Mabell Galloway Robertson; Joe Robertson; And Lindsay Williams, Individually and on Behalf of Her Minor Child K.R. v. Wanda Anderson Davis; Leefe & Gibbs, LLC; Anderson Davis and Associates, L.L.C.; Sullivan, Dupre & Solouki, LLC; Cna Insurance Company, Limited; Xyz Insurance Company, and Abc Insurance Company

MABELL GALLOWAY * NO. 2024-CA-0364
ROBERTSON; JOE
ROBERTSON; AND LINDSAY *
WILLIAMS, INDIVIDUALLY COURT OF APPEAL
AND ON BEHALF OF HER *
MINOR CHILD K.R. FOURTH CIRCUIT
*
VERSUS STATE OF LOUISIANA
*******
WANDA ANDERSON DAVIS;
LEEFE & GIBBS, LLC;
ANDERSON DAVIS AND
ASSOCIATES, L.L.C.;
SULLIVAN, DUPRE &
SOLOUKI, LLC; CNA
INSURANCE COMPANY,
LIMITED; XYZ INSURANCE
COMPANY, AND ABC
INSURANCE COMPANY

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2023-02719, DIVISION “C”
Honorable Sidney H. Cates, Judge
******
Judge Daniel L. Dysart
******
(Court composed of Judge Roland L. Belsome, Judge Daniel L. Dysart, Judge Dale
N. Atkins)

M. Suzanne Montero
Scott L. Sternberg
Graham H. Williams
Haley A. Jupiter
STERNBERG NACCARI & WHITE, LLC
935 Gravier Street, Suite 2020
New Orleans, LA 70112

COUNSEL FOR PLAINTIFF/APPELLANT

David S. Daly
Elliot M. Lonker
FRILOT, LLC
1100 Poydras Street, Suite 3700
New Orleans, LA 70163

COUNSEL FOR DEFENDANTS/APPELLEES

REVERSED AND REMANDED

DECEMBER 30, 2024

DLD Appellant, Lindsay Williams (“Ms. Williams”), on behalf of and as tutrix of
RLB
DNA her minor child, K.R., appeals the trial court’s judgment of March 26, 2024,

granting the peremptory exception of peremption filed by appellees, Wanda

Anderson Davis; Leefe & Gibbs, LLC; Anderson Davis and Associates, L.L.C.;

Sullivan, Dupre & Solouki, LLC; CNA Insurance Company, Limited; XYZ

Insurance Company, and ABC Insurance Company, and dismissing Ms. Williams’

claims against those defendants with prejudice.

This case involves a legal malpractice claim filed against an attorney

retained by the family of Justin Robertson (“Mr. Robertson” or “Justin”) following

his tragic death. On July 1, 2021, Mr. Robertson, a licensed electrician, was killed

while performing electrical work at the Greater St. Stephen Church in New

Orleans. Mr. Robertson was the father of a minor child at the time of his death,

and he and the child’s mother were not married.1 Mr. Robertson’s parents, Mabell

Galloway Robertson and Joe Robertson (collectively “the Robertsons”), and the

mother of his minor child, Lindsay Williams, contacted attorney Wanda Anderson

Davis to represent them in wrongful death and survival actions stemming from

1 The minor child’s mother, Lindsay Williams, was described in the original petition for damages

as Justin Robertson’s longtime girlfriend.

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Justin’s death. On July 5, 2022, more than one year after Justin’s death, Ms. Davis

emailed the Robertsons and Ms. Williams, advising them for the first time that she

failed to file suit within the applicable one-year prescriptive period, and that she

did not believe that they would have prevailed in a tort action related to Justin’s

death. In the same email, Ms. Davis advised the Robertsons and Ms. Williams that

they could pursue a claim for legal malpractice against her.

On March 29, 2023, a petition for damages was filed by plaintiffs, Mabell

Galloway Robertson, Joe Robertson and Lindsay Williams, individually and on

behalf of her minor child, K.R. The petition stated that Justin was survived “by his

parents, Mabell Galloway Robertson and Joe Robertson, by his then-four-month-

old daughter, K.R., and by [K.R.]’s mother and Justin’s longtime girlfriend,

Lindsay Williams.” Importantly, the petition also stated that Ms. Williams is “the

natural mother of the minor child, K.R.” Named as defendants were Wanda

Anderson Davis and her employers and their insurers during the relevant time

periods related to the legal malpractice claim.2

In the petition for damages, plaintiffs alleged that Ms. Davis committed

malpractice by failing to file suit before the prescriptive deadline, and her

malpractice was further exacerbated by her failure to disclose that she was an

active member of Greater St. Stephen Church. The petition also alleged that Ms.

