to protect the vulnerable elderly population from

abuse, particularly financial abuse, arising from fiduciary misconduct. See

Fiduciary Litigation in Louisiana: Mandataries, Succession Representatives,

and Trustees, 80 La. L. Rev at 664.

Enactment of the action to review helps address a recurring practical

problem: the gap between mandate and interdiction. A principal with a

significantly diminished mental or physical condition may not be able to terminate

the mandate and seek recourse against his mandatary through the direct action. The

same is true if the mandatary is abusing the principal. The action to review brings

3

the contract of mandate closer to interdiction in some circumstances. It allows a

party other than the mandatary to bring an action " on behalf of the principal to

review the acts of the principal' s mandatary" and to seek relief on the principal' s

behalf. Fiduciary Litigation in Louisiana: Mandataries, Succession

Representatives, and Trustees, 80 La. L. Rev at 680- 81. See La. R.S. 9: 3851

setting forth a list of persons who may petition a court on behalf of the principal to

review the acts of the principal' s mandatary and grant relief as authorized in La.

R.S. 9: 3851- 3856).

Motion to Dismiss:

The action to review includes a procedural mechanism allowing the

principal to dismiss a plaintiff s action. La. R.S. 9: 3852 provides:

A. If the principal files a motion to dismiss the action, the principal
shall testify in person at the hearing on the motion or, with the
agreement of the parties or for good cause shown, by visual remote
technology or by deposition.

B. The court shall grant the principal' s motion to dismiss the action if
it finds that the principal is able to comprehend generally the nature
and consequences of the acts of the mandatary and that the

mandatary' s authority to act is not the result of fraud, duress, or undue
influence.

Thus, the principal may oppose the action to review. But in so doing, the principal

is subjected to potentially invasive and embarrassing court scrutiny whereby the

court is required to hold a hearing to determine whether the principal is aware of

the acts of the mandatary and not subject to fraud, duress, or undue influence, is

able to comprehend generally the nature and consequences of the acts of the

mandatary, and appears able to make reasoned decisions. See Fiduciary Litigation

in Louisiana: Mandataries, Succession Representatives, and Trustees, 80 La. L.

Rev at 693. These factual inquiries, as all factual findings, are governed by the

manifest error/clearly wrong standard of review. See Stobart v. State, Dept of

Transp. and Dev., 617 So. 2d 880, 882 ( La. 1993). See also King v. Town of

0

Clarks, 2021- 01897 ( La. 2/ 22/ 22), 345 So. 3d 422, 423 ( per curiam) ( determination

of knowledge is an issue of fact); Minton v. Acosta, 2021- 1180 ( La. App. lst Cir.

6/ 3/ 22), 343 So. 3d 721, 731 ( determination of the existence or absence of fraud is a

question of fact).

It is well settled that an appellate court cannot set aside a trial court' s factual

findings in the absence of manifest error or unless the findings are clearly wrong.

Rosell v. ESCO, 549 So.2d 840, 844 ( La. 1989). If the trial court' s findings are

reasonable in light of the record reviewed in its entirety, an appellate court may not

reverse those findings even though convinced it would have weighed the evidence

differently had it been the trier of fact. Rosell, 549 So.2d at 844. In order to reverse

a fact finder' s determination of fact, an appellate court must review the record in

its entirety and ( 1) find that a reasonable factual basis does not exist for the

finding, and ( 2) further determine that the record clearly establishes that the fact

finder is manifestly erroneous or clearly wrong. Stobart, 617 So. 2d at 882.

In the matter before us, the hearing was held by visual remote technology. In

response to her attorney' s questioning and cross examination by Ginny' s attorney,

Mrs. Gerace testified as follows. She is a widow who has lived in Baton Rouge

most of her life. Although she initially worked as a medical laboratory technologist

when she graduated from college, after she married and moved to Baton Rouge

with her husband, she attended LSU and obtained a teaching certification, followed

later with a master' s degree in biology. She retired after having taught many years

at the high school level.

