Griffin v. Succession of Branch Through Smith

• Decision Date: 09 January 1986
• Docket Number: No. 84-C-1398,84-C-1398
• Parties: David GRIFFIN, et al. v. SUCCESSION OF Velma King BRANCH Through Johnny SMITH, Executor. 480 So.2d 313
• Court: Louisiana Supreme Court

Page 313

480 So.2d 313

David GRIFFIN, et al. v. SUCCESSION OF Velma King BRANCH Through Johnny SMITH Executor.

No. 84-C-1398.

480 So.2d 313

Supreme Court of Louisiana.

Jan. 9, 1986.

For majority opinion see: 479 So.2d 324.

DENNIS, Justice, dissenting.

I respectfully dissent because (1) the plaintiffs' rights have been extinguished by peremption and (2) the opinion of the court disregards legislated law and adopts an unsound rule.

1. Peremption

After this case was briefed, argued and submitted, it appeared that the rights which the plaintiffs had under Act 549 to establish their alleged filiation to David Branch were extinguished upon the expiration of a peremptive period. For the following reasons, I believe that we should affirm the judgments below dismissing plaintiffs' suit without reaching the question which caused us to grant certiorari.

Civil Code article 209, as amended by Act 549 of 1980, and as in effect on the date of the death of David Branch on December 7, 1980, provided:

* * *

Art. 209. Methods of proving filiation.

1. An illegitimate child may be entitled to a rebuttable presumption of filiation under the provisions of this Article. Or any child may establish filiation, regardless of the circumstances of conception, by a civil proceeding instituted by the child or on his behalf in the parish of his birth, or other proper venue as provided by law, within the time limitation prescribed in this Article.

* * * 5. Proof of filiation must be made by evidence of events, conduct, or other information which occurred during the lifetime of the alleged parent. A civil proceeding to establish filiation must be brought within six months after the death of the alleged parent, or within nineteen years of the illegitimate child's birth, whichever occurs first. If an illegitimate child is born posthumously, a civil proceeding to establish filiation must be instituted within six months of its birth, unless there is a presumption of filiation as set forth in Section 2 above. If no proceeding is timely instituted, the claim of an illegitimate child or on its behalf to rights in the succession of the alleged parent shall be forever barred. The time limitation provided in this Article shall run against all persons, including minors and interdicts.

* * *

Plaintiffs' birthdates are as follows: Thelma White, March 6, 1956; David and Daisy Griffin, August 26, 1957; John Felix Griffin, February 26, 1962. Section 4 of Act 549 of 1980 provided that "[a]ny illegitimate child nineteen years of age or older shall have one year from the effective date of this Act to bring a civil proceeding to establish filiation under the provisions of this Act and if no such proceeding is instituted within such time, the claim of such an illegitimate shall be forever barred." The effective date of Act 549 was July 23, 1980, upon signature of the Governor. David Branch died on December 7, 1980. This suit to prove filiation was filed on March 1, 1982.

Because the action to prove filiation was not brought within six months of the death of the alleged parent or within one year of the effective date of Act 549 of 1980, the claims of the children are forever barred. The question of whether the action was timely filed was not raised by the defendant. Because the action was extinguished by peremption, and was not barred merely by prescription, however, we are empowered to supply the objection and should do so to avoid an adjudication based upon a nonexistent right.

Peremption is a period of time fixed by law for the existence of a right. Unless timely exercised, the right is extinguished upon the expiration of the peremptive period. La.C.C. art. 3458 (Supp.1983). Peremption may not be renounced, interrupted, or suspended. La.C.C. Art. 3461 (Supp.1983). The difference between prescription and peremption is that prescription simply bars the remedy, whereas in peremption time is made the essence of the right granted and a lapse of the statutory period operates as a complete extinguishment of the right; not even a natural obligation subsists. Peremption admits of no interruption or suspension; performance of the required act must be accomplished within the specific time or else the right of action no longer exists. Pounds v. Schori, 377 So.2d 1195 (La.1980); Flowers, Inc. v. Rausch, 364 So.2d 928 (La.1978); Succ. of Pizzillo, 233 La. 328, 65 So.2d 783 (1953).

