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Succession of Pelt

Court of Appeals of Louisiana, Third Circuit

April 11, 2018

SUCCESSION OF WILLIAM DALTON PELT

          APPEAL FROM THE THIRTIETH JUDICIAL DISTRICT COURT PARISH OF VERNON, NO. 92,868 HONORABLE SCOTT WESTERCHIL, DISTRICT JUDGE

          B. Gene Taylor, III Gold, Weems, Bruser, Sues & Rundell COUNSEL FOR INTERVENOR/APPELLANT: Kristina Wright

          Jodi C. Andrews COUNSEL FOR PETITIONERS/APPELLEES: Succession of William Dalton Pelt, Billy Ray Pelt, Rosemary Pelt Braun, Charleston L. Pelt, Charlene Faye Pelt O'Banion, Gayle Dianne Pelt Wentzel, James Douglas Pelt, Barbara Lee Pelt Cooley, Geraldine Pelt Governale

          Court composed of Phyllis M. Keaty, John E. Conery, and Van H. Kyzar, Judges.

          VAN H. KYZAR, JUDGE.

         Intervenor/Appellant, Kristina Wright (Kristina), appeals the granting of an exception of prescription dismissing her petition to establish filiation and her rights as a forced heir of her deceased alleged father, William Dalton Pelt. The Petitioners/Appellees are the brothers and sisters of the deceased through the Succession of William D. Pelt. For the reasons herein, we reverse and remand to the trial court for further proceedings.

         FACTS AND PROCEDURAL HISTORY

         The facts of this matter are fully set forth in the record hereof and are essentially uncontested. William Dalton Pelt (decedent) died intestate on April 18, 2016, at his residence and domicile in Vernon Parish, Louisiana. In 2016, Billy Ray Pelt, Rosemary Pelt Braun, Charleston L. Pelt, Charlene Faye Pelt O'Banion, Gayle Dianne Pelt Wentzel, James Douglas Pelt, Barbara Lee Pelt Cooley, and Geraldine Pelt Governale (collectively referred to as "Appellees"), the brothers and sisters of the deceased, filed a petition to open the succession of their brother and to have Barbara Lee Pelt Cooley (Barbara) appointed as administratrix of the succession. They claim in the succession filings that the decedent was never married, that no children were born to or adopted by the decedent, nor was the decedent adopted by anyone. An order was signed by the trial court on May 12, 2016, appointing Barbara as the administratrix of the succession.

         Thereafter, Kristina filed a petition to intervene in the succession, to establish her filiation to the deceased as her father, to recognize her rights to his estate, and to remove Barbara as administratrix. Kristina also filed a rule for paternity testing. The petition alleges that she was born on September 28, 1973, at Lake Charles Memorial Hospital in Lake Charles, Louisiana, to Milbra Sue O'Banion, her mother, while her mother was married to her legal father, Ben O'Banion. Kristina asserts that her mother had an affair with the decedent while she was living in Louisiana and that she was conceived as a result of that relationship.

         In response to the petition, Appellees filed an exception of prescription. A hearing on the exception was held on April 17, 2017, at the conclusion of which the trial court granted the exception, dismissing Kristina's petition at her costs. It is from this judgment that she now appeals.

         Kristina asserts three assignments of error, as follows:

1. The trial court erred by not applying Article 197 as the law in effect on the date of decedent's death as required by the Louisiana law of successions, and further failing to recognize the legislative directive to apply Article 197 retroactively.
2. The trial court erred by failing to acknowledge the Louisiana Supreme Court's consistent holding that the language of the Filiation of Parents and Children Act evidences clear, plain, and unmistakable legislative intent that Article 197 be retroactively applied.
3. The trial court erred to the extent that the granting of the exception was incorrectly founded on the notion that retroactive application of Article 197 would revive a prescribed claim and/or disturb a right of collateral heirs to plead prescription, purportedly vested prior to the decedent's death and the existence of a succession.

         DISCUSSION

         The standard of review on the appeal of the granting of an exception of prescription depends in part on whether evidence was introduced at the hearing in trial court.

The exception of prescription is governed by La.Code Civ.P. art. 927. The standard of review of a grant of an exception of prescription is determined by whether evidence was adduced at the hearing of the exception. If evidence was adduced, the standard of review is manifest error; if no evidence was adduced, the judgment is reviewed simply to determine whether the trial court's decision was legally correct. Allain v. Tripple B Holding, LLC, 13-673 (La.App. 3 Cir. 12/11/13), 128 So.3d 1278. The party pleading the exception of prescription bears the burden of proof unless it is apparent on the face of the pleadings that the claim is prescribed, in which case the plaintiff must prove that it is not. Id.

Arton v. Tedesco, 14-1281, p. 3 (La.App. 3 Cir. 4/29/15), 176 So.3d 1125, 1128, writ denied, 15-1065 (La. ...


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