129 So. 3d 681
La. Ct. App.2013Background
- Himes challenges a district court ruling sustaining Speed’s exceptions of no right of action and prescription/peremption.
- Decedent Harrison died intestate on January 1, 2011; Himes claimed to be his illegitimate son and sole heir.
- An affidavit in 1950 purportedly acknowledged Himes as Harrison’s child, but it was not signed by two witnesses.
- A judgment of possession on April 26, 2011 declared Himes the decedent’s sole heir and ordered the turnover of estate assets.
- Speed allegedly removed funds and property from the estate prior to Harrison’s death, prompting Himes’ motion to compel turnover on June 21, 2011.
- Speed filed exceptions on January 5, 2012 arguing lack of filiation evidence and peremption; the district court sustained them, leading to this appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Himes could prove filiation despite lack of authentic acknowledgment | Himes relied on informal acknowledgment and evidentiary documents | Himes failed to prove filiation within one year of death | No right of action? Reversed; peremption cured by proof of filiation within year. |
| Whether filing the motion to compel turnover started the peremption period | Proceedings began June 21, 2011, initiating filiation proof | Peremption began at death and expired within one year | Reversed; proceeding timely initiated per case substance. |
| Whether evidence submitted established a pre-death informal acknowledgment sufficient to prove filiation under Art. 197 | Affidavit and VA/SSA documents show acknowledgment | Informal acknowledgment insufficient absent formal act or timely action | Reversed; evidence sufficient under Art. 197; remand for further proceedings. |
Key Cases Cited
- Smith v. Cajun Insulation, Inc., 392 So.2d 398 (La. 1980) (look beyond caption to substance of pleadings for action type)
- Gisclair v. Louisiana Tax Com’n, 44 So.3d 272 (La. 2010) (no right of action and peremption standards; evidence admissibility in filiation)
- Wagoner v. Chevron USA Inc., 55 So.3d 12 (La.App.2d Cir. 2010) (peremptory nature of no right of action; de novo review on appeal)
- Murrell v. Murrell, 956 So.2d 697 (La.App.2d Cir. 2007) (interest to sue; form vs. substance of pleadings)
- Smith v. Cajun Insulation, Inc., 392 So.2d 398 (La. 1980) (look beyond form to determine proceeding type)