Succession of Fragala

680 So. 2d 1345, 1996 WL 547990
CourtLouisiana Court of Appeal
DecidedSeptember 27, 1996
Docket28663-CA
StatusPublished
Cited by8 cases

This text of 680 So. 2d 1345 (Succession of Fragala) 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
Succession of Fragala, 680 So. 2d 1345, 1996 WL 547990 (La. Ct. App. 1996).

Opinion

680 So.2d 1345 (1996)

Succession of Nicholas Lawrence FRAGALA.
Freddie Gail Akins FRAGALA, Plaintiff-Appellant,
v.
Rebecca Jo Fragala DUBEA, et al., Defendants-Appellees.

No. 28663-CA.

Court of Appeal of Louisiana, Second Circuit.

September 27, 1996.

*1346 John G. Spires, Mer Rouge, for Defendants-Appellees.

Bruscato, Tramontana & Underwood by Carey B. Underwood, Monroe, for Plaintiff-Appellant.

Before NORRIS, WILLIAMS and CARAWAY, JJ.

NORRIS, Judge.

The executrix, Mrs. Freddie Gail Fragala, appeals a judgment sustaining an exception of no cause of action filed by the forced heirs[1] and dismissing her petition for possession of the estate of her late husband, Mr. Nicholas L. Fragala. We find that the District Court applied the correct forced heirship law in effect at the time of Mr. Fragala's death but improperly sustained the exception *1347 and dismissed the petition. We therefore reverse and remand.

Factual and procedural background

Mr. Fragala executed a statutory will on April 1, 1993, at which time the Civil Code stated that children over the age of 23 were not forced heirs.[2] The will named his second wife, the petitioner, executrix of the succession and gave the entire estate to her. The will also provided that "as of this date" the five children of his first marriage (one of whom predeceased him but was represented by a grandson) "are not forced heirs under Louisiana law[.]" In the event that the law recognized them as such, he specifically disinherited them "for reason of their past actions constituting cruelty and grievous injury towards me[.]"

Mr. Fragala died on July 8, 1993. Two months later, the Supreme Court declared Civil Code article 1493, together with related statutes, unconstitutional. Succession of Lauga, 624 So.2d 1156 (La.1993). Mrs. Fragala filed the instant petition to probate the will and for possession of the estate in November 1993.

The forced heirs filed an exception of no cause of action, urging that under Louisiana law[3] the recitals in the will were not sufficient to effect their disinherison. The District Court sustained the exception. Mrs. Fragala obtained a writ order from this court giving her leave to amend to state a cause of action.[4]

Mrs. Fragala therefore filed an amended petition for possession setting forth specific allegations to support the grounds stated in the will. The forced heirs then filed the instant exception of no cause of action, urging that the Civil Code provisions limiting forced heirship to persons under age 23 was unconstitutional, that under applicable law the exceptors were forced heirs, and that the will did not adequately set forth grounds of disinherison. The District Court sustained the exception and dismissed the petition for possession on September 14, 1995.

Subsequent to Lauga, the legislature proposed an amendment to La. Const. art. XII § 5 to permit legislation to redefine forced heirs as descendants 23 years old or younger.[5] By separate act the legislature also re-enacted, contingent upon the passage of the amendment, a version of C.C. art. 1493 substantially the same as the one previously declared unconstitutional, together with special legislation regarding the construction of wills executed prior to January 1, 1996. La. R.S. 9:2501.[6] The amendment was ratified by popular vote on October 21, 1995.

Mrs. Fragala has appealed the judgment, urging the District Court erred in (1) failing to apply the amendment to La. Const. art. XII § 5 retroactively, (2) failing to apply the amendments to La. C.C. art. 1493 and La. R.S. 9:2501 retroactively, and (3) holding that the Civil Code articles regarding disinherison require that the will itself must set forth the specific facts that give rise to one of the grounds listed in article 1621. After oral argument, the parties submitted additional briefs to address the propriety of the exception of no cause of action to defeat the petition for possession under the facts of this case.

Retroactivity of the constitutional amendment

In her first assignment, Mrs. Fragala urges the threshold issue, "whether article 1493, as amended in 1989 and 1990, abolishing forced heirship in favor of descendants over the age of 23, was effective at all times pertinent to this case." She asserts "the answer is yes," but this is incorrect. On the same day as it decided Succession of Lauga, supra, the Supreme Court also decided Succession of Terry, 624 So.2d 1201 (La.1993). There the decedent died after the amendments to art. 1493; the plaintiff, who was over 23 years of age, sought his forced portion. *1348 The District Court found the amended art. 1493 violated La. Const. art. I § 3, which prohibits age discrimination. The Supreme Court amended and affirmed, stating the district court "reached the correct results * * * by applying the law in effect prior to the invalid amendments." Because the Supreme Court plainly enforced the prior law after rejecting the amended law, Mrs. Fragala's argument that the amended law "was effective at all times pertinent to this case" is untenable.

The major thrust of Mrs. Fragala's first assignment is that the subsequent amendment to La. Const. art. XII § 5, which essentially re-enacts the 1990 version of art. 1493, had the effect of reviving the 1990 version retroactively. In support she cites Dr. G.H. Tichenor Antiseptic Co. v. Schwegmann Bros. Giant Super Markets, 83 So.2d 502 (La.App.Orl.Cir.1955),[7] and Fullilove v. United States Cas. Co. of New York, 129 So.2d 816 (La.App. 2d Cir.), writ denied (not reported, 1961), for the theory that a subsequent constitutional amendment which removes the constitutional impediment to enforcing a statute, effectively revives the statute. She also cites Treanor and Sperling, Prospective Overruling and the Revival of "Unconstitutional" Statutes, 93 Colum. L.Rev.1902 (1993), for its exhaustive discussion of the issue. She finally cites T.P.M.P.T. Emp. Credit Union v. Charpentier, 376 So.2d 592 (La.App. 4th Cir. 1979), for the rule that a curative amendment should be applied retroactively.

Under Louisiana law, the general rule is that the Constitution should operate prospectively. Blessing v. Levy, 214 La. 856, 39 So.2d 84 (1949). The Constitution itself provides that the law effectuating a Constitutional amendment may become effective only upon ratification of the amendment. La. Const. art. XIII § 3. The general rule, however, is inapplicable where a consideration of the legislation as a whole makes it clear that a prospective-only application was not intended. Blessing v. Levy, supra. The joint resolution that proposed the constitutional amendment, La. Acts 1995, No. 1321, gives no indication that a retrospective application was intended. It must be presumed that the legislature was aware of the Supreme Court's holding in Succession of Terry, supra, that the 1989 and 1990 amendments to Civil Code art. 1493

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Bluebook (online)
680 So. 2d 1345, 1996 WL 547990, Counsel Stack Legal Research, https://law.counselstack.com/opinion/succession-of-fragala-lactapp-1996.