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Barras v. O'Rourke

Court of Appeals of Louisiana, Third Circuit

December 18, 2019



          William J. Cutrera COUNSEL FOR PLAINTIFF/APPELLEE: Marcy Andre Barras

          Shayna L. Sonnier Hunter, Hunter & Sonnier COUNSEL FOR OTHER APPELLEE: D. O. (minor child)

          Brad Guillory Erin F. Hargrave Health J. Dorsey Law Office of Brad Guillory COUNSEL FOR DEFENDANT/APPELLANT: Jason O'Rourke

          Court composed of Billy Howard Ezell, D. Kent Savoie, and Van H. Kyzar, Judges.


         Jason O'Rourke appeals the decision of the trial court below granting an exception of prescription in favor of Marcy Barras. For the following reasons, we reverse and remand for further proceedings.

         Mr. O'Rourke and Ms. Barras had an intimate relationship during 2013. On July 30, 2014, a child was born, which Mr. O'Rourke believed to be his own. Under that belief, he executed a formal act of acknowledgment of the child and placed his name on the child's birth certificate. In October of 2017, Ms. Barras filed a petition for child support and to set custody. During the course of that litigation, Ms. Barras made comments which made Mr. O'Rourke begin to question his paternity of the child. He claims that in February of 2018, he purchased a home DNA kit which, showed he had a zero percent chance of having fathered the child. He then sought to annul his acknowledgement of paternity, filing a mistitled "Petition to Disavow Paternity." Ms. Barras filed an exception of prescription, citing a prior version of La.R.S. 9:406 in effect at the time of acknowledgement and claiming that Mr. O'Rourke had not sought to annul the acknowledgement within two years of making it. The trial court agreed and granted the exception. From that decision, Mr. O'Rourke appeals.

         On appeal, Mr. O'Rourke asserts two assignments of error. He claims that the trial court erred in granting the exception of prescription in violation of the statutory language of La.R.S. 9:406, and that the trial court erred in failing to conduct an evidentiary hearing when he had alleged his act of acknowledgement was based on having been fraudulently misled about the paternity of the child. Because we agree with Mr. O'Rourke's first assignment of error, we need not discuss his second.

         A judgment granting a peremptory exception is generally reviewed de novo, as the exception raises a legal question. Scott v. Zaheri, 14-726 (La.App. 4 Cir. 12/3/14), 157 So.3d 779. Likewise, "[i]n a case involving no dispute regarding material facts, but only the determination of a legal issue, a reviewing court must apply the de novo standard of review, under which the trial court's legal conclusions are not entitled to deference." TCC Contractors, Inc. v. Hosp. Serv. Dist. No. 3 of Parish of Lafourche, 10-685, 10-686, p. 8 (La.App. 1 Cir. 12/8/10), 52 So.3d 1103, 1108 (citing Kevin Assocs., L.L.C. v. Crawford, 03-211 (La. 1/30/04), 865 So.2d 34). When no evidence is introduced at the hearing on an exception of prescription, "the reviewing court simply determines whether the trial court's finding was legally correct." Dugas v. Bayou Teche Water Works, 10-1211, pp. 4-5 (La.App. 3 Cir. 4/6/11), 61 So.3d 826, 830; Bulliard v. City of St. Martinville, 14-140 (La.App. 3 Cir. 6/4/14), 139 So.3d 1269, writ denied, 14-1455 (La. 10/10/14), 151 So.3d 586. "The standard controlling our review of a peremptory exception of prescription also requires that we strictly construe the statutes against prescription and in favor of the claim that is said to be extinguished." Jones v. Sewerage and Water Bd. of New Orleans, 16-691, p. 3 (La.App. 4 Cir. 3/8/17), 213 So.3d 497, 499 (quoting Felix v. Safeway Ins. Co., 15-701, p. 6 (La.App. 4 Cir. 12/16/15), 183 So.3d 627, 631).

         Here, Mr. O'Rourke seeks to annul an acknowledgement of paternity under La.R.S. 9:406. That statute currently reads in pertinent part:

B. (1) If the notarial act of acknowledgment has not been revoked within sixty days in accordance with the provisions of Subsection A of this Section, a person who executed an authentic act of acknowledgment may petition the court to annul the acknowledgment only upon proof, by clear and convincing evidence, that such act was induced by fraud, duress, material mistake of fact or error, or that the person is not the biological parent of the child.

         Under the prior version of the law, which was in effect at the time Mr. O'Rourke made his acknowledgement, an action to annul an acknowledgement of paternity had to be made within a two-year period commencing with the execution of the act. Therefore, the issue before us is whether La.R.S. 9:406(B)(1) is to be applied prospectively only, rendering Mr. O'Rourke's claim prescribed, or retroactively, allowing his action to continue.

         Louisiana Civil Code Article 6 provides the framework from which statutes are to be interpreted: "In the absence of contrary legislative expression, substantive laws apply prospectively only. Procedural and interpretive laws apply both prospectively and ...

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