Mrs. Gerace explained to the court that she lived alone in an apartment in a

retirement and assisted living complex. She had no caretakers or sitters and was

not in the facility' s assisted care program because she was able to tend to all of her

personal needs. Mrs. Gerace regularly drove herself to the bank, beauty salon,

5

Mary Kay' s home and office, and the library where she attended meetings of The

Daughters of the American Revolution.

Insofar as this lawsuit brought by Ginny, Mrs. Gerace understood that she

was a, defendant and that Ginny was claiming Mary Kay should not hold Mrs.

Gerace' s power of attorney. A power of attorney, according to Mrs. Gerace,

allowed someone to make decisions and to provide advice and assistance. She

noted that at the time of the hearing, she had appointed Mary Kay to hold the

power of attorney. Mrs. Gerace was cognizant that in June 2021 she had gone to an

attorney' s office to execute the power of attorney. Mary Kay did not pressure her

in any way to be named as mandatary. Mrs. Gerace clearly understood that, as a

result of the power of attorney, Mary Kay could make medical and financial

decisions on Mrs. Gerace' s behalf. If she were unable to handle her affairs, Mrs.

Gerace stated, " I would want Mary Kay, my daughter" to do so for her.

Mrs. Gerace testified in detail why she had chosen Mary Kay to hold the

power of attorney, emphasizing the close proximity between Mary Kay' s and her

residence with Mary Kay living less than a five-minute drive away. Mrs. Gerace

said that she saw Mary Kay " all the time," and on days that she did not, they spoke

on the telephone. Mrs. Gerace explained that Ginny was frequently in Natchez,

Mississippi, where Paul resided in an inherited home "[ that is] in the National

Registry," although Mrs. Gerace recognized that Ginny also had the Gerace family

home in Baton Rouge, a portion of which served as a law office. Mrs. Gerace

articulated the bases for having executed powers of attorney in the past to Paul and

Mary .Turner. Paul' s inquiry into the status of her banking account led to a power

of attorney in his favor so he could access Mrs. Gerace' s bank statements. Mary

Turner had been in close proximity while she attended Tulane University Law

IN

School, and Mrs. Gerace wanted to provide her granddaughter with some

experience in finances. But Mary Turner had moved to Birmingham, Alabama.

Pointing out that Mary Kay is a CPA and investment broker, Mrs. Gerace

explained that Mary Kay handled Mrs. Gerace' s tax returns and investments. Mary

Kay listened to Mrs. Gerace' s instructions in investment decision-making,

including following her directives in those instances that Mrs. Gerace declined to

invest. Mrs. Gerace has never had any difficulty accessing tax or investment

information from Mary Kay. Mrs, Gerace was aware that some of her financial

records were kept in a safe at Mary Kay' s office, approved of their storage at that

location, and was able to access them when she wanted by driving to the office.

Mrs. Gerace was asked about specific complaints set forth in Ginny' s

petition. Ginny averred that upon review of her mother' s 2020 federal income tax

return, a change of address was noted. But Mrs. Gerace testified that she was aware

Mary Kay' s home address was on file for tax purposes and indicated that it was a

good" decision because she did not have to deliver the paperwork to Mary Kay.

Insofar as Ginny' s allegation that when Mrs. Gerace lived with Mary Kay in 2019,

in an effort to prevent Mrs. Gerace from retrieving her mail, Mary Kay installed a

lock on the home mailbox, Mrs. Gerace said that Mary Kay never prevented her

from retrieving her mail. According to Mrs. Gerace, she had banked at Neighbors

Federal. Credit Union ( NFCU) ever since she started teaching school when the

bank had a different name, and she received her own bank statements. Regarding

Ginny' s claim that Mrs. Gerace' s bank account was closed and then reopened,

Mrs. Gerace described an institutional change due to the age of her account

initiated by the bank and how she tended to the modification after the bank notified

her. Mary Kay had no involvement with the changes.

7

Ginny' s allegation that Mrs. Gerace has been isolated, cut off, and deprived

of visits with Ginny and Mary Turner are without foundation according to Mrs.
Gerace. Mrs. Gerace stated that due to Covid, she was not traveling but that

nothing prevented Ginny and Mary Turner from visiting her in Baton Rouge if they

wanted. Mary Kay had not prevented Ginny and Mary Turner from seeing Mrs.

