Reese v. STATE DEPT. OF PUBLIC SAFETY

• Decision Date: 20 February 2004
• Docket Number: No. 2003-C-1615.,2003-C-1615.
• Citation: 866 So.2d 244
• Parties: Donald REESE and Verna Nabonne on Behalf of her Minor Child, James J. Nabonne v. STATE of Louisiana, DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS and Louisiana State Penitentiary.
• Court: Louisiana Supreme Court

866 So.2d 244

Donald REESE and Verna Nabonne on Behalf of her Minor Child, James J. Nabonne v. STATE of Louisiana, DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS and Louisiana State Penitentiary.

No. 2003-C-1615.

Supreme Court of Louisiana.

February 20, 2004.

McGlynn, Glisson & Koch, John G. Allelo, Benjamin P. Mouton, Baton Rouge, for applicant.

Charles C. Foti, Jr., Attorney General, Oats & Hudson, Lafayette, Andrew Benton, Robin L. Jones, Clifton O. Bingham, Jr., Special Assistant Attorneys General, for respondent.

KIMBALL, Justice.

In this case, we are asked to determine whether timely-filed survival and wrongful death actions by an illegitimate child interrupts prescription for the filing of a cumulated filiation action. For the following reasons, we hold that the bare allegations of the timely-filed original petition, while not artfully drafted, give fair notice to the defendants of the plaintiff's attempt to set forth a cause of action for filiation. Consequently, the first supplemental and amending petition relates back to the original petition as it arises out of the same factual situation set forth in the original petition.

FACTS AND PROCEDURAL HISTORY

On April 30, 2000, James Williams, Jr. died while serving as an inmate at the Louisiana State Penitentiary at Angola. Thereafter, on April 4, 2001, Donald Reese and Verna Nabonne, on behalf of her minor child, James J. Nabonne, filed a petition for damages against the State of Louisiana, Department of Public Safety and Corrections and the Louisiana State Penitentiary ("defendants") asserting claims for survival and wrongful death as the decedent's surviving children. In response, on February 27, 2002, defendants filed a peremptory exception raising the objection of no right of action claiming that the plaintiffs were without a legal right of action to institute the suit because they were not the legitimate children of the decedent and they failed either to show filiation in accordance with La. Civ.Code art. 203 or to timely file a filiation action in accordance with La. Civ.Code art. 209.

On March 25, 2002, Donald Reese and Verna Nabonne, on behalf of her minor child James J. Nabonne, filed a first supplemental and amending petition alleging their formal acknowledgment, or alternatively, their informal acknowledgment by James Williams, Jr. On May 3, 2002, following an April 1, 2002 hearing, the trial court issued a judgment dismissing the defendants' exception as to Verna Nabonne on behalf of her minor child James J. Nabonne,¹ and sustaining the defendants' exception as to Donald Reese.² The First Circuit Court of Appeal affirmed the district court's judgment with one judge dissenting. See Reese v. State of Louisiana, Dept. of Pub. Safety & Corr., 02-1429 (La.App. 1 Cir. 5/9/03), 845 So.2d 620

.

On the application of plaintiff, Donald Reese, we granted certiorari to review the correctness of the district court's judgment granting the peremptory exception of no right of action. Reese v. State of Louisiana, Dept. of Pub. Safety & Corr., 03-1615 (La.10/17/03), 855 So.2d 744.

LAW AND DISCUSSION

Axiomatic under our system of law is that an action can only be brought by a person having a real and actual interest that he/she asserts. La. C. C.P. art. 681. The function of the exception of no right of action is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit. La. C. C.P. art. 927; Industrial Cos., Inc. v. Durbin, 02-0665, p. 12 (La.1/28/03), 837 So.2d 1207 (citing Louisiana Paddlewheels v. Louisiana Riverboat Gaming Com'n, 94-2015, p. 5 (La.11/30/94), 646 So.2d 885, 888). The focus in an exception of no right of action is on whether the particular plaintiff has a right to bring the suit, but it assumes that the petition states a valid cause of action for some person and questions whether the plaintiff in the particular case is a member of the class that has a legal interest in the subject matter of the litigation. Id. (citing Benoit v. Allstate Ins., 00-0424, p. 10 (La.11/28/00), 773 So.2d 702, 708). Further, evidence is admissible on the trial of an exception of no right of action to "support or controvert any of the objections pleaded, when the grounds therefor do not appear from the petition." La. C. C.P. art. 931. In this case, the right of a survival action under La. Civ.Code art. 2315.1 and a wrongful death action under La. Civ.Code art. 2315.2 is afforded to several exclusive categories of survivors listed in those articles, the primary category of which under both articles includes "children" of the decedent. By filing a peremptory exception of no right of action, defendants contend that Donald Reese does not belong to any of the exclusive categories of survivors listed under La. Civ.Code arts. 2315.1 and 2315.2, and, therefore, has no right to bring survival and wrongful death actions arising from the death of James Williams, Jr.

