FOR IMMEDIATE NEWS RELEASE
NEWS RELEASE # 20
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 20th day of February, 2004, are as follows:
BY KIMBALL, J.:
2003-C -1615
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 (Parish of E. Baton
Rouge)
For the foregoing reasons, the judgment of the court of appeal
affirming the trial court's sustaining of the defendants' exception
of no cause of action is reversed and the case is remanded to the
trial court for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
VICTORY, J., concurs.
02/20/04
SUPREME COURT OF LOUISIANA
03-C-1615
DONALD REESE AND VERNA NABONNE ON BEHALF OF HER
MINOR CHILD, JAMES J. NABONNE
versus
STATE OF LOUISIANA, DEPARTMENT OF PUBLIC SAFETY AND
CORRECTIONS AND LOUISIANA STATE PENITENTIARY
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL
FIRST CIRCUIT, PARISH OF EAST BATON ROUGE
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
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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
1
At the hearing, Verna Nabonne, on behalf of her minor child, James J. Nabonne,
produced proof of decedent’s acknowledgment of James J. Nabonne in the form of a baptismal
certificate.
2
Although in this case, the supplemental and amending petition was filed prior to the
hearing on the exception of no right of action, La. C. Civ. Pro. art. 934 provides that “[w]hen the
grounds of the objection pleaded by the peremptory exception may be removed by amendment of
the petition, the judgment sustaining the exception shall order such amendment within the delay
allowed by the court.” (emphasis added).
2
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,
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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
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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
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that his first supplemental and amending petition, which he contends simply clarified
the factual issues of filiation, relates back under La. C. C.P. art. 1153 because the
additional facts contained therein arise out of the same conduct, transaction or
occurrence attempted to be set forth in the original petition. In opposition, the
defendants allege that there are no allegations in Reese’s original petition that
distinguish it from a petition a legitimate child might file and, consequently, the first
supplemental and amending petition cannot relate back to the original petition.
La. C. C.P. art. 1153 provides for the relation back of amendments as follows:
When the action or defense asserted in the amended petition or answer
arises out of the conduct, transaction, or occurrence set forth or
attempted to be set forth in the original pleading, the amendment relates
back to the date of filing the original pleading. (emphasis added).
Pursuant to this article, so long as a comparison of the amended petition to the
original petition shows that the original petition gave fair notice of the factual
situation out of which the amended petition arises, the amended petition will relate
back to the date of the filing of the original petition and prescription with regard to
the amendment is interrupted as of the filing date of the original petition. Grior v.
South Louisiana Med. Ctr., 475 So. 2d 1040 (La. 1985). Where there is some factual
connexity between the original and amended assertions, together with some identity
of interest between the original and supplemental party, amendment should be allowed
and excepted from the interests intended to be protected by the prescriptive statutes.
Baker v. Payne & Keller of Louisiana, Inc., 390 So. 2d 1272, 1275 (La. 1980); Tate,
J., Amendment of Pleadings in Louisiana, 43 Tul.L.Rev. 211, 234 (1969). The
essence of interruption of prescription is notice. Gunter v. Plauche, 439 So. 2d 437,
440 (La. 1983). Thus, the question before this court is whether the allegations of the
plaintiff’s petition sufficiently put the defendants on notice that a filiation action was
at issue in this case.
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The court’s inquiry begins by examining the allegations made in the original
petition to determine whether a cause of action for filiation was set forth or was
attempted to be set forth therein. La. C. C.P. art. 1153. Thus, the focus is on what the
plaintiff has included in his original petition, not what was omitted. Further, during
this inquiry, the court should keep in mind the general rule that pleadings should be
construed in such a manner as to achieve substantial justice. La. C. C.P. art. 865; Katz
v. Katz, 412 So. 2d 1291, 1293 (La. 1982). Harsh, technical rules of pleadings are not
favored in Louisiana in order to arrive at the truth and avoid miscarriages of justice.
La. C. C.P. art. 854; Budget Plan of Baton Rouge, Inc. v. Talbert, 276 So. 2d 297, 302
(La. 1973).
The original petition identifies the decedent and alleged tort victim, James
Williams, Jr., and identifies the plaintiffs as Donald Reese, a major resident and
domiciliary of Orleans Parish and a minor child named James J. Nabonne, also a
resident and domiciliary of Orleans Parish. In paragraph two of the original petition
it states “Petitioners, Donald Reese and James J. Nabonne, are the surviving children
of James Williams, Jr., who died on April 30, 2000.” Paragraph thirteen of the
plaintiffs’ petition provides “Petitioners, as the sole surviving children of James
Williams, Jr., specifically assert and plead the survival action provided for in La. Civ.
Code art. 2315.1.” Also, in paragraph fourteen, they allege the wrongful death of their
father, James Williams, Jr.
