Nelson v. Burkeen Construction Co.

717 So. 2d 261, 1998 La. App. LEXIS 2449, 1998 WL 483587
CourtLouisiana Court of Appeal
DecidedAugust 19, 1998
DocketNo. 30761-CA
StatusPublished

This text of 717 So. 2d 261 (Nelson v. Burkeen Construction Co.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nelson v. Burkeen Construction Co., 717 So. 2d 261, 1998 La. App. LEXIS 2449, 1998 WL 483587 (La. Ct. App. 1998).

Opinion

11 BROWN, Judge.

Plaintiff, Chauncy Theron Fitch Nelson, and his brother, Tracy Fitch Nelson, are the natural children of Willie Fitch, born of his marriage to Winnifred Washington Fitch. The Fitches divorced and the two children were adopted by Winnifred’s second husband, Dr. Richard T. Nelson, Jr.

Willie Fitch, an employee of the More-house Parish Highway Department, was standing between two parked vehicles when a Burkeen Construction Company truck struck one of the vehicles owned by the City of Bastrop, which then struck and killed Fitch. Fitch’s second wife, Dorothy Fitch, filed a wrongful death and survival action against Burkeen Construction Company, Michigan Mutual Insurance Company and Charles Stennett, the driver of the truck (“Burkeen”).1 Chauncy and his brother Tracy also asserted wrongful death and survival claims.

Burkeen filed an exception of no right of action, alleging that Chauncy and Tracy, as the adopted children of Dr. and Mrs. Nelson, had lost their right to bring survival and wrongful death actions for the death of their natural father. In response, Chauncy raised the issue of the validity of his adoption.

The trial court found that Chauncy’s adoption was an absolute nullity which allowed him to pursue both wrongful death and survival actions. The court then found that Tracy, as a child given in adoption, had the right to assert a survival action although he could not recover damages for Fitch’s wrongful death. On review, this court held that as an adopted child, Tracy had no right of action for either the survival or wrongful death of his natural father. As to Chauncy, the case was remanded to the trial court for a determination of the validity of his adoption, with instructions that Dr. Nelson be added as an indispensable party defendant. 12See Nelson v. Burkeen Construction Company, 605 So.2d 681 (La.App. 2d Cir.1992).

Thereafter, Chauncy filed an amended petition directly attacking his adoption and naming as a defendant his adoptive father. Burkeen countered with another exception of no right of action. Chauncy then filed a motion for partial summary judgment on the issue of the adoption’s validity.

According to Chauncy, the act of adoption was invalid because it was executed on April 12, 1977 when he was only 17 years old and thus required consent of his natural father, Willie Fitch, whose signature was not obtained. Burkeen contended that the notarial act of adoption was misdated and was actually signed and executed in 1978 when Chaun-cy was 18 years old; therefore, Fitch’s consenting signature was unnecessary, the adoption is valid and all of plaintiffs claims are foreclosed.

The trial court held a hearing on the exception and motion for partial summary judgment. By judgment dated August 19, 1997, the trial court overruled the exception of no right of action, denied summary judgment and, based upon its factual finding that the act of adoption was executed in 1977, declared the act of adoption to be absolutely null and void.2 Burkeen has appealed.

[263]*263 Discussion

Because the trial court’s factual determination regarding the execution date of the act of adoption is critical to a resolution of the issue of the adoption’s validity, we will first address Burkeen’s argument that the trial court erred in finding that the act of adoption was executed on April 12,1977.

An appellate court may not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Id; Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Furthermore, if the trial court’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Rosell, supra.

Notwithstanding the trial court’s determination regarding the credibility of Chauncy Nelson, the record does not support the court’s conclusion that the notarial act was executed on April 12, 1977, held by Attorney Jerome Powell and not recorded until more than one year later, on April 14, 1975.

Our careful review of the evidence of record shows the following.

Dr. and Mrs. Nelson did not immediately begin adoption proceedings upon their marriage. Instead, Dr. Nelson insisted that the couple put off adoption until the children were ready; he wanted to wait until Chauncy and Tracy approached him on their own and asked him to become their father. Dr. Nelson stated that the boys first spoke to him about adoption in the spring of 1977. Thereafter, Dr. Nelson contacted an attorney, Jerome Powell, to begin the adoption process.

Both Dr. and Mrs. Nelson were aware that Willie Fitch, the children’s natural father, was against the adoption and would not give his consent. Mrs. Nelson was also worried that if Chauncy’s adoption was completed before Tracy’s, her younger son would feel left out and unwanted. Dr. Nelson agreed and made this desire known to Attorney Powell.

Dr.' and Mrs. Nelson first approached Jerome Powell in the spring of 1977 Uto begin adoption proceedings. Thereafter, on September 20,1977, Powell, on behalf of Dr. and Mrs. Nelson, filed a verified petition to adopt both Tracy (aged 13) and Chauncy (aged 17) in Caddo Parish Juvenile Court. The matter was set for hearing on November 3, 1977, with an investigation report to be prepared prior to the hearing by the Department of Public Welfare. The report was not timely; apparently, a hearing was held in chambers, evidence was adduced and the matter was left open for receipt of the Dept, of Public Welfare’s confidential report.

Between the date of the first hearing and the second, postponed hearing, Attorney Powell was contacted by Juvenile Court Judge Gorman Taylor, who informed counsel that Chauncy Fitch could not be adopted by court decree. Judge Taylor explained several times to Powell that while Tracy was 13 and subject to adoption by judicial decree, Chauncy, who was older than 16, was beyond the jurisdiction of the juvenile court. He further pointed out that because Chauncy was 17, he was still a minor and his adoption, which could be effected only by notarial act, required the consent of his natural father, Willie Fitch. However, if Powell waited until Chauncy was 18, parental consent would not be required.

Judge Taylor noted that while Powell did not indicate to him how he intended to proceed with Chauncy’s adoption, he was certain that the attorney understood that a notarial act executed after Chauncy’s 18 th birthday was the only way he could proceed absent Fitch’s consent. Judge Taylor testified that Powell did not mention to him that such a notarial act had already been prepared and executed.

Nonetheless, Powell did not remove Chauncy’s name from the juvenile court petition. Instead, based upon the judge’s advice, he drafted a private act of adoption to be [264]*264executed after Chauncy’s 18 th birthday in December 1977.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Thornton v. Thornton Farms, Inc.
526 So. 2d 315 (Louisiana Court of Appeal, 1988)
Succession of Pizzillo
65 So. 2d 783 (Supreme Court of Louisiana, 1953)
Arceneaux v. Domingue
365 So. 2d 1330 (Supreme Court of Louisiana, 1978)
Nelson v. Burkeen Const. Co.
605 So. 2d 681 (Louisiana Court of Appeal, 1992)
Rosell v. Esco
549 So. 2d 840 (Supreme Court of Louisiana, 1989)
In Interest of Voyles
417 So. 2d 497 (Louisiana Court of Appeal, 1982)
Whitney Nat. Bank of New Orleans v. Schwob
13 So. 2d 782 (Supreme Court of Louisiana, 1943)

Cite This Page — Counsel Stack

Bluebook (online)
717 So. 2d 261, 1998 La. App. LEXIS 2449, 1998 WL 483587, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nelson-v-burkeen-construction-co-lactapp-1998.