FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF
CALCASIEU, NO. 2017-4347 HONORABLE LILYNN ANNETTE CUTRER,
William J. Cutrera COUNSEL FOR PLAINTIFF/APPELLEE: Marcy
L. Sonnier Hunter, Hunter & Sonnier COUNSEL FOR OTHER
APPELLEE: D. O. (minor child)
Guillory Erin F. Hargrave Health J. Dorsey Law Office of Brad
Guillory COUNSEL FOR DEFENDANT/APPELLANT: Jason O'Rourke
composed of Billy Howard Ezell, D. Kent Savoie, and Van H.
HOWARD EZELL JUDGE
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
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
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.
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).
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.
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.
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 ...