Succession of Lawrence Heyd

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

18-385

SUCCESSION OF LAWRENCE HEYD

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 53138
HONORABLE G. MICHAEL CANADAY, DISTRICT JUDGE

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MARC T. AMY
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and
Marc T. Amy, Judges.

AFFIRMED.

Kenneth Michael Wright
203 West Clarence Street
Lake Charles, LA 70601
(337) 439-6930
COUNSEL FOR APPELLANT:
Lawrence Heyd, Jr.

Russell J. Stutes, Jr.
Stutes & Lavergne, LLC
600 Broad Street
Lake Charles, LA 70601
(337) 433-0022
COUNSEL FOR APPELLEE:
Roy Brent Young

AMY, Judge.

The appellant contested his father’s will to the extent it included a provision by

which his father expressly disinherited his children. Citing a head injury and

associated seizure activity, the appellant asserted that he is a forced heir. The trial

court rejected the plaintiff’s argument, finding no merit in his claim of permanent

incapacity to take care of his person or administering his estate. The trial court also

concluded that, even if a forced heir, the decedent had just cause for disinherison. The

present appeal followed. For the following reasons, we affirm.

Factual and Procedural Background

This matter arises within the succession proceeding of Lawrence Heyd, Sr.,

opened following his May 2013 death. Upon the appointment of a succession

representative, the appellant, Lawrence “Tee” Heyd, Jr., filed a Rule to Invalidate

Testament. Specifically, Tee challenged that aspect of Mr. Heyd’s 2008 last will and

testament by which he stated that:

I further declare that all of My Children are physically and
mentally capable of taking care of themselves and are not forced heirs
pursuant to La. Civ. Code art. 1493 (or any successor provision).

In the event any court were to judicially determine that any of my
children are forced heirs pursuant to La. Civ. Code art. 1493 (or any
successor provision), I further declare that My Children are intentionally
disinherited and omitted from this Will as a result of a lack of contact in
excess of two years, and the fact that My Children have been guilty of
cruel treatment towards me as they filed a lawsuit against me during my
lifetime and received a sizable settlement from me related to the lawsuit.1

In his rule, Tee noted that he was “gored by a goat in the left frontal area of his

cranium” and that he underwent a craniotomy in 2001. He alleged that, due to the

1
Much of the present record pertains to past litigation instituted by Tee against Mr. Heyd.
The subject matter of the suits arose following Mr. Heyd’s involvement as a plaintiff in Corbello v.
Iowa Production, 02-0826 (La. 2/25/03), 850 So.2d 686 and following questions surrounding an
inter vivos donation whereby Mr. Heyd purportedly conveyed a portion of his interest in the
proceeds of that action to family members, including the appellant.

incident and the surgery, he “suffered a traumatic brain injury, with personality

change, and cognitive impairment.” Tee further contended that “[h]e is also subject to

seizures as a result of the accident and the surgery” and explained he “has been

determined to be disabled by the Social Security Administration, the State of

Louisiana, and the insurer for his then employer, Citgo Petroleum Corporation.” Tee

also denied Mr. Heyd’s suggestion that he failed to communicate with his father. Due

to these factors, Tee asserted, he was entitled to have the provision of the will

purporting to disinherit him declared null and void pursuant to La.Civ.Code art.

1626.2

Upon the Succession’s challenge to Tee’s claim, the matter proceeded to a two-

day trial in September 2017. The trial court ultimately ruled in favor of the

Succession and rejected Tee’s assertion of incapacity as explained in its written

reasons for ruling:

Mr. Heyd, Jr., is not a forced heir. Pursuant to the Louisiana Civil
Code article 1493, [forced heirs are descendants] of the first degree who,
at the time of the death of the decedent, are twenty-three years of age or
younger or descendants of the first degree of any age who, because off
mental incapacity or physical infirmity, are permanently incapable of
taking care of their persons or administering their estates at the time of
the death of the decedent. Subsection E elaborates that the definition of
“permanently incapable of taking care of their persons or administering
their estates at the time of the death of the decedent” shall include
descendants who, at the time of death of the decedent, have, according to
medical documentation, an inherited, incurable disease or condition that
may render them incapable of caring for their persons or administering

2
Titled “Defenses to disinherison[,]” La.Civ.Code art. 1626 provides:

A disinherison shall not be effective if the person who is disinherited shows
that because of his age or mental capacity he was not capable of understanding the
impropriety of his behavior or if he shows that the behavior was unintentional or
justified under the circumstances. Proof of this defense must be by a preponderance
of the evidence, but the unsupported testimony of the disinherited heir shall not be
sufficient to establish this defense.

