Succession of Rosalie Handy Lewis and John Charles Lewis
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 21st day of October, 2022 are as follows:
BY Genovese, J.:
2022-CC-00079 SUCCESSION OF ROSALIE HANDY LEWIS AND JOHN CHARLES LEWIS (Parish of Calcasieu)
AFFIRMED. SEE OPINION.
Weimer, C.J., additionally concurs and assigns reasons.
Crichton, J., dissents and assigns reasons.
McCallum, J., dissents for the reasons assigned by Crichton, J.
No. 2022-CC-00079
SUCCESSION OF ROSALIE HANDY LEWIS AND JOHN CHARLES LEWIS
On Supervisory Writ to the 14th Judicial District Court, Parish of Calcasieu
GENOVESE, JUSTICE
This is a suit for filiation/paternity filed in a succession proceeding pursuant to
FACTS AND PROCEDURAL HISTORY
There is no dispute as to the material facts in this case. Mr. Lewis was married to Rosalie Handy Lewis, and five children were born of the marriage. The administrator was one of the five children. Mr. Lewis also had a relationship with another woman, Hazel Marie Prejean Floyd (“Ms. Floyd“). Two children were allegedly born of this relationship, Cedric Wayne Lewis and Ms. Jefferson. Ms. Jefferson was born on August 15, 1966. Mr. Lewis was identified as Ms. Jefferson‘s father on her birth certificate. Mr. Lewis did not sign the birth certificate as there was no signature line, and he did not formally acknowledge Ms. Jefferson.2 That notwithstanding, he was involved in Ms. Jefferson‘s life.
On August 28, 2020, Mr. and Mrs. Lewis, along with their adult daughter, died from carbon monoxide poisoning in the aftermath of Hurricane Laura. They died intestate. Thereafter, succession proceedings were filed, identifying the five children born of the Lewis’ marriage as their heirs. Ms. Jefferson and her brother were not listed as heirs.
The administrator filed a Petition and Order to be Appointed Independent Administrator of the estate of Mr. Lewis, and Letters of Administration were issued. The administrator filed a First and Final Tableau of Distribution, an Affidavit of Publication, a Petition to Homologate the Tableau of Distribution, and a Petition for Possession. The trial court signed a Judgment of Possession on March 8, 2021.
A hearing on the exception was held. The administrator introduced into evidence the following: Succession of Evans (by reference);3 Succession of John Charles Lewis (by reference); Affidavit of Publication by Administrator; Birth Certificate of Ms. Jefferson; and, Letter of Independent Administrator. Ms. Jefferson introduced into evidence the following: Act of Acknowledgment executed by Mr. Lewis, acknowledging Cedric Wayne Lewis as his son; Affidavit of Ms. Jefferson;4 and Affidavit of Ms. Floyd.5 All exhibits were admitted into evidence without objection. There was no testimony.6 After hearing arguments, the trial court denied the administrator‘s exception of peremption/prescription, stating in pertinent part: “I‘m fond of justice, fairness, [and] equity. Under the facts of this case . . . arbitrary rules that people realize are arbitrary and unfair that then get changed to be not arbitrary and fair should be recognized and applied in any way that allows people justice.” The trial court opined that applying the time period in
DISCUSSION
In his sole assigned error, the administrator asserts the trial court and the court of appeal committed legal error in allowing Ms. Jefferson to pursue establishing Mr. Lewis’ paternity. He argues that these erroneous rulings result in
This Court has clearly stated in Cameron Parish School Board v. Acands, Inc., 687 So.2d 84 (La. 1/31/97) . . . and Chance v. American Honda Motor Co., Inc., 635 So.2d 177, that the legislative revival of previously prescribed claims denies the Defendant of the right to plead prescription. This Court describes that change as substantive as it applies to the Defendant [,] who may be deprived of the right to plead prescription. Thus, this Court has said in such circumstance, to allow retroactive application of a new law (which revives claims subject to the defense of prescription),
“we require at the very least, a clear and unequivocal expression by the Legislature for such an extreme exercise of legislative power.”
