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Succession of Stewart v. Gordon

Court of Appeals of Louisiana, Third Circuit

October 3, 2018

SUCCESSION OF RICHARD STEWART, JR., ET AL.
v.
MARK ISAIAH GORDON, ET AL.

          ON APPLICATION FOR SUPERVISORY WRITS FROM THE SEVENTH JUDICIAL DISTRICT COURT PARISH OF CONCORDIA, NO. 49, 686 C/W 49, 751 C/W 49, 832 HONORABLE JOHN C. REEVES, DISTRICT JUDGE

          Andre C. Gaudin M. Joey Bernard Burglass & Tankersley, LLC COUNSEL FOR DEFENDANT/APPLICANT: Kenneth Boone d/b/a Boone Trucking

          Timothy W. Hassinger, T.A. Patrick J. Schepens Galloway, Johnson, Tompkins, Burr & Smith COUNSEL FOR DEFENDANT/APPLICANT: Mark Isaiah Gordon

          Charles S. Norris, Jr. Christopher J. Norris Norris Law Firm, LLC COUNSEL FOR PLAINTIFF/RESPONDENT: Khristy Goins Rismiller, Tutrix for Daniel Goins

          Colt J. Fore D. Blayne Honeycutt Fayard and Honeycutt COUNSEL FOR PLAINTIFF/RESPONDENT: David Watts

          Virgil Russell Purvis, III Smith, Taliaferro & Purvis COUNSEL FOR PLAINTIFFS/RESPONDENTS: Succession of Richard Stewart, Jr. Richard Stewart, Sr. Vera Anita Stewart Raymond Kelly Donna Kelly

          J. Rock Palermo, III Veron, Bice, Palermo COUNSEL FOR PLAINTIFFS/RESPONDENTS: Succession of Richard Stewart, Jr. Richard Stewart, Sr. Vera Anita Stewart Raymond Kelly Donna Kelly

          Jeremy Z. Soso Lambert & Nelson COUNSEL FOR PLAINTIFF/RESPONDENT: Sheila Smith

          Joe Meng Attorney at Law COUNSEL FOR PLAINTIFF/RESPONDENT: Sheila Smith

          Micah A. Gautreaux Degan, Blanchard & Nash COUNSEL FOR DEFENDANT/RESPONDENT: Gemini Insurance Company

          Court composed of Sylvia R. Cooks, Billy H. Ezell, Shannon J. Gremillion, Phyllis M. Keaty, John E. Conery, D. Kent Savoie, and Van H. Kyzar, Judges.

          SHANNON J. GREMILLION JUDGE

         This consolidated matter involves a dispute over who has a right of action to assert survival and wrongful death claims arising out of an auto accident and subsequent death of Richard Stewart Jr. (Stewart) and his minor children.[1] For the following reasons, we find the trial court erred in denying Defendants' exceptions of no right of action pertaining to the survival and wrongful death actions asserted by the Succession of Richard Stewart Jr., Raymond Kelly, and Donna Kelly. We further remand for proceedings consistent with this opinion to allow joinder of an indispensable party.

         FACTUAL AND PROCEDURAL BACKGROUND

         On October 1, 2015, on U.S. Highway 84 in Concordia Parish, an eighteen-wheeler truck driven by Mark Gordon and owned by Kenneth Boone d/b/a Boone Trucking was involved in a head-on collision with a vehicle being driven by Stewart. Stewart and his two minor children, George Stewart and Vera Cheyenne Stewart, were killed in the accident.

         George and Vera Cheyenne were Stewart's biological children from a relationship with Brandi Hardie; however, Stewart and Hardie were never married. At the time of the accident, Raymond and Donna Kelly had custody of Vera Cheyenne, and Jimmy and Tammy Johnese had custody of George.

         Stewart had two other biological children who were adults at the time of the accident: Daniel Goins and David Watts. Goins and Watts were born during Stewart's marriage to Lisa Watts Stewart, and they were given up for adoption. Goins was adopted by George and Joyce Goins, who are Stewart's uncle and aunt. Watts was adopted by his maternal grandparents, Mary and Jimmy Watts. At the time of the accident, Stewart and Lisa were physically separated, but they had never legally divorced. It has been alleged that Lisa currently resides in a care facility in another state.

         Following the accident, three separate survival and wrongful death actions arising out of Stewart's and the minor children's deaths were filed in the trial court. Two of these actions involve claims filed by or on behalf Stewart's adult biological children, Goins and Watts, who had been adopted by other family members during their minority. [2] The plaintiffs in the third action are: Stewart's Succession; Stewart's parents, Richard Stewart, Sr. and Vera Stewart; and Raymond and Donna Kelly (collectively, "the Stewart Plaintiffs"). [3] All three actions were consolidated in the trial court.

