STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
19-135
YVETTE PERRY & JAMES PAUL PERRY, ET AL
VERSUS
DOROTHY MAE CLAY, IN RE ESTATE
OF JAMES PAUL GREEN
**********
APPEAL FROM THE ELEVENTH JUDICIAL DISTRICT COURT PARISH OF SABINE, NO. 69,159 HONORABLE STEPHEN B. BEASLEY, DISTRICT JUDGE
SHANNON J. GREMILLION JUDGE
Court composed of Sylvia R. Cooks, Shannon J. Gremillion, and Van H. Kyzar, Judges.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. Ronald D. Brandon Brandon Law Firm P. O. Box 216 Many, LA 71449 (318) 256-5910 COUNSEL FOR DEFENDANT/APPELLEE: Dorothy Mae Clay, in re Estate of James P Green
Yvette Perry 941 Lucille Street Natchitoches, LA 71457 (318) 332-4450 In Proper Person
James Paul Perry 941 Lucille Street Natchitoches, LA 71457 (318) 332-4450 In Proper Person GREMILLION, Judge.
From the judgment of the trial court that maintained the exception of no right
of action filed by Appellee, Dorothy Mae Clay (Mrs. Clay), Appellants filed the
instant appeal. For the reasons that follow, we affirm in part, reverse in part, and
remand the matter for further proceedings.
FACTS
This matter involves the succession of James Paul Green (Mr. Green), who
died in 2014. Appellants, James Paul Perry (Mr. Perry) and his daughter, Yvette
Perry (Ms. Perry), sought to be recognized as Mr. Green’s father and sister,
respectively, when, on August 20, 2018, they filed a Rule to Show Cause contesting
the propriety of Mrs. Clay’s administration of Mr. Green’s succession.1 Mr. Perry
asserted that he fathered Mr. Green, Mr. Green’s brother, Michael McClanahan, and
Mr. Green’s sister, Laura Ann Green, during an extra-marital affair between himself
and Mr. Green’s mother, Mrs. Clay, who was married to James Charles Green during
the pertinent period. Mr. Perry’s testimony on this point was corroborated by his
ex-wife, Estella Patton, who was aware at the time of Mr. Perry’s relationship with
Mrs. Clay, and by three of his biological children fathered with Mrs. Patton. Mr.
Perry’s paternity of Mr. Green was disputed by Mr. Green’s sister, Lenora Green.
Mrs. Clay answered the rule with exceptions of no cause of action and no right
of action. The trial court maintained the exception of no right of action and denied
the exception of no cause of action. This appeal ensued.
1 Appellants entitled their action, “YVETTE PERRY & JAMES PAUL PERRY, ET AL.“ and assert therein that, besides themselves, Patrice Perry, James Sylvester Perry, and James Jerome Perry seek to be recognized as heirs of James Paul Green. However, none of these putative heirs have joined the action. The judgment appealed is silent as to these putative heirs. This court is limited to addressing the rights of the actual parties to the litigation. ANALYSIS
The law establishes the presumption that the husband of the mother is the
father of the child born during the marriage. La.Civ.Code art. 185. Thus, Mr. James
Charles Green is presumed to be Mr. Green’s father. The law also establishes
peremptive periods within which a putative biological father may seek filiation of a
child. Louisiana Civil Code Article 198 provides:
A man may institute an action to establish his paternity of a child at any time except as provided in this Article. The action is strictly personal.
If the child is presumed to be the child of another man, the action shall be instituted within one year from the day of the birth of the child. Nevertheless, if the mother in bad faith deceived the father of the child regarding his paternity, the action shall be instituted within one year from the day the father knew or should have known of his paternity, or within ten years from the day of the birth of the child, whichever first occurs.
In all cases, the action shall be instituted no later than one year from the day of the death of the child.
The time periods in this Article are peremptive.
Mrs. Clay filed an exception of no right of action in response to Appellants’
rule.
The focus in an exception of no right of action is on whether the particular plaintiff has a right to bring the suit, but it assumes that the petition states a valid cause of action for some person and questions whether the plaintiff in the particular case is a member of the class that has a legal interest in the subject matter of the litigation.
Reese v. State Dep’t of Pub. Safety & Corr., 03-1615, p. 3 (La. 2/20/04), 866 So.2d
244, 246.
In Leger v. Leger, 15-151 (La.App. 3 Cir. 9/30/15), 215 So.3d 773, a mother’s
paramour intervened in her divorce to establish his paternity of the second child born
during her marriage. The intervention was filed approximately twenty months after
the child was born and eighteen months after a DNA test proved to a 99.99%
2 probability that he was the child’s father. We affirmed the trial court’s maintenance
of exceptions of peremption, no right of action, and no cause of action asserted by
the mother’s husband.
Applying the precepts of La.Civ.Code art. 198 and the reasoning in Leger, it
is apparent that Mr. Perry’s action is perempted: it was filed more than a year after
Mr. Green’s death, which was the absolute latest such a claim could be made under
any circumstance. Accordingly, Mr. Perry no longer enjoys the status of one
afforded a remedy in Mr. Green’s succession.