See Chance, supra, Pg. 178 and Cameron Parish School Board, supra, Pg. 89.
He asserts that the lower courts failed to make a “factual finding that the Louisiana Legislature clearly intended to revive prescribed claims in enacting La. Civ. Code
Ms. Jefferson counters that
Standard of review of peremptory exception of peremption/prescription
Both peremptive and prescriptive periods are established by the legislature. “There is no prescription other than that established by legislation.”
Filiation/intestate succession
Filiation is the legal relationship between a child and his or her parent.
In intestate successions [absence of valid testamentary disposition (
La. C.C. art. 880 )], the first class of intestate heirs is the descendant class. In re Succession of Loustalot, 2015-0631 (La. App. 1 Cir. 11/6/15), 183 So.3d 556, 558; see alsoLa. C.C. arts. 880 and888 . Included among descendants are children born of the marriage, children that have been adopted, and children born out of wedlock whose filiation has been established, as well as descendants of them in the direct line. SeeLa. C.C. art. 178 ,179 , and3506(8) ; see also Loustalot, 183 So.2d at 558. Under the Louisiana Civil Code, there are three ways of establishing paternal filiation, or a legal relationship between a father and child: (1) the presumption of paternity due to a marriage to themother ( La. C.C. arts. 185 ,186 and195 ); (2) in the absence of a marriage, the presumption of paternity based on a formal acknowledgement by the father (La. C.C. art. 196 ); or (3) in the absence of a marriage between the parents or a formal acknowledgment, by the institution of a legal proceeding to prove filiation (La. C.C. art. 197 ).
Former La. C.C. art. 209 and the enactment of La. C.C. 197
Former
B. 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.
C. 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.
A majority of Louisiana courts have determined the time period set forth in former
In 2005, the Louisiana Legislature eliminated
A child may institute an action to prove paternity even though he is presumed to be the child of another man. If the action is instituted after the death of the alleged father, a child shall prove paternity by clear and convincing evidence.
For purposes of succession only, this action is subject to a peremptive period of one year. This peremptive period commences to run from the day of the death of the alleged father.
Section 3 of Act No. 192 provides: “The provisions of this Act shall be applicable to all claims existing or actions pending on its effective date and all claims arising or actions filed on and after its effective date.” Revision comment (e)(2015) of
The time period for bringing the paternity action under this Article is limited to succession matters only. This is a change in the law. Prior law required that a paternity action under former Civil Code Article 209 (rev. 1984) be instituted within nineteen years of the child‘s birth or within one year from the alleged parent‘s death, whichever first occurred. If the action was not timely instituted, the child could not thereafter establish his filiation for any purpose, except to recover damages under Civil Code Article 2315. That was a harsh result not justified by any policy consideration. For the particular purpose of succession, on the other hand, there is a time limit on instituting the action-to facilitate the orderly disposition of estates and the stability of land titles.
This change in the law by the enactment of Article 197 repealed the requirement that a filiation action be instituted within nineteen years of the child‘s birth or within one year from the parent‘s death, whichever occurred first. Effective
La. C.C. art. 6
Louisiana Civil Code Article 6 provides: “In the absence of contrary legislative expression, substantive laws apply prospectively only. Procedural and interpretive laws apply both prospectively and retroactively, unless there is legislative expression to the contrary.” In Ebinger v. Venus Const. Corp., 10-2516, p. 7 (La. 7/1/11), 65 So.3d 1279, 1285, this Court held that pursuant to
The Louisiana Revised Statutes are not applied retroactively “unless it is expressly so stated.”
La. R.S. 1:2 . However, the Louisiana Civil Code makes clear that this rule of statutory construction applies to substantive laws only. In the absence of contrary legislative expression, procedural and interpretive laws apply both prospectively and retroactively.La. C.C. art. 6 . “[S]tatutes of limitation [the common law analog to statutes of peremption or prescription] are remedial in nature and as such are generally accorded retroactive application.” Lott v. Haley, 370 So.2d 521, 523 (La. 1979).
