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March 25, 2026 Get Citation Alerts Download PDF Add Note

Succession of Vernon James Goudeau

Louisiana Court of Appeal

• Citations: None known
• Docket Number: CA-0025-0399

• Precedential Status: Unknown Status

• Opinion

• Authorities (10)

• Cited By (0)

• Summaries (0)

• Similar Cases (1K)

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Combined Opinion

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

25-399

SUCCESSION OF

JAMES VERNON GOUDEAU

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. P-20211003
HONORABLE MICHELE S. BILLEAUD, DISTRICT JUDGE

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VAN H. KYZAR
JUDGE

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Court composed of Van H. Kyzar, Candyce G. Perret, and Jonathan W. Perry,
Judges.

AFFIRMED.
Charles M. Rush

Rush, Rush & Calogero

202 Magnate Drive

Lafayette, LA 70508

(337) 235-2425

COUNSEL FOR PLAINTIFF/APPELLANT:
Sharon Schmidt

Jena Marie Kyle

Allen & Gooch, A Law Corporation

P.O. Box 81129

Lafayette, LA 70598-1129

(337) 291-1690

COUNSEL FOR DEFENDANT/APPELLEE:
Angela Clare Goudeau, Independent Executor
of the Succession of James Vernon Goudeau

Harold Lee Domingue Jr.

Onebane Law Firm

P. O. Box 3507

Lafayette, LA 70502

(337) 237-2660

COUNSEL FOR DEFENDANT/APPELLEE:
Angela Clare Goudeau, Independent Executor
Succession of James Vernon Goudeau
KYZAR, Judge.

Plaintiff, Sharon Schmidt, appeals from the trial court judgment finding she
failed to prove that she was the forced heir of her father pursuant to La.Civ.Code art.
1493, and thus, was not entitled to any portion of her father’s estate. For the
following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Plaintiff is one of six children born to the decedent, Vernon James Goudeau,
during his marriage to his ex-wife, Louwellyn Pitre.. Mr. Goudeau died testate on
November 7, 2021. In his last will and testament, dated July 27, 2007, Mr. Goudeau
made one bequest of property to his long-term companion, Beulah McGee, with the
residuary of his estate being left to his daughter, Angela Clare Goudeau
(Defendant).’ Mr. Goudeau also named Defendant as the executor of his succession.

On December 21, 2021, Defendant filed a petition seeking to probate Mr.
Goudeau’s will and to be appointed the independent executor of his estate. As the
will was in notarial form, the trial court ordered that it be executed and confirmed
Defendant as the independent executor of Mr. Goudeau’s succession. Thereafter,
Defendant and Ms. McGee filed a petition for partial possession, seeking to have
Ms. McGee recognized as a particular legatee under the will and to send her into
possession of the bequest left to her. A judgment of partial possession was rendered

in Ms. McGee’s favor by the trial court on January 21, 2022. The judgment further

' The six children, listed from oldest to youngest, are Eileen Ann, Sharon Gail, Carolyn
Elaine, Brett James, Angela Clare, and John Neil. At the time his death, Mr. Goudeau had been
predeceased by Carolyn Elaine and Brett James, who were each survived by two children.
Although Carolyn’s name is spelled as “Caroline” in the trial transcript, her name is spelled as
“Carolyn” in this opinion.

: Although the testament spells Angela’s middle name as “Claire,” she spells it “Clare.”
noted that the remaining assets of the succession continued to be under Defendant’s
administration.

On December 22, 2022, Plaintiff filed a Petition for Reduction of Excess
Legacy, alleging that as a descendant of the first degree, she was a forced heir under
La.Civ.Code art. 1493 because her mental incapacity and physical infirmity at the
time of her father’s death rendered her permanently incapable of taking care of her
person and administering her estate (hereafter referred to as “permanently
incapable”). She further alleged:

Since, at the time of death of the decedent, Petitioner, Sharon

Schmidt had, according to medical documents, an inherited, incurable

disease or condition that renders her incapable of caring for herself and

administering her estate, she is defined by law as a forced heir whose
legitime, according to article 1503 of the Louisiana Civil Code, is
reducible to the extent necessary to eliminate the impingement on the
legitime.
Accordingly, Plaintiff alleged that the legacies in her father’s will were excessive
and should be reduced to 5/6th of his estate, with the remaining 1/6th being granted
to her pursuant to La.Civ.Code art. 1495.1.

Defendant, as executor, answered Plaintiff's petition on January 25, 2023,
denying that Plaintiff qualified as a forced heir and raising two affirmative defenses.
First, she asserted that Plaintiff was neither mentally nor physically permanently
incapable at the time of their father’s death. Second, she asserted that Plaintiff “did
not have, according to medical documentation, an inherited, incurable disease or
condition that may render her incapable of [caring] for her person or administering
her estate in the future.”

The matter proceeded to a trial on the merits on January 28-29, 2025. At the

close of the trial, the trial court rendered oral reasons for judgment, finding that

Plaintiff failed to prove that she was a forced heir under either La.Civ.Code art.
1493(A) or (E). A written judgment was rendered for the reasons assigned in the trial
court’s oral reasons on February 17, 2025. It is from this judgment that Plaintiff

appeals.
Plaintiff raises two assignments of error on appeal:

1. The trial court erred in its application of the law and
   Jurisprudence in finding that Sharon did not meet her burden of
   proof under La.Civ.Code art. 1493(A) that she had a mental
   incapacity or physical incapacity that rendered her permanently
   incapable of taking care of her person or administering her estate
   as of November 7, 2021.

2. The trial court erred in finding that Sharon did not meet her
   burden of proof under La.Civ.Code art. 1493(E), that, as of
   November 7, 2021, she had, according to medical documentation
   of an inherited, incurable disease or condition that may render
   her incapable of caring for her person or administering her estate
   in the future.

OPINION

On appellate review, “[a] trial court’s consideration of the factual
circumstances surrounding the 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.” In re Succession of Forman, 09-1455, p. 2
(La.App. 3 Cir. 5/5/10), 37 So.3d 1081, 1083, writ denied, 10-1100 (La. 9/3/10), 44
So.3d 684. In Rosell v. ESCO, 549 So.2d 840, 844 (La.1989), the supreme court
discussed the manifest error-clearly wrong standard in detail, stating:

It is well settled that a court of appeal may not set aside a trial
court’s or a jury’s finding of fact in the absence of “manifest error” or
unless it is “clearly wrong,” and where there is conflict in the testimony,
reasonable evaluations of credibility and reasonable inferences of fact
should not be disturbed upon review, even though the appellate court
may feel that its own evaluations and inferences are as reasonable.
Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1978); Canter v.
Koehring, 283 So.2d 716, 724 (La.1973)[.] . . . [I]f the trial court or jury
findings are reasonable in light of the record reviewed in its entirety,
the court of appeal may not reverse even though convinced that had it
been sitting as the trier of fact, it would have weighed the evidence
differently. Where there are two permissible views of the evidence, the
factfinder’s choice between them cannot be manifestly erroneous or
clearly wrong. Arceneaux, supra at 1333, Watson v. State Farm Fire &
Casualty Ins. Co., 469 So.2d 967 (La.1985)[.] ...

