In the Matter of the Interdiction of Sara Malone Dunham

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

NO. 2023 CA 0155

IN THE MATTER OF THE INTERDICTION
OF SARA MALONE DUNHAM

Judgment Rendered.- SEP 21 2023

Appealed from the
19th Judicial District Court
In and for the Parish of East Baton Rouge
State of Louisiana
Case No. P110409

The Honorable Wilson E. Fields, Judge Presiding

Jeffrey G. Rice Counsel for Appellant
Baton Rouge, Louisiana Cody E. Dunham

Jill L. Craft Counsel for Appellee
W. Brett Conrad, Jr. Sara Malone Dunham
Baton Rouge, Louisiana

BEFORE: THERIOT, PENZATO, AND GREENE, JJ.

THERIOT, J.

This appeal arises from a judgment in an interdiction proceeding sustaining

the defendant' s exception of no right of action and dismissing the suit. For the

reasons set forth herein, we reverse.

FACTS AND PROCEDURAL HISTORY

Plaintiff, Cody E. Dunham, filed a petition for interdiction of his

grandmother, Sara Malone Dunham, on October 7, 2021. In addition to seeking a

judgment of full interdiction, Cody' s petition suggested that he be appointed as

curator over Mrs. Dunham' s person and property.

Mrs. Dunham answered the petition, denying that she was in need of

interdiction and raising exceptions of no cause of action and no right of action.

After a hearing on the exception of no cause of action, the trial court sustained

Mrs. Dunham' s exception of no cause of action and gave Cody fifteen days to file

a supplemental and amending petition in order to state a cause of action or his suit

would be dismissed. The trial court deferred the hearing on Mrs. Dunham' s

exception of no right of action to the date of the trial on the merits of the

interdiction.

Cody filed a supplemental and amending petition on June 7, 2022, in which

he included additional allegations regarding the necessity of a full interdiction and

an alternative request for a limited interdiction over Mrs. Dunham' s property. Mrs.

Dunham' s answer to the supplemental and amending petition again denied that

interdiction was warranted and re -urged the exceptions of no cause of action and

no right of action.

On August 3, 2022, the trial court held a hearing on Mrs. Dunham' s

exception of no right of action. In support of her exception, Mrs. Dunham filed

into evidence a " Financial Power of Attorney" and a " Healthcare Power of

Attorney," both executed on August 27, 2019, appointing Kara L. Dunham, Mrs.

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Dunham' s adult daughter, as her agent and authorizing Kara to act on her behalf

Kara also testified at the hearing on the exception of no right of action on Mrs.

Dunham' s behalf. At the conclusion of the hearing, the trial court sustained Mrs.

Dunham' s exception of no right of action on the grounds that Cody' s petition

failed to satisfy the requirements of La. C. C. P. art. 4541( A)( 11), which requires the

petitioner in an interdiction proceeding to describe with particularity his effort to

use less restrictive means before seeking interdiction, including the less restrictive

means for meeting the defendant' s needs that were considered or implemented, and

if less restrictive means were not considered or implemented, the reason that the

less restrictive means were not considered or implemented. The trial court signed

a judgment on November 8, 2022, sustaining Mrs. Dunham' s exception of no right

of action and dismissing the interdiction proceeding, and Cody appealed.

DISCUSSION

On appeal, Cody argues that the trial court erred in finding that he did not

have a right of action to bring the interdiction proceeding and in failing to allow

him an opportunity to amend his petition to remove the grounds for the objection.

Mrs. Dunham maintains that the trial court did not err in sustaining her exception

of no right of action and dismissing the petition for interdiction because, pursuant

to La. C. C. P. art. 4541( A)( 11) and La. C. C. 389,
art. a " showing [ that] Mrs.

Dunham' s interests could not be protected by less restrictive means [ than
interdiction] ... is required before anyone possesses a right of action to

involuntarily interdict another." She also asserts that Cody has no right of action

because she does not suffer from an infirmity and there is no evidence she is

consistently unable to make reasoned decisions regarding the care of her person

and property or to communicate those decisions.

The function of an objection of no right of action is to determine whether

the plaintiff belongs to the class of persons to whom the law grants the cause of

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action asserted. Foster v. Bias, 2022- 0329, p. 11 ( La.App. 1 Cir. 12/ 22/ 22), 358

So.3d 520, 531- 32, writ denied, 2023- 00090 ( La. 3/ 28/ 23), 358 So. 3d 503. The

objection assumes that the cause of action asserted is valid and tests whether the

plaintiff has an interest in judicially enforcing it. The question is simply whether

the plaintiff has a right to sue the defendant to enforce the claim. Id.