The Ebinger Court expounded that when it is a procedural law which establishes a period after which a plaintiff may no longer assert a claim, it applies retroactively “[s]ubject to the caveat that it may not operate to disturb a vested right.” Id.
In Chance v. American Honda Motor Co., Inc., 635 So.2d 177, 178 (La. 4/11/94)(footnote omitted), this Court held that when retroactive application of a statute results in revival of an already prescribed claim, a court must determine if retroactive application deprives a defendant of a right to plead prescription to defeat the plaintiff‘s claim, holding in pertinent part:
Although prescriptive statutes are generally procedural in nature [thus, applied retroactively and prospectively in accordance with
La. C.C. art. 6 ], the revival of an already prescribed claim presents additional concerns. For while the defendant does not acquire anything during the running of the prescriptive period, once the time period has elapsed, the legislature grants the defendant the right to plead the exception of prescription in order to defeat the plaintiff‘s claim.La. Code Civ.P. arts. 927 &934 . Because the defendant acquires the right to plead the exception of prescription, a change in that right constitutes a substantive change in the law as applied to the defendant. See St. Paul Fire & Marine Ins. Co. v. Smith, 609 So.2d 809, 817 (La. 1992) (“Substantive laws either establish new rules, rights, and duties or change existing ones.“); Thomassie v. Savoie, 581 So.2d 1031, 1034 (La. App. 1st Cir.1991) (“[I]f a statute which is remedial or procedural also has the effect of making a change in the substantive law, it must be construed to operate prospectively only.“). Thus, were we to interpret the amendment at issue to allow the revival of prescribed causes of action, the substantive rights of the defendant would be materially changed because he would be stripped of this acquired defense. . . . . Guided by the principles established in [La. Civ. Code] article 6, we require, at the very least, a clear and unequivocal expression of intent by the legislature for such an “extreme exercise of legislative power.”
Justice Hall‘s concurrence in Chance was also instructive on this issue. He opined that the right to plead the defense of prescription was a vested right, stating:
That result is consistent with the civilian teachings that the effect of the running of prescription is to extinguish the underlying obligation. 2 M. Planiol, Treatise on the Civil Law § 690 (La. State Law Inst.Trans.1959) . . . Louisiana Health Service and Indem. Co. v. McNamara, 561 So.2d 712, 718 (La.1990) (stating that obligor‘s patrimony is increased when the claim prescribes and that “[obligor‘s] right to plead prescription in defense to a claim on the obligation is itself property that cannot be taken from him“).
Current jurisprudence
Currently, there is a split in and amongst the Louisiana appellate courts on this issue. The appellate courts of the First, Fourth, Fifth, and panels of the Third Circuit Courts of Appeal have held that a filiation claim extinguished under former
In In re Succession of James, 994 So.2d 120, the appellate court held that former
In In re Succession of Donald Clay Smith, 09-969, pp. 5-6 (La. App. 3 Cir. 2/3/10), 29 So.3d 723, 726, writ denied, 10-0829 (La. 6/18/10), 38 So.3d 325, a panel of the Third Circuit Court of Appeal reached the same result as the panel in In re Succession of McKay, and the First Circuit Court of Appeal in In re Succession of James, adding in pertinent part:
[A] right to inherit and a right to filiate are different rights. Yet, [the putative heir] urges us to put the proverbial cart before the horse. As the James court [994 So.2d 120] correctly observed, in the case where the deceased is not an established parent, a filiation action is necessary before the alleged heir may assert the right to inherit. Thus, [the putative heir] does not have a “lawful previously non-existent right to inherit” until he proves his filiation to the deceased.
Here, [the putative heir‘s] right to bring a filiation action was extinguished and ceased to exist nineteen years after his birth. Once that occurred, [the heirs] acquired the right to plead the exception of prescription. Passage of the 2005 amendment brought a substantive change to a party‘s right to plead the exception. Contrary to [the putative heir‘s] assertions, the Filiation of Parents and Children Act‘s command to apply the amendment‘s changes to “all claims existing or actions pending on its effective date” did not clearly and unequivocally express the legislature‘s intent to apply the 2005 amendment retroactively so as to revive his claim.