Gerace and had not counseled Mrs. Gerace not to visit with them.

At the conclusion of her direct examination, Mrs. Gerace advised the court

that she had been " really hurt" upon reading the allegations of Ginny' s lawsuit, the

things that Ginny said about Mary Kay were not true, she was testifying because

she wanted to make her own decisions, and she wanted Mary Kay to continue

holding the power of attorney that allowed Mary Kay to make financial and

medical decisions. In her cross examination, Mrs. Gerace denied having

complained to Ginny that her financial affairs were not in order or that she was

unable to obtain records or retrieve her mail from Mary Kay. Mrs. Gerace further

denied having asked Ginny for assistance with her medical insurance policies or

the management of her annuities. She disagreed with the characterization of

moneys she had paid to Mary Kay as " rent," explaining that the payments were for

a small wing to Mary Kay' s house that Mrs. Gerace decided to add.

Because Mrs. Gerace testified that she had read the allegations of Ginny' s

petition, Mrs. Gerace was clearly familiar with Ginny' s claims against Mary Kay.

On direct examination, Mrs. Gerace was asked about each instance of alleged

abuse by Mary Kay while she was acting under Mrs. Gerace' s power of attorney

set forth in Ginny' s petition. Mrs. Gerace either ratified Mary Kay' s decisions or

explained why they lacked merit. Mrs. Gerace expressly agreed with the address

change for tax returns, denied having beenprevented by Mary Kay from accessing

her mail, explained Mary Kay' s lack of involvement in the changed NFCU bank

accounts, and invited Ginny and Mary Turner to visit with her in Baton Rouge

while describing the impact of Covid on her decision to restrict her travels.

Moreover, Mrs. Gerace indicated that Mary Kay followed her directives when

making investment decisions, provided her access to her records which Mary Kay

kept secure, clearly understood the effect the power of attorney had on the person

upon whom she bestowed it, and wanted Mary Kay to have the authority to make

financial and medical decisions on Mrs. Gerace' s behalf.

At the conclusion of the hearing, the trial court stated the following:

All right. The court is ready to rule on what' s before the court. Before
the court is the question of whether or not [ Mrs.] Gerace .. can

comprehend generally the nature and consequences of the acts of ...
the [ mandatary] ... her daughter, Mary Kay ... and that ... the
mandatary' s authority to act is not a result of fraud, duress, or undue
influence.

It ... was amazing to listen to [ Mrs.] Gerace' s testimony today. The
clarity, the detail, the honesty, the vulnerability of her remarks, the
warmness, the caring was very, very compelling. [ There] is no
question in my mind that [ Mrs.] Gerace has outstanding cognitive
ability at age 91. That said, [ Mrs.] Gerace' s motion to dismiss
Ginny' s] claims ... relative to [ Mary Kay' s] power of attorney under
La. R.S. [ 9:] 3852 ... is granted....

And I do want to make a finding that the testimony bore or rose to ...
clear and convincing evidence that there was not any undue influence.
Mrs.] Gerace can manage her own affairs, she makes her own
appointments, she drives a car at 91, she understands what she has,
she understands ... it was clear that she wants her daughter [ Mary
Kay] to be her agent, and she has every right to do that.

Mrs. Gerace' s testimony provides an evidentiary basis for the trial court' s

factual conclusions that Mrs. Gerace was able to comprehend generally the nature

and consequences of Mary Kay' s acts as her mandatary and that Mary Kay' s

authority to act was not the result of fraud, duress, or undue influence. As such, we

cannot say the trial court' s factual findings were either manifestly erroneous or
the trial court
clearly wrong, Thus, under the plain language of La. R.S. 9: 3852( B),

was required to grant the motion to dismiss.

9

On appeal, Ginny relies on La. R.S. 9: 3854( C), which sets forth that in

addition to the required consideration of the mandate, the court shall consider an

illustrative list of relevant factors in reaching its decision of whether a plaintiff

asserting an action to review is entitled to any of the relief available under La. R.S.