When findings are based on determinations regarding the
credibility of witnesses, the manifest error-clearly wrong standard
demands great deference to the trier of fact’s findings; for only the
factfinder can be aware of the variations in demeanor and tone of voice
that bear so heavily on the listener’s understanding and belief in what
is said. Canter, supra at 724 [.]

The same holds true for expert witness testimony, as the supreme court, in
Hanks v. Entergy Corp., 06-477, pp. 23-24 (La. 12/18/06), 944 So.2d 564, 580-81
(citations omitted), stated:

[T]he rule that questions of credibility are for the trier of fact applies to
the evaluation of expert testimony, unless the stated reasons of the
expert are patently unsound. Credibility determinations, including the
evaluation of and resolution of conflicts in expert testimony, are factual
issues to be resolved by the trier of fact, which should not be disturbed
on appeal in the absence of manifest error.

“A legal error occurs when a trial court applies incorrect principles of law,
and such errors are prejudicial.” Jrwin v. Brent, 24-1043, p. 3 (La. 6/27/25), 413
So.3d 342, 345 (per curiam). A legal error is prejudicial if it “materially affect[s] the
outcome of the trial and deprive[s] a party of substantial rights[.]” Jd. In such cases,
if the record is complete, the appellate court will perform a de novo review and
render judgment on the record. Id.

Louisiana Civil Code Article 1493 (emphasis added) defines a forced heir, in
part, as follows:

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 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.
E. For purposes of this Article “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 their estates in the
future.

The language highlighted above is based on La.Const. art. 12, § 5(B), as
amended in 1996, which provides one and possibly two classes of forced heirs. First,
“descendants, of the first degree, twenty-three years of age or younger” were
required to be classified as forced heirs. Jd. Second, the legislature was granted the
discretion to classify “descendants of any age who, because of mental incapacity or
physical infirmity, are incapable of taking care of their persons or administering their
estates[]” as forced heirs.’ Id.

According to Paragraph (c) of the 1996 Revision Comments of La.Civ.Code
art. 1493, the language pertaining to this second class of forced heirs was based on
terminology found in La.Civ.Code art. 389.1 relative to limited interdictions. Until
the revision of the interdiction law pursuant to 2000 La. Acts, 1st Ex.Sess. No. 25, §
1, effective July 1, 2001, a person who was incapable “of caring for his own person
or of administering his estate[]” due to “mental retardation, mental disability, or
other infirmity[,]” was subject to limited interdiction pursuant to La.Civ.Code art.
389.1. Thus, Paragraph (c) pointed out that “[t]he drafters of Act 147 of 1990
contemplated that” courts would look to the interdiction jurisprudence when
“interpreting and enforcing the incapacity or infirmity provisions” in Article 1493.

However, it emphasized that Article 1493 was “intentionally different and more

° This language was first found in Article 1493, as it was renamed and amended pursuant
to 1990 La. Acts No. 147, § 1, effective July 1, 1990. However, the supreme court declared it
unconstitutional based on the former provision in La.Const. art. 12, § 5, which at the time provided
that “[n]o law shall abolish forced heirship.” See Succession of Lauga, 624 So.2d 1156 (La.1993).
restrictive than the standard for interdiction because” the infirmity or incapacity
under Article 1493 is permanent.

Louisiana Civil Code Article 390 (emphasis added), which replaced Article
389.1, provides:

A court may order the limited interdiction of a natural person of

the age of majority, or an emancipated minor, who due to an infirmity

is unable consistently to make reasoned decisions regarding the care

of his person or property, or any aspect of either, or to communicate

those decisions, and whose interests cannot be protected by less

restrictive means.

Although the terminology was revised to remove the archaic reference to
“mental retardation,” we find that Article 390 still aligns with the protective purpose
underlying the prior limited-interdiction scheme by supplying “autonomy where it
[is] lacking by nature and shield[ing] it where it exist[s], through the mechanism of
the grounds.” Jeanne Louise Carriere, Reconstructing the Grounds for Interdiction,
54 La. L. Rev. 1199, 1208 (1994). Applying this protective purpose to the elements
of Article 389.1 and La.Civ.Code art. 422° Professor Carriere found that the
“infirmities” necessitating interdiction “should be confined to those that cripple the
infirm person’s decision-making powers—his intellect and will—with regard to his
person and his property.” Jd. at 1223. Based on the jurisprudence, she found that
“TbJecause the issue is the decision-making capacity of the proposed interdict,” the
determination that a person is unable to care for his person “tests for more that [sic]

than just the physical ability of the interdict to feed, clothe, and bathe himself, and

maintain hygienic living quarters[,]” and that “mere physical incapacity is

• Article 422, which was also vacated by 2000 La. Acts, Ist Ex.Sess. No. 25, § 1, provided, in part, that “[n]ot only lunatics and idiots are liable to be interdicted, but likewise all persons who, owing to any infirmity, are incapable of taking care of their persons and administering their estates.” : insufficient” to prove the incapacity of a person to administer his estate. Jd. at 1228,
• Rather, she stated, “[t]he functional test in Article 422 and 389.1 has become in the jurisprudence ‘mentally incapable of administering his estate.’” Jd. at 1230. Accordingly, the determining factor under Article 1493(A) is whether Plaintiff's mental incapacity or physical infirmities have rendered her incapable of making reasoned decisions regarding the care of her person or the administration of her estate.

Lay Testimony

The trial court heard testimony from Plaintiff, Val MacGyvers, Eileen
Goudeau, and Defendant. The expert testimony will be reviewed under the
assignments of error.

According to Plaintiff, she was permanently incapable as of November 7,
2021, due to neck and back issues she suffered in a 1975 car accident and other
medical issues. During the accident, she broke the car’s steering wheel with her
chest, and she lost consciousness after hitting the windshield with her head. Her
medical records establish that she complained of neck pain on June 26, 2014,
radiating pain and weakness in her shoulders on May 12, 2015, and numbness,
tingling, and weakness in her upper extremities on September 15, 2016. On
December 1, 2021, just after her father’s death, she complained of increased neck
and back pain over the previous three to four months. Cervical x-rays revealed a loss
of curvature in her cervical spine.

This was Plaintiff’s first complaint of back pain in her medical records other
than to relate that she had a history of back pain. However, she claimed that she
experienced back pain prior to 2014, the date of the earliest medical record admitted

into evidence, that she had sought emergency treatment for back pain about six times
during the prior ten years, and that she has many herniated discs. Plaintiff rated her
neck pain on May 12, 2015, as five on a good day and ten on her worst day. While
she rated her pain the same as of November 7, 2021, she claimed that the frequency
of her pain had increased and that she could not remember the last time she was pain-
free.

