Renell Fritsche v. Vermilion Parish Hospital Service District No. 2

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

04-1192

RENELL FRITSCHE ET AL.

VERSUS

VERMILION PARISH HOSPITAL
SERVICE DISTRICT #2 ET AL.

**********

APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF VERMILION, NO. 80492
HONORABLE EDWARD RUBIN, DISTRICT JUDGE

**********

J. DAVID PAINTER
JUDGE

**********

Court composed of Sylvia R. Cooks, Jimmie C. Peters, and J. David Painter, Judges.

REVERSED AND RENDERED.

Mel Credeur
P.O. Box 51867
Lafayette, LA 70505-1867
COUNSEL FOR PLAINTIFFS-APPELLANTS:
Renell Fritsche et al.

Marc W. Judice
926 Coolidge Blvd., P.O. Box 51769
Lafayette, LA 70505-1769
COUNSEL FOR DEFENDANT-APPELLEE:
Dr. Akshey K. Gupta

William E. Scott III
P.O. Drawer 2995
Baton Rouge, LA 70821-2995
COUNSEL FOR DEFENDANT-APPELLANT:
Vermilion Parish Hospital Service District #2

James R. Shelton
220 Heymann Blvd., P.O. Box 51308
Lafayette, LA 70505
COUNSEL FOR DEFENDANT-APPELLEE:
Dr. John Thibodeaux

PAINTER, Judge.

Renell Fritsche, the common law wife of the decedent, and Paul and Leila Holt,

parents of the decedent, filed a petition for damages against Vermilion Parish Hospital

Service District No.2 d/b/a Abbeville General Hospital, Dr. Akshey Kumar Gupta, and

Dr. John Thibodeaux, alleging wrongful death and survival damages with respect to

the death of Larry Holt at Abbeville General Hospital on November 8, 2002. All

Defendants filed various exceptions including lack of procedural capacity, no right of

action, and no cause of action. After a hearing on the exceptions, a judgment was

signed granting all Defendants’ exceptions with respect to the claims of Renell

Fritsche and dismissing her claims with full prejudice. This judgment was certified

as a final judgment pursuant to La.Code Civ.P. art. 1915(B)(1). All Plaintiffs

appealed. For the following reasons, we reverse.

Facts

The decedent, Larry Holt, was transported to Abbeville General Hospital by

ambulance on October 31, 2000 complaining of vomiting blood and tarry stools. He

was seen in the emergency room and admitted to the hospital. Mr. Holt was under the

care of Dr. John Thibodeaux and Dr. Akshey Kumar Gupta. Mr. Holt remained

hospitalized until his death on November 8, 2002.

Renell Fritsche contends that she and the decedent contracted a valid common-

law marriage by living together as husband and wife on a continuous basis beginning

twenty-five years prior to his death in Texas1 until they moved to Louisiana where

they lived as husband and wife for eight years prior to his death.

1
Renell Fritsche and Larry Holt lived together in Texas as husband and wife for
seventeen years before moving to Louisiana.

-1-

Discussion

Pursuant to La.Civ.Code arts. 2315.1 and 2315.2, the right of action for survival

damages and/or wrongful death vests with the parents of the decedent only if there is

neither a surviving spouse nor surviving children. In this case, the alleged surviving

spouse and the surviving parents have joined as parties plaintiffs but only one class

(i.e., either the surviving spouse or the surviving parents) has the right of action to

bring this suit.

On appeal, plaintiffs urge that the trial court erred in failing to give full faith

and credit to the common-law marriage that was validly contracted in Texas between

Larry Holt and Renell Fritsche, and failing to recognize the right of Renell Fritsche

to assert her claims as the valid common-law spouse of Larry Holt.

Defendants, Dr. Thibodeaux and Dr. Gupta, urged that: (1) Louisiana does not

recognize common-law marriages confected in other states when the couple resides

and is domiciled in Louisiana; and alternatively, (2) no common-law marriage ever

existed. Defendant, Abbeville General Hospital, did not take a position as to whether

this alleged common-law marriage should be recognized under Louisiana law but,

rather, averred that, regardless of whether the common-law marriage is recognized

pursuant to Louisiana law, one of the class of plaintiffs named in the Petition must be

dismissed from the suit.

The party raising the peremptory exception bears the burden of proof and in

order to prevail, the mover must show that the plaintiff does not have an interest or has

no legal capacity to proceed. Jackson v. Slidell Nissan, 96-1017 (La. App. 1 Cir.

05/09/97), 693 So.2d 1257; La.Code Civ.P. art. 927. Evidence can be introduced.

-2-

When considering an exception of no right of action, the Court of Appeal must

determine whether the plaintiff belongs to a particular class for which the law grants

a remedy for a particular grievance. Duplessis Cadillac, Inc. v. Creative Credit

Services, Inc., 597 So.2d 1155 (La.App. 1 Cir. 1992). The court of appeal reviews

exceptions of no right of action de novo. Mississippi Land Co. v. S&A Properties II,

Inc., 01-1623 (La.App. 3 Cir. 05/08/02), 817 So.2d 1200.