9: 3851- 3856. Ginny maintains that the trial court erred when it disallowed

presentation of evidence from her witnesses to rebut Mrs. Gerace' s testimony,

suggesting she was deprived of her substantive right to carry her burden of proof

on the issue of Mary Kay' s undue influence, fraud, and duress, as well as the other

factors set forth in La. R.S. 9:3854( C). 2 Ginny buttresses this with the contention

that the trial court peremptorily granted the motion. to dismiss before undertaking

the statutory requirements of La. R.S. 9: 3854(B) ( providing that while the action to

review is pending, the court may ( 1) order an accounting from the mandatary; ( 2)

order, without first holding a contradictory hearing, a financial institution, a

healthcare provider, or any other person to provide the financial, medical, or other

information of any defendant to the action; ( 3) appoint a qualified person to

ie petition and to report the findings; ( 4) on its own
investigate the allegations of tl-.

motion, order other appropriate discovery; ( 5) enjoin the mandatary from

exercising all or some of the powers granted by the mandate during the pendency

I La. R.S. 9: 3854( C) provides:

in reaching its decision, the court shall consider the mandate and may consider
any other relevant factors, including any of the following:
1) The expressed wishes of the principal.
2) The known or reasonable expectations of the principal.
3) The best interests of the principal.
4) Any will, trust, or beneficiary designation executed by the principal.
5) The principal' s history or pattern of donations inter vivos.
6) Physical, financial, or psychological abuse of the principal.
7) Fraud, duress, or undue influence.
8) The principal' s regular contact with family and friends other than the
mandatary.
9) The ability of the principal to comprehend generally the nature and
consequences of the acts of the mandatary.
10) The donee' s knowledge or imputed knowledge that a donation was not for
the benefit or gratification of the principal.
11) The good or bad faith of a defendant.

10

of the action; or ( 6)
appoint a person to exercise some or all of the authority

granted by the mandate, including authority to perform routine financial

transactions and to make healthcare decisions, if there is no successor or substitute

mandatary named in the mandate who is able or willing to serve, or if no law

otherwise provides a person to act).

Pursuant to La. Const. Art. 1, § 22, "[ a] ll courts shall be open, and every

person shall have an adequate remedy by due process of law and justice,

administered without denial, partiality, or unreasonable delay." This grant of

constitutional authority is tempered by the court' s " power to require that the

proceedings ... be conducted ... in an orderly and expeditious manner ... and to

control the proceedings at the trial, so that justice is done." La. C. C. P. art. 1631.

The trial judge has great discretion in the manner in which proceedings are

conducted, and it is only upon a showing of a gross abuse of discretion that

appellate courts have intervened. Thomas v. Dep' t of Wildlife & Fisheries, 2018-

0869 ( La. App. lst Cir. 10/ 2/ 19), 289 So.3d 579, 598, writ denied, 2019- 01767

La. 1/ 14/ 20), 291 So. 3d 687, The due process clauses of the Louisiana

Constitution and the Fourteenth Amendment of the United States Constitution

guarantee litigants a right to a fair hearing. Nonetheless, " due process" does not

mean litigants are entitled to an unlimited amount of the court' s time. Currier v.

Anding, 2017- 0438 ( La. App. lst Cir. 11/ 1/ 17), 235 So. 3d 1204, 1213, writ denied,

2018- 0038 ( La. 3/ 2/ 18), 269 So. 3d 714.

We can find nothing in the Chapter entitled " Action to Review the Acts of a

Mandatary" that requires the trial court to address a plaintiffs claims for relief

under La. R.S. 9: 3851 and 3854 prior to taking up the principal' s motion to

dismiss. Indeed, La. R.S. 9: 3854( 8) states only that the court may implement the

safeguards permitted thereunder. In the interpretation of statutes, the word may is

Il

permissive in contradistinction to the word shall, which is mandatory. See La. R.S.

1: 3, La. C.C.P. art. 5053. Thus, we disagree with Ginny that the trial court was

required to evaluate her claims for relief before considering Mrs. Gerace' s motion

to dismiss. We find no abuse of discretion in the trial court' s manner of applying
the provisions of La. R.S. 9: 3851- 3854.

