STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
CA 19-412
MARCY ANDRE BARRAS
VERSUS
JASON O’ROURKE
**********
APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 2017-4347 HONORABLE LILYNN ANNETTE CUTRER, DISTRICT JUDGE
BILLY HOWARD EZELL JUDGE
Court composed of Billy Howard Ezell, D. Kent Savoie, and Van H. Kyzar, Judges.
REVERSED AND REMANDED. William J. Cutrera 2380 Lake Street Lake Charles, LA 70601 (337) 433-4903 COUNSEL FOR PLAINTIFF/APPELLEE: Marcy Andre Barras
Shayna L. Sonnier Hunter, Hunter & Sonnier 1807 Lake St. Lake Charles, LA 70601 (337) 436-1600 COUNSEL FOR OTHER APPELLEE: D. O. (minor child)
Brad Guillory Erin F. Hargrave Health J. Dorsey Law Office of Brad Guillory 940 Ryan St. Lake Charles, LA 70601 (337) 433-5297 COUNSEL FOR DEFENDANT/APPELLANT: Jason O’Rourke EZELL, Judge.
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.
2 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 retroactively, unless there is legislative expression to the
contrary.”
In Chance v. American Honda Motor Co., Inc., 93-2582 (La. 4/11/94), 635
So.2d 177, the Louisiana Supreme Court established the test for determining
whether the legislature intended for a statute to revive prescribed causes of action.
In Chance, the court acknowledged the well-established principle of statutory
construction that “prescriptive periods relate to the remedy and are therefore
treated as procedural laws and applied retroactively.” Id. at 178 (citing Lott v.
Haley, 370 So.2d 521 (La.1979)). The Chance court then noted that “the revival of
an already prescribed claim presents additional concerns” because a change in the
right to plead prescription, once acquired, “constitutes a substantive change in the
law as applied to the defendant,” who would have lost the ability to claim
prescription. Id.
Using the principles established in La.Civ.Code art. 6, the Chance court, in
characterizing the legislative revival of prescribed causes of action as “an extreme
exercise of legislative power,” held that a clear and unequivocal expression of
3 intent by the legislature was needed before the court would interpret such a
legislative intent behind a statute. Chance, 635 So.2d at 178 (quoting Hopkins v.
Lincoln Trust Co., 233 N.Y. 213, 135 N.E. 267, 267 (1912)). Finding no such
clear expression of legislative intent in the amendment to the prescriptive statute at
issue, the court in Chance declined to apply the amendment retroactively to revive
an already prescribed cause of action. Id.
We agree with the Chance court that prescriptive periods are generally
treated as procedural laws and applied retroactively. However, we find Chance to
be distinguishable from the case at hand. Whereas the court in Chance found no
expression of legislative intent to revive prescribed claims, here it is clear that the
legislature was unequivocal in its reasoning behind the amendment to La.R.S.
9:406.
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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
CA 19-412
MARCY ANDRE BARRAS
VERSUS
JASON O’ROURKE
**********
APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 2017-4347 HONORABLE LILYNN ANNETTE CUTRER, DISTRICT JUDGE
BILLY HOWARD EZELL JUDGE
Court composed of Billy Howard Ezell, D. Kent Savoie, and Van H. Kyzar, Judges.
REVERSED AND REMANDED. William J. Cutrera 2380 Lake Street Lake Charles, LA 70601 (337) 433-4903 COUNSEL FOR PLAINTIFF/APPELLEE: Marcy Andre Barras
Shayna L. Sonnier Hunter, Hunter & Sonnier 1807 Lake St. Lake Charles, LA 70601 (337) 436-1600 COUNSEL FOR OTHER APPELLEE: D. O. (minor child)
Brad Guillory Erin F. Hargrave Health J. Dorsey Law Office of Brad Guillory 940 Ryan St. Lake Charles, LA 70601 (337) 433-5297 COUNSEL FOR DEFENDANT/APPELLANT: Jason O’Rourke EZELL, Judge.
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.
2 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 retroactively, unless there is legislative expression to the
contrary.”
In Chance v. American Honda Motor Co., Inc., 93-2582 (La. 4/11/94), 635
So.2d 177, the Louisiana Supreme Court established the test for determining
whether the legislature intended for a statute to revive prescribed causes of action.
In Chance, the court acknowledged the well-established principle of statutory
construction that “prescriptive periods relate to the remedy and are therefore
treated as procedural laws and applied retroactively.” Id. at 178 (citing Lott v.