The same cannot be said of Ms. Perry. La.Civ.Code art. 875 defines intestate
successions, in part: “Intestate succession results from provisions of law in favor of
certain persons[.]” Under the provisions of La.Civ.Code art. 880, when there is no
valid testamentary disposition of decedent’s property, i.e. an intestate succession,
“the undisposed property of the deceased devolves by operation of law in favor of
his descendants, ascendants, and collaterals, by blood or by adoption, and in favor
of his spouse not judicially separated from him, in the order provided in and
according to the following articles.” Comment (c) of the Revision Comments of
1997 to this article state, in pertinent part, “Once a relationship is proven by blood
or adoption, the succession rights of such a relative are established without reference
to the legitimacy of that relationship.” Thus, this revision of the Civil Code removed
any distinction between legitimate and illegitimate siblings, and, under Article 880,
this decedent’s half-siblings are entitled to inherit their share “by operation of law.”
Nothing in the law required these siblings to prove their blood relationship to
decedent at any time before they made a claim in his succession.
In Gibbs v. Delatte, 05-821 (La.App. 1 Cir. 12/22/05), 927 So.2d 1131, writ
denied, 06-0198 (La. 4/24/06), 926 So.2d 548, the first circuit addressed the question
concerning half-siblings’ right to proceed under wrongful death and survival actions 3 even though their deceased father never filiated their half-brother, the decedent. The
court of appeal ruled in favor of the half-siblings, finding that they enjoyed the right
to bring these actions within the appropriate time delays. This ruling relied in part
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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
19-135
YVETTE PERRY & JAMES PAUL PERRY, ET AL
VERSUS
DOROTHY MAE CLAY, IN RE ESTATE
OF JAMES PAUL GREEN
**********
APPEAL FROM THE ELEVENTH JUDICIAL DISTRICT COURT PARISH OF SABINE, NO. 69,159 HONORABLE STEPHEN B. BEASLEY, DISTRICT JUDGE
SHANNON J. GREMILLION JUDGE
Court composed of Sylvia R. Cooks, Shannon J. Gremillion, and Van H. Kyzar, Judges.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. Ronald D. Brandon Brandon Law Firm P. O. Box 216 Many, LA 71449 (318) 256-5910 COUNSEL FOR DEFENDANT/APPELLEE: Dorothy Mae Clay, in re Estate of James P Green
Yvette Perry 941 Lucille Street Natchitoches, LA 71457 (318) 332-4450 In Proper Person
James Paul Perry 941 Lucille Street Natchitoches, LA 71457 (318) 332-4450 In Proper Person GREMILLION, Judge.
From the judgment of the trial court that maintained the exception of no right
of action filed by Appellee, Dorothy Mae Clay (Mrs. Clay), Appellants filed the
instant appeal. For the reasons that follow, we affirm in part, reverse in part, and
remand the matter for further proceedings.
FACTS
This matter involves the succession of James Paul Green (Mr. Green), who
died in 2014. Appellants, James Paul Perry (Mr. Perry) and his daughter, Yvette
Perry (Ms. Perry), sought to be recognized as Mr. Green’s father and sister,
respectively, when, on August 20, 2018, they filed a Rule to Show Cause contesting
the propriety of Mrs. Clay’s administration of Mr. Green’s succession.1 Mr. Perry
asserted that he fathered Mr. Green, Mr. Green’s brother, Michael McClanahan, and
Mr. Green’s sister, Laura Ann Green, during an extra-marital affair between himself
and Mr. Green’s mother, Mrs. Clay, who was married to James Charles Green during
the pertinent period. Mr. Perry’s testimony on this point was corroborated by his
ex-wife, Estella Patton, who was aware at the time of Mr. Perry’s relationship with
Mrs. Clay, and by three of his biological children fathered with Mrs. Patton. Mr.
Perry’s paternity of Mr. Green was disputed by Mr. Green’s sister, Lenora Green.
Mrs. Clay answered the rule with exceptions of no cause of action and no right
of action. The trial court maintained the exception of no right of action and denied
the exception of no cause of action. This appeal ensued.
1 Appellants entitled their action, “YVETTE PERRY & JAMES PAUL PERRY, ET AL.“ and assert therein that, besides themselves, Patrice Perry, James Sylvester Perry, and James Jerome Perry seek to be recognized as heirs of James Paul Green. However, none of these putative heirs have joined the action. The judgment appealed is silent as to these putative heirs. This court is limited to addressing the rights of the actual parties to the litigation. ANALYSIS
The law establishes the presumption that the husband of the mother is the
father of the child born during the marriage. La.Civ.Code art. 185. Thus, Mr. James
Charles Green is presumed to be Mr. Green’s father. The law also establishes
peremptive periods within which a putative biological father may seek filiation of a
child. Louisiana Civil Code Article 198 provides:
A man may institute an action to establish his paternity of a child at any time except as provided in this Article. The action is strictly personal.
