Barnett v. Arc of Acadiana, Inc.

• Decision Date: 28 September 2022
• Docket Number: 21-786, 21-787
• Parties: Stanford BARNETT, et al. v. The ARC OF ACADIANA, INC., et al.
• Court: Court of Appeal of Louisiana — District of US

348 So.3d 958 (Mem)

Stanford BARNETT, et al.

v.The ARC OF ACADIANA, INC., et al.

21-786, 21-787

Court of Appeal of Louisiana, Third Circuit.

September 28, 2022

Jeffrey W. Watson, Gordon McKernan Injury Attorneys, 5656 Hilton Avenue, Baton Rouge, Louisiana 70808, (225) 923-4043, COUNSEL FOR PLAINTIFFS/APPELLANTS: James Barnett, individually and on behalf of Lesli Ann Barnett, Colette Neely, individually and on behalf of Lesli Ann Barnett

Byron Hutchinson, Spencer Calahan Injury Lawyers, 827 Saint Louis Street, Baton Rouge, Louisiana 70802, (225) 387-2323, COUNSEL FOR PLAINTIFF/APPELLEE: Stanford Barnett, individually and on behalf of Lesli Ann Barnett

Joshua K. Trahan, Preis PLC, Post Office Drawer 94-C, Lafayette, Louisiana 70509, (337) 237-6062, COUNSEL FOR DEFENDANT/APPELLEE: The Arc of Acadiana, Inc.

Court composed of Sylvia R. Cooks, Chief Judge, Billy Howard Ezell, and D. Kent Savoie, Judges.

COOKS, Chief Judge, Dissents.

In these consolidated cases James Barnett and Collette Barnett Neely appeal the judgment of the trial court granting The Arc of Acadiana, Inc.’s (Arc) exception of no right of action, dismissing their survival action and wrongful death claims and they appeal the denial of their motion for partial summary judgment as moot.

This litigation arose out of the tragic death of James and Collette's sister, Lesli Barnett, a 54-year-old mentally handicapped woman. The record established Lesli contracted meningitis

at an early age when she was less than three years old and was institutionalized around the age of eight and remained so for the remainder of her life. Her father, Stanford Barnett, says he stopped seeing Lesli when she was about three or four years old and never visited her after she was institutionalized because, he says, his ex-wife did not want him to visit Lesli. That assertion is contradicted by all his other children's testimony. Sadly, Lesli, sitting unattended in her wheelchair while at Arc, slid down and was strangled by the seatbelt. She was not married, had no children, and is survived by her father and four siblings.

Stanford Barnett filed survival action and wrongful death claims against Arc. Shortly thereafter, James and Collette filed a separate survival action and wrongful death claim against Arc. In their petition for damages James and Collette alleged Stanford abandoned Lesli thus they were the proper parties to file the claims. They asserted they visited their sister throughout her life and continued to see her after their mother died.

Arc filed a motion to consolidate the two cases, which was granted. James and Collette filed a Motion for Partial Summary Judgement asserting they are the proper parties to bring these actions because Stanford abandoned Lesli during her minority. In its Answer to the complaint Arc filed a peremptory exception of no right of action against James and Collette, contending they are not the proper parties to the litigation. After a hearing, the trial court granted the exception of no right of action, dismissing James and Collette's claims with prejudice. The trial court also found James and Collette's Motion for Partial Summary Judgment was rendered moot by its finding on the exception. James and Collette appealed the trial court rulings and are before the court under docket numbers 21-786 and 787. In this opinion the majority affirms the trial court's ruling on the exception of no right of action. For the reasons set forth herein I vigorously disagree with the majority's reasoning and result, and I respectfully dissent.

In Mississippi Land Co. v. S & A Properties II, Inc. , 01-1623, pp. 2-3 (La.App. 3 Cir. 5/8/02), 817 So.2d 1200, 1202-03, we stated:

Under La.Code Civ.P. art 927, a defendant may raise the peremptory exception of no right of action. An exception of no right of action has the function of determining whether the plaintiff has any interest in the judicially enforced right asserted. St. Jude Medical Office Bldg., Ltd. Partnership v. City Glass and Mirror, Inc. , 619 So.2d 529 (La.1993). The function of this exception is to terminate the suit brought by one who has no judicial right to enforce the right asserted in the lawsuit.

Yolanda F.B. v. Robert D.R ., 00-958 (La.App. 3 Cir. 12/6/00), 775 So.2d 1107. The determination of whether a plaintiff has a right of action is a question of law. Horrell v. Horrell , 99-1093 (La.App. 1 Cir. 10/6/00), 808 So.2d 363, writ denied 01-2546 (La. 12/7/01), 803 So.2d 971. Accordingly, we review exceptions of no right of action de novo . Id.