2 Those employers and their insurers included Sullivan, Dupre & Solouki, LLC, CNA Insurance

Co. Ltd., Leefe & Gibbs, LLC, XYZ Insurance Co., Anderson Davis & Associates, L.L.C. and
ABC Insurance Co. The petition alleged that at the time the Robertson family first contacted Ms.
Davis, she was employed by the law firm of Leefe, Gibbs, Sullivan & Dupre, LLC. Later, that
firm split into two groups, and Ms. Davis left Leefe & Gibbs to join the newly created firm of
Sullivan, Dupre & Solouki, LLC, At all relevant times surrounding the running of the
prescriptive period, Ms. Davis was employed by Sullivan, Dupre & Solouki. The petition also
alleges that at all relevant times, Ms. Davis maintained Anderson Davis & Associates, LLC as a
single member LLC.

2

Davis’ employers and their insurers are liable to plaintiffs under the doctrine of

respondeat superior for the acts and omissions of their employee.

In response to plaintiffs’ petition, defendants filed the peremptory exception

of no right of action and the dilatory exception of lack of procedural capacity. In

their memorandum in support of the exceptions, defendants argued that the only

party that possibly has the right to sue defendants is the decedent’s minor child

through an authorized appointed tutrix. They further argued that because Justin

Robertson is survived by a minor child, any wrongful death and/or survival claims

related to his death belong only to the minor child to the exclusion of other

potential plaintiffs. Defendants argued that Ms. Williams has the burden of proof

to establish sole parental authority on her part to maintain the lawsuit or to

establish that permission of any court has been obtained pursuant to La. C.C.P. art.

693(B). According to defendants, Justin’s parents and girlfriend have no right to

sue defendants for damages, and plaintiffs had not at that point demonstrated that

Ms. Williams was the appointed tutrix for the minor child. Therefore, defendants

argued that the claims by Mabell Robertson, Joe Robertson and Lindsay Williams,

individually, should be dismissed with prejudice because those plaintiffs have no

right to sue and/or lack the procedural capacity to sue defendants for damages.

In response to defendants’ exceptions, plaintiffs conceded that the exception

of no right of action should be maintained as to Mabell Robertson, Joe Robertson,

and Lindsay Williams, in her individual capacity. Plaintiffs argued that the only

appropriate party who holds a right of action to sue in this matter is the minor

child, K.R., through her natural mother, Ms. Williams. The response revealed that

on July 13, 2023, in a related matter in another section of Civil District Court in

New Orleans, Ms. Williams filed a “Petition to Establish Paternity Pursuant to La.

3

Civ. Code art. 197, and to Qualify as Tutrix of the Minor Child, K.R. and

Appointment of Under-Tutor” to address the procedural capacity issue raised by

defendants. Ms. Williams asked for adequate time to conclude the tutorship

process if the trial court were inclined to grant the exception of lack of procedural

capacity.

In their reply to plaintiffs’ response, defendants argued that the trial court

should grant the exception of no right of action and dismiss with prejudice all

claims by Mabell Robertson, Joe Robertson and Ms. Williams, individually, and

also either dismiss all claims filed by Ms. Williams on behalf of her minor child

without prejudice, or alternatively, order her to supplement and amend her petition

to institute the suit in her correct capacity if and when she is appointed tutrix of the

minor child.

At the hearing on the exceptions, counsel for defendants argued that in

addition to plaintiffs’ conceding on the exception of no right of action, they also

essentially conceded on the exception of lack of procedural capacity by

acknowledging that they filed tutorship proceedings so that Ms. Williams could be

in the proper capacity to bring the suit. Although counsel for plaintiffs agreed at

the hearing that they conceded on the no right of action exception, counsel argued

as follows regarding the exception of lack of procedural capacity:

With respect to the second exception, Louisiana Code of
Civil Procedure Article 933B requires that if we remedy the
procedural capacity issue, that we be given a number of days.
We have filed a proceeding.

We’d ask the Court to, if it’s the Court’s pleasure, to
sustain the exception, to grant us a few months to get this
done…..

4

At this hearing, counsel for defendants acknowledged that there was “no

agreement” between the parties.

The trial court then granted the exception of lack of procedural capacity and

allowed Ms. Williams forty-five days to amend her petition. The judgment ordered

Ms. Williams “to remove the grounds of the objection in her Petition for Damages

to reflect the proper capacity of plaintiff Lindsay Williams to sue as Tutrix on

behalf of the minor child, K.R.”