Haley, 370 So.2d 521 (La.1979)). The Chance court then noted that “the revival of
an already prescribed claim presents additional concerns” because a change in the
right to plead prescription, once acquired, “constitutes a substantive change in the
law as applied to the defendant,” who would have lost the ability to claim
prescription. Id.
Using the principles established in La.Civ.Code art. 6, the Chance court, in
characterizing the legislative revival of prescribed causes of action as “an extreme
exercise of legislative power,” held that a clear and unequivocal expression of
3 intent by the legislature was needed before the court would interpret such a
legislative intent behind a statute. Chance, 635 So.2d at 178 (quoting Hopkins v.
Lincoln Trust Co., 233 N.Y. 213, 135 N.E. 267, 267 (1912)). Finding no such
clear expression of legislative intent in the amendment to the prescriptive statute at
issue, the court in Chance declined to apply the amendment retroactively to revive
an already prescribed cause of action. Id.
We agree with the Chance court that prescriptive periods are generally
treated as procedural laws and applied retroactively. However, we find Chance to
be distinguishable from the case at hand. Whereas the court in Chance found no
expression of legislative intent to revive prescribed claims, here it is clear that the
legislature was unequivocal in its reasoning behind the amendment to La.R.S.
9:406.
“Although the Official Revision Comments connected with statutes are not
the law, they can be useful in determining legislative intent.” Cent. Prop. v.
Fairway Gardenhomes, LLC, 16-1855, 16-1946, p. 11 (La. 6/27/17), 225 So.3d
441, 448 (citing Arabie v. CITGO Petroleum Corp., 10-2605 (La. 3/13/12), 89
So.3d 307). The legislative comments to the 2016 amendment of La.R.S. 9:406
state (emphasis ours):
The 2016 revision repeals the two-year prescriptive period previously imposed for revocation of authentic acts of acknowledgment. That prescriptive period was illogical where the acknowledgment was executed by a man who was not the biological father of the child. The Louisiana Supreme Court has held the execution of such an acknowledgment to be an absolute nullity absent the requisite biological relationship supporting it. Succession of Robinson, 654 So. 2d 682 (La. 25 1995). To speak of prescription when a father seeks a declaration of absolute nullity is inappropriate, as absolute nullities are imprescriptible by nature. C.C. Art. 2032.
4 In Succession of Robinson, 94-2229, p. 4 (La. 5/22/95), 654 So.2d 682, 684,
the supreme court stated that through acknowledgment, “the ‘mother’ or ‘father’
provides proof of maternal or paternal filiation, that is, biological parentage.” That
court further stated that “[a]bsent a biological relationship, the avowal is null.
‘A fact cannot be avowed when it has never existed.’ 1 Planiol, [Treatise on the
Civil Law § 1476 (La.St.L.Inst. transl. 1959)], § 1490(2). If the acknowledgment is
null, it produces no effects.” Id. (emphasis ours). It is clear from the above
legislative comment language that the legislature sought to codify that holding in
Robinson.
The legislature was even more clear of its intent in stating that prescription is
“inappropriate” in cases “where the acknowledgment was executed by a man who
was not the biological father of the child,” such as the one currently before this
court, as the lack of a biological relationship with the child acknowledged creates
an “absolute nullity,” which the legislature declared “imprescriptible by nature.”
Official Comments to La.R.S. 9:406. In declaring prescription “illogical” in the
case of a man who was deceived into acknowledging a child that was not
biologically his own, it is clear that the legislature intended to completely remove
prescription in these cases, and therefore, to apply the amendment retroactively to
revive any already prescribed causes of action, as those actions are clearly and
unequivocally deemed by the legislature to be “imprescriptible by nature.” Id. 1
It is clear that the legislature intended that the removal of the two-year
prescription period for an annulment of an acknowledgement of paternity apply
1 We further note, for the sake of thoroughness, that though Ms. Barras has lost her right to claim prescription under the current version of La.R.S. 9:406 against Mr. O’Rourke - a man who allegedly has a zero percent chance of truly being the father of her child - she has not lost her substantive right to seek child support from the child’s actual biological father.
5 completely and, therefore, retroactively. Consequently, Mr. O’Rourke’s petition to
annul his acknowledgment has not prescribed under La.R.S. 9:406. As the trial
court erred in granting Ms. Barras’ exception of prescription, we hereby reverse
the decision of the trial court and remand this matter for further proceedings. Costs
of this appeal are hereby assessed against Ms. Barras.
REVERSED AND REMANDED.