We reiterate this court‘s pronouncement in In re Succession of McKay, 921 So.2d 1219, and our sister jurisdiction‘s holding in In re Succession of James, 994 So.2d 120, that, based on the language in section 3 of the Filiation of Parents and Children Act, the amendment applies to viable causes of action and not to ones that have already been extinguished.
Id., 09-969, pp. 5-6, 29 So.3d at 726; see also, Jeanmarie v. Butler, 05-1439 (La. App. 4 Cir. 10/11/06), 942 So.2d 578; In re Succession of Faget, 05-1434 (La. App. 1 Cir. 6/9/06), 938 So.2d 1003, writ denied sub nom., 06-1719 (La. 11/9/06), 941 So.2d 40; and, In re Succession of Bailey, 11-147 (La. App. 5 Cir. 11/29/11), 82 So.3d 322.
In contrast, the Second Circuit and panels of Third Circuit Courts of Appeal have held that in a succession proceeding, the one year peremptive period of
In Succession of Younger, 206 So.3d 1088, the putative heir, upon her father‘s death, filed a petition for filiation and to open the succession. The following pertinent factors were undisputed: (1) the putative heir turned nineteen-years old prior to the enactment of
The second clause of article 197, upon which [putative heir] relies, begins with the phrase, “for purposes of succession only.” This language is an unambiguous dictate by the legislature that puts the reader on notice that this specific clause only concerns the law of succession. Moreover, comment (e) to article 197 notes that the one year peremptive period remains in article 197 only “for the particular purpose of succession.” Therefore, in considering the retroactivity of art. 197 in the context of a succession, we find
La. C.C. art. 870 to be applicable.Id., 50,876, pp. 6-7, 206 So.3d at 1093.
Louisiana Civil Code Article 870(B) pertinently provides that “[t]estate and intestate succession rights, including the right to claim as a forced heir, are governed by the law in effect on the date of the
The legislature is presumed to know of all existing laws, which included art. 870, when it enacted article 197. See State v. Johnson, 03-2993 (La. 10/19/04), 884 So.2d 568; Theriot v. Midland Risk Ins. Co., 95-2895 (La. 5/20/97), 694 So.2d 184.
. . . .
Clearly, the legislature did not repeal former article 209 and enact article 197 in its place in a vacuum, isolated and meant to be interpreted and applied independently from the rest of the Civil Code. Instead, the legislature enacted article 197 in light of the laws governing successions; this conclusion is further supported by the legislature‘s language choice of “for the particular purpose of succession only,” contained in the second clause of article 197. The effect of this language is that the second clause of article 197, which provides that a child not yet filiated has one year from death of the decedent to prove paternity, is triggered when a claim for filiation is filed in the context of a succession.
It expounded that the legislature repealed former
To the extent that article 197 revives a perempted claim, we find that the purpose of its enactment and the clear language of
La. C.C. art. 197 , which must be read in conjunction withLa. C.C. art. 870 , is an expression of the legislature as to the retroactive application of the statute in the specific context of a succession.
The Third Circuit Court of Appeal in Succession of Pelt, 17-860 (La. App. 3 Cir. 4/11/18), 244 So.3d 476, disagreed with the panels in In re Succession of McKay, 921 So.2d 1219, and in In re Succession of Donald Clay Smith, 29 So.3d 723. In Succession of Pelt, the putative heir, who was in her early 40‘s, sought to establish filiation with her deceased alleged father (who died after the effective date of
The Louisiana Legislature, under both former article 209 and current
La.Civ.Code art. 197 , set a separate time period for bringing filiation actions based upon succession proceedings. The language, “For purposes of succession only[,]” shows clear intent that a succession proceeding is governed by its own rules, even in filiation actions. As such, we find thatLa.Civ.Code art. 197 cannot be read withoutLa.Civ.Code art. 870(B) ‘s directive that “succession rights . . . are governed by the law in effect on the date of the decedent‘s death.” Therefore, all filiation actions raised pursuant to a succession proceeding brought after the legislature passed 2005 La. Acts No. 192, § 1, must be governed by the provisions ofLa.Civ.Code art. 197 perLa.Civ.Code art. 870(B) . Accordingly, we find that the second clause ofLa.Civ.Code art. 197 allows a child not yet filiated, who was born and turned nineteen while the repealed former article 209 was still in effect, to bring an action to be recognized as an heir in a succession proceeding within one year of the death of the alleged father.
