FROM THE THIRTIETH JUDICIAL DISTRICT COURT PARISH OF VERNON,
NO. 92,868 HONORABLE SCOTT WESTERCHIL, DISTRICT JUDGE
Gene Taylor, III Gold, Weems, Bruser, Sues & Rundell
COUNSEL FOR INTERVENOR/APPELLANT: Kristina Wright
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
composed of Phyllis M. Keaty, John E. Conery, and Van H.
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
AND PROCEDURAL HISTORY
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
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.
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.
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
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.
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
Arton v. Tedesco, 14-1281, p. 3 (La.App. 3 Cir.
4/29/15), 176 So.3d 1125, 1128, writ denied, 15-1065