Turner v. Busby

• Citation: 883 So.2d 412
• Decision Date: 09 September 2004
• Docket Number: No. 2003-C-3444.,2003-C-3444.
• Parties: Dianne TURNER, as Natural Tutrix of the Minor Child Cietra Jenal Stroughter (Onterio McWright) v. Thomas R. BUSBY and Zurich American Insurance Company.
• Court: Supreme Court of Louisiana

883 So.2d 412

Dianne TURNER, as Natural Tutrix of the Minor Child Cietra Jenal Stroughter (Onterio McWright) v. Thomas R. BUSBY and Zurich American Insurance Company.

No. 2003-C-3444.

Supreme Court of Louisiana.

September 9, 2004.

Rehearing Denied October 29, 2004.

Bobby Ray Manning, for applicant.

Samuel Henry Thomas, James Edward Paxton, Tallulah, for respondent.

TRAYLOR, Justice.

We granted this writ application to determine whether Onterio McWright, the plaintiff, is a child of the decedent for the purposes of a wrongful death and survival action where McWright has no biological connection to the decedent, but decedent executed a formal acknowledgment of paternity. For the following reasons, we affirm the court of appeal and find that McWright is not a child who may recover damages under a wrongful death and survival claim.

FACTS AND PROCEDURAL HISTORY

On November 11, 1999, Andrew Stroughter ("Stroughter") was killed in a collision with a tractor trailer driven by Thomas Busby ("Busby"). Following the accident, multiple parties filed suit against Busby and his insurance carrier, Zurich American Insurance Company ("Zurich") for the wrongful death of Stroughter. The plaintiffs in this action include Alversia Stroughter, Stroughter's ex-wife; Onterio McWright, his formally acknowledged son; LeShun Singleton, his daughter; and Dianne Turner, Stroughter's girlfriend, as natural tutrix for their minor child, Cietra Jenal Stroughter. This appeal focuses specifically on McWright's claims.

McWright was born to Gladysteen Harris ("Harris") on June 8, 1970. Harris and Stroughter were never married. However, in child support proceedings on March 3, 1982, Stroughter signed a notarized stipulation that was made an order of the court under La.Rev.Stat. 14:75.2¹ wherein he agreed to pay child support. Stroughter subsequently stipulated that he was McWright's "lawful parent" in an order and judgment fixing child support entered in the Superior Court of the State of Washington, King County, on May 6, 1983, where he was cast in judgment for back child support. The March 1982 stipulation was amended on May 4, 1984, and Stroughter again signed another notarized stipulation and judgment admitting that he was McWright's father and agreed to pay child support.

After this wrongful death and survival action ensued, the defendants filed an Exception of No Right of Action arguing that McWright was neither legitimate at birth, nor subsequently legitimized by Stroughter; therefore, McWright is not within the class of persons who may assert a wrongful death and survival action under La. Code Civ. Proc. arts. 2315.1 and 2315.2.² In addition, the defendants submitted and were granted a motion to have a DNA test performed on McWright to determine if Stroughter was in fact his father. The Court of Appeal, Second Circuit, denied writs on the showing made. McWright then submitted to the DNA testing which revealed a 0% probability that McWright was Stroughter's son. Thereafter, the trial court granted the defendant's Exception of No Right of Action, and McWright was dismissed from the lawsuit with prejudice.

On appeal, McWright asserted that, as a matter of law, the 1982, 1983, and 1984 final judgments fixing child support settled the issue of paternity. Consequently, any attack on the validity of the assertions in those judgments should have been made within one year of the discovery of the alleged defect or nullity under La.Code of Civ. Proc. art.2004. As a result, McWright argued that the defendants are preempted by operation of law from collaterally attacking that judgment in this wrongful death action. McWright also asserted that the defendants lack standing to attack the formal acknowledgments executed pursuant to the 1982 and 1984 criminal stipulations. On rehearing, the Court of Appeal, Second Circuit, affirmed, finding that the defendants had standing to contest the validity of the formal acknowledgments and that McWright could not recover wrongful death and survival damages because he is not Stroughter's child.

On the application of McWright, we granted certiorari to review the correctness of the lower courts' judgments granting the peremptory exception of no right of action. Turner v. Busby, 03-3444 (La.3/19/04), 869 So.2d 834.

