Donnie Thomas, Individually and On Behalf of Ronnishia Thomas and Donnishia Williams VS Ardenwood Properties and Scottsdale Insurance Company
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2010 CA 0026 DONNIE THOMAS SR INDIVIDUALLY AND ON BEHALF OF RONNISHIA THOMAS AND DONNISHIA WILLIAMS VERSUS ARDENWOOD PROPERTIES AND SCOTTSDALE INSURANCE COMPANY Judgment Rendered June 11 2010 Appealed from Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Docket Number 535 970 Honorable Todd Hernandez Judge David C Forrester Counsel for Randy B Ligh Baton Rouge LA PlaintiffAppellant John P Wolff III Mary Anne Wolf Tiffany N Thornton Baton Rouge LA Counsel for Donnie Thomas Sr DefendantsAppellee s Ardenwood Properties and Scottsdale Insurance Company BEFORE CARTER C GUIDRY AND PETTIGREW JJ J GUIDRY J A biological father appeals a judgment dismissing his suit for the wrongful death of his son on the basis of no right of action and his paternity action on the basis of lack of subject matter jurisdiction and peremption For the following reasons we affirm in part vacate in part and render FACTS AND PROCEDURAL HISTORY In August 2005 while Donnie Thomas Sr Arnie Williams and Amie s children Donnishia Williams Ronnishia Thomas and Donnie Thomas Jr slept a fire occurred at the Ardenwood Park Apartments that claimed the lives of Amie and her four yearold son Donnie Jr As a result of this tragedy Donnie Sr tiled a petition for damages and wrongful death on August 26 2005 asserting claims individually and on behalf of Donnishia and Ronnishia against Ardenwood Properties and Scottsdale Insurance Company collectively defendants Defendants answered the petition and in their answer they asserted exceptions objecting to Donnie Sr procedural capacity to file suit on behalf of s Donnishia and Ronnishia and his right of action to file suit generally Donnie Sr s claims on behalf Donnishia and Ronnishia were later dismissed pursuant to a partial motion to dismiss that was granted by the trial court in an order signed December 20 2007 Thereafter Donnie Sr filed a first supplemental and amending petition wherein he sought a judgment of paternity and property damage as well as wrongful death damages for Donnie Jr and bystander damages for witnessing the death of Arnie and injury to Donnishia and Ronnishia After filing the amended petition Donnie Sr then filed a partial motion for summary judgment A separate petition for damages was filed on behalf of Donnishia and Ronnishia by their maternal grandmother Shirley Sanders Williams who secured appointment as tutrix of her minor granddaughters Ms Williams suit was consolidated with Donnie Sr but later was s dismissed following settlement of the minor girls claims 2 In the amended petition Donnie Sr again urged claims on behalf of Donnishia and Ronnishia that were later dismissed pursuant to an objection of res judicata sustained by the trial court 2 seeking an immediate judgment of paternity declaring him the natural father of Donnie Jr In response to the amended petition and in opposition to the partial motion for summary judgment defendants filed an answer and exceptions urging the objections of no right of action peremption and lack of subject matter jurisdiction The trial court held a joint hearing on the partial motion for summary judgment filed by Donnie Sr and the exceptions filed by the defendants following which the trial court rendered judgment to deny the partial motion for summary judgment sustain the exceptions and dismiss Donnie Sr paternity claim and wrongful death s action Donnie Sr devolutively appeals ASSIGNMENTS OF ERROR 1 The District Court erred when holding that it lacked authority to transfer the paternity claim after concluding that it lacked subject matter jurisdiction and abused it discretion by failing to transfer the paternity claim to East Baton Rouge Parish Family Court in the interest of justice 2 The District Court erred when ruling on the Exception of Peremption after concluding that it lacked subject matter jurisdiction over the paternity claim and further erred by granting the Exception of Peremption 3 The District Court erred when granting the Exception of No Right of Action based on the plaintiffs failure to demonstrate paternity andor file a paternity action DISCUSSION In his first two assignments of error Donnie Sr complains about the actions taken by the trial court in sustaining the objections lack of subject matter jurisdiction and peremption Jurisdiction over the subject matter is the legal power and authority of a court to hear and determine a particular class of actions or proceedings based upon the object of the demand the amount in dispute or the value of the right asserted La C art 2 P The trial court lack of jurisdiction to decide Donnie Sr s s paternity claim is not contested Louisiana Revised Statutes 13 1 A 1401 provides that the East Baton Rouge Family Court Family Court has exclusive 3 jurisdiction over all actions for establishment or disavowal of paternity As such the trial court which in this case is the Nineteenth Judicial District Court was divested of jurisdiction to decide such matters See Welborn v 19th Judicial District Court 07 1087 p 13 La 1974 So 2d 1 9 08 16 Louisiana Code of Civil Procedure article 932 states that if an action has B been brought in a court of improper jurisdiction the court may transfer the action to a proper court in the interest of justice The trial court despite properly determining that it lacked subject matter jurisdiction to decide the paternity issue nevertheless went on to rule that Donnie Sr paternity claim was perempted and s thus it would not be in the interest of justice to transfer the paternity action to the Family Court While there may be merit in the trial court determination the fact s remains that the trial court lacked jurisdiction to rule on the peremption issue The Family Court alone had exclusive jurisdiction to determine the objection of peremption as it related to Donnie Sr paternity action s Accordingly the trial s court ruling on the exception urging the objection of peremption is void See La P C art 3 A judgment rendered by a court which has no jurisdiction over the subject matter of the action or proceeding is void State v Wade 03 1364 p 5 La App 1 st Cir 12 868 So 2d 110 113 03 3 Nevertheless as this court can raise the objection on peremption on its own motion La C art 927 and considering the plenary jurisdiction of this P B court see La Const art 5 10 and La C art 2164 sound judicial discretion P dictates that we recognize Donnie Sr paternity action as perempted as a matter of s law Filiation is the legal relationship between