On October 12, 2023, Ms. Williams filed her First Amended and

Supplemental Petition for Damages. In that petition, she asserted that she “brings

this suit in her capacity as the natural and legal tutrix of her minor child, K.R.” She

also stated that, in a judgment dated October 11, 2023, in a related proceeding,

Justin Robertson was deemed the natural and legal father of K.R., and Ms.

Williams was confirmed as the natural and legal tutor of K.R. The petition further

stated that the only plaintiff in this matter is Ms. Williams “who brings this suit in

her capacity as the natural and legal tutrix of her minor child, K.R.”

In response to this petition, defendants filed a peremptory exception of

peremption, alleging that the Ms. Williams’ claim was perempted pursuant to La.

R.S. 9:5605, which provides a peremptive period to file suit against an attorney for

legal malpractice of one year from the attorney's negligent act or omission, or one

year from the date that the malpractice was discovered.3 Defendants alleged that

3 In Vagelos v. Abramson, 12-1235, p. 11 (La. App. 4 Cir. 10/2/13), 126 So.3d 639, 646, this

Court stated:

Pursuant to Louisiana Revised Statute 9:5605, plaintiffs must file their legal
malpractice claims within one year from their attorney's negligent act or omission,
or one year from the date that the malpractice was discovered. Moreover,
regardless of the date of discovery, the claim must be filed within three years of
the alleged acts of malpractice. Both the one-year and three-year periods of
limitations are, by statute, characterized as peremptive in nature “within the

5

the peremptive period for filing suit expired on July 5, 2023, one year after Ms.

Williams obtained actual knowledge of the alleged malpractice of her former

attorney. Therefore, they argued that Ms. Williams’ First Amended and

Supplemental Petition for Damages, which defendants alleged was filed by her for

the first time in her correct capacity more than one year after actual notice of the

alleged malpractice, could not “relate back” to the original petition because the

time period for filing this legal malpractice claim was peremptive.

At the hearing on the defendants’ peremptory exception of peremption,

counsel for Ms. Williams argued that the original petition for damages was not

defective because it was specifically pled in that petition that Ms. Williams is the

natural mother of the minor child and the surviving parent of the child. As such,

Ms. Williams argued that she had the capacity to sue on behalf of the minor child

without first being qualified as tutrix. In support of that argument, counsel cited

Louisiana Code of Civil Procedure article 4061.1, which states, in pertinent part:

A. Notwithstanding Article 4061, the natural tutor of a
minor child may file an action for damages based on a delictual
obligation without the necessity of qualifying as tutor pursuant
to Article 40614 and without the necessity of filing a petition
pursuant to Article 40315, if the natural tutor is any of the
following:

meaning of Civil Code Article 3458 and in accordance with Civil Code Article
3461, may not be renounced, interrupted, or suspended.” La. R.S. 9:5605(B). As
stated in Article 3458, “[p]eremption is a period of time fixed by law for the
existence of a right.” La. C.C. art. 3458. Therefore, unless timely exercised, the
right is extinguished upon the expiration of the peremptive period. Id.
4 La. C.C.P. art. 4061 states:

Before a natural tutor enters upon the performance of his official duties, he must
take an oath to discharge faithfully the duties of his office, cause an inventory to
be taken or a detailed descriptive list to be prepared, and cause a legal mortgage in
favor of the minor to be inscribed, or furnish security, in the manner provided by
law.
5 La. C.C.P. art. 4031 states, in pertinent part:

6

(1) The surviving parent of the minor child.

***

(3) The mother of her child born outside of marriage not
acknowledged by the father, or acknowledged by him alone
without her concurrence.

B. The petitioner in an action for damages based on a
delictual obligation shall allege in the petition that he qualifies
under Paragraph A of this Article to act of right as tutor, and the
petitioner shall set forth the facts, including the relationship to
the minor child, entitling the petitioner to act as tutor.

Counsel for defendants argued that by asking for the opportunity to correct

the procedural capacity issue at the hearing on that exception, counsel for Ms.

Williams essentially conceded that the original petition did not properly plead that

she had the correct capacity to sue on behalf of her minor child. The trial court

apparently agreed with defendants’ argument, and rendered judgment on March

26, 2024, granting the exception and dismissing, with prejudice, all claims filed

against defendants by Ms. Williams on behalf of her minor child.

Ms. Williams filed a motion for new trial, asserting that she had the proper

legal capacity to file suit when the original petition was filed on March 29, 2023.

The motion for new trial was denied. Ms. Williams devolutively appealed the

judgment of March 26, 2024.

