Lead Opinion
I,This civil case presents the issue of whether an alleged biological father may bring a wrongful death and survival action for his illegitimate child, where the father has not filed a timely avowal action, but filed his wrongful death and survival petition asserting his paternity within the per-emptive period of La. Civ.Code art. 198. In resolving this issue, we are called upon to decide whether the filiation requirements of La. Civ.Code art. 198 apply to actions under La. Civ.Code arts. 2315.1 and 2315.2.
After the death of the minor child, S.U., plaintiff, Fidel Udomeh, filed a wrongful death and survival action against defendants, Sandra Joseph and the State of Louisiana through the Department of Social Services and the Louisiana State University Health System, University Medical Center-Lafayette (collectively “state defendants”), alleging he was the child’s biological father. The state defendants filed a peremptory exception of no right of action; although the wrongful death and survival petition was filed within one year of S.U.’s death, Udomeh had not brought an avowal action under La. Civ.Code art. 198 to
For the following reasons, we find, while Udomeh was required to file an avowal action in order to bring a wrongful death and survival action, under Louisiana’s fact-pleading system, Udomeh’s petition pled sufficient facts to state an avowal action. Accordingly, the judgments of the lower eourts are reversed.
FACTS AND PROCEDURAL HISTORY
Plaintiff, Fidel Udomeh, alleges he and defendant, Sandra Joseph, were the biological parents of a minor child, S.U., who was born on June 16, 1997. Udomeh and Joseph were never married and separated early in S.U.’s life. Udomeh, however, contends he maintained an active presence in S.U.’s life and held himself out to the community as his father. Additionally, Udomeh states he voluntarily paid child support until Joseph sought state-mandated child support in 2001.
In February 2006, Udomeh learned Joseph had taken S.U. to a tall building in Baton Rouge and attempted to commit suicide with her son by jumping off of the building. S.U. was able to persuade his mother from taking their lives. Subsequently, Joseph voluntarily committed herself for psychiatric treatment at Vermillion Hospital in Lafayette, and was released a few days later. Udomeh made a formal complaint to the State of Louisiana, through the Department of Social Services (“LDSS”), seeking an investigation and protection for S.U. In |sresponse, LDSS issued a form letter stating it was “unable to investigate the situation because it does not meet the legal and policy definition of child abuse or neglect.”
In January 2009, while at a restaurant in Lafayette, Joseph experienced another psychotic episode with S.U. in her custody. Local police were called to the restaurant and escorted Joseph to University Medical Center (“UMC”) for treatment. UMC released Joseph shortly thereafter, with S.U. in her custody. Joseph, an employee of LDSS, also began exhibiting strange and erratic behavior at work, prompting several coworkers to file witness accounts, complaints, and incident reports with LDSS. One coworker stated Joseph’s behavior should be addressed “as soon as possible, especially since she is the sole care-giver for a minor child.”
On February 21, 2009, Joseph drove S.U. to Grand Coteau and ordered him out of the vehicle. Joseph then intentionally and repeatedly ran S.U. over with her vehicle, killing him.
On September 8, 2009, Udomeh filed the instant wrongful death and survival action against Joseph, LDSS, and UMC, alleging the state defendants acted negligently by failing to take any action to protect S.U. Both LDSS and UMC argued Udomeh was precluded from bringing suit, as he had not first filed an avowal action under La. Civ.Code art. 198. Initially, LDSS filed a declinatory exception of insufficient service of process. Subsequently, LDSS filed an answer on September 10, 2010, asserting peremptory exceptions of no cause of action and no right of action or, in the alternative, a dilatory exception of lack of procedural capacity. UMC filed an an
|4The trial court granted-the state defendants’ exceptions of no right of action and/or lack of procedural capacity and dismissed Udomeh’s claims against LDSS and UMC with prejudice.
The Court of Appeal affirmed, holding Udomeh was not a proper beneficiary to bring a wrongful death and survival action, as he did not file an avowal action within one year of S.U.’s death. Udomeh v. Joseph,
DISCUSSION
La. Civ.Code art. 198
To recover under a claim for wrongful death and survival, a plaintiff must fall within the class of persons designated as a beneficiary under La. Civ.Code arts. 2315.1 and 2315.2. Turner v. Busby, 03-3444, p. 4 (La.9/9/04);
Filiation is the legal relationship between a child and his parent. La. Civ. Code art. 178. Filiation is established by proof of maternity, paternity, or adoption. La. Civ.Code art. 179. Prior to 2004, the Civil Code did not provide a process for a biological father to establish parentage of his illegitimate child. Our jurisprudence, however, recognized a biological father’s right to establish paternity by means of an avowal action. See T.D. v. M.M.M., 98-0167, p. 2-3 (La.3/2/99);
A man may institute an action to establish his paternity of a child at any time except as provided in this Article. The action is strictly personal.
