KHRISTY GOINS RISMILLER, TUTRIX FOR DANIEL EDWARDS GOINS VERSUS GEMINI INSURANCE COMPANY Consolidated With DAVID WATTS VERSUS MARK GORDON Consolidated With SHEILA SMITH VERSUS GEMINI INSURANCE COMPANY Consolia

• Court: Louisiana Court of Appeal
• Decided: October 3, 2018
• Docket: CW-0017-0811
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

17-811

DAVID WATTS

VERSUS

MARK 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

SHANNON J. GREMILLION JUDGE

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.

Cooks, J., dissents and would deny the writ.

Savoie, J., dissents for the reasons expressed by Judge Cooks, and for the additional reasons assigned.

Conery, J., concurs in part and dissents in part for the reasons expressed by Judges Savoie and Cooks, and for additional reasons assigned.

WRIT GRANTED AND MADE PEREMPTORY; EXCEPTION OF NO RIGHT OF ACTION GRANTED. Andre C. Gaudin M. Joey Bernard Burglass & Tankersley, LLC 5213 Airline Drive Metairie, LA 70001 (504) 836-0422 COUNSEL FOR DEFENDANT/APPLICANT: Kenneth Boone d/b/a Boone Trucking

Timothy W. Hassinger, T.A. Patrick J. Schepens Galloway, Johnson, Tompkins, Burr & Smith 3 Sanctuary Boulevard, Third Floor Mandeville, LA 70471 (985) 674-6680 COUNSEL FOR DEFENDANT/APPLICANT: Mark Isaiah Gordon

Charles S. Norris, Jr. Christopher J. Norris Norris Law Firm, LLC P. O. Box 400 8 North Oak Street Vidalia, LA 71373 (318) 336-1999 COUNSEL FOR PLAINTIFF/RESPONDENT: Khristy Goins Rismiller, Tutrix for Daniel Goins

Colt J. Fore D. Blayne Honeycutt Fayard and Honeycutt 519 Florida Avenue, SW Denham Springs, LA 70726 (225) 664-0304 COUNSEL FOR PLAINTIFF/RESPONDENT: David Watts

Virgil Russell Purvis, III Smith, Taliaferro & Purvis 407 Mound Street Jonesville, LA 71343 (318) 339-8526 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 P. O. Box 2125 Lake Charles, LA 70602-2125 (337) 310-1600 COUNSEL FOR PLAINTIFFS/RESPONDENTS: Succession of Richard Stewart, Jr. Richard Stewart, Sr. Vera Anita Stewart Raymond Kelly Donna Kelly

Jeremy Z. Soso Lambert & Nelson 701 Magazine Street New Orleans, LA 70130 (504) 581-1750 COUNSEL FOR PLAINTIFF/RESPONDENT: Sheila Smith

Joe Meng Attorney at Law 205 South Broadway, Suite A Natchez, MS 39120 (601) 445-8111 COUNSEL FOR PLAINTIFF/RESPONDENT: Sheila Smith

Micah A. Gautreaux Degan, Blanchard & Nash 6421 Perkins Road, Bulding C, Suite B Baton Rouge, LA 70808 (225) 610-1110 COUNSEL FOR DEFENDANT/RESPONDENT: Gemini Insurance Company GREMILLION, Judge.

This consolidated matter arises out of a tragic auto accident that occurred on

October 1, 2015, on U.S. Highway 84 in Concordia Parish.1 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 Richard Stewart,

Jr. 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 of Goins and Watts.2 The

1 This writ is consolidated with 17-809 and 17-812. 2 Khristy Goins Rismiller, Tutrix for Daniel Edward Goins v. Gemini Insurance Company, et al., Louisiana 7th Judicial District Court Docket Number 49,686; and David Watts v. Mark Gordon, et al., Louisiana 7th Judicial District Court Docket Number 49,751. 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 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

3 Succession of Richard Stewart, Jr., et al. v. Mark Isaiah Gordon, et al., Louisiana 7th Judicial District Court Docket Number 49,832.

2 exceptions. We granted the writ applications and heard oral argument. This

particular writ involves the trial court’s denial of Defendants’ exception of no right

of action pertaining to the claims asserted by Watts, Stewart’s biological son, who

was adopted as a minor and who is a biological half-sibling of the deceased minor

children.4

For the reasons set forth in Succession of Richard Stewart, Jr. et al. v. Gordon,

et al., 17-812 (La.App. 3 Cir. __ / __/18), __ So.3d ___, we find the trial court erred

in denying Defendants’ exceptions of no right of action as to Watts’ survival and

wrongful death claims due to the death of his biological father and half-siblings.

Costs of these proceedings are assessed to David Watts.

WRIT GRANTED AND MADE PEREMTORY; EXCEPTIONS OF NO RIGHT OF ACTION GRANTED.

4 Trial Court Docket Number 49,751

3 STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT 17-811

DAVID WATTS VERSUS MARK GORDON, ET AL.