It is a question of individual statutory construction whether the period established is a peremption, a time fixed by law for the existence of a right, La.C.C. art. 3458, or a period of liberative prescription, a mode of barring an action as a result of inaction for a period of time. La.C.C. art. 3447. See Dainow, The Work of the Louisiana Appellate Courts for the 1967-1968 Term--Prescription, 29 La.L.Rev. 230, 231 (1969). The general rules for the application and construction of laws, which permit a consideration of underlying policy when a law's expressions are dubious, La.C.C. art. 18, are applicable. Also, the jurisprudence and the commentators have formulated auxillary guides to distinguishing between periods of peremption and prescription. The specification of a time limit for bringing an action in the same statute that creates the right of action may indicate that peremption, rather than the general prescriptive periods, applies. Guillory v. Avoyelles Ry. Co., 104 La. 11, 28 So. 899 (1900); Ashbey v. Ashbey, 41 La.Ann. 102, 5 So. 539 (La.1880); Cf. Guidry v. Theriot, 377 So.2d 319 (La.1979). A short period for instituting legal action may indicate a legislative intention to enact a peremptive period that applies fully to minors and that cannot be interrupted or suspended. Sewell v. Willcox, 5 Rob. 83, 17 La. 46 (1843); Pounds v. Schori; 369 So.2d 1090 (La.App. 1st Cir.), aff'd, 377 So.2d 1195 (La.1979); Cf. Succession of Saloy, 44 La.Ann. 433, 10 So. 872 (1892). See also, 12 Aubry & Rau, Droit Civil Francais (6th ed.), Sec. 771, in 5 Civil Law Translations 422; Comment, Legal Rights and the Passage of Time, 41 La.L.Rev. 220 (1980).

Taking into account all features of Civil Code article 209, as amended by Act 549 of 1980, and the underlying policies which it seeks to promote, I would hold that the period it establishes for instituting legal action is a peremption. Article 209 itself provides that the time limitation shall run against all persons, including minors and interdicts. This indicates that the period cannot be interrupted or suspended, which is the most important consequence and distinguishing feature of peremption. La.C.C. art. 3461 (Supp.1983); Flowers, Inc. v. Rausch, supra at p. 931. This impression is reinforced by the brevity of the period allowed for commencement of an action, viz., six months from the death of the alleged parent or one year after the child's majority, whichever first occurs. The statute specifies the time limit for bringing the action which it authorizes, indicating that the period established is a peremption imposed strictly by the statute and not governed by the general prescriptive rules. Article 209 represents a legislative intention to grant to illegitimates insofar as practicable rights of filiation and inheritance on a par with those enjoyed by legitimate children while protecting the important state interest in the just and orderly disposition of decedents' estates by helping to forestall fraudulent assertions of paternity, facilitate estate administration, and minimize succession delay and uncertainty. See Lalli v. Lalli, 439 U.S. 259, 99 S.Ct. 518, 58 L.Ed.2d 503 (1978). It is evident, therefore, from the purpose as well as the plain words of the statute that the period is one of peremption; otherwise, if the period were one of prescription, subject to interruption and suspension, the statute could not serve to protect the state's interest in just and orderly disposition of decedents' estates because it would not effectively prevent delay and uncertainty or forestall fraudulent assertions of paternity. The same reasoning also compels the conclusion that the savings clause, Sec. 4 of Act 549, provides a period of peremption. See generally, Spaht, Developments in the Law, 1980-1981 Term--Persons, 42 La.L.Rev. 403, 408, n. 33 (1982).

A court cannot supply the objection of prescription, which must be specifically pleaded. La.C.C.P. art. 928; La.C.C. art. 3452. Peremption may be supplied by a court, however, on its own motion at any time prior to final judgment. La.C.C. art. 3460. These are procedural laws and therefore will be given retroactive effect. See Ardoin v. Hartford Acc. & Indem. Co., 360 So.2d 1331 (La.1978); cf., Comment, Prescription and Peremption--The 1982 Revision of the Louisiana Civil Code, 58 Tul.L.Rev. 593, 604 (1983); Comment, Legal Rights and the Passage of Time, 41 La.L.Rev. 220, 238 (1980).

Under the terms of Louisiana Civil Code article 209, as amended by Act 549 of 1980, the existence of plaintiffs' right to establish filiation was extinguished upon the expiration of the peremptive period on July 23, 1981. ¹ Thus, plaintiffs' right was non-existent on ...