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Myles v. Howell

Court of Appeals of Louisiana, Second Circuit

January 16, 2019

ALBERT MYLES OBO JALYNN FAITH MYLES Plaintiff-Appellee
v.
GARY HOWELL AND XYZ INSURANCE COMPANY Defendants-Appellees PRINCETON S. VALLO, INDIVIDUALLY AND ON BEHALF OF PRINCE ISAIAH HOLLEY (DECEASED) Plaintiff-Appellant
v.
GMH HOUSING, LLC; GARY M. HOWELL, INDIVIDUALLY AND AS SOLE MEMBER OF GMH HOUSING, LLC; AND XYZ INSURANCE COMPANY Defendants-Appellees

          Appealed from the Fourth Judicial District Court for the Parish of Ouachita, Louisiana Trial Court Nos. 2016-1261 and 2016-3536 Honorable J. Wilson Rambo, Judge

          SMITH & NWOKORIE, LLC By: Anselm N. Nwokorie Counsel for Appellant Samuel Owojori, Individually and OBO Jeremiah Oladimeji Owojori (Deceased) and Ezekiel Owojori (Deceased)

          SMITH & NWOKORIE, LLC By: Brian G. Smith Counsel for Appellee Princeton S. Vallo, Individually and OBO Prince Isaiah Holley (Deceased)

          J. GARLAND SMITH & ASSOCIATES By: Sarah M. Smith J. Garland Smith Counsel for Appellee Albert Myles, Individually and OBO Jalynn Faith Myles

          MUSGRAVE, McLACHLAN & PENN, LLC By: R. Todd Musgrave Amanda H. Aucoin Counsel for Appellee Gary M. Howell, Individually and as Sole Member of GMH Housing, LLC

          Before GARRETT, STEPHENS, and McCALLUM, JJ.

          McCALLUM, J.

         In this tragic case, Samuel Owojori appeals a judgment sustaining an exception of no right of action and dismissing his claims related to the deaths of his son and grandson.

         We affirm.

         FACTS

         Ashley Wilkins Owojori and Jeremiah Owojori were husband and wife. They had one child, Ezekiel Owojori, who was a minor. Ashley had two minor children, Jalynn Faith Myles and Prince Isiah Halley-Vallo, from prior relationships. Albert Myles is the father of Jalynn. Princeton Vallo is the father of Prince.

         On the night of January 24, 2016, a fire caused by faulty wiring occurred at an apartment owned by GMH Housing, LLC, and occupied by Ashley, Jeremiah, Ezekiel, and Prince. All four suffered severe injuries from smoke inhalation and eventually died from their injuries

         On April 20, 2016, Albert Myles, who had custody of Jalynn, filed a wrongful death suit on her behalf against XYZ Insurance Company and Gary Howell, who was GMH's agent. Albert asserted that Jalynn was Ashley's only living descendant. Albert later amended his petition to make GMH Housing a defendant.

         Under a separate suit number, Princeton Vallo, individually and on behalf of his late son Prince, filed suit against GMH, Howell, and XYZ Insurance on November 22, 2016. The petition was amended on February 22, 2017, to add Samuel Owojori, Jeremiah's father, as a plaintiff to recover damages for the deaths of Jeremiah and Ezekiel.

         On August 31, 2017, Albert amended his petition to allege that Jalynn was the sole surviving sibling of Ezekiel and, therefore, was the proper person to bring an action seeking wrongful death and survival damages resulting from Ezekiel's death.

         The lawsuits were consolidated on September 1, 2017.

         On January 12, 2018, Samuel filed an exception of no right of action against the claims in Albert's amended petition. He argued that Jaylynn had no right of action for a wrongful death or survival claim related to Ezekiel's death. He contended that Ezekiel died at 4:11 p.m. on January 26, and that Jeremiah died at 12:28 p.m. on the following day.[1] Samuel maintained that because Jeremiah survived Ezekiel, Jeremiah acquired the right to bring a survival action and a wrongful death action related to Ezekiel's death, and this right passed to Samuel by inheritance when Jeremiah died.

         On January 18, 2018, Albert filed an exception of no right of action. He asserted that Samuel was not the proper party to bring claims on behalf of either Jeremiah or Ezekiel because Ashley was the last of the four victims to die. In his memorandum in support of the exception, Albert operated under the assumption that Ezekiel predeceased Jeremiah. Albert argued that once Jeremiah died, Ashley acquired not only the right to assert any survival and wrongful death actions on his behalf, but also any claims that passed to him as the father of Ezekiel. He further maintained that upon Ashley's death, Jalynn, as Ashley's only surviving child, would have acquired the right to assert all claims belonging to Ashley.

         Hearing on the exceptions

         A hearing on the exceptions of no right of action was held on January 24, 2018. At the hearing, Albert introduced copies of the death certificates of Jeremiah, Ezekiel, and Ashley. Samuel objected to the introduction of Ezekiel's and Ashley's death certificates on the grounds that they were not certified. His objection was overruled.

         Jeremiah's death certificate showed that he died at 1:34 p.m. on January 26, 2016. Ezekiel's death certificate lists January 28, 2016, as his date of death. Ashley's date of death is listed as January 29, 2016, on her death certificate.

         Samuel introduced excerpts from Ezekiel's and Jeremiah's medical records at the hearing. Jeremiah's discharge summary states that he was declared brain dead at 11:30 a.m. on January 25, and that he was disconnected from the ventilator and had no pulse at 12:28 p.m. on January 27. A consultation note from January 26 states that Jeremiah was assessed for brain death ...


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