         In each of the three actions, Defendants Mark Gordon and Kenneth Boone d/b/a Boone Trucking filed exceptions of no right action, which the trial court denied. In connection with Watts' and Goins' survival and wrongful death actions arising from Stewart's death, the trial court found that:

the cases of Levy v. Louisiana, 391 U.S. 68, (1968), and Turner v. Busby, 03-3444 (La. 9/9/04), 883 So.2d 412 are persuasive in holding that "it is the biological relationship and dependency which is determinative of the child's rights in these cases, and not the classification into which the child is placed by the statutory law of the State." Thus, the fact that Watts [and Goins] w[ere] adopted does not prevent [them] from bringing survival and wrongful death claims for the death of [Mr.] Stewart, [their] biological father.

         Further, in connection with Watts' and Goins' survival and wrongful death actions arising from the deaths of their biological half-siblings, George and Vera Cheyenne, the trial court found that the children's mother, Brandi Hardie, had abandoned the children during their minority, and, therefore, in accordance with La.Civ.Code arts. 2315.1 and 2315.2, she was deemed to have predeceased the children. The trial court concluded that Goins and Watts, as biological half-siblings, were allowed to assert survival and wrongful death claims arising out of the children's deaths. No specific reasons for the trial court's denial of Defendants' exceptions of no right of action can be found in the record.

         Following the trial court's ruling, Defendants filed three separate writ applications with this court seeking review of the trial court's denial of their exceptions. We granted the writ applications and heard oral argument. This particular writ application involves the trial court's denial of Defendants' exception of no right of action pertaining to the claims of the Stewart Plaintiffs.

         ANALYSIS

         In Mississippi Land Co. v. S & A Properties II, Inc., 01-1623, pp. 2-3 (La.App. 3 Cir. 5/8/02), 817 So.2d 1200, 1202-03, we stated:

Under La.Code Civ.P. art 927, a defendant may raise the peremptory exception of no right of action. An exception of no right of action has the function of determining whether the plaintiff has any interest in the judicially enforced right asserted. St. Jude Medical Office Bldg., Ltd. Partnership v. City Glass and Mirror, Inc., 619 So.2d 529 (La.1993). The function of this exception is to terminate the suit brought by one who has no judicial right to enforce the right asserted in the lawsuit. Yolanda F.B. v. Robert D.R., 00-958 (La.App. 3 Cir. 12/6/00); 775 So.2d 1107. The determination of whether a plaintiff has a right of action is a question of law. Horrell v. Horrell, 99-1093 (La.App. 1 Cir. 10/6/00); 808 So.2d 363, writ denied 01-2546 (La.12/7/01); 803 So.2d 971. Accordingly, we review exceptions of no right of action de novo. Id.

         A survival action "is transmitted to beneficiaries upon the victim's death and permits recovery only for the damages suffered by the victim from the time of injury to the moment of death." Taylor v. Giddens, 618 So.2d 834, 840 (La.1993). Survival actions are governed by La.Civ.Code art. 2315.1, which states:

A. If a person who has been injured by an offense or quasi offense dies, the right to recover all damages for injury to that person, his property or otherwise, caused by the offense or quasi offense, shall survive for a period of one year from the death of the deceased in favor of:
(1) The surviving spouse and child or children of the deceased, or either the spouse or the child or children.
(2) The surviving father and mother of the deceased, or either of them if he left no spouse or child surviving.
(3) The surviving brothers and sisters of the deceased, or any of them, if he left no spouse, child, or parent surviving.
(4) The surviving grandfathers and grandmothers of the deceased, or any of them, if he left no spouse, child, parent, or sibling surviving.
B. In addition, the right to recover all damages for injury to the deceased, his property or otherwise, caused by the offense or quasi offense, may be urged by the deceased's succession representative in the absence of any class of beneficiary set out in Paragraph A.
C. The right of action granted under this Article is heritable, but the inheritance of it neither interrupts nor prolongs the prescriptive period defined in this Article.
D. As used in this Article, the words "child", "brother", "sister", "father", "mother", "grandfather", and "grandmother" include a child, brother, sister, father, mother, grandfather, and grandmother by adoption, respectively.
E. For purposes of this Article, a father or mother who has abandoned the deceased during his minority is deemed not to have survived him.