2

their estates in the future. A descendant’s condition may fluctuate in
severity and still be considered a permanent incapacity. Succession of
Ardoin, 07-43 (La.App. 3 Cir. 05/30/07)[,] 957 So.2d 937.

The Plaintiff suffered from seizures resulting from a 2001 injuring
when a goat horn penetrated his head. The Plaintiff’s own evidence
[e]stablishes that the episodes average three times per month and can last
between seventeen (17) and forty-six (46) minutes. During these
episodes, the degree of any incapacity is disputed, and Plaintiff’s own
testimony is inconsistent and creates credibility issues.

Mr. Heyd, Jr.’s disability, if currently existent, is minimal and does
not materially affect the handling of his affairs. Dr. Domingue opined
Mr. Heyd, Jr. was less than candid on his intake forms. No medical
limitations have been placed on Mr. Heyd, Jr. Vocational experts also
support that Mr. Heyd, Jr. does not belong to the protected categories La.
C.C. art 1494 envisioned. In addition, Mr. Heyd, Jr. has not refilled his
seizure medication in years.

The evidence[] adduced at trial does not meet the burden set out in
La. C.C. 1493 or the case law. Mr. Heyd, Jr.’s condition is not inherited
and does not render him permanently incapable of taking care of his
person. While Mr. Heyd, Jr. has been diagnosed with a permanent
condition that leads to short spells of incapacity, there was no evidence
these spells lasted for more than an hour. Mr. Heyd, Jr. owns and
operates an exotic animal breeding and sales business. This business has
been run for years and has grown and expanded since conception while
assisted by his wife even though she has other employment. Some of
Mr. Heyd’s Jr.’s work duties include traveling far distances to attend
animal auctions, bidding and buying animals at these auctions, and
transporting them to his farm after purchase. He is responsible for the
care of these animals, which requires him to regularly feed the animals,
dispense medication to the animals, and to tranquilize the animals in
order for safe transport. Because these activities reflect capabilities and
skills exceeding that of a person “incapable of taking care of their person
or administering their estate,” it is clear that Mr. Heyd, Jr. does not meet
the criteria of a forced heir.

Although the trial court rejected Tee’s claim of forced heir status, it found,

alternatively, that even if a forced heir, his father had just cause for disinheriting him

due to cruel treatment and failure to communicate.3 See La.Civ.Code art. 1621.4

3
With regard to this alternative finding, the trial court explained:

While Mr. Heyd, Jr. does not qualify as a forced heir, a forced heir may still
be disinherited if the decedent has just cause to disinherit him. La. C.C. 1494. Mr.
Heyd, Jr. was properly disinherited. Louisiana Civil Code article 1621 provides the

3

Tee appeals that judgment,5 arguing that:

I. The [T]rial Court erred in its application of [La.Civ.Code art.]
1493 to the facts it found in light of the jurisprudence of the Third
Circuit Court of Appeal[.]

II. The Trial Court was manifestly erroneous in several of its findings
of fact in regard to the medical issues which relate to finding
Lawrence Heyd, Jr. was not a forced heir pursuant to [La.Civ.Code
art.] 1493[.]

valid grounds for disinheris[on] of children by parents. Subsection (A)(2) states, “the
child has been guilty, towards a parent, of cruel treatment, crime, or grievous injury.”
Subsection (A)(2) states, “the child has been guilty, towards a parent, of cruel
treatment, crime, or grievous injury.” Subsection (A)(8) states, “the child, after
attaining the age of majority and knowing how to contact the parent, has failed to
communicate with the parent without just cause for a period of two years…” The
disinherited must rebut the presumptions by a preponderance of the evidence that a
two year period did not exist between their age of majority and the date of the will
that they knew of their parent’s whereabouts and failed to communicate. In re
Succession of Gray, 736 So.2d 902 (La App 3 Cir 2/3/99). However, the unsupported
testimony of the disinherited heir shall not be sufficient to overcome the presumption.
La. C.C. art. 1624.