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In all cases, the action shall be instituted no later than one year from the day of the death of the child.
The time periods in this Article are per-emptive.
| (¡Udomeh argues a putative father is not required to establish filiation under La. Civ.Code art. 198 in order to bring wrongful death and survival actions on behalf of his illegitimate child. La. Civ.Code arts. 2815.1 and 2815.2 merely provide “[t]he surviving father and mother of the deceased” may bring a wrongful death or survival action if the decedent “left no spouse or child surviving.” Thus, neither of these statutes required Udomeh to establish paternity pursuant to La. Civ.Code art. 198.
We disagree. The Louisiana Civil Code is a general system of law promulgated by legislative authority, and effect must be given to all of its provisions as such. Its various articles form parts of a complete system and must be construed with reference to each other and harmonized with its general purpose. Wartelle v. Women’s and Children’s Hosp., Inc., 97-0744, p. 3 (La.12/2/97);
While this Court has not specifically addressed the application of La. Civ.Code art. 198 to La. Civ.Code arts. 2315.1 and 2315.2, we have repeatedly applied the fili-ation provisions of the Code to determine the proper beneficiaries for wrongful death and survival actions.
In Chatelain v. State, Dept. of Transp. & Dev.,
Further, the revision comments to La Civ.Code art. 198 indicate a putative father must timely file an avowal action pursuant to Article 198 in order to bring a wrongful death and survival action. One purpose of the temporal restrictions of Article 198 is “that a father who failed during a child’s life to assume his parental responsibilities should not be permitted unlimited time to institute an action to benefit from the child’s death.” La. Civ.Code art. 198, Official Revision Comments (d).
Accordingly, we conclude the filiation provisions of La. Civ.Code art. 198 apply to actions under La. Civ.Code arts. 2815.1 and 2315.2. A putative father 18must file a timely avowal action in order to maintain a wrongful death and survival action for the death of his illegitimate child.
Additionally, we note it is too late for Udomeh to amend his petition to also bring an avowal action along with his wrongful death claim. The temporal limitations of La. Civ.Code art. 198 are per-emptive, and this Court has held “relation back of an amended or supplemental pleading ... is not allowed to avoid the running of a peremptive period.” Naghi v. Brener, 08-2527, p. 10 (La.6/26/09);
Fact-Pleading
Although Udomeh’s petition does not specifically request a judgment of paternity, under Louisiana’s fact-pleading system, we find Udomeh has pled the material facts necessary to state an avowal action, while giving fair notice to defendants that his paternity is at issue in this action.
Louisiana’s Code of Civil Procedure uses a system of pleading based upon the narration of factual allegations. See Greemon v. City of Bossier City, 10-2828, 11-0039, p. 13 (La.7/1/11);
a final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings and the latter contain no prayer for general and equitable relief.
Article 862 permits courts to render substantive justice on the basis of facts pleaded and to, refuse to permit a denial of
Although Article 862 abolished the “theory of the case” pleading requirement, La. Code Civ. Proc. art. 891 provides a petition “shall contain a short, clear, and concise statement of all causes of action
In the present case, Udomeh’s petition refers to S.U. as Udomeh’s “minor child” and “minor son” and alleges:
Petitioner, FIDEL UDOMEH, and Defendant, SANDRA JOSEPH, were the biological parents of their minor child, the late S.U., who was born on June 16, 1997. Petitioner and Defendant were never married, but the paternity of the child has been established since birth. Petitioner and SANDRA JOSEPH separated from one another early in the child’s life, but Petitioner maintained an active role as father in his son’s life at all pertinent times.