a child and his parent La C art 178 Filiation is established by proof of maternity paternity or adoption La C art 179 In the case of proof of paternity especially in the event that the child sought to be filiated is deceased La C art 198 provides in pertinent part that i all cases the action to establish paternity shall be instituted no later than n 4 one year from the day of death ofthe child Moreover the article expressly states that the time periods contained therein are peremptive In the matter before us Donnie Jr died on August 1 2005 Donnie Sr filed an original petition asserting his wrongful death claim on August 26 2005 and in the petition he plainly alleged that he was the natural father and natural surviving father of Donnie Jr Yet notably missing from the petition was a request to be legally recognized as Donnie Jr natural father Finally in May s 2008 Donnie Sr filed an amended petition requesting a judgment of paternity with the trial court which lacked subject matter jurisdiction to grant the request The most recent pronouncement of the Louisiana Supreme Court regarding whether a tardily filed claim can relate back to the filing date of other timely filed claims when a peremptive period is involved is found in Nap v Brener 08 2527 hi La 6 17 So 3d 919 Observing that statutes of peremption destroy the 09 26 cause of action itself so that after the limit of time expires the cause of action no longer exists and is lost the Court further pointed out that La C art 3461 likewise provides that p may not be renounced interrupted or eremption suspended Naghi 08 2527 at 6 17 So 3d at 923 The Court then went on to cite with approval the holding from Broadscape v Matthews 070545 p 9 La com App 4th Cir 3 980 So 2d 140 145 in which the fourth circuit found that 08 5 ince s the peremptive period could not be interrupted or suspended the subsequent efforts to cure the defect in legal capacity did not relate back so as to suspend the running of the time delay The plaintiff company in Broadscape com lacked procedural capacity at the time it filed suit to assert its cause of action and only acquired procedural capacity after the peremptive period had expired for asserting the cause of action Finally the Louisiana Supreme Court itself held here T can be no escaping the fact that relation back interferes with the operation of the prescriptive or peremptive time period in that it avoids its operation As one commentator has stated that is the 5 primary importance of La C art 1153 Maraist supra at p P 224 Because it is well established that nothing may interfere with the running of a peremptive period and avoiding the peremptive period certainly interferes with the running of that period relation back of an amended or supplemental pleading avoid the running ofa peremptive period is not allowed to Further the relation back theory assumes that there is a legally viable claim to which the pleading can relate back Naghi 08 2527 at 10 17 So 3d at 925 case citations omitted Because Donnie Sr action for paternity no longer existed after expiration s of the oneyear peremptive period provided in Article 198 nothing existed to which the amended or supplemental petition could relate back See Naghi 082527 at 11 17 So 3d at 92526 Accordingly on our on motion we find Donnie Sr paternity action perempted s Having found Donnie Sr paternity action perempted we must now s consider the defendants objection of no right of action This court outlined the following principles to be considered in determining whether a party has a right of action The peremptory exception pleading the objection of no right of action tests whether the plaintiff has any interest in judicially enforcing the right asserted See La C art 927 When considering the P 5 A exception we ask whether the plaintiff belongs to a particular class for which the law grants a remedy for a particular grievance The exception does not raise the question of the plaintiffs ability to prevail on the merits nor the question of whether the defendant may have a valid defense Evidence supporting or controverting an objection of no right of action is admissible The party raising a peremptory exception bears the burden of proof To prevail on a peremptory exception pleading the objection of no right of action the defendant must show that the plaintiff does not have an interest in the subject matter of the suit or legal capacity to proceed with the suit Falcon v Town of Berwick 03 1861 p 3 La App 1st Cir 6 885 So 2d 04 25 1222 1224 case citations omitted 3 Moreover we find Donnie Sr reliance on Reese v State Department of Public Safety and s Corrections 03 1615 La 2 866 So 2d 244 to be inappropriate The Reese case 04 20 involved a time limitation for asserting a filiation action for purposes of pursuing a wrongful death claim under former La C art 209 which time limitation was a prescriptive period Thus the holding of that case would not apply in this matter which involves a peremptive period 0 In the instant matter the law clearly recognizes the right of a biological father to institute a wrongful death action on behalf of his child born out of wedlock provided he has complied with the procedural formalities that would allow him to bring such an action See Wiggins v State through Department of Transportation and Development 97 0432 p 4 La App 1st Cir 5 712 98 15 So 2d 1006 1009 writ not considered 98 1652 La 9 726 So 2d 6 98 25 wherein the court found that while the mother lacked procedural capacity to bring a tort claim on behalf of her minor child because she had not first been qualified as the child representative the law nevertheless did recognize the mother right to s s institute such an action provided she complied with the procedural formalities which allow her to qualify as the child representative s While the trial court lacked subject matter jurisdiction to rule on the defendants objection of peremption as we have properly ruled on and sustained the objection as the matter now stands Donnie Sr has no right to pursue his wrongful death claim relative to Donnie Jr Consequently we reject Donnie Sr third assignment of error s 1IHOXI1 CK1J0 Based on the foregoing reasons we vacate the trial court judgment in so far s as it sustained the peremptory exception based on peremption relative to Donnie s Sr paternity action however on our own motion we render judgment decreeing the paternity action perempted In all other respects the judgment of the trial court is affirmed All costs of this appeal are assessed to the appellant Donnie Thomas Sr AFFIRMED IN PART VACATED IN PART AND RENDERED 7
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