COOKS, J., Dissents and would deny the writ. For the reasons set forth in my concurrence in part and dissent in part in

Succession of Richard Stewart, Jr. et. al. vs. Gordon, et al., 17-812 (La.App. 3 Cir.

___/___/18), __So.3d__, I dissent and would deny this writ. There was no error in

the trial court’s ruling denying Defendants’ exceptions of no right of action as to

Watts’ survival and wrongful death claims due to the death of his biological father

and the death of his half-siblings. STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

No. 17-809 KHRISTY GOINS RISMILLER, TUTRIX FOR DANIEL EDWARD GOINS VERSUS GEMINI INSURANCE COMPANY, ET AL.

CW No. 17-811 DAVID WATTS VERSUS MARK GORDON, ET AL.

CW No. 17-812 SUCCESSION OF RICHARD STEWART, JR., ET AL. VERSUS MARK ISIAH GORDON, ET AL.

Conery, J., concurs in part and dissents in part for reasons assigned by Judges

Savoie and Cooks and for the following additional reasons.

When James Stewart, Jr. was killed in an automobile accident, along with his

two minor children George and Vera Cheyenne Stewart, he was survived by his

wife, Lisa Stewart, and his two adult children, Daniel Goins and David Watts.1

Louisiana Civil Code Article 2315.1 and 2315.2 have been interpreted as “sui

generis” and govern the hierarchy of who may recover in a survival and wrongful

death action, respectively, against the tortfeasor defendants in this case and their

insurance carriers. See Juneau v. State Ex Rel. Department of Health and Hospitals,

15-1382 (La.App. 1 Cir. 7/7/16), 197 So.3d 398, writ denied, 16-1490 (La.

1 Daniel Goins has a tutrix, Kristi Goins Rismiller, who filed suit on his behalf in docket 17-809. David Watts filed suit on his own behalf in docket 17-811. Daniel Goins and David Watts are the biological children of Richard Stewart, Jr. and are the half-brothers of the minors George Stewart and Vera Cheyenne Stewart, whose mother, Brandi Hardie, is not currently a party. Daniel and David were adopted by others but are each claiming survival and wrongful death damages as a result of the death of their biological father, Richard Stewart, Jr. and their biological minor half- siblings, George and Vera Cheyenne Stewart. Richard Stewart, Sr. and his wife, Vera Stewart, are suing for the wrongful death of their son, Richard, Jr., and their minor grandchildren, George and Vera Cheyenne, and are joined in their suit by the Succession of Richard Stewart, Jr. in docket 17- 812. All suits have been consolidated, but the majority has issued separate opinions in each. 11/15/16), 209 So.3d 781. Both articles provide that where there is a surviving

spouse and child or children, they are the first in the hierarchy of persons entitled to

recover. See La.Civ.Code art. 2315.1 and 2315.2. There is no dispute that Lisa

Stewart, the lawful wife of James Stewart, Jr., and his two biological adult sons

Daniel Goins and David Watts, survived James Stewart, Jr.. There is nothing in the

plain wording of the civil code articles in question that would suggest that if Daniel

Goins and David Watts were adopted by another, they would no longer be “children”

or “brother” within the meaning of the two articles in question.

This case then hinges on the words in La.Civ.Code arts. 2315.1 and 2315.2,

“except as otherwise provided by law.” The majority cites La.Civ.Code art. 199 as

the law that precludes recovery by Daniel Goins and David Watts. That article

states:

Upon adoption, the adopting parent becomes the parent of the child for all purposes and the filiation between the child and his legal parent is terminated, except as otherwise provided by law. The adopted child and his descendants retain the right to inherit from his former legal parent and the relatives of that parent. (Emphasis added). The majority reasons that because Richard Stewart Jr.’s “filiation” to Daniel

Goins and David Watts was terminated by adoption, they cannot be considered

“children” for purposes of La.Civ.Code arts. 2315.1(A) and 2315.2(A). However,

La.Civ.Code art. 199 also has the admonition “except as otherwise provided by law”.

Judges Cooks and Savoie in dissent propose that since La.Civ.Code arts. 2315.1 and

2315.2 do not in any way restrict the term “children” or “brothers,” in accordance

with U.S. Supreme Court decisions and our Louisiana Supreme Court decisions cited

in their opinions, neither should we. I agree.

2 It is settled law that recovery under La.Civ.Code arts. 2315.1 and 2315.2 is

“sui generis” and not dependent on any other statute or codal article. Those articles

do not define or limit the term “children” or “brothers.” See Juneau, 197 So.3d 398.

The legislature did not limit the recovery to exclude children who have been adopted

and half-brothers, and we should not judicially add an exception. I believe Judges

Cooks and Savoie have correctly set forth the law and appropriate result in this case

and I respectfully join their concurrences/dissents.