Plaintiff admitted that she has not sought treatment for her neck and back
issues other than to take pain medication and muscle relaxers. She said, “I don’t want
to be touched, I don’t want to be probed, I definitely will never allow myself to be
cut on. I’ve had a heart attack, I’m at high risk for surgery. Anesthesia, I’m not doing
that.” She also has not done physical therapy despite multiple recommendations
because “[i]t’s beyond my capabilities right now and probably forever.”

Plaintiff testified that she was found disabled by the Social Security
Administration (SSA) as of December 2017, and her student loans were forgiven by
the U.S. Department of Education (USDE) based on that disability determination.
Plaintiff believed that her physical limitations had worsened since 2017. She
explained that although the SSA’s physician determined that with normal breaks, -
she could sit for six hours, she denied that she could still do this as of November 7,
2021, because while she can drive for five to six hours, she has to stop at least three
times for breaks.

Plaintiff's other medical conditions as of November 7, 2021, were
supraventricular tachycardia (SVT), headaches, carpal tunnel syndrome, scoliosis,
and Sturge-Weber syndrome. Plaintiff was diagnosed with SVT in 1972, which
causes her heartbeat to increase, sometimes up to 240—260 beats per minute, her

blood pressure to plummet, and is treated by stopping and restarting her heart.
Although her SVT was controlled by medication, Plaintiff said that she began
experiencing breakthrough episodes in 2017, which she related to stress.

Plaintiff, who said that she has experienced headaches her whole life, related
her headaches to the misalignment of her lower jaw with her upper jaw. She
described all of her headaches since 2017, as “pretty bad[,]” and she estimated that
they occur five to seven times a week. Plaintiff claimed that her carpal tunnel
syndrome, which was diagnosed in 2019, affected her when she was in college
between 2001 to 2010, but now, it causes two of her fingers to pull in and lock when
she uses a mouse. Plaintiff said that she was diagnosed with scoliosis in 2018. When
asked how it affects her, she stated that it affects her when combined with her other
spinal issues. She admitted that while she experiences no physical restrictions from
her Sturge-Weber syndrome, it affects her psychologically and emotionally by
preventing her from doing things.

Plaintiff testified that as of November 7, 2021, she was also diagnosed with
depression and anxiety, which she claimed were inherited. She related these
conditions to the physical and emotional abuse she suffered during her childhood at
the hands of her mother. This included her mother telling her that she hated her
because after her birth, her father left the hospital for three days when he saw her
birthmark; her mother blaming her for the failure of her marriage; and her mother
forcing her father to kick her out of the house when she was a teenager. Plaintiff
claimed that she had a confirmed diagnosis for anxiety possibly earlier than but
definitely as of March 7, 2016, and while she claimed that she was also diagnosed
with depression and post-traumatic stress disorder (PTSD), she did not recall when

those diagnoses occurred.
According to Plaintiff, the underlying reason for her anxiety has changed over
time. In October 2023, when she began seeing Dr. Andrew Aubin, a psychiatrist, it
was related to her “horrific memories from [her] childhood[;]” her father telling her
that he was “scared of dying[;]” Defendant telling her that their father did not leave
a will; her later finding out that he left a will but that she was excluded from it; and
her belief that the exclusion confirmed that she did not matter to her family. In her
December 13, 2024 deposition, her birthmark was the primary reason for her
anxiety. During her testimony, her anxiety was related to social interactions with the
public, as a result of which she estimated that she isolated herself ninety-nine percent
of the time due to feeling threatened by public reaction to her birthmark and that she
only left her house once a week.

Other than taking Xanax and hydroxyzine pamoate, Plaintiff has sought no
treatment, nor has she undergone any therapy for depression or anxiety. Neither has
she ever been hospitalized nor been suicidal due to these conditions. Although she
claimed that her Xanax prescription resulted from the “panic attacks, anxiety attacks,
[and] difficulty breathing” she experienced “pretty much right after daddy’s
death[,]” she later stated that she began taking Xanax in 2019, following her heart
attack. Plaintiff also said that she has not undergone therapy because “I don’t want
to.” In referring to her college studies, she opined that it would not be beneficial
“because I know how therapy works from the inside and I don’t have a lot of faith
in it.” Plaintiff also admitted that she answered “no” to any screening questions
regarding depression, anxiety, or smoking, because she felt the questions were an

invasion of her privacy.

° Plaintiff's undergraduate degree was in behavioral studies. Although she did not complete
her master’s degree, her coursework for that degree focused on psychology and counseling.

10
Regarding her family history of depression and anxiety, Plaintiff claimed that
her mother suffered nervous breakdowns; that neither her mother nor Eileen would
or will cross bridges due to anxiety; that Eileen missed her daughter’s wedding
shower due to anxiety; and that one of her brothers has a facial tic and becomes very
anxious. Regarding her extended family, Plaintiff stated that her maternal
grandmother was high strung; that an aunt would not leave her house; and that she
was told by Eileen that their aunt passed out once when she was left alone in a store.
However, she did not know if her mother or father were ever diagnosed with
depression or anxiety.

Plaintiff lives either with her former college professor, Val MacGyvers, or
another friend, Stan, with whom she reconnected in 2013. She began living full-time
with Ms. MacGyvers in 2017, and she also stays with Stan periodically at his current
home in Texas. She also visited him at his former home in Chicago where she would
either drive three days, one way, or fly there. When visiting Stan in Texas, she drives
six hours each way, with stops every two hours. Plaintiff also stayed with him
multiple times when he had surgery because he needed someone to care for him, to
drive him to medical appointments, and to help with his dog. In 2015, she stayed
with her daughter in Seattle and Texas for about six months while she underwent
surgery and medical treatment for epilepsy.

Plaintiff testified that she also has three close friends from college whom she
sees and communicates with periodically. She has a close relationship with her
daughter, whom she talks to nearly every day and communicates with via Facebook
messenger. She has visited her daughter in Glacier, Montana, and she drove three
days, each-way, to see her in Colorado approximately four months prior to trial. She

also has a close relationship with her son, whom she talks to about three times a

1]
week by phone or Facebook messenger. She drove three days, each-way, to see him
in Knoxville, Tennessee about eighteen months prior to trial.

Plaintiff admitted that she has never given her power of attorney to anyone,
never thinking it was necessary to do so. She stated that she represented her father
at an eviction proceeding on December 3, 2020, and after his death, she conducted
a record search of his name at the courthouse while searching for his will.

