Stewart v. Gordon

• Citation: 316 So.3d 1052
• Decision Date: 03 October 2018
• Docket Number: 17-812
• Parties: Succession of Richard STEWART, Jr., et al. v. Mark Isaiah GORDON, et al.
• Court: Court of Appeal of Louisiana (US)

316 So.3d 1052

Succession of Richard STEWART, Jr., et al.

v.Mark Isaiah GORDON, et al.

17-812

Court of Appeal of Louisiana, Third Circuit.

October 3, 2018

Andre C. Gaudin, M. Joey Bernard, Burglass & Tankersley, LLC, 5213 Airline Drive, Metairie, LA 70001, (504) 836-0422, COUNSEL FOR DEFENDANT/APPLICANT: Kenneth Boone d/b/a Boone Trucking

Timothy W. Hassinger, T.A., Patrick J. Schepens, Galloway, Johnson, Tompkins, Burr & Smith, 3 Sanctuary Boulevard, Third Floor, Mandeville, LA 70471, (985) 674-6680, COUNSEL FOR DEFENDANT/APPLICANT: Mark Isaiah Gordon

Charles S. Norris, Jr., Christopher J. Norris, Norris Law Firm, LLC, P. O. Box 400, 8 North Oak Street, Vidalia, LA 71373, (318) 336-1999, COUNSEL FOR PLAINTIFF/RESPONDENT: Khristy Goins Rismiller, Tutrix for Daniel Goins

Colt J. Fore, D. Blayne Honeycutt, Fayard and Honeycutt, 519 Florida Avenue, SW, Denham Springs, LA 70726, (225) 664-0304, COUNSEL FOR PLAINTIFF/RESPONDENT: David Watts

Virgil Russell Purvis, III, Smith, Taliaferro & Purvis, 407 Mound Street, Jonesville, LA 71343, (318) 339-8526, COUNSEL FOR PLAINTIFFS/RESPONDENTS: Succession of Richard Stewart, Jr., Richard Stewart, Sr., Vera Anita Stewart, Raymond Kelly, Donna Kelly

J. Rock Palermo, III, Veron, Bice, Palermo, P.O. Box 2125, Lake Charles, LA 70602-2125, (337) 310-1600, COUNSEL FOR PLAINTIFFS/RESPONDENTS: Succession of Richard Stewart, Jr., Richard Stewart, Sr., Vera Anita Stewart, Raymond Kelly, Donna Kelly

Jeremy Z. Soso, Lambert & Nelson, 701 Magazine Street, New Orleans, LA 70130, (504) 581-1750, COUNSEL FOR PLAINTIFF/RESPONDENT: Sheila Smith

Joe Meng, Attorney at Law, 205 South Broadway, Suite A, Natchez, MS 39120, (601) 445-8111, COUNSEL FOR PLAINTIFF/RESPONDENT: Sheila Smith

Micah A. Gautreaux, Degan, Blanchard & Nash, 6421 Perkins Road, Building C, Suite B, Baton Rouge, LA 70808, (225) 610-1110, COUNSEL FOR DEFENDANT/RESPONDENT: Gemini Insurance Company

Court composed of Sylvia R. Cooks, Billy H. Ezell, Shannon J. Gremillion, Phyllis M. Keaty, John E. Conery, D. Kent Savoie, and Van H. Kyzar, Judges.

GREMILLION, Judge.

This consolidated matter involves a dispute over who has a right of action to assert survival and wrongful death claims arising out of an auto accident and subsequent death of Richard Stewart Jr. (Stewart) and his minor children.¹ For the following reasons, we find the trial court erred in denying Defendants' exceptions of no right of action pertaining to the survival and wrongful death actions asserted by the Succession of Richard Stewart Jr., Raymond Kelly, and Donna Kelly. We further remand for proceedings consistent with this opinion to allow joinder of an indispensable party.

FACTUAL AND PROCEDURAL BACKGROUND

On October 1, 2015, on U.S. Highway 84 in Concordia Parish, an eighteen-wheeler truck driven by Mark Gordon and owned by Kenneth Boone d/b/a Boone Trucking was involved in a head-on collision with a vehicle being driven by Stewart. Stewart and his two minor children, George Stewart and Vera Cheyenne Stewart, were killed in the accident.

George and Vera Cheyenne were Stewart's biological children from a relationship with Brandi Hardie; however, Stewart and Hardie were never married. At the time of the accident, Raymond and Donna Kelly had custody of Vera Cheyenne, and Jimmy and Tammy Johnese had custody of George.

