Darlene Watson as Administrator of the Estate of John Lee v. Woldenberg Village, Inc.

DARLENE WATSON AS * NO. 2020-CA-0453
ADMINISTRATOR OF THE
ESTATE OF JOHN LEE *
COURT OF APPEAL
VERSUS *
FOURTH CIRCUIT
WOLDENBERG VILLAGE, *
INC. STATE OF LOUISIANA
*******

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2014-08770, DIVISION “B-1”
Honorable Rachael Johnson, Judge
******
JAMES F. MCKAY III
CHIEF JUDGE
******
(Court composed of Chief Judge James F. McKay III, Judge Daniel L. Dysart,
Judge Dale N. Atkins)

LOUIS A. GERDES, JR.
1739 St. Bernard Avenue
New Orleans, Louisiana 70116
COUNSEL FOR PLAINTIFF/APPELLANT

ANN MARIE LEBLANC
KATHRYN M. CARAWAY
ERICA L. ANDREWS
CARAWAY LEBLANC, LLC
3936 Bienville Street
New Orleans, Louisiana 70119
COUNSEL FOR DEFENDANT/APPELLEE

AFFIRMED

JULY 7, 2021

JFM
DLD
DNA

The plaintiff, Darlene Watson, as administrator of the estate of John Lee,

appeals the trial court’s granting of the exceptions of no right of action and

prescription in favor of the defendant, Woldenberg Village, Inc. (Woldenberg).

For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On April 1, 2014, John Lee was admitted to Woldenberg (an assisted

living/rehabilitation facility). Mr. Lee had a history of a prior fall, hip fracture and

surgery. On April 15, 2014, Mr. Lee fell from his wheelchair and broke his hip

while residing at Woldenberg. On July 15, 2014, Mr. Lee died of unrelated causes.

Ms. Watson, Mr. Lee’s stepdaughter, filed a petition for damages as

administrator of Mr. Lee’s estate on September 8, 2014, and later filed a first

amended petition on October 19, 2015. Woldenberg filed an exception of

prematurity, arguing that the allegations sounded in medical malpractice. The trial

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court granted the exception but this Court reversed.1 Thereafter, Woldenberg filed

an answer denying all substantive allegations.

On May 19, 2017, Woldenberg filed an exception of no right of action,

arguing that Ms. Watson had no right to bring the lawsuit in her capacity as the

administrator of the estate of Mr. Lee or otherwise. Ms. Watson then filed a

second amended petition on July 20, 2017, naming Mr. Lee’s children, John Lee,

Jr., Stacy Bell, and Ivan Lee, as plaintiffs. On September 3, 2019, Woldenberg

moved to reset its exception of no right of action and also filed a peremptory

exception of prescription.

Following oral argument, the trial court ruled in favor of Woldenberg on

November 12, 2019, granting the exception of no right of action and dismissing the

petition for damages and the first amended petition with prejudice. The trial court

also granted the exception of prescription and dismissed the second amended

petition with prejudice. Ms. Watson now appeals the trial court’s judgment.

DISCUSSION

On appeal, Ms. Watson raises the following assignments of error: (1) “[t]he

Court below erred in finding that a timely filed suit by the Administrator of the

Estate of an injured decedent did not interrupt the running of prescription on behalf

of the children and designated beneficiaries of the survival action of the said

injured decedent[;]” and (2) “[a]lternatively, the Court [below] erred by not finding

that in the absence of a timely filed petition by the children of a previously injured

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Watson v. Woldenberg Vill., Inc., 2016-0159 (La. App. 4 Cir. 10/5/16), 203 So.3d 317; writ
denied, 2016-1964 (La. 12/16/16), 211 So.3d 1168.

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decedent, the administrator of the estate of a decedent may present a claim for all

the damages to the decedent or at the very least for the debt due the estate for

special damages including but not limited to medical and nursing expenses or for

reimbursement for the inadequate services provided to the decedent.”

The standard of review relating to an exception of no right of action is

generally de novo. N. Clark, L.L.C. v. Chisesi, 2016-0599, p. 3 (La. App. 4 Cir.

12/7/16), 206 So.3d 1013, 1015 (citation omitted). Under that standard, the issue

is whether the lower court’s decision was legally correct.

While examining some discovery responses, which Ms. Watson had

forwarded on May 8, 2017, Woldenberg’s counsel discovered for the first time that

Mr. Lee had three children. However, none of Mr. Lee’s children were named as

parties in the original petition. Ms. Watson, Mr. Lee’s step-daughter, filed suit as

the administrator of his estate. Mr. Lee’s children were not named as plaintiffs

until the second amended petition was filed on July 20, 2017.