         A wrongful death action is a separate action that "does not arise until the victim dies and it compensates the beneficiaries for their own injuries which they suffer from the moment of the victim's death and thereafter." Taylor, 618 So.2d at 840. Louisiana Civil Code Article 2315.2 provides as follows with respect to a wrongful death action:

A. If a person dies due to the fault of another, suit may be brought by the following persons to recover damages which they sustained as a result of the death:
(1) The surviving spouse and child or children of the deceased, or either the spouse or the child or children.
(2) The surviving father and mother of the deceased, or either of them if he left no spouse or child surviving.
(3) The surviving brothers and sisters of the deceased, or any of them, if he left no spouse, child, or parent surviving.
(4) The surviving grandfathers and grandmothers of the deceased, or any of them, if he left no spouse, child, parent, or sibling surviving.
B. The right of action granted by this Article prescribes one year from the death of the deceased.
C. The right of action granted under this Article is heritable, but the inheritance of it neither interrupts nor prolongs the prescriptive period defined in this Article.
D. As used in this Article, the words "child", "brother", "sister", "father", "mother", "grandfather", and "grandmother" include a child, brother, sister, father, mother, grandfather, and grandmother by adoption, respectively.
E. For purposes of this Article, a father or mother who has abandoned the deceased during his minority is deemed not to have survived him.

         Claims Asserted by Raymond and Donna Kelly

         At the time of the accident, the Kellys had legal custody of Vera Cheyenne. Neither La.Civ.Code art. 2315.1 nor 2315.2 contemplate the legal custodian of a minor to be within a class of persons with a right to assert a survival or wrongful death action arising from the minor child's death. Therefore, the trial court erred in denying Defendants' exceptions as to Raymond and Donna Kelly's claims.

         Claims Asserted by Richard Stewart Sr. and Vera Stewart

         A. Survival Action and Wrongful Death Claims of Biological Children Given Up for Adoption

         Preliminary to the claims of the Stewarts, we will address the issue of what, if any, rights Goins and Watts have as biological relations of the deceased who were given up for adoption. For the reasons that follow, we find that Goins and Watts have no assertable claims for their biological father's death nor their biological half-siblings' deaths; therefore, the trial court erred in denying Defendants' no rights of action as to these claims made by Watts and Goins.

         It has long been held that children given up in adoption are divested of their legal rights except as to those relating to inheritance. See La.Civ.Code art. 199. Survival actions and wrongful deaths actions are not part of an inheritance. See Domingue v. Carencro Nursing Home, Inc., 520 So.2d 996 (La.App. 3 Cir. 1987), writ denied, 522 So.2d 565 (La.1988). Survival and wrongful deaths actions are statutorily created remedies in tort exclusively available to certain listed beneficiaries. Nelson v. Burkeen Const. Co., 605 So.2d 681 (La.App. 2 Cir. 1992). Children given up for adoption lose their legal rights to bring claims under La.Civ.Code. arts. 2315.1 and 2315.2. Domingue, 520 So.2d 996. See also Hernandez v. State, DOTD, 02-162, 02-163 (La.App. 4 Cir. 10/16/02), 841 So.2d 808, writs denied, 03-261, 03-307 (La. 4/25/03), 842 So.2d 399, 640 So.2d 1349.

         B. Wrongful Death and Survival Action Arising out of Stewart's Death

         Stewart's parents, Richard Stewart, Sr. and Vera Stewart ("the Stewarts") have a right to assert a survival action and a wrongful death action arising out of Stewart's death only if he left no surviving spouse or children. La.Civ.Code arts. 2315.1(A)(2) and 2315.2(A)(2). Stewart was survived by Lisa Watts Stewart, to whom he was legally married. Therefore, the Stewarts are precluded from asserting wrongful death and survival actions.[4]

         C. Wrongful Death and Survival Action Arising out of the Children's deaths.

         The Stewarts, who are the grandparents of the George and Vera Cheyenne, have a right to assert survival and wrongful death actions arising out of their deaths only if the children left "no spouse, child, parent, or sibling surviving." La.Civ.Code. arts. 2315.1(A)(4) and 2315.2(A)(4). The parties do not suggest that the children's father survived the children. Further, as previously noted, the children given up for adoption, Watts and Goins, have no assertable claims. It is, however, undisputed that the children's biological mother, Brandi Hardie, is living; nevertheless, the trial court found that she had abandoned the children as contemplated by La.Civ.Code. arts. 2315.1(E) and 2315.2(E), and therefore it considered Hardie to have predeceased the children. Although there was significant evidence suggesting that Hardie did abandon her children, she was not made a party to the proceeding. As an indispensable party she must be joined and cited and served with notice and given an opportunity for a hearing on this issue. La.Code Civ.P. arts. 644 and 645. If, after the hearing, the trial court finds that Hardie has abandoned her children, the Stewarts would have a right to pursue the survival and wrongful death claims.