As of November 7, 2021, Plaintiff stated that she was unable to cook, lift pots,
place heavy items in the oven, take walks, do yardwork, do housework, make her
bed, remove the sheets from her bed, carry groceries, or sit on soft chairs or couches.
With accommodations, she could shower by herself. She could also dress herself,
drive herself, heat up microwavable meals, and use a roller bag for groceries. She
stated that she sometimes used a cane for assistance, she could pick up light things
from the floor with a “grabber,” she could pull small items from the washing
machine with a pair of tongs, and with Ms. MacGyver’s and Stan’s assistance, she
grew plants.

At the time of trial, Plaintiff could shower by herself, brush her teeth, wash,
dry, and trim her hair, and dress herself. She mostly finger-combed her hair because
brushing required her to raise her arms above her head. She uses a cane when
walking further than five or ten feet, and she holds onto a chest when getting out of
bed, onto the counter when brushing her teeth, and onto the wall when walking from
her bedroom to the kitchen. She feeds herself, cooks pre-made microwavable meals,
makes sandwiches and tuna fish salad, goes to Walmart or Dollar General, and
carries light groceries into the house from her car. Plaintiff only changes her clothes

once a week, and Ms. MacGyvers usually washes her clothes as she is often unable

12
to wash them. When staying with Stan, she cleans her toilet with a cleaning gel
without using a brush.

Plaintiff admitted that she schedules her own medical appointments, drives
herself to her appointments, communicates with her attorneys, pays her bills,
manages her money, and reads books on her Kindle. On her computer, she reads and
sends emails, checks the news, collects recipes, reads blogs, participates in groups,
shops online, visits the online platform Substack, performs simple photo editing,
plays word games, and watches videos. Although she has a flip phone, she rarely
sends text messages. She has a handicap hang tag for her car, and she leans on
shopping carts when shopping.

At the time of trial, Plaintiff had approximately 100 plants. She admitted that
in the past, she has had up to 300 plants. Depending on how she is feeling, Plaintiff
cares for her own plants, watering and fertilizing them. Her plants in Texas are cared
for by Stan when she is in Lafayette and when she feels unwell while visiting him.

Ms. MacGyvers stated that Plaintiff, her former psychology student, began
living with her permanently in 2017. She said that as of November 7, 2021, Plaintiff
occasionally cooked, took out the trash, carried small items to and from her car,
scrubbed the sink, did her own laundry, surfed the internet, shopped online, picked
up her purchases, prepared her own meals, either microwavable or take-out, fed
herself, scheduled and drove to her medical appointments, picked up her medication,
and paid her own bills. She estimated that Plaintiff drove to Texas five times a year
to stay with Stan because he had no other friends. She also stayed with him every
time he had surgery. She estimated that Plaintiff left the house a couple of times a
week for medical appointments or to pick up medication, went to Goodwill once or

twice a year, and occasionally went to visit friends. Plaintiff, with her assistance,

13
repotted, watered, and propagated Begonias from cuttings. Ms. MacGyvers said that
she helped by lifting and moving plants, filling a container with potting-soil
components, and watering the plants when Plaintiff was away from home.

Ms. MacGyvers stated that as of November 7, 2021, Plaintiff only sat on
straight, hardbacked chairs, usually with her arms on the table to support her upper
body. Plaintiff's bathroom, outfitted previously for Ms. MacGyver’s mother, has a
walk-in shower with grab bars, a bench, and a handheld shower tool. She stated that
Plaintiff could bathe and dress herself, and while she might hold onto something
when stepping over something on the floor, it was only recently that she had begun
using a cane or accepting help to load her car for trips. Ms. MacGyvers stated that
she did most of the housework, washed and dried bedding, remade the beds,
occasionally ran errands, or picked up medication or food for Plaintiff, and drove
Plaintiff to any medical appointment involving sedation. She did not think that
Plaintiff's issue of isolating herself had worsened since November 7, 2021.

Neither Eileen Goudeau nor Defendant had any personal knowledge regarding
whether Plaintiff was permanently incapable as of November 7, 2021. Both had only
seen Plaintiff about three times between 2015 and 2021 or 2022. Eileen, who saw
Plaintiff after their mother died in January 2022, noted that she was able to walk
without difficulty. Although she knew that Plaintiff had scoliosis, that was the first
time she learned that Plaintiff claimed to be disabled. At that time, Plaintiff also
informed her that she intended to sue their father’s estate based on her disability. She
claimed that the first time she saw Plaintiff use a cane was the day before this trial
started.

Defendant, who saw Plaintiff after Carolyn died in 2019, and after their

father’s death in 2021, noted that Plaintiff was able to move without difficulty on

14
those occasions. She said that when she saw Plaintiff on November 29, 2021, they
stood talking for approximately forty minutes, during which time Plaintiff smoked
two cigarettes. While Plaintiff mentioned her scoliosis and her heart issues during
their conversation, she did not mention that she was incapacitated by these
conditions.

Eileen and Defendant both denied that Plaintiff was treated differently
because of her birthmark during their childhood. However, both admitted that their
parents made Plaintiff leave home when she was a teenager. While Eileen did not
recall why, Defendant claimed that it was due to Plaintiff and their mother fighting,
although she blamed the fights on “both of them[.]” She also did not recall seeing
marks on Plaintiffs arm following those fights. Eileen admitted that their mother
frequently became angry, that she frequently argued with Plaintiff, and that she also
argued with her and her other siblings. Eileen said that her mother once threw an
iron at her, and she once chased Carolyn around a tree with a broom. Defendant said
that she never saw her mother throw anything, and she did not see her chase Carolyn.
Defendant admitted that her mother would punish them by making them kneel down,
but she denied that they were made to kneel on raw rice. She further denied ever
hearing her mother say that she hated Plaintiff. She said that prior to her death, her
mother told her that “when Sharon was born she had that birthmark, but she said[,]
I loved her unconditionally[,]” and that “it didn’t matter about her birthmark.” She
also denied that her mother ever tried to convince her that Plaintiff was a terrible
person.

Eileen admitted that she described her family as dysfunctional, that she left
home at eighteen due, in part, to her unhappy home life, and that she had said she

was disowned because her mother stopped talking to her when she moved to New

15
Orleans. She described Plaintiff, during their childhood, as outgoing and happy, and
recalled that she was elected class president during her junior or senior year. She
believed that Plaintiff was aware of the effect her birthmark had on others based on
a comment she made when they were teenagers. However, she could not say to what
extent Plaintiff thought about it. She recalled that Plaintiff used special makeup to
cover her birthmark when she was older.

Neither Eileen nor Defendant had any knowledge of their parents being
diagnosed or treated for depression or anxiety, and Defendant denied that they were
afraid to go out in public. Although Eileen knew that her mother took Xanax at some
point, she had no personal knowledge that her mother was ever hospitalized due to
mental issues. Defendant admitted that her mother experienced short-term
depression after her two adult children and her ex-husband died and after the deaths
of her four dogs. Whereas Eileen recalled that their mother locked herself in her
room after the child she was carrying died during birth, Defendant had no
recollection of that event or of any other such event during her childhood. Eileen
assumed that their mother was depressed at the time but did not know if she suffered
a nervous breakdown. Neither recalled their mother being unable to care for them
for any extended periods of time.