The trial court' s discretion in the manner in which it conducts its

proceedings includes its rulings on the admissibility of a witness' s testimony.

Generally, the trial court is granted broad discretion on evidentiary rulings, and its

determinations will not be disturbed on appeal absent a clear abuse of that

discretion. In re Succession of Cannata, 2014- 1546 ( La. App. 1st Cir. 7/ 10/ 15),

180 So3d 355, 375, writ denied,, 2015- 1686 ( La. 10/ 30/ 15), 180 So3d 303, When

the court rules against the admissibility of any evidence, it shall either permit the

party offering such evidence to make a complete record thereof, or permit the party

to make a statement setting forth the nature of the evidence. See La. C.C.P. art.

1636( A).

At the conclusion of Mrs. Gerace' s testimony, Ginny sought to introduce the

testimony of rebuttal witnesses. The trial court disallowed the evidence, and Ginny

made a proffer on the record, summarizing the testimony as follows:

We summoned rebuttal ... witnesses that is [ Paul] and [ Ginny] and
Mary Turner]. Their statements would contradict all of the testimony
the court has] heard in evidence this afternoon regarding ...
that [
NFCU], the bank statements, the records, ... record access, mail

access, and so on and so forth. So with that, we' ll make the proof of
those three witnesses and their testimony....

L]et me make one more part of my proffer.... [ Ginny] ... [ and Mary
Turner] ... their proffer testimony would be that there has been no
regular contact with [ Mrs. Gerace], as the case may be for purposes of
estrangement and alienation of affections.

Nothing in the proffer purported to provide additional facts as to Mrs.

Gerace' s understanding of the nature and consequences of Mary Kay' s acts using

12

the power of attorney or of Mary Kay' s authority to act on Mrs. Gerace' s behalf

having been obtained as a result of fraud, duress, or undue influence. More

importantly, on appeal, even if we were to accept the testimony of Ginny and her

family witnesses, the trial court' s factual conclusions are not manifestly erroneous

because when a fact finder is presented with two permissible views of the

evidence, the fact finder' s choice between them cannot be manifestly erroneous or

clearly wrong. Where there is conflict in testimony, reasonable evaluations of

credibility and reasonable inferences of fact are not to be disturbed upon review.

See Stobart, 617 So, 2d at 882- 83. During both her direct and cross examinations,

Mrs. Gerace was asked questions presenting Ginny' s version of the facts. Mrs.

Gerace offered a different version of the facts, expressly rejecting those set forth in

Ginny' s petition. The choice to believe Mrs. Gerace was within the trial court' s

province as trier of fact and, as such, the trial court was not manifestly erroneous or
3
clearly wrong in crediting her testimony.

Therefore, we find no abuse of discretion by the trial court' s exclusion of

Ginny' s witnesses or the manner with which it conducted the hearing under La.

R.S. 9: 3851- 3856, Given the gatekeeper function set forth by the provisions of La.

R.S. 9: 3852) the manner in which trial court undertook to hear the motion to

dismiss eliminated protracted and costly litigation where the elderly principal,

having subjected herself to -invasive and embarrassing court scrutiny, demonstrated

her general comprehension of the nature and consequences of the acts of her

mandatary and ensured the court that her mandatary' s authority was not the result

I
Ginny does not suggest and nothing in the record shows that the trial court limited the content
or form of her proffer in any manner. Thus, this case is distinguishable from those where the trial
rather than
court limited the proffer to a " statement setting forth the nature of the evidence,"
allowing the party to make a record of the excluded evidence. See La. C.C.P. art. 1636. Irl such
instances, upon finding the excluded evidence admissible, the appellate court may remand to
permit the introduction of the excluded evidence. Foley v. Entergy Louisiana, Inc., 2006- 0983
La. 11 / 29/ 06), 946 So. 2d 144, 164 n. 13.

13

of fraud, duress, or undue influence.' Accordingly, the trial court correctly granted

Mrs. Gerace' s motion to dismiss the action to review.

Attorney Fees:

Without expressing an amount, the trial court " GRANTED" Mrs. Gerace' s

motion for attorney fees.' On appeal, Ginny maintains that because her action to

review was not frivolous, the trial court erred in granting. mrs. Gerace' s request for

attorney fees.