After reviewing the petition, we find Udomeh has set forth the material facts necessary for an avowal action. As noted above, a pleader must set forth the act or omission he or she will establish at trial. See Greemon, 10-2828,11-0039 at 8-9;
Although not decided under Article 862, this Court’s decision in Reese v. State Dep’t of Public Safety & Corrections, 03-1615 (La.2/20/04);
This Court found the “bare allegations” in the initial petition “while not artfully drafted, show[ed] an attempt to set forth a filiation action and [was] sufficient to put the defendants on notice that such was at issue in this case.” Id., 03-1615 at 10;
Although Reese involved an amendment by plaintiffs bringing a filiation action' and a prescriptive rather than a peremptive period, these factual distinctions do not alter the Court’s holding that the bare allegations in plaintiffs’ initial petition for wrongful death damages gave defendants adequate notice of a filiation action. Here, Udomeh’s petition exceeds the bare allegations of the Reese plaintiffs. The petition repeatedly alleges Udomeh was S.U.’s biological father and maintained an active role in his son’s life. Thus, under Reese, Udo-meh’s allegations were sufficient to provide the defendants with adequate notice of an avowal action.
This conclusion is further supported by decisions of the lower courts, which have held a petition by an illegitimate child alleging paternity adequately states an 112action to establish filiation, even though a judgment of paternity is not specifically requested.
In In re Succession of Stevenson,
Similarly, in Trahan v. Benoit,
The state defendants cite to Thomas v. Ardenwood, Properties,
In Thomas, a putative father brought a timely action for the wrongful death of his illegitimate child, alleging he was the child’s “natural father.” Defendants filed an exception of no right of action, as the putative father failed to establish paternity within the peremptive period of La. Civ. Code art. 198. The court granted the exception, as the putative father failed to file an avowal action within one year of the child’s death. Similarly, in Bester, a minor child filed a motion to intervene in a wrongful death action, alleging he was the decedent’s natural child. The court denied the motion, as the child’s allegation of paternity was conclusory, did' not request a judgment of paternity, and provided no evidence proving paternity.
These decisions, however, conflict with Reese and the great weight of jurisprudence by this Court and lower courts concerning La.Code Civ. Proc. art. 862. A party is entitled to any relief available based on the facts pled, regardless of the specific relief requested. Thus, the failure of a putative father to request a finding of filiation does not prevent a court from rendering a judgment of paternity based on the facts pled. Within the context of a wrongful death and survival action, a putative father’s allegations of biological filiation with the decedent child can be reasonably construed as stating an avowal action, as “there is no other purpose an allegation of [filiaton] [could] serve.” D’Angelo v. D’Angelo,
| ^Additionally, allowing Udomeh to proceed with a paternity suit does not offend the policies underlying La. Civ.Code art. 198. As noted earlier, one purpose of the statute’s one-year peremptive period is to prevent a father who failed to assume parental responsibilities during the child’s lifetime from having unlimited time to bring a wrongful death and survival action. See La. Civ.Code art. 198, Official Revision Comments (d). Further, where the child is presumed to be the child of another man, the biological father must quickly institute an avowal action to “to protect the child from the upheaval of such litigation,” where the child lives in an existing, intact family or has become attached to his presumed father. La. Civ.Code art. 198, Official Revision Comments (e). The present case, however, does not involve either of these factual scenarios. Udomeh alleges he acknowledged and supported his child during his lifetime and no other man is presumed to be S.U.’s father.
We conclude Udomeh’s petition sets forth sufficient facts to state an avowal action and provide notice to defendants of the issue of Udomeh’s paternity. This is
Cumulation
The state defendants also argue Udomeh is prohibited from cumulating his wrongful death action with an action for paternity.
The state defendants, however, have waived any objection to cumulation of claims. The exception of improper cumu-lation is a dilatory exception, which must be pleaded prior to or in a party’s answer. La.Code Civ. Proc. arts. 926, 928. As the defendants did not raise this exception until appeal, it is waived.
In summary, we find La. Civ.Code art. 198 is applicable to actions under La. Civ. Code arts. 2315.1 and 2315.2. Thus, a putative father must also file a timely avowal action in order to maintain a wrongful death and survival action for his illegitimate child. Although plaintiff in the instant case failed to specifically request a judgment of paternity, his petition contains sufficient material facts to state an avowal action. By alleging his biological paternity of the child in his wrongful death and survival petition, plaintiff provided the state defendants fair notice of the issue of paternity in this case. Thus, under La. Code Civ. Proc. art. 862, a court could grant plaintiff a judgment of paternity, provided he proves he is entitled to such relief. We note, however, our ruling is limited to the particular facts of the present case. Accordingly, we reverse the judgments of the lower courts and remand to the District Court for further proceedings consistent with this opinion.
| 17decree
For the foregoing reasons, the judgments of the lower courts are reversed and this case is remanded to the District Court for further proceedings.
