W.R.M. v. H.C v. and M.J.V.

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

05-425

W.R.M.

VERSUS

H.C.V. AND M.J.V.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT,
PARISH OF CALCASIEU, NO. 2003-3614
HONORABLE GUY BRADBERRY, DISTRICT JUDGE

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J. DAVID PAINTER
JUDGE
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Court composed of John D. Saunders, Michael G. Sullivan, and J. David Painter,
Judges.

REVERSED AND REMANDED.

Steven W. Hale
1735 Ryan Street
Lake Charles, LA 70601
Counsel for Plaintiff-Appellant:
W. R. M.

Terrell D. Fowler
625 Kirby Street
Lake Charles, LA 70601
Counsel for Plaintiff-Appellant:
W. R. M.

J. Ogden Middleton, II
David C. Hesser
1412 Centre Court, Ste. 403
Alexandria, LA 71301
Counsel for Defendant-Appellee
H. C. V. and M. J. V.

PAINTER, Judge.

The Plaintiff, W. R. M., appeals the trial court’s decision to overrule his

challenge to the constitutionality of La.Civ.Code art.191 and the court’s decision to

grant the Defendants’ exceptions of no cause of action, no right of action, and

prescription. For the following reasons, we reverse.

FACTS

In 1992, W. R. M. and H. C. V. began an extramarital affair while H. C. V. was

employed as W. R. M.’s secretary. On September 1, 1994, H. C. V. gave birth to a

child, A. M. V. H. C. V. obtained a divorce from her husband, M. J. V., in October

1996. In November 2004, H. C. V. ended her relationship with W. R. M. On July 7,

2003, W. R. M. filed a Petition to Establish Filiation, alleging that he is the biological

father of A. M. V., asking that A. M. V. be subjected to blood grouping and DNA

testing to determine his biological parentage, and seeking a judgment declaring him

to be the father of the child. The Defendants filed exceptions of no cause of action,

no right of action, and prescription. They argued that the Plaintiff’s action was

perempted under the provisions of La.Civ.Code art. 191 and that he had failed to

assert his rights in a timely manner although he was aware of the existence of the

child. In response, the Plaintiff filed an amended petition in which he pled the

unconstitutionality of La.Civ.Code art. 191. The trial court denied the plea of

unconstitutionality and gave written reasons for its decision. Subsequently, the trial

court granted the Defendants’ exceptions but declined to dismiss the Plaintiff’s suit

pending appeal. The Plaintiff appealed.

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DISCUSSION

On appeal, the Plaintiff again asserts the unconstitutionality of La.Civ.Code art.

191. That article, which was created by Act 530 of the 2004 Regular Session of the

Louisiana Legislature, provides as follows:

A. A man may establish his paternity of a child presumed to be the
child of another man even though the presumption has not been
rebutted.

B. This action shall be instituted within two years from the date
of birth of the child, except as may otherwise be provided by law.
Nonetheless, if the mother in bad faith deceives the father of the child
regarding his paternity, the action shall be instituted within one year
from the date the father knew or should have known of his paternity, but
no more than ten years from the date of birth of the child.

Act 530 further provides that this statute is to be "applied both prospectively

and retroactively" and "to all pending and existing claims." It became effective on

June 25, 2004.

The question whether the statutes at issue are constitutional is a
legal question which will be reviewed de novo. Cleco Evangeline, [v.
Louisiana Tax Com’n,] p. 3, 813 So.2d [351,] 353. This court has
repeatedly held that statutes are generally presumed to be constitutional
and the party challenging the validity of the statute has the burden of
proving it is unconstitutional. State v. Fleury, 2001-0871 p. 5
(La.10/16/01), 799 So.2d 468, 472; Board of Com’rs of North Lafourche
Conservation, Levee and Drainage Dist. v. Board of Com’rs of
Atchafalaya Basin Levee Dist., 95-1353 p. 3 (La.1/16/96), 666 So.2d
636, 639. Unlike the federal constitution, the Louisiana “constitution’s
provisions are not grants of power but instead are limitations on the
otherwise plenary power of the people of a state exercised through its
legislature.” Board of Com’rs, 95-1353 p. 3, 666 So.2d at 639.
Therefore, “the legislature may enact any legislation that the state
constitution does not prohibit.” Id. Because this is so, “[t]he party
challenging the constitutionality of a statute must also cite to the specific
provision of the constitution which prohibits the legislative action.”
Fleury, 2001-0871 p. 5, 799 So.2d at 472; Board of Com’rs, 95-1353 p.
4, 666 So.2d at 639.

The plaintiffs bear the burden of proving the unconstitutionality
of the statutes at issue.

2

Louisiana Municipal Association v. State, 04-0227, pp. 45-46 (La. 1/19/05), 893

So.2d 809, 842-43 (footnote omitted).

The Plaintiff asserts that the retroactive application of the peremptive period

set out in La.Civ.Code art. 191 unconstitutionally deprives him of a vested right.

“[S]tatutes of limitations are not accorded retroactive application where doing so

would operate unconstitutionally to deprive a party of vested rights.” Achord v. City

of Baton Rouge, 489 So.2d 1373, 1376 (La.App. 1 Cir. 1986), writ denied, 493 So.2d

641 (La.1986) (citing Lott v. Haley, 370 So.2d 521 (La.1979)). Further, for a

peremptive statute to pass constitutional muster with regard to divestiture of vested

rights, it must provide a reasonable time for affected parties to assert their rights.

The test for determining the constitutional validity of a limitation
statute is whether it allows a reasonable time for the assertion of the
right or the enforcement of the obligation; the legislature is primarily the
judge of the reasonableness of the time allowed. Unless the time allowed
is so short as to amount to a denial of justice, the courts will not
interfere.