Stewart had two other biological children who were adults at the time of the accident: Daniel Goins and David Watts. Goins and Watts were born during Stewart's marriage to Lisa Watts Stewart, and they were given up for adoption. Goins was adopted by George and Joyce Goins, who are Stewart's uncle and aunt. Watts was adopted by his maternal grandparents, Mary and Jimmy Watts. At the time of the accident, Stewart and Lisa were physically separated, but they had never legally divorced. It has been alleged that Lisa currently resides in a care facility in another state.

Following the accident, three separate survival and wrongful death actions arising out of Stewart's and the minor children's deaths were filed in the trial court. Two of these actions involve claims filed by or on behalf Stewart's adult biological children, Goins and Watts, who had been adopted by other family members during their minority.² The plaintiffs in the third action are: Stewart's Succession; Stewart's parents, Richard Stewart, Sr. and Vera Stewart; and Raymond and Donna Kelly (collectively, "the Stewart Plaintiffs").³ All three actions were consolidated in the trial court.

In each of the three actions, Defendants Mark Gordon and Kenneth Boone d/b/a Boone Trucking filed exceptions of no right action, which the trial court denied. In connection with Watts' and Goins' survival and wrongful death actions arising from Stewart's death, the trial court found that:

the cases of Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436, (1968), and Turner v. Busby, 03-3444 (La. 9/9/04), 883 So.2d 412 are persuasive in holding that "it is the biological relationship and dependency which is determinative of the child's rights in these cases, and not the classification into which the child is placed by the statutory law of the State." Thus, the fact that Watts [and Goins] w[ere] adopted does not prevent [them] from bringing survival and wrongful death claims for the death of [Mr.] Stewart, [their] biological father.

Further, in connection with Watts' and Goins' survival and wrongful death actions arising from the deaths of their biological half-siblings, George and Vera Cheyenne, the trial court found that the children's mother, Brandi Hardie, had abandoned the children during their minority, and, therefore, in accordance with La.Civ.Code arts. 2315.1 and 2315.2, she was deemed to have predeceased the children. The trial court concluded that Goins and Watts, as biological half-siblings, were allowed to assert survival and wrongful death claims arising out of the children's deaths. No specific reasons for the trial court's denial of Defendants' exceptions of no right of action can be found in the record.

Following the trial court's ruling, Defendants filed three separate writ applications with this court seeking review of the trial court's denial of their exceptions. We granted the writ applications and heard oral argument. This particular writ application involves the trial court's denial of Defendants' exception of no right of action pertaining to the claims of the Stewart Plaintiffs.

ANALYSIS

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.

A survival action "is transmitted to beneficiaries upon the victim's death and permits recovery only for the damages suffered by the victim from the time of injury to the moment of death." Taylor v. Giddens, 618 So.2d 834, 840 (La.1993). Survival actions are governed by La.Civ.Code art. 2315.1, which states:

A. If a person who has been injured by an offense or quasi offense dies, the right to recover all damages for injury to that person, his property or otherwise, caused by the offense or quasi offense, shall survive for a period of one year from the death of the deceased in favor of:

(1) The surviving spouse and child or children of the deceased, or either the spouse or the child or children.

(2) The surviving father and mother of the deceased, or either of them if he left no spouse or child surviving.

(3) The surviving brothers and sisters of the deceased, or any of them, if he left no spouse, child, or parent surviving.

(4) The surviving grandfathers and grandmothers of the deceased, or any of them, if he left no spouse, child, parent, or sibling surviving.

B. In addition, the right to recover all damages for injury to the deceased, his property or otherwise, caused by the offense or quasi offense, may be urged by the deceased's succession representative in the absence of any class of beneficiary set out in Paragraph A.

C. The right of action granted under this Article is heritable, but the inheritance of it neither interrupts nor prolongs the prescriptive period defined in this Article.

D. As used in this Article, the words "child", "brother", "sister", "father", "mother", "grandfather", and "grandmother" include a child, brother, sister, father, mother, grandfather, and grandmother by adoption, respectively.

E. For purposes of this Article, a father or mother who has abandoned the deceased during his minority is deemed not to have survived him.

A wrongful death action is a separate action that "does not arise until the victim dies and it compensates the beneficiaries for their own injuries which they suffer from the moment of the victim's death and thereafter." Taylor , 618 So.2d at 840. Louisiana Civil Code Article 2315.2 provides as follows with respect to a wrongful death action:

A. If a person dies due to the fault of another, suit may be brought by the following persons to recover damages which they sustained as a result of the death:

(1) The surviving spouse and child or children of the deceased, or either the spouse or the child or children.

(2) The surviving father and mother of the deceased, or either of them if he left no spouse or child

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