DISCUSSION

The function of an 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.Code Civ. Proc. art. 927; Reese v. State, Dept. of Public Safety & Corrections, et al, 03-1615 (La.2/20/04), 866 So.2d 244, 247. In examining an exception of no right of action, a court should focus on whether the particular plaintiff has a right to bring the suit, but assume that the petition states a valid cause of action for some person. Id. The exception of no right of action questions whether the plaintiff in the particular case is a member of the class of persons that has a legal interest in the subject matter of the litigation. Id.

To recover under a claim for wrongful death and survival, a plaintiff must fall within the class of persons designated as a beneficiary as prescribed by La. Civ.Code arts. 2315.1 and 2315.2. The primary category under both wrongful death and survival actions includes "children" of the decedent. Reese, 866 So.2d at 247.

McWright argues that a judgment of paternity existed between himself and Stroughter based on the 1982, 1983, and 1984 final judgments fixing child support. He asserts that the defendants cannot collaterally attack this final judgments twenty years later in this proceeding because they have not challenged the acknowledgment within the one-year peremptive period provided in La.Code Civ. Proc. art.2004.³ We disagree, and find that Article 2004 is inapplicable to the instant case.

La.Code Civ. Proc. art.2004 provides for a one-year peremptive period for the annulment of a civil judgment obtained by fraud or ill practices. By contrast, La. Rev.Stat. 14:75.2, located in Title 14 which deals exclusively with criminal law, is criminal in nature. State v. Broussard, 490 So.2d 273 (La.1986). Moreover, the jurisprudence has held that a proceeding for criminal neglect of family must be converted into a paternity proceeding in order to establish a civil judgment of paternity. State v. Foss, 449 So.2d 159, 161 (La.App. 4 Cir.1984). The stipulation and the judgment are separate. State v. Braxton, 238 La. 13, 113 So.2d 292, 294 (1959). Thus, the jurisprudence and the subject matter of the statute establish that these judgments are criminal in nature, and do not constitute a civil paternity judgment.

Based on the jurisprudence and the subject matter of La.Rev.Stat. 14:72.5, this case clearly involves a stipulation made pursuant to a criminal statute. By its very nature, the prescriptive periods set forth in the Louisiana Code of Civil Procedure are inapplicable to the annulment of a stipulation made pursuant to a criminal statute. For these reasons, we find that La.Code Civ. Proc. art.2004 is inapplicable to the instant case.

Having established that the prescriptive periods set out in the Louisiana Code of Civil Procedure are inapplicable to a criminal judgment, we must next determine whether these judgments constitute final judgments as to these parties pursuant to other law. La.Rev.Stat. 13:4231 provides:

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on an appeal or other direct review, to the following extent:

* * *

(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

This statute adopts the principle of issue preclusion, which is designed to promote judicial economy by preventing relitigation of the same issue between the same parties. La.Rev.Stat. 13:4231, Comment (B).

In the instant case, the defendants were not parties to the criminal child support proceeding, nor did the defendants have an opportunity to intervene in such an action at the time it arose. The defendants' interest in the plaintiff's claim arose when McWright filed suit for wrongful death and survival damages based on his claim that he is Stroughter's illegitimate child and named the defendants as parties therein. Therefore, the stipulation of paternity in the 1982, 1983, and 1984 judgments could not have conclusive effect between McWright and these particular defendants because the same parties are not attempting to relitigate the paternity issue.

McWright next argues that the defendants do not have standing to contest the formal acknowledgment executed by Stroughter pursuant to the child support proceedings. We disagree and find that the defendants have standing to contest McWright's claims as an illegitimate child pursuant to La. Civ.Code art. 207.

La. Civ.Code art. 207 states, "Every claim, set up by illegitimate children, may be contested by those who have any interest therein." In Succession of Robinson, 94-2229 (La.5/22/95), 654 So.2d 682, 685, this court clearly and unequivocally held that the right to challenge an acknowledgment is granted by La. Civ.Code art. 207. In Robinson, Hardie Robinson, Jr. formally acknowledged three children born to his wife during her previous marriage in a 1971 will executed before a notary public and two witnesses. In 1988, Robinson executed a new will without mention of his wife's daughters. After Robinson died in 1992, the acknowledged women intervened in the succession seeking to be recognized by the court as Robinson's children and thus be allowed to participate in the succession. When the administrator and forced heir, Melvin Robinson, subsequently sought DNA testing, the women claimed that the formal acknowledgment could not be attacked. This court found that Melvin Robinson, had standing under ...