Opinion
NO. 2016 CW 1532
03-30-2017
IN THE MATTER OF THE SUCCESSION OF WAYNE EDMOND BREEN
In Re: Kacie M. Breen, applying for supervisory writs, 22nd Judicial District Court, Parish of St. Tammany, No. 2015-30176. BEFORE: WHIPPLE, C.J., GUIDRY AND McCLENDON, JJ.
WRIT DENIED.
PMc
VGW
Guidry, J., dissents and would have ordered briefing pursuant to La. Code Civ. P. art. 966(H). The judicial determination of whether a successor participated in the intentional unjustified killing of a deceased may be made by the court having jurisdiction of the succession proceeding. La. Civ. Code art. 941, Comment (f).
A homicide is justifiable when committed in self-defense by one who reasonably believes that she is in imminent danger of losing her life or receiving great bodily harm and that the killing is necessary to save herself from that danger. La. R.S. 14:20; Lavergne v. Thomas, 491 So.2d 687 (La. App. 1st Cir.), writ denied, 493 So.2d 643 (La. 1986) (Standards for determining whether a homicide is justified are applicable to civil suits when a death has ensued). Relator herein, Kacie M. Breen, submitted an affidavit attesting to facts which supported her claim of self-defense and justification for the shooting of decedent in support of her motion for summary judgment. The affidavit of Kacie M. Breen attested to and detailed a history of abusive behavior by decedent and described the events of the night of the shooting. According to Ms. Breen's affidavit, decedent was angry and was trying to stop her from leaving their home, she was being physically assaulted by decedent, was crying and was afraid for her life and for her son, and she believed she had no choice other than to shoot decedent in order to save her life and to prevent harm to their son. In opposition, respondents relied upon the fact that other courts in separate proceedings have denied motions for summary judgment on this issue, deposition testimony of Kacie M. Breen which described the placement of decedent's arms at her neck as being inconsistent with her affidavit in which she stated that she feared strangulation and the lack of evidence of strangulation marks or injury to Ms. Breen's neck, although respondents admitted there was evidence of bruises on Ms. Breen, a perceived difference as to the substance of the argument that night between decedent and Ms. Breen, text messages and an answering machine message which occurred approximately three weeks prior to the shooting and an affidavit from an adult daughter of decedent, who did not live with decedent and Ms. Breen, as to decedent's lack of propensity for violence. This evidence does not refute the evidence submitted by Ms. Breen as to the issue herein, i.e. whether Ms. Breen reasonably believed she was in imminent danger of losing her life or receiving great bodily harm and the killing was necessary to save herself from that danger on the night of March 1, 2015. The evidence submitted by respondents failed to controvert the material facts at issue herein as to whether the shooting was intentional and unjustified, and therefore, respondents failed to meet their burden to produce factual support sufficient to establish the existence of a genuine issue of material fact. COURT OF APPEAL, FIRST CIRCUIT /s/_________
DEPUTY CLERK OF COURT
FOR THE COURT