La. R.S. 9: 3855 addresses costs and attorney fees, providing in part: " The

court may render judgment for costs and attorney fees, or any part thereof, against

any party." A clear reading of La. R.S. 9: 3855 reveals the determination of whether

to award attorney fees lies within the discretion of the trial court. The trial court

had the option to award Mrs. Gerace attorney fees, but it was not mandated. See

Interdiction of Hoge, 52, 368 ( La. App. 2d Cir. 9/ 26/ 18), 256 So. 3d 458, 461

interpreting La. C. C.P. art. 4550, applicable to interdiction proceedings, which

provides " The court may render judgment for costs and attorney fees, or any part

thereof, against any party, as the court may consider fair."). See also In re

Interdiction of Mashburn, 2012- 1444 ( La. App. Ist Cir. 4/ 30/ 13), 2013 WL

1. 845714, at * 2 ( unpublished) ( noting that under Article 4550, the trial court is

vested with considerable discretion in making an award of attorney Bees, and the

award will not be disturbed in the absence of a clear abuse of that discretion).

4
Ginny asserts the trial court erred by granting an order staying discovery pending the hearing
on the motion to dismiss. At the commencement of the hearing, the trial court stated it was
inclined to vacate the stay order unless the parties presented another viable approach. Subsequent
to discussions outside the court' s presence, Ginny' s counsel stated, " The parties did converse ...
and we agreed that the only matter today ... will be the motion to dismiss." Accordingly, Ginny
waived any objection when she agreed to move forward with Mrs. Gerace' s motion to dismiss.

5 See La. C. C.P. art. 2088(A)( 10) (" The jurisdiction of the trial court over all matters in the case
reviewable under the appeal is divested, and that of the appellate court attaches, on the granting
of the order of appeal ....Thereafter, the trial court has jurisdiction in the case only over those
matters not reviewable under the appeal, including the right to ... [ s] et and tax costs, expert
witness fees, and attorney fees."). See also Comments 2021 of La. C. C.P. art. 2088, comment ( a)
C'[ I]t is no longer necessary for an appellate court to dismiss an appeal in order to allow the trial
court to set the amount of the attorney Fees, because the trial court has jurisdiction to set attorney
fees while the appeal is pending.").

14

We find nothing in La. R.S. 93855 that requires a showing of frivolity as

necessary for the trial court to grant a request for attorney fees. Although we

recognize that comment ( a) of the 2014 Comments to La. R.S. 9: 3855 states,

A] ttomey fees are allowed to discourage frivolous suits or to reimburse the

petitioner who initiates an action [ for review] to benefit the principal," we decline

to graft onto the statute a showing of frivolity where the legislature has not

required. See Interdiction of Hoge, 256 So. 3d at 462 ( in awarding attorney fees

under La. C. C. P. art. 4550, had the legislature wanted the good faith of the parties

to determine reimbursement, it would have included that requirement in the

language of the article). See also and compare In re Interdiction of Mashburn,

2013 WL 1845714, at * 2 ( the court concluded that good or bad faith of litigant was

but one factor in the trial court' s fashioning of a reasonable attorney fee under

Article 4550 and not a necessary requirement).

The trial court did not abuse its much discretion in granting Mrs. Gerace' s

request for attorney fees where it determined that Ginny was not entitled to relief

under La. R.S. 9: 3,851- 3856. Having concluded that Mrs. Gerace was able to

manage her affairs, understood the function of a power of attorney, decidedly

wanted Mary Kay to be her mandatary, and that Mrs. Gerace' s execution of the

power of attorney was not the result of fraud, duress, or undue influence, the trial

court clearly had discretion to allow an award of attorney fees to the principal,

subjected to an invasive and embarrassing court scrutiny.

15

DECREE

For these reasons, the trial court' s judgment, dismissing the action against

defendant -appellee, Norma F. Gerace, and granting her motion for attorney fees, is

affirmed. Appeal costs are assessed against plaintiff-appellant, Virginia " tinny"

Anne Gerace Benoist.

AFFIRMED.

16