Eileen admitted that she struggles with shyness, that she becomes anxious in
front of large groups of people, and that she became depressed after Carolyn’s
sudden death. Although she takes an herbal supplement for stress, she denied that
she has ever sought treatment for anxiety or depression. She also denied that her life
or ability to function has ever been impacted by anxiety or depression or that her
shyness is an inherited condition. Eileen said that she was told by her mother that

she refused to eat in restaurants as a child unless someone sat in front of her to

16
prevent the other customers from seeing her. Her mother also told her that her
maternal grandmother passed out in a store once after her mother went upstairs
without her. Although Eileen did not recall if her aunt refused to shop at a small store
near her home, she said, “I’m not a hundred percent positive if she went to that store
or not, I was very young. But I do remember something about her husband going
shopping.”

Assignment of Error Number One

Plaintiff argues that the trial court legally erred in relying on her ability to
perform the basic activities of daily living (ADLs) as of November 7, 2021, to find
that she was not a forced heir under Article 1493(A). Rather, she argues that the
“standard is whether the incapacity is such that the person does not have the ability
to take care [of] themselves or their estate during times of acute illness or episodes.”
We disagree.

Dr. Beau Bagley, accepted as an expert in brain injury, spinal cord injury, and
physical medicine and rehabilitation, opined that Plaintiff was permanently
incapable as of November 7, 2021, because she had been “clearly determined to be
disabled” by the SSA and the USDE and because “she had multiple spine disorders
that would cause her to have some difficulty in performing some of these more
complex [ADLs]|[.]” His finding was based on the fact that Plaintiff was unable to
work, that the effect of her Sturge-Weber syndrome and traumatic brain injury (TBI)
would worsen in the future, and that the “objective evidence of spinal issues. . .
would make it difficult for her to do anything in a sustained fashion[.]” This, he
stated, put her at risk of further injury, and when combined with her anxiety, could

cause her to isolate.

lv
Dr. Bagley testified that Plaintiff's 2014 and 2016 MRIs revealed that she had
severe bilateral foraminal stenosis at C5-6, moderate bilateral foraminal stenosis at
C4-5 and C6-7, facet hypertrophy at multiple levels, spinal stenosis, degenerative
disc disease in her cervical spine, and herniated discs at C4-3, C5-6, and C6-7. While
he also diagnosed her with C7 and C5-6 radiculopathy, his diagnosis was based on
an electromyography test (EMG) performed on January 26, 2022. Dr. Bagley did not
believe that these spinal disorders were normal for someone Plaintiff's age, and he
stated that without surgical intervention, they would be permanent. However, he felt
that it would be risky for Plaintiff to undergo surgery based on her comorbidities,
especially her cardiac and anxiety issues. He further was not aware of any
requirement by the SSA or the American Medical Association that required persons
with disabilities to undergo surgery.

While Dr. Bagley did not find that Plaintiff's right carpal tunnel syndrome,
history of migraines, SVT, Sturge-Weber syndrome, or TBI rendered her
permanently incapable as of November 7, 2021, the combination of these conditions
with her spinal disorders created “a perfect storm of events[,]” which affected her
ability to care for her person or manage her estate as of that date. He diagnosed
Plaintiff with Sturge-Weber syndrome,’ based on the port-wine stain, gingival
hyperplasia, and increased ocular pressure, and with TBI, based on her history of
losing consciousness in a car accident when she was seventeen and because she had

some numbness in her scalp that was suggestive of TBI.

° Dr. Bagley described this as a condition that results from a gene mutation that usually
occurs in the womb after fertilization of the egg, which causes blood vessel, skin, brain, and eye
abnormalities. He admitted that Plaintiff's Sturge-Weber syndrome was not inherited.

18
Dr. Bagley testified that he determines permanent incapacity on a case-by-
case basis, first by considering a person’s ability to perform the basic ADLs,’ and
second by considering their ability to perform higher-level ADLs.* However, he
placed greater emphasis on the higher-level ADLs because an inability to perform a
higher level ADL, when combined with other issues, can render a person
permanently incapable whereas a person who is disabled can perform basic ADLs.
As an example, he stated that a person, who is disabled by a spinal cord injury, can
“direct their care[]” from their bed but “[t]hey can’t feed themselves, they can only
tell people how it’s done.” Dr. Bagley noted that Plaintiff's basic ADLs were only
limited by her use of a shower chair to bathe, and her use of handrails on stairs.
However, he admitted that he did not question Plaintiff about her ability to perform
the higher-level ADLs.

Dr. Chad Domangue, who was admitted as an expert in neurology and pain
management, opined that Plaintiff did not have a physical infirmity as of November
7, 2021, which rendered her permanently incapable. He found that her neck and back
issues were age-related degenerative findings common in people her age, including
a loss of disc height, bone spurs, and arthritis. He also found her mild spinal stenosis
at C4-5 and CS5-6 and her level of pain common for a “60-plus year old with
arthritis.” He further opined that Plaintiff's mild spinal stenosis was not abnormal as
she was able to walk and was continent. He opined that abnormal spinal stenosis

results from moderate to severe spinal stenosis.

"Dr. Bagley considered basic ADLs to be a person’s ability to dress, feed, or bathe
themselves, and being continent.

• Dr. Bagley described higher-level ADLs as a person’s ability to perform such things as cooking, cleaning, driving, and shopping.

19
While Dr. Domangue admitted that Plaintiff might always have neck pain, he
said there were numerous conservative, interventional, and surgical treatments
available for her foraminal stenosis, radiculopathy, and carpal tunnel syndrome.
However, he noted that Plaintiff has been resistant to physical therapy in the past
and that she said she was not interested in either surgery or injections. This
statement, Dr. Domangue said, caused him to doubt her veracity regarding her pain.
He stated:

The surgery stuffI understand, surgery is a big risk, but to not be willing

to do extensive physical therapy or acupuncture or needle procedures

that are five to ten minutes outpatient, but yet be willing to do cataract

surgery and so forth, I just struggle with the veracity of the chronic pain,

right?

He emphasized that “I’ve never met that patient in my . . . 20-plus years, I’ve never
met that person before that would not look at me and say “Doc, I'll do whatever it
takes.’”