Defendants and the lower courts rely on this court’s decision in Thomas, supra,
to assert that these allegations were insufficient to put the defendants on notice that
filiation was an issue in this case, and, consequently, the action for filiation by Reese
is untimely. In Thomas, a single illegitimate child of the decedent filed a timely
wrongful death and survival action and filiation action. 97-1443, at p. 1, 713 So. 2d
at 466. Later, more than a year after the decedent's death, four other illegitimate
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children of the decedent filed a supplemental and amending petition for wrongful
death and survivorship and filiation. Id. The Thomas court held that a timely-filed
original petition by one illegitimate child would not give fair notice of the factual
circumstances as to four other illegitimate children reasoning that a person reading the
original, timely-filed petition by one illegitimate child would be subject to surprise by
the filing of a later, untimely petition by four other illegitimate children. Id. at p. 5-6,
at 468-69. However, the Thomas court specifically noted that had the four illegitimate
children filed their action for filiation timely but not their wrongful death action, they
could have invoked the “relation back” doctrine of La. C. C.P. art. 1153 to take
advantage of a timely wrongful death action filed by any other illegitimate (or
legitimate) children of the decedent. Id. at p. 5, at 468. Thus, the Thomas decision
turned on the fact that the four illegitimate children who filed untimely were not
named at all in any timely-filed petition.
Defendants and the First Circuit Court of Appeal also seek to distinguish Lewis
v. Transocean Terminal Operators, Inc., 02-0152 (La. App. 4 Cir. 12/11/02), 834 So.
2d 11803 from the case at hand. In Lewis, seven illegitimate minor children filed a
wrongful death and survival action and, a few months later, the same seven children
filed a petition to initiate the succession of their deceased father. In this succession
petition, the children did not expressly state that they were the illegitimate children of
the deceased, but they did assert that the deceased was not married and all of their
names were listed with last names other than the deceased. A year later, the seven
children amended their petition in the succession proceeding to explicitly seek
filiation to the deceased. Thereafter, in the wrongful death and survival action, the
trial court granted Transocean’s exception of no right of action, implicitly finding that
3
The Lewis decision was handed down seven months after the trial court granted the
defendants’ exception of no right of action regarding the claims of Donald Reese. Thus, the trial
court did not consider the Lewis case in reaching its decision in the case at hand.
8
the filiation action was not timely raised. The Fourth Circuit Court of Appeal reversed
finding that the amended petition explicitly seeking filiation related back to the timely
filed original petition in the succession proceeding, specifically finding that while the
original petition did not expressly state that the seven minor children were the
illegitimate children of the decedent, it did list the seven minor children by name, with
last names different from that of decedent, and stated that they were the minor
children of decedent, who was not married. Thus, the Lewis court concluded that
“[a]nyone who read the original petition and accompanying affidavits initiating the
succession proceeding would have fair notice of the factual situation out of which the
supplemental and amended petition, explicitly seeking filiation, arises.” Lewis, 020152, at p. 4, 834 So. 2d at 1183. In distinguishing Lewis from the matter at hand, the
First Circuit Court of Appeal particularly noted that the Lewis children “at least
alleged that their father was not married.”
In the present case, Donald Reese was named in the timely-filed original
petition. In that original petition, Donald Reese identified James Williams, Jr. as his
father and himself and James J. Nabonne, both with different last names from the
decedent, as his sole surviving children. The only distinction between these
allegations in Donald Reese’s original petition and those of the plaintiffs in Lewis is
that nowhere in Reese’s original petition does it state the marital status of the
decedent.
While the First Circuit Court of Appeal’s decision turned on that
distinction, we find the marital status of the decedent at his time of death is not
necessarily determinative of a child’s status as a legitimate or illegitimate heir.
Accordingly, we hold that the bare allegations in Donald Reese’s original petition,
while not artfully drafted, show an attempt to set forth a filiation action and were
sufficient to put the defendants on notice that such was at issue in this case. Further,
unlike the illegitimate children who filed untimely and were not named at all in any
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timely-filed pleading in the Thomas case, Donald Reese was named as the surviving
child of the decedent in the timely-filed original petition. Thus, Donald Reese’s
amending petition added neither new parties nor causes of action. Consequently, the
amending petition created no surprise or prejudice to the defendants and merely
clarified these factual issues; therefore, the amended petition relates back to the filing
of the original petition.
CONCLUSION
Construing the pleadings to create substantial justice, 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.
DECREE
For the foregoing reasons, the judgment of the court of appeal affirming the trial
court’s sustaining of the defendants’ exception of no cause of action is reversed and
the case is remanded to the trial court for further proceedings consistent with this
opinion.
REVERSED AND REMANDED.
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