Louisiana Civil Code Article 2315.1 (A) and (B) provides:

A. If a person who has been injured by an offense or quasi offense dies, the
right to recover all damages for injury to that person, his property or
otherwise, caused by the offense or quasi offense, shall survive for a
period of one year from the death of the deceased in favor of:

(1) The surviving spouse and child or children of the deceased, or either
the spouse or the child or children.

(2) The surviving father and mother of the deceased, or either of them if
he left no spouse or child surviving.

(3) The surviving brothers and sisters of the deceased, or any of them, if
he left no spouse, child, or parent surviving.

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(4) The surviving grandfathers and grandmothers of the deceased, or any
of them, if he left no spouse, child, parent, or sibling surviving.

B. In addition, the right to recover all damages for injury to the deceased,
his property or otherwise, caused by the offense or quasi offense, may be
urged by the deceased’s succession representative in the absence of any
class of beneficiary set out in Paragraph A.

According to La. C.C. art. 2315.1, Ms. Watson, as a succession

representative, would have only had a right to bring this claim in the absence of

Mr. Lee’s children or any other class of beneficiary described in that code article.

See Guffey v. Lexington House, LLC, 2018-1568, p. 16 (La. 5/8/19), 283 So.3d

1001, 1011. However, in the instant case, Mr. Lee’s children are not absent and

were in fact named as plaintiffs in the second amending petition filed on July 20,

2017. Because Mr. Lee’s children are not absent, Ms. Watson is precluded from

bringing the survival action as the succession representative. We also note that La.

C.C. art. 2315.1, which sets forth the exclusive list of who can file survival action

claims, includes biological and adoptive relations only, not step-relations. See

Succession of Theobald, 2018-241, p. 5 (La.App. 5 Cir. 12/27/18), 263 So.3d 960,

965. In Theobald, the Court held that stepchildren do not have a wrongful death

and survival claim relating to their stepfather’s death. Id. Accordingly, the trial

court in the instant case correctly found that Ms. Watson had no right of action.

As in the instant case, when evidence is introduced to support or controvert a

peremptory exception of prescription, the manifest error or clearly wrong standard

of review applies. Wells Fargo Fin. La, Inc. v. Galloway, 2017-0413, p. 8 (La.

App. 4 Cir. 11/15/17), 231 So.3d 793, 800 (citing Miralda v. Gonzalez, 2014-0888,

pp. 17-18 (La. App. 4 Cir. 2/4/15), 160 So.3d 998, 1009). According to La. C.C.

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art. 2315.1(A), which governs the prescriptive period for the plaintiff’s action: “If a

person who has been injured by an offense or quasi offense dies, the right to

recover all damages for injury to that person, his property or otherwise, caused by

the offense or quasi offense, shall survive for a period of one year from the death

of the deceased.”

In the instant case, a proper plaintiff had one year from July 17, 2014, the

date of Mr. Lee’s death, to file a survival action because the claim prescribed on

July 17, 2015. However, Ms. Watson did not attempt to bring in the proper parties

to this action until June 20, 2017, almost three years after Mr. Lee’s death. As

such, the second amended petition is prescribed on its face. Furthermore, the

second amended petition cannot relate back to the original petition because both

the original partition and the first amended petition were invalid and it was as if

they never existed. The Louisiana Supreme Court has stated that the relation back

theory found in La. C.C.P. art. 1153 assumes that there is a legally viable claim to

which the pleading can relate back, and when that claim is not viable because the

party bringing it lacks a right of action, the untimely claim does not relate back and

is prescribed. Naghi v. Brener, 2008-2527, p. 10 (La. 6/26/09), 17 So.3d 919, 925.

Accordingly, we find no error in the trial court’s granting of Woldenberg’s

exception of prescription.

On appeal, Ms. Watson raises a new “contractual” claim, which she asserts

she is entitled to bring as succession representative. Ms. Watson argues that she

can recover for the medical bills incurred as a result of Mr. Lee’s fall at home and

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up until his fall at Woldenberg. It is well-established that appellate courts will not

consider issues raised for the first time on appeal, which are not pleaded in the

court below and which the trial court has not addressed. Council of City of New

Orleans v. Washington, 2009-1067, p. 3 (La. 5/29/09), 9 So.3d 854, 856 (citations

omitted). As such, Ms. Watson cannot raise a new argument on appeal.

CONCLUSION

For the foregoing reasons, we affirm the trial court’s judgment granting

Woldenberg’s exception of no right of action and peremptory exception of

prescription. We further reject Ms. Watson’s attempt to raise issues for the first

time before this Court.

AFFIRMED

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