In support, the appellate court emphasized the revision comment (e)(2015) of
[I]t is clear that the replacement of former article 209 with
La.Civ.Code art. 197 by the Louisiana Legislature was based on equity and policy considerations. As such, it appears disingenuous that the legislature would intend to continue to enforce a rule that leads to a “harsh result not justified by any policy consideration” after the enactment ofLa.Civ.Code art. 197 , based solely upon the illegitimate child‘s age at the time the statute was amended. This is especially pertinent consideringLa.Civ.Code art. 197 explicitly does away with the requirement that a filiation action be brought before the child reaches a certain age. When read in conjunction withLa.Civ.Code art. 870(B) , as required byLa.Civ.Code art. 197 ‘s specific “[f]or purposes of succession only” language, however, it appears clear that this was not the legislature‘s intent.
If the right to plead prescription vested in an alleged father‘s heirs when an illegitimate child turned nineteen under former article 209 of the Louisiana Civil Code, the heirs would be able to plead prescription in a filiation action even if the alleged father was still alive and chose not to do so. They cannot. “Under Louisiana law, a cause of action accrues when a party has the right to sue.” Bourgeois v. A.P. Green Indus., Inc., 00-1528, p. 10 (La. 4/3/01), 783 So.2d 1251, 1259.
A “vested right” is “that case when the right to enjoyment, present or prospective, has become the property of some particular person or persons as a present interest. The right must be absolute, complete and unconditional, independent of a contingency, and a mere expectancy of future benefit . . . . does not constitute a vested right.”
W.R.M. v. H.C.V., 06-702, pp. 6-7 (La. 3/9/07), 951 So.2d 172, 175-76 (Johnson, J., concurring), (quoting Sawicki v. K/S Stavanger Prince, 01-528, p. 10 (La. 12/7/01), 802 So.2d 598, 604).
It is clear that the decedent . . . acquired the vested right to plead the exception of prescription upon [putative heir‘s] nineteenth birthday under former article 209, which was in effect when [putative heir] turned nineteen. “For while the defendant does not acquire anything during the running of the prescriptive period, once the time period has elapsed, the legislature grants the defendant the right to plead the exception of prescription in order to defeat the plaintiff[‘]s claim.
La.Code Civ.P. arts. 927 &934 .” [In re Succession of ] James, [07-2509] 994 So.2d [120] at 123 (quoting Chance [v. American Honda Motor Co., Inc., 93-2582 (La. 4/1//94)], 635 So.2d [177] at 177-78). However, the same cannot be said of [potential heirs], who did not have any interest in [putative heir‘s] filiation action or, indeed, any interest in the succession until the decedent‘s death, and then only in their capacity as his potential heirs. “Succession occurs at the death of a person.”La.Civ.Code art. 934 . A succession cannot exist before the death of the deceased, and, therefore, a potential heir cannot have a right or vested claim before that time.[Putative heir] did not attempt to filiate while the decedent was still alive[,] and[,] as such, no one can know if the decedent would have asserted his sole right to claim prescription. [Putative heir‘s] action against her alleged father‘s succession could not have existed until after his death. Similarly, [potential heirs] could not have known they would be his heirs until his death. At any time previous to that, the decedent
could have written a last will and testament and named new heirs. At no time previous could [potential heirs] have asserted an exception of prescription in [putative heir‘s] filiation action. It is clear that [potential heirs] did not have a “vested right” as defined by Louisiana law. See W.R.M., 951 So.2d 172.