REVERSED; REMANDED.
Notes
. Although Udomeh is listed as the father on S.U.’s birth certificate, this is insufficient to establish paternity. Under La. Civ.Code art. 196, a man may create a presumption of paternity by signing the birth certificate of a child not filiated to another man. The presumption, however, can be invoked only on behalf of the child, and the acknowledgment does not create a presumption in favor of the man who acknowledges the child.
. Udomeh also argues the proper vehicle to challenge his suit was a dilatory exception of lack of procedural capacity, rather than a peremptory exception of no right of action. However, "[t]he function of the 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.” Hood v. Cotter, 08-0215, p. 17 (La. 12/2/08);
. The primary purpose of this provision of La.Code Civ. Proc. art. 891 is to preclude relitigation of a cause of action which could have been pleaded in the first action arising out of the same transaction or occurrence. 1 Frank L. Maraist, Louisiana Civil Law Treatise: Civil Procedure § 6:3 at 144 (2d ed.2008); see La.Code Civ. Proc. art. 891, 1990 Official Comment. This Court has defined "cause of action” as "the state of facts which gives a party a right to judicially assert an action against the defendant.” Trahan v. Liberty Mat. Ins. Co.,
. Additionally, in contexts other than filiation, lower courts have repeatedly found bare allegations to be sufficient to state a cause of action under Article 862, given the parties’ particular factual circumstances and the nature of the action brought in the initial petition. See, e.g., Martin v. Martin,
. Additionally, the state defendants argue St. Landry Parish is an improper venue for Udo-meh's avowal action. However, improper venue is a declinatory exception and must be raised prior to or in the answer. La.Code Civ. Proc. arts. 925, 928. Thus, the state defendants have waived this objection.
. Cf. Hunt v. Wedgeworth Enters., Inc.,
. Although any objection to cumulation has been waived, we note the state defendants arguments are flawed for several reasons. First, La. Civ.Code art. 198 contains no express prohibition on cumulation and the law generally favors cumulation of actions in order to prevent multiplicity of suits. See Chapin v. Federal Transp. Co.,
Second, former La. Civ.Code art. 209 did not govern avowal actions, only actions by illegitimate children to prove paternity. Article 209 contained several temporal periods, including one specifically for wrongful death actions. The current version of the law, Arti
Finally, even prior to the enactment of former La. Civ.Code art. 191, the jurisprudence recognized the right of the father to institute an avowal action simultaneously with the exercise of parental rights. La. Civ.Code art. 198, Official Revision Comments (a); see Bolden v. Rodgers, 99-417, p. 11 (La.App, 5 Cir. 9/28/99);
Dissenting Opinion
dissenting.
_JjI respectfully dissent from the majority opinion, which reverses the judgments of the lower courts and concludes Udomeh’s petition pled sufficient facts to state an avowal action under Louisiana’s fact-pleading system. In my opinion, Udomeh’s petition fails to allege any facts sufficient to provide notice that an action to establish paternity was asserted. Instead, it contains the conclusory statement, “the paternity of the child has been established since birth.” This statement indicates Udo-meh’s paternity is no longer at issue in this case. The majority opinion, however, fails to mention this statement or include it in its fact-pleading analysis.
In reaching its conclusion, the majority opinion relies heavily upon Greemon v. City of Bossier City, 10-2828, 11-0039 (La.7/1/11);
As to what constitutes a “material fact,” Louisiana commentary provides, “[t]he Code requires the pleader to state what act or omission he or she will establish at trial....” Id. (citing 1 Frank L. Maraist et ah, Louisiana Civil Law Treatise: Civil Procedure § 6:3 at 143 (2d ed.2008)(footnote omitted)). The Court thereafter stated, “[a]s the above commentary indicates, a fact is ‘material’ if it points to a violation of the applicable law.” 10-2828 at p. 9,
I believe the allegations in Udomeh’s petition are similarly insufficient to state an avowal action under the fact-pleading system. The majority opinion concludes, “[here], the petition alleges a biological relationship between the pleader and the child, as well as his support and acknowledgment of the child. These allegations provided the state defendants with adequate notice of the issue of Udomeh’s paternity.” Op., p. 349. As set forth in the majority opinion, however, Udomeh’s petition alleges: 1) he and Sandra Joseph were the biological parents of their minor child, S.U.; 2) he and Sandra Joseph were never married; 3) paternity of the child had been established since birth; 4) he and Sandra Joseph separated early in the child’s life; and 5) he maintained an active role as father in S.U.’s life at all pertinent times. Udomeh’s petition does not mention his support | .¡and acknowledgement of S.U. As such, the majority’s reliance upon these two factors in its fact-pleading analysis appears erroneous.