A. Except as provided in Paragraph B, a petition for the appointment of a tutor of
a minor domiciled in the state shall be filed in the district court of the parish
where:

(1) The surviving parent is domiciled, if one parent is dead; or

*****
(3) The minor resides.

7

On appeal, Ms. Williams argues that the trial court erred in granting

defendants’ dilatory exception of lack of procedural capacity, and that this

erroneous ruling set into motion a chain of events leading to the erroneous granting

of defendants’ peremptory exception of peremption and the dismissal of her case

with prejudice. We agree.

Citing La. C.C.P. art. 4061.1, Ms. Williams argued that because the original

petition pled facts sufficiently reflecting her status as the minor child’s natural

tutrix, she had the legal capacity to bring this delictual action without the necessity

of first qualifying as tutor pursuant to La. C.C.P. art. 4061. She further argued that

it was defendants’ burden to prove that Ms. Williams lacked procedural capacity

and they did not do so. Ms. Williams disputed that her counsel’s remarks at the

hearing on the exception of lack of procedural capacity constituted a judicial

admission or confession that she had failed to plead her procedural capacity.

“An appellant is entitled to seek review of all adverse interlocutory

judgments prejudicial to them, in addition to the review of the final judgment when

an unrestricted appeal is taken.” Orleans Par. Sch. Bd. v. Lexington Ins. Co., 11-

1720 (La. App. 4 Cir. 8/22/12), 99 So.3d 723, 729 (citing Alexander v. Palazzo,

08-1541, p. 6 (La. App. 1 Cir. 2/13/09), 5 So.3d 950, 953). The de novo standard

of review applies to our review of the trial court's ruling on a dilatory exception of

lack of procedural capacity. Eng. Turn Prop. Owners Ass'n v. Taranto, 16-0319,

pp. 5-6 (La. App. 4 Cir. 4/19/17), 219 So. 3d 381, 387 (citing Wells v. Fandal, 13-

620, p. 7 (La. App. 5 Cir. 2/12/14), 136 So.3d 83, 87). “The burden of proof on an

exception of lack of procedural capacity is on the party challenging the person's

competence.” Walcott v. Louisiana Dep't of Health & Valley Servs., 20-0611, p. 5

(La. App. 1 Cir. 3/31/22), 341 So. 3d 696, 700 (citing Vance v. Ellerbe, 150 La.

8

388, 397, 90 So. 735, 738 (1922); Treadwell v. Treadwell, 41,130, p. 9 (La. App. 2

Cir. 6/28/06), 935 So.2d 740, 745).

The standard of review that applies to a peremptory exception of peremption

was summarized by this Court as follows:

A judgment granting a peremptory exception of
peremption is generally reviewed de novo, because the
exception raises a legal question and involves the interpretation
of a statute. See Scott v. Zaheri, 14-0726, p. 8 (La .App. 4 Cir.
12/3/14), 157 So.3d 779, 785; Robert v. Robert Mgmt. Co.,
LLC, 11-0406, p. 3 (La. App. 4 Cir. 12/7/11), 82 So.3d 396,
398. If evidence was introduced at the trial of the peremptory
exception, then the appellate court reviews the entire record “to
determine whether the trial court was manifestly erroneous with
its factual conclusions.” Metairie III v. Poche Const., Inc., 10-
0353, p. 4 (La. App. 4 Cir. 9/29/10), 49 So.3d 446, 449, citing
Patriot American Hospitality Partnership, LP v. Mississippi
Land Holdings, Inc., 06-0601, p. 3 (La. App. 4 Cir. 12/13/06),
948 So.2d 249, 251. If the trial court's findings are reasonable
in light of the entire record, then the appellate court may not
reverse even though it would have weighed the evidence
differently had it been sitting as the trier of fact. Rando v. Anco
Insulations Inc., 08-1163, p. 20 (La. 5/22/09), 16 So.3d 1065,
1082, citing Stobart v. State, through DOTD, 617 So.2d 880,
882-83 (La.1993).

Thrasher Const., Inc. v. Gibbs Residential, L.L.C., 15-0607, pp. 6-7 (La. App. 4

Cir. 6/29/16), 197 So. 3d 283, 288-89.

In reviewing the trial court’s interlocutory judgment granting defendants’

exception of lack of procedural capacity, we conclude that the remarks by counsel

for Ms. Williams at the hearing on this exception do not rise to the level of an

explicit judicial admission that she lacked the capacity to sue. “A judicial

confession is a party's explicit admission of an adverse factual element and has the

effect of waiving evidence as to the subject of the admission and of withdrawing

the subject matter of the confession from issue.” Ray v. Lynx Prod. Servs., Inc., 23-

0839, p. 9 (La. App. 1 Cir. 2/23/24), 384 So. 3d 1018, 1025, reh'g denied (Mar. 13,

9

2024), writ denied, 2024-00460 (La. 6/19/24), 386 So. 3d 315 (citing Cichirillo v.