Mr. Heyd, Jr. has failed to rebut the presumption of disinherison under either
Subsection (A)(2) or (A)(8). The Court believes that suing one’s own father can
clearly be construed as mental cruelty pursuant to La. C.C. art. 1621(2). Mr. Heyd,
Jr., sued his Father multiple times, including previously receiving a nearly $1,000.000
settlement from his Father. After he received his settlement, Mr. Heyd, Jr. sued his
Father again to force him to file a gift tax return even though no returns were due at
the time of the filing. The testimony adduced at trial clearly shows Mr. Heyd, Jr.
failed to communicate with his father without just cause for numerous years prior to
his death, and he even failed to go to his Father’s funeral. Considering the evidence
presented, the presumption has not been rebutted by the disinherited, and Mr. Heyd,
Jr. was properly disinherited.
4
In pertinent part, La.Civ.Code art. 1621 provides:

A. A parent has just cause to disinherit a child if:
....
(2) The child has been guilty, towards a parent, of cruel treatment, crime, or
grievous injury.
....
(8) The child, after attaining the age of majority and knowing how to contact
the parent, has failed to communicate with the parent without just cause for a period
of two years, unless the child was on active duty in any of the military forces of the
United States at the time.
5
The original judgment of February 2018 included the trial court’s reasons for ruling, but
lacked appropriate decretal language. See Succession of Lawrence Heyd, 18-385 (La.App. 3 Cir.
6/27/18) (an unpublished motion opinion). Upon the lodging of the record in this court, the matter
was dismissed and remanded “for the signing of a judgment with proper decretal language.” Id.
The trial court did so and signed a new judgment in July 2018. Id.

4

III. The Trial Court erred in its application of [La.Civ.Code art.]
1621(A)(2) and (A)(8) and erred manifestly in finding Lawrence
Heyd, Jr. guilty of cruel treatment and failure to communicate.

Discussion

Forced Heir Status

By his first three assignments, Tee asserts that the trial court erred both in its

interpretation of the jurisprudence cited in its reasons for ruling and in its factual

determinations regarding his infirmity and his capabilities. In particular, he observes

that the trial court recognized his periods of incapacity, but ultimately found that those

periods did not support a finding of forced heir status pursuant to La.Civ.Code art.

1493.

Regarding forced heir status, La.Civ.Code art. 1493 provides:

A. Forced heirs are descendants of the first degree who, at the time
of the death of the decedent, are twenty-three years of age or younger[6]
or descendants of the first degree of any age who, because of mental
incapacity or physical infirmity, are permanently incapable of taking
care of their persons or administering their estates at the time of the
death of the decedent.

(Emphasis added.)

While Tee questions the trial court’s evaluations regarding his condition, the

trial court’s ruling reveals an overall determination of a failure of the burden of proof.

In fact, and although it recognized some degree of inconsistency in Tee’s relating of

his purported incapacity, the trial court accepted that Tee experienced seizures as well

as his assertion that they occurred several times a month, lasting from seventeen to

forty-six minutes.

However, Tee contends in his brief that the trial court did not account for his

testimony, or that of his wife, Dana, regarding the period of lethargy that follows each

6
This first definition of forced heir is inapplicable in the present case as the record indicates
Tee’s birth year as 1952. Mr. Heyd died in 2013.

5

seizure.7 He thus asserts that the trial court factually erred in its determination that

“there was no evidence these spells lasted for more than an hour.” Yet, review

supports a differentiation in the testimony regarding the occurrence of the seizure—

reported by Tee to last between seventeen and forty-six minutes—and the following

period of lethargy and resulting headaches. Certainly, the description of the two

periods differed in their effect on Tee’s capacity to care for himself. As for the latter

period, the evidence was general in nature, indicating that the resulting period could

vary depending on the occurrence.