Pursuant to the principles espoused in Greemon, it is evident the allegations in Udomeh’s petition are insufficient to state a cause of action for filiation. The petition expressly states Udomeh is the biological parent of S.U. and that “the paternity of the child has been established since birth.” These allegations cannot be considered “material facts” because they do not state “the act or omission that will be established at trial.” Instead, both of these statements are conclusions, indicating Udomeh’s paternity (the act) had already been established. While it is true that fact pleading is the rule in Louisiana, one does not set forth a cause or right of action by setting forth mere conclusions unsupported by alleged facts. In re Bester, 00-2208, p. 8 (La.App. 4 Cir. 9/18/02);
The majority opinion’s reliance upon Reese is also misplaced. In Reese, the
In my opinion, Reese is distinguishable from the instant case in three significant respects. First, Reese involved a wrongful death and survival suit brought by putative children of the deceased, whereas this case involves a wrongful death and survival suit brought by a putative father. The importance of this distinction can be understood in light of the second important distinction between the two cases, which is the fact that Reese involved a prescriptive period and this case involves a peremptive period. In Reese, the applicable article was former La. C.C. art. 209, which provided a one-year prescriptive period on filiation actions filed by children. In contrast, the instant case involves La. C.C. art. 198, enacted in 2005, which sets forth a one-year peremp-tive period on a father’s action to establish paternity. In the Revision Comments to article 198, the legislature explains the State has an interest in requiring parents to conform to societal norms and placing the consequences for nonconformity on the parents and not on the child. The comments further explain the State has an interest in preventing a father, who failed to assume parental responsibilities during a child’s life, from ^benefiting from the child’s death in an unlimited manner. Thus, the law imposes a tougher standard on fathers seeking to establish paternity after a child’s death.
The third reason why Reese is distinguishable from the instant case is because the main issue in Reese was the relation back of an amending petition. In the instant case, the controversy concerns whether the plaintiff pled material facts sufficient to state a filiation claim. While acknowledging these factual distinctions, the majority opinion asserts they do not affect the ultimate holding in Reese that the bare allegations in the original petition gave defendants sufficient notice of a filiation action. Op. at p. 349-50. The majority asserts Udomeh’s petition exceeds the bare allegations in Reese because Udomeh alleged he was the biological father of S.U. and maintained an active role in S.U.’s life.
The majority, however, fails to recognize that the Court in Reese asked whether the original petition provided sufficient notice of a filiation claim because that is the burden of proof required for an amending petition to relate back to the original petition under La. C.C.P. art. 1153. In the instant case, however, where relation back
A case that is more directly on point is Thomas v. Ardenwood Properties,
In the instant case, the lower courts properly relied upon Thomas in concluding Udomeh’s ability to establish paternity is perempted and therefore, Udomeh has no right of action to pursue tort claims resulting from S.U.’s death. Unlike the majority, I believe allowing Udomeh to proceed with a paternity suit would offend the public policies behind article 198. One of the purposes behind the one-year peremptive period is to prevent a father who failed to assume parental | ^responsibilities during the child’s lifetime from having unlimited time to bring a wrongful death and survival action. La. C.C. art. 198, Official Revision Comments (d). It is undisputed in this case that when Udomeh learned S.U.’s mother attempted to commit suicide with S.U., he filed a complaint with the Department of Social Services, but failed to take any action to remove S.U. from Sandra Joseph’s custody. Under these circumstances, allowing Udomeh to go forward with a paternity suit and benefit from S.U.’s death goes against public policy. As such, I would affirm the judgments of the lower courts, which granted the defendants’ exception of no right of action.