While Defendants assert that Louisiana does not recognize common-law

marriages confected in other states, this is a misstatement of the law. In Parish v.

Minvielle, 217 So.2d 684 (La.App. 3 Cir. 1969), this Court gave full faith and credit

to a common-law marriage that was validly confected in Texas for the purposes of the

decedent’s common-law spouse bringing a wrongful death and survival action in

Louisiana. In that case, we stated:

It is true that Louisiana does not recognize or permit the
contracting of common-law marriages in this state . . . but we are obliged
to give effect to such marriages when they are validly contracted in
another state. This is commanded by the full faith and credit clause of
the United States Constitution, Art. 4, Section 1.

Id. at 688.

In Chivers v. Couch Motor Lines, Inc., 159 So.2d 544 (La.App. 3 Cir. 1964),

the decedent and his common-law wife were residents of Florida and this Court

allowed her to maintain the action for wrongful death in Louisiana (where the

decedent was killed) since the marriage was valid under Florida law. In State v.

Williams, 96-652 (La.App. 3 Cir. 02/05/97), 688 So.2d 1277, the Court did not allow

the defendant (who was a Texas resident) to assert the marriage privilege since the

alleged common-law marriage was not valid under Texas law. In Strawder v. Zapata

Haynie Corp., 94-453 (La.App. 3 Cir. 11/02/94), 649 So.2d 554, the alleged common-

law wife of the decedent (both of whom were Texas residents) was not allowed to

-3-

maintain the wrongful death action based on the court’s finding that there was not

enough evidence to support a finding of common-law marriage valid under Texas law.

Defendants fail to address the fact that in Williams and Strawder, the decisions

not to recognize the common-law marriages were based on the findings that there

were no valid common-law marriages confected in the states that allowed them.

Furthermore, defendants have introduced no evidence to suggest that the

alleged common-law marriage was not validly confected in Texas. Thus, they have

not met their burden of proof on the exception. See State on behalf of Jones v. Mallet,

97-611 (La.App. 3 Cir. 12/17/97) 704 So.2d 958.

In Netecke v. State Through DOTD, 97-1516 (La.App. 3 Cir. 04/01/98), 715

So.2d 449, the mover raised the plaintiff’s prior marriage as an impediment to a valid

common-law marriage. This court agreed with the trial court’s decision that the

plaintiff failed to prove that his prior marriage was legally dissolved and that he failed

to carry his burden of proof. In Netecke, the defense raised the impediment of a prior

marriage and the burden shifted to the plaintiff. In the case sub judice, however, the

defense merely said that Louisiana does not recognize common-law marriages or that

no common-law marriage was established. They did not raise any impediment;

therefore, the burden of proof did not fall on plaintiff to establish that no impediment

existed.

In Guidry v. McZeal, 487 So.2d 780 (La.App. 3 Cir. 1986), this Court expressly

stated that it does not dispute its prior holding in the Parish case. In Guidry, this

Court affirmed the trial court’s grant of the defendant’s motion for summary and

exception of no right of action. The plaintiff urged that there were genuine issues of

material fact concerning whether she had attained a common-law marriage. The

impediment was that her alleged common-law husband was married to another woman

-4-

when he began living with the plaintiff in Texas. The plaintiff could not dispute this

fact and therefore could not dispute the alleged invalidity of her common-law

marriage. The plaintiff and the decedent lived in Louisiana at the time of the accident.

This court recognized that if the marriage was valid in Texas, then the Louisiana

Courts would have to give it full faith and credit. The difference between Guidry and

the case sub judice is that the defendants in Guidry had proven the invalidity of the

alleged common-law marriage. Here, the defendants have not even raised any specific

impediment but merely make the conclusory statement that the marriage was invalid.

The record contains three affidavits attesting that Ms. Fritsche and the decedent

lived together for 25 years and held themselves out to be husband and wife. See

Parish v. Minvielle, supra citing Grigsby v. Reib, 105 Tex. 597, 153 S.W. 1124,

L.R.A. 1915E, 1, (1913)2. One affidavit was made by Ms. Fritsche’s son from a prior

marriage who alleges that his father died in 1977 such that there was no impediment

to the marriage. Accordingly, we find that Ms. Fritsche and Larry Holt confected a

valid common-law marriage in Texas and that we must give it full faith and credit.

Ms. Fritsche, rather than the parents of the decedent, has the right of action to bring

this suit.

Decree

Accordingly, the judgment of the trial court is reversed and set aside and the

exceptions of no cause and no right of action and lack of procedural capacity are

2
A Texas attorney testified as an expert in the Parish case that the Texas courts had
established three requirements for a valid common-law marriage: (1) there must be no legal
impediment to the marriage of such persons to each other; (2) they must agree then and there to
become husband and wife, which may be implied; and (3) they must hold themselves out
publicly as husband and wife.

-5-

denied as to the claims of Renell Fritsche. The claims of Paul and Leila Holt, the

parents of the decedent, are hereby dismissed as Renell Fritsche is the proper party

plaintiff under La.Civ.Code art. 2315.1(1). Costs of this appeal are assessed equally

among the defendants.

REVERSED AND RENDERED.

-6-