To the extent that this decision conflicts with the interpretation expressed by

a panel of our court in Domingue v. Carencro Nursing Home, Inc., 520 So.2d 996

(La.App. 3 Cir.), writ denied, 522 So.2d 565 (La.1988), I would offer that under our

civilian system we are not bound by a prior decision of another panel of our court,

or any other appellate court decision. Doerr v. Mobil Oil Corp., 00-947 (La.

12/19/00), 774 So.2d 119, reh'g granted on other grounds, 00–947 (La. 3/16/01),

782 So.2d 573.

As Judges Cooks and Savoie point out in their dissents, to issue a ruling

preventing adopted children from filing a wrongful death claim would appear to be

unconstitutional based on the prevailing jurisprudence cited in their opinions. We

need not and I do not reach that conclusion here. Based strictly on statutory

interpretation, La.Civ.Code arts. 2315.1 and 2315.2 do not limit the term “children”

or “brothers” in any way, and in my view include as beneficiaries Daniel Goins and

David Watts, the biological children of the decedent, Richard Stewart, Jr., who have

been adopted by others.

The case of Ledet v. State, Dep’t of Health and Human Res., 465 So.2d 98

(La.App. 4 Cir.), writ denied, 468 So.2d 1211 (La.1985), is instructive on this issue.

The court in Ledet specifically held that since biological half-brothers were not

3 excluded in the definitions of the term “brothers” in La.Civ.Code arts. 2315.1 and

2315.2, the ordinary meaning of the word “brother” would include half-brothers,

pursuant to La.Civ.Code art. 11.2 The fact that Daniel Goins and David Watts were

adopted does not mean that they are no longer the biological children of their father

as well as the biological half-brothers of the minors, George Stewart and Vera

Cheyenne Stewart.

Louisiana Civil Code Articles 2315.1 and 2315.2 use the generic word

“children” and “brothers” without exceptions, and we are not authorized to judicially

create an exception to exclude biological children or half-siblings who have been

adopted by another. See La.Civ.Code art. 9.3 It will be up to the plaintiffs to prove

the extent of their relationship with their biological father and half-siblings and the

amount of their loss, and they should be given an opportunity to do so.

I also agree with Judges Cooks and Savoie’s dissents that if, on remand,

Brandi Hardie is found to have abandoned her biological minor children, George

Stewart and Vera Cheyenne Stewart, pursuant to La.Ch.Code art. 1015(5)4, the next

in line to sue for their wrongful deaths, would be their biological half-brothers,

Daniel Goins and David Watts.

2 La.Civ.Code art. 11 provides, “[t]he words of a law must be given their generally prevailing meaning. Words of art and technical terms must be given their technical meaning when the law involves a technical matter.” 3 Louisiana Civil Code Article 9 states, “[w]hen a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature.” 4 According to La.Ch.Code art. 1015(5), “[t]he grounds for termination of parental rights are: (5) Abandonment of the child by placing him in the physical custody of a nonparent, or the department, or by otherwise leaving him under circumstances demonstrating an intention to permanently avoid parental responsibility by any of the following: (a) For a period of at least four months as of the time of the hearing, despite a diligent search, the whereabouts of the child's parent continue to be unknown. (b) As of the time the petition is filed, the parent has failed to provide significant contributions to the child's care and support for any period of six consecutive months. (c) As of the time the petition is filed, the parent has failed to maintain significant contact with the child by visiting him or communicating with him for any period of six consecutive months.” 4 The majority and the dissents all recognize that if either case disposition

becomes final, there are some who may have had closer relations with the deceased

than those lawfully allowed to recover. We understand their loss but are duty bound

to apply the law as written. The hierarchy of beneficiaries allowed to recover is

plainly written and should be applied as written. Blanchard v. Tinsman, 83-451

(La.App. 3 Cir. 2/1/1984) 445 So.2d 149, writ denied, 448 So.2d 113 (La.1984).

5 STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

17-811 c/w 17-809 c/w 17-812

MARK GORDON, ET. AL.

SAVOIE J., dissents and assigns the following reasons:

I disagree with the majority’s conclusion to grant the exceptions in this matter.

For the reasons set forth in my concurring and dissenting opinion in Succession of

Richard Stewart, Jr. et. al. vs. Gordon, et. al., 17-812 (La.App. 3 Cir. __ / __/18),

__ So.3d ___, Mr. Watts, who is Mr. Stewart’s biolgoical child, has a right to assert

a wrongful death and survival action arising out of Mr. Stewart’s death. Therefore,

the trial court’s ruling in this regard was not in error.

In addition, I would remand Defendants’ exceptions as to Mr. Watts’ survival

and wrongful death action arising out of the minor children’s deaths. As recognized

by the court’s opinion in Succession of Richard Stewart, Jr. et. al., Id., the children’s

biological mother, Ms. Hardie, is an indespensable party and should be made a party

to these proceedings. In the event Ms. Hardie is determined on remand to have

abandoned the deceased children as contempated by La.Civ.Code arts. 2315.1(E)

and 2315.2(E), then Mr. Watts, as the children’s sibling, would have a right to assert

a survival and wrongful death action arising out of their deaths.