Dr. Domangue disagreed with the SSA’s determination that Plaintiff was
disabled as of 2017, as he was unable to differentiate her complaints from “normal
age-related arthritic complaints.” He said, “I’m not saying she doesn’t have pain. .
. but where I struggled is deficits to the point that you can’t do even simple tasks[.]”
He pointed out that Plaintiff “had never had surgery, she was very reluctant to [do]
physical therapy, she was taking very little medication, she had never had
interventional procedures, had declined them.” He found this refusal inconsistent
with the fact that she had undergone two cataract surgeries and a root canal. Dr.
Domangue pointed to a note in the SSA records as corroboration for his finding:
“Although the evidence is not sufficient to support limitations to standing/walking

to 4 hours in an 8-hour workday, the clmt would still allow even with a full light

REC, as she is of advanced age and has no PRW. Therefore, I approve the determ as

20
is.” He believed that this notation showed that the SSA reviewer did not see
“evidence to support somebody having major limitations. But she is older, she does
[have] degenerative findings[.]”

Dr. Domangue testified that he also struggled to quantify Plaintiff's physical
capabilities as they were solely based on her subjective belief. Moreover, he noted
that throughout her medical records, she was found to be independent regarding her
ADLs, and he noted that she drove herself to medical appointments, spent time in
Texas, drove to his examination, and did not use a cane while he examined her. Thus,
he opined that a functional capacity evaluation would be beneficial to assess her
physical capacity as well as her balance, mentation, and sensory capacities, all of
which are relevant in determining whether a person is permanently incapable. He
further stated that a person’s incapacity can be accommodated such that he or she is
capable of caring for themselves.

Dr. Alicia Pellegrin, an expert in clinical and forensic psychology, performed
a forensic mental health evaluation of Plaintiff in 2024. Based on the history related
by Plaintiff, she diagnosed her with depression, generalized anxiety disorder, and
social anxiety disorder as of November 7, 2021. She admitted that Plaintiff has never
been hospitalized and that she has never been rendered permanently incapable due
to these conditions in the past.

Dr. Donna Aucoin, an expert in psychology, opined that Plaintiff was not
suffering from a debilitating mental incapacity as of November 7, 2021, based on
Plaintiff's statement to her “that she was actually doing pretty well from an
emotional standpoint with some occasional panic attacks. But after the death,
especially when all of the litigation started and her having to relive her history with

Dr. Pellegrin that then her emotional status declined.”

21
Dr. Aucoin administered the Vineland Three Comprehensive Interview (the
test) to Plaintiff because it is used to determine whether a person is able to care for
themselves, which comports with the wording of Article 1493. She said that
typically, she would not administer the test to someone like Plaintiff, who, in her
estimation, was “above average IQ.” She explained that the test evaluates a person’s
ability to function in communication, daily living skills, socialization, and motor
skills. Dr. Aucoin testified that while administering the test, she realized that
Plaintiff’s disability was “more physical in nature because I — I discussed this with
Sharon. I said cognitively you’re above average, mentally you’re very sound, I don’t
think that you have a debilitating mental illness.”

In finding that Plaintiff failed to prove that her mental incapacity or physical
infirmities rendered her permanently incapable at the time of her father’s death, the
trial court stated:

Under [Article] 1493(A) which states forced heirs are
[descendants] of the first degree who, at the time of the death of the
decedent are 23 years of age or younger, or [descendants] of the first
degree of any age who, because of mental incapacity or physical
infirmity are physically incapable of taking care of their persons or
administering their estates at the time of the death of the decedent. I
find that the Plaintiff has not met her burden of proof in showing that
she was permanently incapable of taking care of her person or
administering her estate due to mental incapacity or physical infirmity
at the time of her father’s death. The evidence shows that at the time of
her dad’s passing, Plaintiff was able to administer her estate; she paid
her own bills, she bought her own groceries, she did her own banking,
read her own mail, used her own internet or emails, conferred with her
own attomeys. Further, the Plaintiff was able to care for her own person
in that she dressed herself, bathed herself, fed herself, nurtured
friendships and relationships with her children, drove herself to
doctors’ appointments, ran errands, drove to visit friends and family,
sometimes for very long distances, and was even able to help care for
others such as her friend, Stan.

Considering our previous discussion regarding the determining factor in

finding a descendant a forced heir under Article 1493(A), we find no legal error and

22
no manifest error in the trial court’s finding that Plaintiff failed to prove that she was
permanently incapable of caring for her person or administering her estate as of
November 7, 2021. While Plaintiff relied on Dr. Bagley’s opinion to establish that
she was physically disabled at the time of her father’s death, she presented no
evidence that established whether her mental incapacity or physical infirmities
rendered her incapable of making reasoned decisions regarding the care of her
person or the administration of her estate.

As Plaintiff stated, she had never thought it necessary to grant another person
the right to make decisions for her through a power of attorney. Moreover, she was
capable of making the decision to institute this litigation and of conferring with her
attorneys regarding the litigation. According to Plaintiff's own testimony, she was
also capable of making her own medical appointments, of deciding whether a
question from her medical provider was an invasion of her privacy or legitimately
related to her medical issues, and of deciding whether a recommended medical
treatment would be beneficial to her. In addition to the tasks mentioned by the trial
court in its reasons, the evidence established that Plaintiff was managing her affairs
at the time of her father’s death. She was paying her own bills, which required her
to manage her own money, and was shopping for herself whether personally or by
electronic means online.

Further, Dr. Pellegrin unequivocally testified that Plaintiff's past disability
was physical in nature and that she was not rendered incapable as of November 7,
2021, due to her mental incapacity. This finding was bolstered by Dr. Aucoin’s
testimony that Plaintiff was not suffering from a debilitating mental incapacity at the

time of her father’s death.

23
Thus, we find no manifest error in the trial court’s finding that Plaintiff failed
to prove that she was a forced heir under Article 1493(A) as neither her mental
incapacity nor her physical infirmities rendered her permanently incapable at the
time of her father’s death.

Assignment of Error Number Two

In her second assignment of error, Plaintiff argues that the trial court legally
erred by failing to find that as of November 7, 2021, she was a forced heir pursuant
to La.Civ.Code art. 1493(E). She asserts that Dr. Pellegrin’s forensic evaluation
established that she was suffering from depression and anxiety, which are inherited
and incurable conditions that might render her physically incapable in the future.
Plaintiff also argues that the trial court legally erred in its interpretation of
La.Civ.Code art. 1493(E) because the “[jjurisprudence establishes that Article
1493(E) does not require proof identifying a particular family member having the
disease or condition whom it was inherited from but rather the standard is that the
disease or condition is inheritable[.]” We disagree.

Dr. Pellegrin diagnosed Plaintiff with depression, generalized anxiety
disorder, and social anxiety disorder at the time of her father’s death.’ She admitted
that while there was no medical documentation verifying these conditions as of
November 7, 2021, her diagnoses were based solely on the history provided by
Plaintiff. She related Plaintiff's depression and generalized anxiety disorder to her
childhood rejection by her mother, her perceived “differential negative treatment

from her mother[,]” and the verbal and physical abuse she received and feared she

” Dr. Pellegrin also diagnosed Plaintiff with post-traumatic stress disorder. However, as
this is not an inherited condition, she did not factor that diagnosis into her opinion regarding the
elements of Article 1493(E).