Avondale Indus., Inc., 04-2894 (La. 11/29/05), 917 So.2d 424, 429). “A judicial

confession must be explicit and not merely implied.” Id. (citing Cola v. Cola, 19-

0530 (La. App. 1 Cir. 12/27/19), 294 So.3d 6, 11); see also La. C.C. art. 1853.

We find that the filing of a petition to qualify Ms. Williams as tutrix of her

minor child was an unnecessary action taken by her attorney. Furthermore, it is

undisputed that the provisions of La. C.C.P. art. 4061.1 were not argued by Ms.

Williams’ attorney at the hearing on the exception of lack of procedural capacity.

However, we conclude that the filing of the petition to qualify Ms. Williams as

tutrix of her minor child, the failure of her attorney to argue the provisions of La.

C.C.P. art. 4061.1 at the hearing on Ms. Williams’ capacity to file the suit and the

remarks made by Ms. Williams’ attorney at the hearing, taken together or

separately, did not constitute an explicit judicial admission that Ms. Williams

failed to plead her correct procedural capacity in the original petition.

La. C.C. art. 250 states, in pertinent part: “Upon the death of either parent,

the tutorship of minor children belongs of right to the other.” La. C.C. art. 256(A)

states: “The mother is of right the tutrix of her child born outside of marriage not

acknowledged by the father, or acknowledged by him without her concurrence.”

The original petition sufficiently pled that Ms. Williams is the natural mother of

the minor child, and that the child was born outside of marriage to Ms. Williams

and Justin Robertson. Although Mr. Robertson had not formally acknowledged the

minor child prior to his death, a judgment issued after Mr. Robertson’s death in a

related proceeding decreed that he was the natural and legal father of the minor

child.

10

Because Mr. Robertson was survived by a minor child but not a spouse, his

minor child had the sole right to survival and wrongful death actions related to his

death pursuant to the provisions of La. C.C. arts. 2315.1 and 2315.2. La. C.C.P.

art. 683(C) provides: “During tutorship, the tutor is the proper plaintiff to sue to

enforce a right of the unemancipated minor.” Under the provisions of La. C.C.P.

art. 4061.1(A)(1) and (3), as the surviving parent of the minor child, and as the

mother of the child born outside of marriage and not formally acknowledged by the

father prior to his death, Ms. Williams, as the natural tutrix of her minor child, was

not required to first qualify as tutor pursuant to La. C.C.P. art. 4061 or file a

petition pursuant to La. C.C.P. art. 4031 in order to file an action for damages on

behalf of her minor child.

Citing La. C.C.P. art. 700, defendants argue on appeal that Ms. Williams did

not have proper permission from the court to institute suit on behalf of her minor

child, and was not the proper party to institute the suit. We find that defendants’

reliance on La. C.C.P. art. 700 is misplaced. La. C.C.P. art. 700 states:

When a plaintiff sues as an agent to enforce a right of his
principal, or as a legal representative, his authority or
qualification is presumed, unless challenged by the defendant
by the timely filing of the dilatory exception. When so
challenged, the plaintiff shall prove his authority or
qualification on the trial of the exception.

In this case, Ms. Williams is not suing as an agent or as a legal representative. She

is suing in her capacity as the natural tutrix of her minor child, and this status was

reflected in the allegations of her timely-filed original petition for damages.

Ms. Williams properly pled her capacity to sue on behalf of her minor child

in the original petition filed on March 29, 2023. Nothing that occurred in these

proceedings subsequent to the filing of the original petition deprived Ms. Williams

11

of the authority granted to her pursuant to La. C.C.P. art. 4061.1. Defendants

presented no evidence to challenge the allegation in the original petition for

damages that Ms. Williams is the natural mother of the minor child born to her and

Justin Robertson. Defendants did not carry their burden of proving that Ms.

Williams lacked the procedural capacity to sue on behalf of her minor child.

Accordingly, we find the trial court erred in granting the exception of lack of

procedural capacity. As the interlocutory judgment granting the exception of lack

of procedural capacity was erroneous, the subsequent granting of the exception of

peremption was also in error. For the reasons stated above, the trial court

judgments granting the peremptory exception of peremption and the dilatory

exception of lack of procedural capacity are hereby reversed, and this matter is

remanded to the trial court for further proceedings.

REVERSED AND REMANDED

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