Prior to the decision of the United States Supreme Court in Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968), wrongful death and survival actions were not available to illegitimate children. However, under the rationale of Levy, it is the biological relationship and dependency that is determinative of the child's rights in these cases and not the classification (i.e., legitimate or illegitimate) into which the child is placed by the statutory law of the state. Warren v. Richard, 296 So.2d 813 (La.1974).

Following the Levy decision, the legislature has sought to delineate and limit the circumstances under which an illegitimate child may assert and prove filiation. See 1981 Acts 720. In furtherance of this aim, La. Civ.Code art. 3556(8) was amended to define the term "children" to include "those persons born of the marriage, those adopted, and those whose filiation to the parent has been established in the manner provided by law." 1981 Acts 720. La. Civ.Code art. 208, as amended by 1981 Acts 720, provides:

In order to establish filiation, a child who does not enjoy legitimate filiation or who has not been filiated by the initiative of the parent by legitimation or by acknowledgment under Article 203 must institute a proceeding under Article 209. (emphasis added).

Louisiana Civ.Code art. 209(B), as amended by 1984 Acts 810 provides the requirements for proof of filiation as follows:

A child not entitled to legitimate filiation nor filiated by the initiative of the parent by legitimation or by acknowledgment under Article 203 must prove filiation as to an alleged deceased parent by clear and convincing evidence in a civil proceeding instituted by the child or on his behalf within the time limit provided in this article.

La. Civ.Code art. 209(C) provides a limitation on the time for bringing a filiation action as follows:

The proceeding required by this article must be brought within one year of the death of the alleged parent or within nineteen years of the child's birth, whichever first occurs. This time limitation shall run against all persons, including minors and interdicts. If the proceeding is not timely instituted, the child may not thereafter establish his filiation, except for the sole purpose of establishing the right to recover damages under Article 2315. A proceeding for that purpose may be brought within one year of the death of the alleged parent and may be cumulated with the action to recover damages. (emphasis added).

The purposes of 1981 Acts 720 and 1984 Acts 810 amending and reenacting Articles 208 and 209, respectively, expressly stated therein are to provide for proof of filiation by children or on their behalf; to provide a procedure and time limitations for proceedings to establish filiation; to provide for the method and standard of proof in such actions; and to provide that the failure to institute timely such a proceeding shall bar the claims of the persons covered by the Act. According to the Comments to Article 209, "[i]nformally acknowledged children do have to comply with this article." La. Civ.Code art. 209, Comments (a). In this case, if Donald Reese cannot establish paternity, then he has no right of action to assert claims for survival and wrongful death damages.

Under Article 209(C), the general rule is that a child must bring an action for filiation within one year of reaching the age of majority. Thomas v. Sister of Charity of the Incarnate Word Shreveport, 97-1443, p. 3 (La.7/8/98), 713 So.2d 466, 467. However, if the child is a minor at the time of his/her alleged parent's death, the child must bring the action within one year of the alleged parent's death, regardless of the child's age. Id. Thereafter, the child may not establish filiation after the occurrence of either of these events—one year from majority or one year from the death of the alleged parent. Id. However, Article 209(C) provides an exception as to when a filiation action may be brought for the sole purpose of establishing the right to recover damages under Article 2315. Id. at pp. 3-4, 713 So.2d at 467-8. Thus, the purpose of this exception appears to be to allow the child who is over the age of nineteen at the time of the alleged parent's death to bring a filiation action, but only for the purposes of establishing the right to recover survival or wrongful death damages and not for any other purpose such as recovering succession rights. Id. Importantly for the case at hand, Article 209(C) also provides that a petition for damages under La. Civ.Code art. 2315 and a petition for filiation may be filed in the same proceeding at the same time.

In this case, Donald Reese claimed in his original petition for damages to be a surviving child of the deceased, James Williams, Jr. Reese argues that the original petition, by alleging paternity, sufficiently includes a cumulated filiation action and that his first supplemental and amending petition, which he contends simply clarified the factual issues of...