24
would receive at the hands of her mother. She related Plaintiff's social anxiety
disorder to her port-wine stain and the adverse reactions she has received to it from
the public.

Dr. Pellegrin testified that depression and anxiety can either be inherited or
can result from environmental factors. She opined that Plaintiff's conditions were
inherited based on her family history, as related by Plaintiff, that her mother suffered
nervous breakdowns; that Eileen failed to attend her daughter’s wedding shower and
cried before work meetings due to anxiety; that her aunts or other family members
would not leave their homes; and the severity of her own symptoms. However, she
admitted that she was unable to verify this history.

Although Dr. Pellegrin did not specifically say that depression is incurable,
she said that generalized anxiety and social anxiety disorders are curable. However,
in Plaintiffs case, she did not think they were curable because her depression was
intractable and because she did not believe that Plaintiff would undergo therapy due
to her inability to trust therapists. She also believed that Plaintiff would have
difficulty overcoming her social anxiety disorder as her port-wine stain is permanent.

Dr. Pellegrin thought it was “entirely possible” that Plaintiff's depression and
anxiety would render her incapable in the future. She admitted that Plaintiff was not
currently receiving treatment for these conditions and that she was able to care for
herself on a day-to-day basis as she was able to feed herself, dress herself, pay her
bills, and attend medical appointments. She also predicted that based on Plaintiff's
past behavior, she would be capable of functioning in the future.

Dr. Pellegrin opined that a person’s ability to care for their person or their
estate involves some social interaction. However, she could not quantify the amount

of social interaction required and admitted that it was not necessary that the social

25
interaction occur outside of the home. Dr. Pellegrin agreed that if Plaintiff has five
close friends, she is consistent with the average person, who has three to five close
friends. She also stated that Plaintiff reported having little social interaction with her
friends, which was mainly via telephone.

Dr. Bagley testified that while he did not believe that Plaintiffs Sturge- Weber
syndrome and her TBI rendered her incapable as of January 7, 2021, he opined that
they could cause her mental capacity to worsen in the future.

Dr. Aucoin testified that she did not think that Plaintiff's depression and
anxiety would render her incapable in the future. She stated, “she’s thus far done
very well in managing it. And probably has developed even more coping skills over
the years than she had as a younger child and a young adult.”

Dr. Aucoin testified that depression and anxiety can either be inherited or can
result from environmental factors.'” She said that depression that is non-hereditary
can result from a specific stressor, such as a divorce or the death of a loved one.
Generalized anxiety disorder “can show up in an array of settings or situations. And
it’s sometimes unpredictable.” She stated that a person can suffer debilitating anxiety
from a fear of flying or of crossing a bridge. She described social anxiety disorder
as anxiety that is specifically related to socializing with others, usually people not
known by the person. However, she opined that a fear of public speaking or of large
groups does not qualify as an anxiety disorder unless it impacts a person’s
occupational function or ability to socialize. Although Dr. Aucoin agreed that social
anxiety can cause a person to completely isolate, she thought that such a person

could function without leaving their home. She stated, ““With the advent of modern

8 Regarding Plaintiff's diagnosis of PTSD by Dr. Pellegrin, Dr. Aucoin testified that PTSD
is not inherited and is curable through therapy and medication.

26
technology and some of the new resources that have become available after COVID
many people are able to live more fulfilling lives staying home.”

Dr. Aucoin’s opinion that Plaintiff's birthmark was the source of her
depression, anxiety, and her social isolation was based on her report that her father
rejected her from birth, and the fact that she was teased and humiliated in public
places because of her birthmark. Regarding whether Plaintiffs family had a history
of anxiety and depression, Dr. Aucoin replied, “I don’t know. There was one that
was reported, yeah.” She further testified that Plaintiff's birthmark could be an
environmental factor causing her anxiety. Although she opined that Plaintiff's
anxiety differs somewhat from that suffered by other people, it could be treated in a
similar fashion. She further stated that on average, people in the United States have
three to five close friends, and Plaintiff would be average if she had that many close
friends.

Dr. Aucoin testified that depression is treatable with therapy and psychotropic
medication, and that for most people, the condition is curable in that their symptoms
are in remission and no longer affect their quality of life. There are even adjunct
treatments for treatment-resistant depression, such as ketamine infusions,
combinations of medication, and shock therapy. She stated that anxiety can be
treated with cognitive behavioral therapy and different types of medication, and like
depression, these treatments can cause a regression of the symptoms such that they
no longer affect the patient’s quality of life.

Dr. Aucoin testified that Plaintiff has never undergone inpatient or outpatient
mental treatment. She said that Plaintiff was prescribed Xanax by her nurse
practitioner after she complained of panic attacks, and the nurse practitioner later

referred her to a psychiatrist, who she sees twice a year. Dr. Aucoin opined that

27
Plaintiff would benefit from seeing a therapist, that there is never a time when seeing
a therapist would not be helpful, and that Plaintiff's knowledge regarding therapy
would not render it unhelpful for her. She stated that despite having three master’s
degrees and a PhD in psychology, she, herself, sees a therapist.

Dr. Domangue testified that he found no evidence that Plaintiff was suffering
from a medically documented inherited, incurable neck or back issue as of
November 7, 2021, which might render her permanently incapable in the future. He
opined that Plaintiff did not suffer from Type 1 Sturge-Weber syndrome because her
medical records contained no evidence she suffered from brain abnormalities or
glaucoma. Thus, he felt it unlikely that she would be rendered permanently incapable
in the future due to the brain abnormalities associated with Type 1 Sturge-Weber

syndrome.

In finding that Plaintiff failed to prove that she was a forced heir pursuant to
Article 1493(E), the trial court held:

As to [Article] 1493(E) which reads that for purposes of this
article, 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 the death of the decedent, had,
according to medical documentation, an inherited, incurable disease or
condition that may render them incapable of caring for their persons or
administering their estates in the future. I do not find that the Plaintiff
has met her burden of proof here either. There was no evidence
presented to show that Plaintiff had medical documentation of an
inherited, incurable disease or condition that may render her incapable
of caring for her person or administering her estate in the future.

Although, all experts testified that some of the ailments or
conditions Plaintiff suffers from such as depression and anxiety can be
inherited, there is insufficient proof other than Plaintiffs own
testimony that her parents or relatives suffered from these conditions.
In fact, the testimony of both sisters contradicted her testimony, other
than to state that their mother did suffer from situational depression as
a result of losing children or beloved pets.