         The Succession's Claims

         A. Wrongful Death Actions Arising out of Stewart's and the Children's Deaths:

         The Succession of Richard Stewart, Jr. asserted wrongful death claims arising out of Stewart's and the minor children's deaths. The Succession is not within the express classes of persons entitled to bring a wrongful death action under La.Civ.Code art. 2315.2. Therefore, Defendants' exceptions of no right of action should have been granted as to these claims.

         B. Survival Actions Arising out of Stewart's and the Children's Deaths:

         The Succession also asserted a survival action under La.Civ.Code art. 2315.1 arising out of Stewart's and the children's deaths. A succession, through its representative, has a right to assert a survival action only "in the absence of a beneficiary set out in [La.Civ.Code. art. 2315.1(A)]." La.Civ.Code. art. 2315.1(B). Lisa Watts Stewart has the right to assert a survival action for Stewart's death; therefore, the Succession is precluded from asserting a claim. Hardie has a survival action claim if it is found that she has not abandoned the children. If she has abandoned them, the claim belongs to the grandparents, the Stewarts. Thus, the Succession has no claims for survival actions for Stewart, George, or Vera Cheyenne, and Defendants' exceptions as to these claims should have been granted.

         CONCLUSION

         Lisa Stewart Watts is the only party with viable claims for a survival action and wrongful death claim for the death of Richard Stewart, Jr. We remand to the trial court in order that Brandie Hardie be joined as an indispensable party for a determination of whether she abandoned the children. If she abandoned the children, Richard Stewart, Sr. and Vera Stewart are the proper parties to assert the survival and wrongful death actions for the deaths of George Stewart and Vera Cheyenne Stewart.

         Accordingly, we grant Defendants' writ application, make it peremptory, and reverse the trial court's denial of Defendants' exceptions of no right of action as to the claims asserted by the Succession of Richard Stewart, Jr., Raymond Kelly, Donna Kelly, and Richard Stewart Sr. and Vera Stewart as it pertains to wrongful death and survival action claims for Stewart. Costs of these proceedings are assessed to the Succession of Richard Stewart, Jr., Raymond Kelly, and Donna Kelly.

         WRIT GRANTED AND MADE PEREMPTORY; EXCEPTIONS OF NO RIGHT OF ACTION GRANTED IN PART; REMANDED FOR FURTHER PROCEEDINGS.

          COOKS, J. Concurs in part and dissents in part.

         The majority attempts to remove Daniel Edward Goins (Goins) and David Watts (Watts), decedent's surviving children given up for adoption, from the list of beneficiaries expressly included by the legislature in the survival and wrongful death actions provided in La.Civ.Code articles 2315.1 and 2315.2 respectively. It does this while readily acknowledging that such children are entitled under our law to inherit from their biological parent as well as their adopted parent. As I explain more fully below, I cannot imagine any reason nor rationale to exclude legitimate biological children of a decedent from recovering these types of damages when the legislature did not, and in my view could not do so under the settled decisions of the United States Supreme Court and the Louisiana State Supreme Court, as well as the applicable provisions of the Louisiana Civil Code. The majority also improperly denies these children their right to recover damages for the loss of their half-siblings in the absence of any surviving spouse, child or parent, contrary to the law and jurisprudence. La.Civ.Code art. 2315.1(A)(3); La.Civ.Code art. 2315.2(A)(2); and Gibbs v. Delatte, 05-821 (La.App. 1 Cir. 12/22/05), 927 So.2d 1131, writ denied, 06-198 (La. 4/24/06), 926 So.2d 548.[1] See also La.Civ.Code art. 199. It remains to be seen whether Brandie Hardie abandoned her children thus prompting us to remand the case for the reasons stated by the majority. In the event the trial court finds she abandoned her children and would therefore be precluded from recovering under the survival and wrongful death Articles, then these half-siblings would be entitled to proceed.

         Children-given-in-adoption are among the named beneficiaries who enjoy the right to bring an action under La.Civ.Code arts. 2315.1and 2315.2 for the death of their biological father and half-siblings. Louisiana Civil Code Article 2315.1(emphasis added), entitled "Survival Action" provides in pertinent part:

A. If a person who has been injured by an offense or quasi offense dies, the right to recover all damages for injury to that person, his property or otherwise, caused by the offense or quasi offense, shall survive for a period of ...

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