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Kennard v. St. James Parish School Board

Court of Appeals of Louisiana, Fifth Circuit

April 12, 2017

SHIMIRA KENNARD, INDIVIDUALLY AND AS THE NATURAL TUTRIX OF THE MINOR, DEVANTE KENNARD
v.
ST. JAMES PARISH SCHOOL BOARD, LOUISIANA DEPARTMENT OF CHILDREN AND FAMILY SERVICES AND LAKEITHA HAMILTON

         ON APPEAL FROM THE TWENTY-THIRD JUDICIAL DISTRICT COURT PARISH OF ST. JAMES, STATE OF LOUISIANA NO. 36, 547, DIVISION "D" HONORABLE JESSIE M. LEBLANC, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLANT, SHIRMIRA KENNARD, ET AL DaShawn Hayes

          COUNSEL FOR DEFENDANT/APPELLEE, ST. JAMES PARISH SCHOOL BOARD Andrew C. Abrams

          Panel composed of Jude G. Gravois, Robert A. Chaisson, and Robert M. Murphy

         RAC

         JGG

         RMM

          ROBERT A. CHAISSON JUDGE

         Shimira Kennard appeals from a trial court judgment that sustained St. James Parish School Board's exceptions of lack of procedural capacity and no right of action. For the reasons that follow, we reverse the judgment of the trial court.

         PROCEDURAL HISTORY

         On August 8, 2014, Shimira Kennard filed suit against St. James Parish School Board and other defendants as a result of an alleged altercation at Lutcher High School involving her son, Devante Kennard. Ms. Kennard filed this suit both individually, on her own behalf, and on behalf of Devante. On December 4, 2014, the School Board filed an answer to the suit in which, although it pled various affirmative defenses, it did not plead any exceptions. Subsequently, on July 28, 2015, the School Board filed a pleading titled "Exceptions of Prescription, No Right of Action and No Cause of Action with Incorporated Memorandum."[1] In that pleading and the accompanying memorandum, the School Board challenged the authority of Ms. Kennard to file suit on behalf of Devante, arguing that her petition did not set forth the basis of her authority. On February 22, 2016, after a hearing on the School Board's pleading, the trial court overruled the exception of no right of action, but sustained an exception of lack of procedural capacity and gave Ms. Kennard " . . . until March 11, 2016 to amend the petition to reflect authority to bring this claim on behalf of the minor, Devante Kennard."[2]

         On March 21, 2016, the School Board filed a pleading titled "Exceptions of No Right of Action and Lack of Procedural Capacity, " in which it again challenged the authority of Ms. Kennard to file suit on behalf of Devante, and alleged that Ms. Kennard had failed to amend her petition within the time frame allowed by the trial court. At the hearing on these exceptions, Ms. Kennard conceded that she had not amended her petition; however, she introduced into evidence a copy of Letters of Tutorship dated April 8, 2016, showing that she had been confirmed as natural tutrix of her minor child Devante.[3] After taking the matter under advisement in order to review the tutorship proceeding, on June 16, 2016, the trial court rendered judgment sustaining both the exception of lack of procedural capacity and the exception of no right of action and dismissed all of Ms. Kennard's claims against the School Board with prejudice.[4] It is from this judgment that Ms. Kennard now appeals.

         DISCUSSION

         We first note that Ms. Kennard's petition indicates that she is making a claim both individually, on her own behalf, and a claim on behalf of Devante. Additionally, her petition sets forth items of damages that she has allegedly suffered which are separate and distinct from the items of damages allegedly suffered by Devante.[5] The exceptions at issue in this appeal do not challenge the authority of Ms. Kennard to file her individual claim on her own behalf. Therefore, it was error ...


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