For instance, Dana reported that the lethargy could last from fifteen minutes to

up to three days afterward. When asked whether she had to take care of him during

that period, she explained that: “he can get up and go to the bathroom, and get a

drink, or whatever, but, normally, I do try to do things for him because I can tell that

he’s not doing good.” No other testimony indicates that Tee’s abilities were further

limited so as to indicate that the trial court manifestly erred in failing to include that

period in its determination that the “spell” lasted less than an hour. It is clear that the

trial court differentiated the seizure period—a period of obvious, albeit temporary

incapacity—from the period that followed. Additionally, and as a whole, review of

the record supports the trial court’s ultimate finding as to the period of incapacity and

its ultimate finding that Tee failed to sustain his burden of proving incapacity for

7
When counsel asked Tee for his perception of the seizure and how he knew that one was
about to occur, Tee explained:

Because I can’t see. I can’t see that good. It’s just like looking through water
running over glass, and then I start feeling like drained, I guess is the word, drained
of energy, and I just get somewhere and that’s it. I get somewhere and I lay down, or
I get to my chair, or get to the back seat of a truck.

Dana explained that, when experiencing the seizure, Tee would “just go[] into a zone” and
that “[t]here is just no response from him.” She also described his lack of responsiveness during that
time and stated that: “It’s like he goes into a zone. I can walk over and try to speak to him, and it’s
like he doesn’t even recognize I’m even there.”

6

purposes of La.Civ.Code art. 1493(A). See Succession of Forman, 09-1455, p. 2

(La.App. 3 Cir. 5/5/10), 37 So.3d 1081, 1083 (“A trial court’s consideration of the

factual circumstances and severity of a potential forced heir’s capacity to care for

herself or administer her estate is subject to the manifest error/clearly wrong standard

of review.”), writ denied, 10-1100 (La. 9/3/10), 44 So.3d 684.

As pertinent in this case, forced heirs are those who “because of mental

incapacity or physical infirmity, are permanently incapable of taking care of their

persons or administering their estates at the time of the death of the decedent.”

La.Civ.Code art. 1493(A). Tee, however, presented little in the way of medical

testimony or documentation regarding his condition. He instead introduced various

medical records resulting from his treatment and the testimony of his family

practitioner, Dr. Carl Nabours. While Dr. Nabours characterized Tee’s condition as

“chronic” in that it will not go away, he further explained that it was his understanding

that Tee was only incapacitated during the time period of the seizure. Dr. Nabours

denied that Tee was mentally or physically incapacitated and acknowledged that he

could take care of his own affairs. Given his treatment of Tee in his capacity as a

family practitioner, Dr. Nabours explained that he did not know the details regarding

the seriousness of the underlying condition and explained that he had no evidence that

Tee was taking medication to control the seizure activity. When pointedly asked

whether he had seen anything to “believe he’s permanently incapable of taking care of

himself or handling his own affairs on a regular basis[,]” Dr. Nabours replied: “I have

not seen it myself, no.” He denied claiming that Tee was permanently incapable of

caring for himself. Dr. Nabours instead deferred to Tee’s neurologist, Dr. Fayez

Shamieh, on that question. Dr. Shamieh did not testify, however.

7

In opposition, the Succession presented expert testimony from Dr. James

Domingue, a neurologist, who evaluated Tee and considered his medical records as

submitted. Dr. Domingue denied that Tee had incapacity as demonstrated by his

independent existence, a circumstance discussed below. Furthermore, Dr. Domingue

denied that he found in the medical documentation that Tee was, in fact, diagnosed

with a seizure disorder. And, even given such a condition, Dr. Domingue opined that

it is potentially controllable with medication and, possibly, surgery. He denied that

the condition should worsen and explained that he had no reason to believe that Tee

will suffer from incapacity in the future.

Similarly, Dr. Megan Ciota, an expert in the field of clinical psychology and

neuropsychology, explained that following two days of testing and evaluation, she

identified no disability that would impair Tee “from being able to self-determine his

day-to-day life, his legal matters, his finances, you know, sexual consent, and the

like.” That conclusion was reached even with Tee’s description of the seizures and

his feeling “drained” afterwards. She explained that “because an individual may have

a relative, diminished ability doesn’t make them not able to do those things and to

guide their own lives.” As with Dr. Domingue, Dr. Ciota’s review of the submitted

medical records did not reveal a diagnosis of a seizure disorder, although Tee self-

reported that condition.