Succession of Pelt, 17-860, pp. 11-13, 244 So.3d at 485.11
Application of La. C.C. art. 197
Guided by
What a legislature says in the text of a statute is considered the best evidence of the legislative intent or will. State v. Williams, 00-1725, p. 13 (La. 11/28/01), 800 So.2d 790, 800;
La.Rev.Stat. § 24:177(B)(1) . When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the Legislature, nor shall the letter of the law be disregarded under the pretext of pursuing its spirit.La. Civ.Code art. 9 ;La.Rev.Stat. § 1:4 ;La.Code Civ. Proc. art. 5052 . The plain meaning of the legislation should be conclusive. United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 242 (1989); State v. Benoit, 01-2712, p. 3 (La. 5/14/02), 817 So.2d 11, 13.
There is no ambiguity in the language of
Ms. Jefferson timely filed her filiation claim in the succession proceeding; thus, the trial court‘s judgement denying the administrator‘s exception of peremption/prescription was correct.
The legislature expressly established a new peremptive period for filiation claims filed in succession proceedings, and this peremptive period applies retroactively. The heirs have no vested right to plead peremption under former
AFFIRMED.
I agree with the result of the majority‘s opinion and its holding that the peremptive period established by Article 197 applies retroactively for filiation claims in the context of a succession. I write separately to reiterate that well-settled principles are being applied to the matter before us.
Procedural and interpretive laws, absent contrary legislative expression, are applied both retroactively and prospectively.
As the majority opinion demonstrates, no vested rights are disturbed by retroactive application of Article 197 for filiation claims in a succession. What distinguishes this matter from Chance is that succession does not commence until the death of the decedent.
For the reasons that follow, I dissent from the majority finding that
This Court has held that the revival of previously prescribed claims constitutes a substantive change in the law as applied to the person whose obligations were reduced by the prescription of the right. Cameron Par. Sch. Bd. v. ACandS, Inc., 96-0895 (La. 1/14/97), 687 So. 2d 84, 89, quoting Chance v. Am. Honda Motor Co., 635 So. 2d 177, 178 (La. 1994). The same reasoning would apply to the extinction of claims via peremption. See
Act No. 192‘s language does not clearly and unequivocally direct its retroactive application to revive petitioner‘s action to establish filiation. Indeed, it states that it retroactively applies to actions “pending,” which clearly does not encompass the facts at hand, and applies prospectively to actions filed on or after its effective date. La. Acts 2005 No. 192, Section 3. The legislative intent to change the applicable prescriptive or peremptive period of actions that would have been extinguished under former
Even assuming the language of Act 192 or
Notes
[T]his state‘s supreme court has explicitly found this same language did show an intent by the Louisiana Legislature that the act be applied retroactively. In Mallard Bay Drilling, Inc. v. Kennedy, 04-1089, p. 12 (La. 6/29/05), 914 So.2d 533, 543, the court discussed the retroactivity of an act containing language that it “shall be applicable to all claims existing or actions pending on its effective date and to all claims arising or actions filed on and after its effective date.” In response to this, Louisiana‘s supreme court stated, “It is plainly the legislature‘s intent that this Act be applied both retroactively and prospectively.” Id. Further, in Morial v. Smith & Wesson Corp., 00-1132, p. 10 (La. 4/3/01), 785 So.2d 1, 10, cert. denied, 534 U.S. 951, 122 S.Ct. 346, 151 L.Ed.2d 262 (2001), the court again addressed the legislature‘s intent by the use of this specific language, stating:
Act 291 contains a clear and unmistakable expression of legislative intent regarding its intended temporal effect. Section 2 of the Act states that its provisions “shall be applicable to all claims existing or actions pending on its effective date and all claims arising or actions filed on and after its effective date.” By adopting this Section, the legislature has clearly indicated its intent that this Act be applied both retroactively and prospectively.