Guillory v. Guillory by Arceneaux, 615 So.2d 975, 977 (La.App. 1 Cir. 1993)

(citations omitted), quoted in Dauterive Contractors, Inc. v. Landry & Watkins, 01-

1112, p. 32 (La.App. 3 Cir. 3/13/02), 811 So.2d 1242, 1262. See also Jamison v.

Hilton, 98-447 (La.App. 3 Cir. 10/21/98), 721 So.2d 494, writ denied, 98-2916 (La.

2/5/99), 730 So.2d 871.

The Defendants argue that the Plaintiff had no vested right because the

husband of the mother is presumed, under Louisiana law, to be the father of the child.

They further argue that, in these circumstances, a biological father has no due process

liberty interest in asserting a filiation action. However, “[w]hen a party acquires a

right to assert a cause of action prior to a change in the law, that right is a vested

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property right which is protected by the guarantee of due process.” Bourgeois v. A.P.

Green Indus., Inc., 00-1528, p. 9 (La. 4/3/01), 783 So.2d 1251, 1259.

Prior to the passage of Act 530, the courts of this state “traditionally recognized

a biological father’s right to his illegitimate child by means of an avowal action.”

T.D. v. M.M.M., 98-0167, p. 2 (La. 3/2/99),730 So.2d 873, 875 (footnote omitted).

Therefore, at the time the Plaintiff filed this suit, he had a vested right to sue to avow

paternity. La.Civ.Code art. 191 does not provide a time period for affected parties to

assert their rights. It purports to cut off existing rights immediately upon approval,

as follows:

This Act shall become effective upon signature by the governor or, if not
signed by the governor, upon expiration of the time for bills to become
law without signature by the governor, as provided in Article III, Section
18 of the Constitution of Louisiana. If vetoed by the governor and
subsequently approved by the legislature, this Act shall become
effective on the day following such approval.

Accordingly, retroactive application of La.Civ.Code art. 191 is an unconstitutional

abridgement of a right to due process1. As a result, we reverse the trial court’s

judgment in this regard.

Additionally, we reverse the trial court’s judgment granting the Defendants’

exceptions of no cause of action, no right of action, and prescription. In support of

these exceptions, the Defendants essentially argue that the Plaintiff should not be

allowed to proceed because he knew of the existence of the child and did not assert

his rights or acknowledge the child as his own within a reasonable period of time.

This allegation, and the evidence in support of it, is not properly brought before the

court by the filing of exceptions. Under the law in effect at the time the petition was

1
The Defendants suggest that this court found Act 530 to be constitutional by applying it
in Mouret v. Godeaux, 04-496 (La.App. 3 Cir. 11/10/04), 886 So.2d 1217. However, the
constitutionality of the act was not raised and was not before the court in that case.

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filed, an action for avowal was not subject to a prescriptive period. Mason v. Kansas

City Ry. Co., 00-208 (La.App. 5 Cir. 9/26/00), 769 So.2d 1249. Therefore, the trial

court could not grant judgment on these exceptions based on the timeliness of the

Plaintiff’s petition. Id.

Having noted that no prescriptive period applied in an action for avowal at the

time the Plaintiff filed suit, we will now consider the exceptions of no cause of action

and no right of action on their own merits. We find no basis for the grant of an

exception of no cause of action.

The function of the peremptory exception of no cause of action is
to question whether the law extends a remedy against the defendant to
anyone under the factual allegations presented. Industrial Companies,
Inc. v. Durbin, 2002-0665, p. 6 (La.1/28/03), 837 So.2d 1207, 1213. No
evidence may be introduced to support or controvert the objection that
the petition fails to state a cause of action. LSA–C.C.P. art. 931.
Therefore, the court reviews the petition and accepts the well-pleaded
allegations of fact as true, and the issue at trial of the exception is
whether, on the face of the petition, the plaintiff is legally entitled to the
relief sought. B & C Electric, Inc. v. East Baton Rouge Parish School
Board, 2002–1578, p. 4 (La.App. 1st Cir.5/9/03), 849 So.2d 616, 619.

Ferrington v. La. Bd. of Parole, 03- 2093, p. 6 (La.App. 1 Cir. 6/25/2004) 886 So.2d

455, 458-59, writ denied, 04-2555 (La. 6/24/05), 904 So.2d 741.

A review of the petition shows that, taking the factual allegations as true, it

states a cause of action for avowal.

We now turn to the Defendant’s exception of no right of action. This court has

previously held that:

An exception of no right of action is used to raise the question
whether a plaintiff belongs to a particular class in whose exclusive favor
the law extends a remedy for which a cause of action exists, or to raise
the issue whether plaintiff has the right to invoke a remedy which the
law extends only conditionally. Greenbriar Nursing Home, Inc. v.
Pilley, 93-2059 (La.5/23/94), 637 So.2d 429; La.Code Civ.P. art. 681.

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Robin v. Allstate Ins. Co., 02-689, p. 3 (La.App. 3 Cir. 2/5/03), 844 So.2d 41, 44-45,

writ denied, 03-1818 (La. 10/17/03), 855 So.2d 763.

As we have stated, the courts of this state had recognized a biological father’s

right of action in this regard at the time Plaintiff’s suit was filed. Therefore, the trial

court erred in granting the Defendants’ exceptions.

CONCLUSION

For these reasons, the trial court’s judgment denying the plea of

unconstitutionality is reversed. Further, its judgment granting the Defendants’

exceptions is reversed. This matter is remanded to the trial court for further

proceedings. Costs of this appeal are assessed to the Defendants.

REVERSED AND REMANDED.

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