28
As to the conditions being incurable, this is unknown because
Plaintiff has refused to attempt treatment recommendations such as
mental health therapy, physical therapy, surgery, injections, implants,
yoga, palates [sic], acupuncture, or other viable treatment alternatives;
the only treatment she has been open to receiving is pharmaceutical.
Further, Plaintiff admits that she is not honest with medical providers
who ask questions that she believes are irrelevant to her ailment.
Because of that, her veracity regarding her ailments in [sic] brought into
question. All experts testified that her ailments are treatable and
sometimes curable or put into remission with the proper treatment.
Even Plaintiff's own experts testified the potential treatments were
available but not effective for the Plaintiff only because she is not
willing to do them. The expert testimony stated that the best predictor
of the future is the past, and there is nothing in her past to indicate that
she will not be able to care for her person or administer her estate in the
future.

Louisiana Civil Code Article 1493(E) provides that “permanently incapable”
for the purposes of forced heirship, includes “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 their estates in the future.”'' Our research has found only a handful of
cases that consider, and only one case that was decided, under Section (E) since
Article 1493 was amended in 2003. As noted by Professor Wallace:

The addition of section E to Article 1493 expanded the definition of
forced heirs to include not only descendants who are incapable at the
time of the decedent’s death, but also descendants who “may” be
incapable in the future. The expansion, however, is limited by the
requirement that, at the time of the decedent’s death, the purported heir
must have an inherited and incurable disease or condition that can be
proven by medical documentation and that could render the heir
incapable in the future.

Presumably, the intended purpose of the expansion was to ensure
that descendants at-risk of incapacity due to inherited incurable medical
conditions are protected, even if they are not presently incapable.

'' Louisiana Constitution Article 12, § 5 (emphasis added) provides that the second class
of forced heirs includes “descendants of any age who, because of mental incapacity or physical
infirmity, are incapable of taking care of their persons or administering their estates.” While there
may be a question regarding the constitutionality of Article 1493(E) (emphasis added) based on
the use of “may[,]” that issue was not raised in the trial court.

29
Unfortunately, no Revision Comments concerning the addition of
section E were included, despite a request by the legislature to the
Louisiana State Law Institute “to write comments to all changes” made
by Act 1207 of 2003. With no specification of legislative intent
concerning its language, the intended purpose and scope of section E
are unclear, which has created uncertainty as to whom it should apply.

Courts tend to focus appears [sic] on the condition’s permanency
and incurability, and by law, the condition must be inherited.

10 MONICA HOF WALLACE, LOUISIANA CIVIL LAW TREATISE: SUCCESSIONS &
DONATIONS § 10:3 (3d ed. 2021) (footnotes omitted).

Moreover, none of the cases actually considered how the term “inherited” was
meant to be interpreted by the legislature. Unlike the matter at issue, the trial court
in each case found that the plaintiff's bipolar disorder was inherited based on
uncontroverted expert testimony that it was inherited. See 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; Stewart v. Estate of Stewart, 07-333 (La.App. 3 Cir. 10/3/07), 966 So.2d
1241; and Succession of Forman, 37 So.3d 1081. However, the question of whether
the term “inherited” means “inheritable” as argued by Plaintiff was considered by
Professor Trahan in his Recent Developments in the Law, 2002-2003, Successions
& Donations, 64 La. L. Rev. 315 (2004). After noting that “[t]he term ‘inherited’
means ‘genetically transmitted from one generation to the next[,]” he stated:

“But,” the critics of the new legislation retort, “it is unclear
whether the determination of ‘inheritedness’ is to be made generically

or individually.” As the critics correctly note, some diseases, though

they are normally contracted by genetic transmission, can in certain

unusual cases have some non-genetic cause, for example, infection or

injury. Such a disease, the critics contend might well be considered

“inherited” not in the sense of “always and only inherited” but rather in

the sense of “usually inherited.” And so, the critics ask, “What is one

to say of a person who suffers from a disease that, though normally

contracted genetically, he did not in fact inherit, that is, that he

contracted through some other cause? Does he have an ‘inherited
disease’?”

30
This objection fails. Had the legislators intended that the
determination of “inheritedness” be made on the basis of the
characteristics typical of the disease, without regard to whether, in any
given case, the disease of the particular purported forced heir had, in
fact, been inherited, then they would have used the term “inheritable’—
meaning that which can be, but need not necessarily be, inherited—not
the term “inherited.”

Id. at 367-68 (footnote omitted).

While Plaintiff claimed that her depression and anxiety were inherited, her
own expert, Dr. Ardoin, was unable to verify any of the family history relied on by
Plaintiff for this issue. Furthermore, the trial court was presented with conflicting
views of the evidence through the testimony of Plaintiff's sisters denying a family
history of depression and anxiety. Also, the October 11, 2023 medical record from
Plaintiffs psychiatrist indicates that she denied a family history of psychiatric issues
or that she experienced excessive anxiety while growing up.

Considering the meaning of “inherited” as expressed above, we find no legal
error in the trial court’s interpretation of Article 1493(E). Moreover, “[w]here the
factfinder’s determination is based on its decision to credit the testimony of one of
two or more witnesses, that finding can virtually never be manifestly erroneous.”
Snider v. La. Med. Mut. Ins. Co., 14-1964, p. 5 (La. 5/5/15), 169 So.3d 319, 323. In
addition, the trial court expressed reservations as to Plaintiffs credibility after she
admitted that she would answer untruthfully to any question from her healthcare
providers that she thought was irrelevant. These included questions regarding
whether she was feeling depressed or anxious. “Because of the trial court’s ability
to observe the tone, temperament, and nonverbals of witnesses to determine
credibility, a finding related to a witness’s credibility demands ‘great deference.’”

Ignont v. Breen, 25-1230, p. 1 (La. 12/16/25), 424 So.3d 673 (per curium) (quoting

Rosell v. ESCO, 549 So.2d 840, 844 (La.1989)). Finally, we note that neither

31
Plaintiff's Sturge-Weber syndrome nor her TBI were inherited conditions. As noted
under the discussion regarding Article 1493(A), Dr. Bagley admitted that Plaintiff's
Sturge-Weber syndrome was not inherited, and the evidence established that
Plaintiff's TBI resulted from a car accident.

Accordingly, we affirm the trial court’s finding that Plaintiff failed to prove
that her physical or mental conditions were inherited. Moreover, as this finding
precludes her from proving that she is a forced heir pursuant to Article 1493(E), we
pretermit any further consideration of whether her mental conditions were
documented or incurable.

DECREE

For the foregoing reasons, the judgment of the trial court in favor of Angela
Clare Goudeau, as independent executor of the Succession of James Vernon
Goudeau, finding that Sharon Schmidt failed to prove that she was a forced heir
under either La.Civ.Code art. 1493(A) or (E), is affirmed. The costs of this appeal
are assessed against Sharon Schmidt.

AFFIRMED.

32