If the child is presumed to be the child of another man, the action shall be instituted within one year from the day of the birth of the child. Nevertheless, if the mother in bad faith deceived the father of the child regarding his paternity, the action shall be instituted within one year from the day the father knew or should have known of his paternity, or within ten years from the day of the birth of the child, whichever first occurs.
In all cases, the action shall be instituted no later than one year from the day of the death of the child.
The time periods in this Article are peremptive.
Mrs. Clay filed an exception of no right of action in response to Appellants’
rule.
The focus in an exception of no right of action is on whether the particular plaintiff has a right to bring the suit, but it assumes that the petition states a valid cause of action for some person and questions whether the plaintiff in the particular case is a member of the class that has a legal interest in the subject matter of the litigation.
Reese v. State Dep’t of Pub. Safety & Corr., 03-1615, p. 3 (La. 2/20/04), 866 So.2d
244, 246.
In Leger v. Leger, 15-151 (La.App. 3 Cir. 9/30/15), 215 So.3d 773, a mother’s
paramour intervened in her divorce to establish his paternity of the second child born
during her marriage. The intervention was filed approximately twenty months after
the child was born and eighteen months after a DNA test proved to a 99.99%
2 probability that he was the child’s father. We affirmed the trial court’s maintenance
of exceptions of peremption, no right of action, and no cause of action asserted by
the mother’s husband.
Applying the precepts of La.Civ.Code art. 198 and the reasoning in Leger, it
is apparent that Mr. Perry’s action is perempted: it was filed more than a year after
Mr. Green’s death, which was the absolute latest such a claim could be made under
any circumstance. Accordingly, Mr. Perry no longer enjoys the status of one
afforded a remedy in Mr. Green’s succession.
The same cannot be said of Ms. Perry. La.Civ.Code art. 875 defines intestate
successions, in part: “Intestate succession results from provisions of law in favor of
certain persons[.]” Under the provisions of La.Civ.Code art. 880, when there is no
valid testamentary disposition of decedent’s property, i.e. an intestate succession,
“the undisposed property of the deceased devolves by operation of law in favor of
his descendants, ascendants, and collaterals, by blood or by adoption, and in favor
of his spouse not judicially separated from him, in the order provided in and
according to the following articles.” Comment (c) of the Revision Comments of
1997 to this article state, in pertinent part, “Once a relationship is proven by blood
or adoption, the succession rights of such a relative are established without reference
to the legitimacy of that relationship.” Thus, this revision of the Civil Code removed
any distinction between legitimate and illegitimate siblings, and, under Article 880,
this decedent’s half-siblings are entitled to inherit their share “by operation of law.”
Nothing in the law required these siblings to prove their blood relationship to
decedent at any time before they made a claim in his succession.
In Gibbs v. Delatte, 05-821 (La.App. 1 Cir. 12/22/05), 927 So.2d 1131, writ
denied, 06-0198 (La. 4/24/06), 926 So.2d 548, the first circuit addressed the question
concerning half-siblings’ right to proceed under wrongful death and survival actions 3 even though their deceased father never filiated their half-brother, the decedent. The
court of appeal ruled in favor of the half-siblings, finding that they enjoyed the right
to bring these actions within the appropriate time delays. This ruling relied in part
on the supreme court’s holding in Warren v. Richard, 296 So.2d 813 (La.1974), and
its reliance on several landmark United States Supreme Court decisions establishing
the principle that the test for equal protection under the law is the biological
relationship of the parties, not their legal classification. Put another way, blood is
the determining factor with siblings. Additionally, in Warren, the fact that the
claimant was presumed to be the child of her mother’s husband was not a bar to her
proving that the decedent was her biological father.
Under the current provisions of the Civil Code “[s]uccession occurs at the
death of a person[,]” La.Civ.Code art. 934, and universal successors immediately
“acquire ownership of the [decedent’s] estate[,]” La.Civ.Code art. 935. Universal
successors are now defined in La.Civ.Code art. 3506(28) to include intestate heirs
and the former La.Civ.Code art. 949 (1870) “is obsolete because of the elimination
of irregular successors and therefore has been deleted.” La.Civ.Code art. 935,
Revision Comment (f) (1997). Louisiana Civil Code Article. 893 makes no
distinction between legitimate and illegitimate siblings related by half-blood as
evidenced in Comment (a) of the Revision Comments of 1981 to that article.
Thus, the trial court erred in finding that Ms. Perry has no right of action
without addressing the legal distinction between Mr. Perry’s right of action and Ms.
Perry’s potential right of action. No factual findings were adduced, and, in the mind
of this court, whether Ms. Perry enjoys a right of action is dependent upon an
assessment of the credibility of the witnesses in the matter, which we are poorly
positioned to assess. We remand the matter to the trial court for proceedings to
4 determine whether Yvette Perry has proven her sibling relationship to James Paul
Green.
For these reasons, the judgment of the trial court maintaining the exception of
no right of action is affirmed in part and reversed in part, and the matter is remanded
for further proceedings. All costs of these proceedings are taxed equally to
Appellant, James Paul Perry, and Appellee, Dorothy Mae Clay.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.