Stewart v. Gordon, 17-812, p. 3 (La.App. 3 Cir. 10/3/18), 316 So.3d 1052, 1056, reversed on other grounds , Rismiller v. Gemini Ins. Co., 20-313 (La. 6/30/21), 330 So.3d 145, reh'g denied , 20-313, 347 So.3d 882 (La.9/30/21), and cert. denied , ––– U.S. ––––, 142 S. Ct. 1229, 212 L.Ed.2d 235 (2022). See also, Myles o/b/o Myles v. Howell , 52,716 pgs. 3-4, (La.App. 2 Cir. 6/26/19), 277 So.3d 1218, 1221, writ denied , 19-1207 (La. 10/15/19), 280 So.3d 603.

As the majority notes, the issue in this case as to who is the proper party to file this litigation hinges upon whether Stanford abandoned Lesli during her minority. It was undisputed in the trial court hearing that once Lesli was institutionalized at age eight, Stanford played no meaningful part in her life, other than the payment to her mother of $240.00 per month child support for their six children which he stopped paying at least eleven and one-half months before Lesli turned eighteen. Stanford testified he stopped visiting Lesli when she was three or four years old, and he admitted he never visited his daughter after she was institutionalized and did not provide anything for her throughout the remainder of her life. On occasion he would ask Lesli's siblings how she was doing. That was the extent of his fulfillment of his obligations to his disabled daughter for the forty-six years she lived in an institution.

There is some uncertainty as to exactly when Stanford stopped paying child support for Lesli. Stanford could not remember when he stopped paying support though he maintained he paid support until all his children were twenty years old. He says he paid in cash and thus has no real record of his payments. He also says he usually delivered the payments to his daughter Collette Barnett or one of her brothers. Richard Barnett testified Stanford paid child support until his siblings were eighteen years old. Michael Barnett was not sure when support payments stopped. Collette asserts Stanford paid support for her and Lesli until Collette's eighteenth birthday. Stanford testified he could not dispute Collette's testimony . Lesli was born on January 19, 1964, and Collette turned eighteen on February 8, 1981. Since Lesli was eleven and one-half months younger than Collette, if Colette's testimony on child support is accurate, Stanford failed to pay child support for eleven and one-half months for Lesli during her minority. The majority finds this would be insufficient to meet what it identifies as "the first prong of the abandonment test," i.e ., that a parent has "failed to provide for the child's care and support" for twelve months. Thus, the majority concludes on this sole finding that the trial court was correct in holding Stanford did not legally abandon Lesli as defined in La.Civ.Code art. 3506(3).¹ This is a misapplication of the law.

The finding of abandonment under La.Civ.Code art. 3506(3) does not turn solely on whether Stanford failed to pay court ordered financial support for a period of twelve months. Although this twelve-month period is presumptive proof of abandonment it is not the end of the inquiry , and it is not the only proof positive of abandonment. Proof of such failure to pay for a twelve-month period of time would of course help to establish a presumption against Stanford. Such proof is deemed to be presumptive evidence of a parent's intent to abandon its child under these provisions. But this failure to pay financial support is not the sole manner by which to establish Stanford's intent to abandon Lesli and his actual abandonment of her . The record is replete with much evidence of Stanford's abandonment of Lesli for many years during her minority and throughout the entirety of her adult life. According to Stanford's own testimony he felt Lesli had been "killed" when her meningitis

rendered her severely handicapped. Thereafter he acted as though Lesli did not exist. The fact that he never thought he was paying support for Lesli is evidenced by Colette's testimony regarding his phone call just before her eighteenth birthday. She testified Stanford stopped payments at least eleven and one-half months before Lesli reached the age of majority because he thought his child support obligation ended when Collette reached majority. Lesli's age was not a factor in his consideration . Collette testified she thought he was calling in remembrance of her birthday, which had not always happened, only to learn from his lips that he called to make sure this was indeed her 18^th birthday expressing he was happy to make his last support payment! She was understandably crushed, but she says it was par for the course in his historic treatment of she and her siblings. Stanford's intent to abandon Lesli came from his own mouth when he spoke with Collette and bolsters his own testimony that he considered Lesli as "killed" after she was left debilitated by her disease.

The majority opinion effectively turns the statutory presumption on its head and establishes some sort of presumption of non-abandonment in favor of Stanford which the law does not grant. The mere fact that Stanford paid child support which included support for Lesli until eleven and one-half months shy of her eighteenth birthday, a period of time just shy of the twelve-month presumption, does not raise a non-abandonment presumption in favor of Stanford's right to sue for Lesli's death. The majority compounds this error by further asserting "we can...