As its final expert, the Succession presented Dr. Larry Stokes, accepted as an

expert in the field of rehabilitation counselor and mental health counselor. Dr. Stokes

testified that, following testing and evaluation, he concluded that Tee is “completely

employable” given the information available to him. Dr. Stokes reported identifying

neither mental nor physical limitations in the records available and explained that Tee

could still be competitively employable. In fact, Dr. Stokes found no documentation

8

indicating that he could not return to his former work as a pipefitter. Because of his

current employment, Dr. Stokes explained, Tee is not eligible for rehabilitation

services.

Finally, and although Tee’s brief to this court focuses upon the trial court’s

findings regarding the length of his periods of disability, it is important to recognize

the trial court’s additional observations regarding Tee’s demonstrated ability to

function in his own business and to earn an income. 8 As noted by the trial court, Tee,

along with his wife, operates an exotic animal breeding business. Tee testified at

length regarding his work on their two farms, including his out-of-state travels and

various activities associated with the breeding, selling, and care of the animals. While

Tee and Dana both explained that she is responsible for the “paperwork” associated

with business, their testimony is clear regarding Tee’s active participation in the

business. In fact, Dr. Nabours explained that Tee assists him at times on his own

farm. Each of the experts testified regarding their impression regarding Tee’s ability

to continue his work in the shaping of their opinion. As noted by the trial court, such

“activities reflect capabilities and skills exceeding that of a person ‘incapable of

taking care of their person or administering their estate[.]’”

Further, that balance of negligible medical documentation in support of Tee’s

position against positive evidence regarding his continued abilities distinguishes this

matter from the jurisprudence advanced in the appellant’s brief. See Stewart v. Estate

of Stewart, 07-333 (La.App. 3 Cir. 10/3/07), 966 So.2d 1241; Succession of Ardoin,

07-43 (La.App. 3 Cir. 5/30/07), 957 So.2d 937, writ denied, 07-1332 (La. 9/28/07),

964 So.2d 360. While both cases involved heirs who experienced periods of varying

8
The Succession introduced Tee and Dana’s wage information by way of summary and by
tax return. Tee did not dispute that the gross income from their exotic animal business was
$347,811 in the year of his father’s death and that its net income was $64,156.

9

incapacity and were ultimately determined to be forced heirs, the remainder of the

factual backgrounds of those cases are at odds with that in the present case. First,

both Stewart and Ardoin addressed claims of forced heir status given the heirs’

respective diagnoses of bipolar disorder, a condition described in the reporting of the

cases as an inherited disorder. The heirs in both cases presented expert testimony

regarding the permanency and incurable nature of their condition. Neither heir was

able to maintain gainful employment. The panels in both Stewart and Ardoin

remarked that the successions opposing forced heir status failed to rebut the heirs’

evidence of incapacity.

Obviously, the evidence of both infirmity and capability differs in the present

case. For these reasons, and following review of the record, we find no manifest error

in the trial court’s rejection of the forced heir claim.

Cause for Disinherison

By his final assignment of error, Tee questions the trial court’s determination

that he was guilty of cruel treatment and failure to communicate for purposes of

La.Civ.Code art. 1621. Our above determination that the record supports the trial

court’s rejection of Tee’s claim as a forced heir pretermits our consideration of this

alternative finding. See Cat’s Meow, Inc. v. City of New Orleans ex rel. Dep’t of Fin.,

98-0601, p. 8 (La. 10/20/98), 720 So.2d 1186, 1193 (wherein the supreme court

explained that: “The jurisprudence of this Court is well settled that courts will not

decide abstract, hypothetical or moot controversies, or render advisory opinions with

respect to such controversies.”). Accordingly, we do not address this assignment.

10

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of

this proceeding are assessed to the appellant, Lawrence Heyd, Jr.

AFFIRMED.

11