The party raising the objection of no right of action bears the burden of

proof. Foster, 2022- 0329 at p. 11, 358 So. 3d at 532. At the hearing, the exception

may be submitted on the pleadings, or evidence may be introduced either in

support of or to controvert the objection raised when the grounds thereof do not

appear from the petition. La. C. C. P. art. 931; Eagle Pipe and Supply, Inc. v.

Amerada Hess Corporation, 2010- 2267, p. 6 ( La. 10/ 25/ 11), 79 So. 3d 246, 255.

The standard of appellate review for the peremptory exception raising the objection
of no right of action is de novo. Foster, 2022- 0329 at p. 11, 358 So. 3d at 532.

An appellate court considering an exception of no right of action should focus on

whether the particular plaintiff has a right to bring the suit and is a member of the

class of persons that has a legal interest in the subject matter of the litigation,

assuming the petition states a valid cause of action for some person." Rebel

Distributors Corp., Inc. v. LUBA Workers' Comp., 2013- 0749, 10 ( La.
p.

10/ 15/ 13), 144 So. 3d 825, 833. Where doubt exists as to the appropriateness of an

exception of no right of action, this Court must resolve that doubt in favor of

finding a right of action. Louisiana Environmental Action Network, Inc. v. Brown,

2019- 0607, p. 7 ( La.App. 1 Cir. 1/ 9/ 20), 294 So. 3d 1066, 1071, writ denied, 2020-

00246 ( La. 4/ 27/ 20), 295 So. 3d 950.

A court may order the full interdiction of a natural person of the age of

majority, or an emancipated minor, who due to an infirmity, is unable consistently

to make reasoned decisions regarding the care of his person and property, or to
communicate those decisions,
and whose interests cannot be protected by less

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restrictive means. La. C. C. art. 389. Louisiana Code of Civil Procedure article

4541, which sets forth the required elements of a petition for interdiction, provides:

A. Any person may petition for the interdiction of a natural person of
the age of majority or an emancipated minor. The petitioner shall
verify the petition and, to the extent known, shall set forth the
following with particularity:

1) The name, domicile, age, and current address of the

petitioner and his relationship to the defendant.

2) The name, domicile, age, and current address of the
defendant and the place the petitioner proposes the

defendant will reside if the relief sought in the petition is
awarded.

3) The reasons why interdiction is necessary, including a brief
description of the nature and extent of the alleged infirmities
of the defendant.

4) If full interdiction is requested, the reasons why limited
interdiction is inappropriate.

5) If limited interdiction is requested, the capacity sought to be
removed from the limited interdict, and the powers sought
to be conferred upon the limited curator.

6) The name and address of the spouse of the defendant.

7) The name and address of the adult children of the defendant
or, if he has none, of his parents and siblings or, if he has
none, of his nearest adult relative.

8) The name and address of any legal representative of the
defendant.

9) The name and address of any person previously designated
as curator by the defendant in a writing signed by the
defendant.

10) The name, domicile, age, education, and current address
of the proposed curator, and the reasons why the proposed
curator should be appointed.

11) A description with particularity of the petitioner' s efforts
to use less restrictive means before seeking interdiction,
including all of the following:

a) The less restrictive means for meeting the defendant's
needs that were considered or implemented.

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b) If a less restrictive means was not considered or

implemented, the reason that the less restrictive means
was not considered or implemented.

c) The reason a less restrictive means is insufficient to meet
the needs of the defendant.

B. The petitioner shall make a reasonable effort to obtain the

information required by this Article.

Article 4541( A) is clear that "[ a] ny person" may file a petition for

interdiction. See 1 A La. Civ. L. Treatise, Civ. Proc. - Special Proceed. § 7. 1. It is

a well- established principle of statutory construction that, absent clear evidence of

a contrary legislative intention, a statute should be interpreted according to its plain
language. When a law is clear and unambiguous and its application does not lead

to absurd consequences, the law shall be applied as written and no further

interpretation may be made in search of the intent of the legislature. La. C. C. art.

9; Derbonne v. State Police Comm' n, 2019- 1455, p. 15 ( La.App. 1 Cir. 10/ 14/ 20),
314 So.3d 861, 872, writ denied, 2020- 01323 ( La. 2/ 17/ 21), 310 So. 3d 1152.

Thus, Cody clearly belongs to the class of persons to whom the law grants the

cause of action asserted, i. e., "[ a] ny person." Mrs. Dunham' s arguments in support

of her assertion that Cody does not have a right of action to bring the petition for
interdiction pertain to the merits of the interdiction proceeding, which was not

before the court on the exception of no right of action. The exception of no right

of action was improperly granted and is reversed.

DECREE

The November 8, 2022 judgment sustaining the exception of no right of

action and dismissing the petition for interdiction is reversed. Costs of this appeal

are assessed to appellee, Sara Malone Dunham.

REVERSED.

Cel