Darnell Carter v. Steak House Steaks, Inc.

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

12-394

DARNALL AND MICHELLE CARTER,
INDIVIDUALLY AND AS NATURAL
PARENTS OF KYRIS CARTER (DECEASED)

VERSUS

STEAK HOUSE STEAKS, INC.,
JAMES NATIONS, JR., AND
XYZ INSURANCE COMPANY

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 2011-2374 “D”
HONORABLE EDWARD D. RUBIN, DISTRICT JUDGE

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JAMES T. GENOVESE
JUDGE

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Court composed of John D. Saunders, Elizabeth A. Pickett, and James T.
Genovese, Judges.

REVERSED AND REMANDED.

Pius A. Obioha
Alistair A. Adkinson
Michal J. Harris
Law Offices of Pius A. Obioha & Associates, LLC
1550 North Broad Street
New Orleans, Louisiana 70119
(504) 265-0437
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Darnell and Michelle Carter

Richard E. King
Jennifer L. Simmons
Galloway, Johnson, Tompkins, Burr & Smith
701 Poydras Street, Suite 4040
New Orleans, Louisiana 70139
(504) 525-6802
COUNSEL FOR DEFENDANTS/APPELLEES:
James Nations, Jr. and Steak House Steaks, Inc.

Matthew J. Ungarino
Ungarino & Eckert L.L.C.
3850 North Causeway Boulevard
Suite 1280
Metairie, Louisiana 70002
(504) 836-7565
COUNSEL FOR DEFENDANT/APPELLEE:
Steak House Steaks, Inc.

J. Michael Nash
Ungarino & Eckert L.L.C.
910 Pierremont Road, Suite 351
Shreveport, Louisiana 71106
(318) 866-9599
COUNSEL FOR DEFENDANT/APPELLEE:
Steak House Steaks, Inc.

GENOVESE, Judge.

Plaintiffs, Darnell and Michelle Carter, individually and as natural parents of

Kyris Carter (deceased), appeal the judgment of the trial court sustaining an

exception of no right of action in favor of Defendants, James Nations, Jr. and Steak

House Steaks, Inc. For the following reasons, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

This matter is before the court on an exception of no right of action. On

April 25, 2011, Darnell and Michelle Carter (Plaintiffs) filed a petition for

wrongful death and survival action damages against James Nations, Jr., Steak

House Steaks, Inc., and XYZ Insurance Company (Defendants). Plaintiffs’

petition alleged damages in connection with the drowning of their son, Kyris

Carter, on October 3, 2010.

Defendants filed an exception of no right of action, asserting that Darnell

and Michelle Carter have no right under the law to bring this suit. Following a

hearing on August 11, 2011, the trial court sustained Defendants’ exception of no

right of action. The trial court signed a judgment on September 8, 2011,

dismissing Plaintiffs’ claims against Defendants without prejudice. Plaintiffs have

appealed.

ASSIGNMENTS OF ERROR

On appeal, Plaintiffs complain that the trial court erred: (1) in sustaining

Defendants’ exception of no right of action because they “are the proper parties to

bring the claims that were asserted in this lawsuit[,]” and, (2) in dismissing

Defendants from this suit.

DISCUSSION

Plaintiffs’ petition asserted that when Kyris drowned while attending a party,

he was not married and had no children. Therefore, as Kyris’ parents, Plaintiffs

asserted that they are the proper parties to bring wrongful death and survival

actions pursuant to La.Civ.Code arts. 2315.1 and 2315.2.

Defendants, however, asserted that they neither hosted the ill-fated party nor

owned the property where said party was held. Therefore, Defendants argued

through their filing of a peremptory exception of no right of action that they are not

the proper parties to be named as Defendants in these actions.

Louisiana Code of Civil Procedure Article 681 provides that “an action can

be brought only by a person having a real or actual interest which he asserts.”

Pursuant to La.Code Civ.P. art. 927(A)(6), a defendant may challenge whether a

plaintiff has such a real or actual interest in an action.

The classes of beneficiaries for wrongful death and survival actions are

granted by special statute to specified survivors in order of exclusionary

preference. Louisiana Civil Code Articles 2315.1 and 2315.2 state that, along with

certain other relatives, the parents of a person who is unmarried and childless, and

whose death was caused by the fault, offense, or quasi-offense of another, may

bring wrongful death and survival actions within one year of the decedent’s death.

Specifically, La.Civ.Code art. 2315.1 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:

....

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

Further, La.Civ.Code art. 2315.2 provides:

A. If a person dies due to the fault of another, suit may be
brought by the following persons to recover damages which they
sustained as a result of the death:

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....

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

Our supreme court explained the peremptory exception of no right of action

in Eagle Pipe and Supply, Inc. v. Amerada Hess Corp., 10-2267, 10-2272,

10-2275, 10-2279, 10-2289, pp. 6-7 (La. 10/25/11), 79 So.3d 246, 255-56, as

follows:

“The function of the exception 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 action asserted in the suit.” Hood v.
Cotter, 2008-0215, p. 17 (La.12/2/08), 5 So.3d 819, 829. An
appellate court reviewing a lower court’s ruling on 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. Id.; Badeaux
v. Southwest Computer Bureau, Inc., 2005-0612, p. 6-7 (La.3/17/06),
929 So.2d 1211, 1217; Turner v. Busby, 2003-3444, p. 4 (La.9/9/04),
883 So.2d 412, 415-416; Reese v. State, Dept. of Public Safety and
Corrections, 2003-1615, p. 3 (La.2/20/04), 866 So.2d 244, 246.

The determination whether a plaintiff has a right to bring an
action raises a question of law. A question of law requires de novo
review. Holly & Smith Architects, Inc. v. St. Helena Congregate
Facility, Inc., 2006-0582, p. 9 (La.11/29/06), 943 So.2d 1037, 1045.

The peremptory exception of no right of action is a procedural device to

challenge whether a plaintiff is the proper party to file an action, not whether a

defendant is the property party against whom an action can be filed. Plaintiffs

clearly have a right of action pursuant to La.Civ.Code arts. 2315.1(A)(2) and

2315.2(A)(2). Plaintiffs are the proper parties to bring these wrongful death and

survival actions. We find that the trial court legally erred in sustaining

Defendants’ peremptory exception of no right of action.

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DECREE

For the foregoing reasons, the judgment of the trial court is reversed. The

case is remanded to the trial court for further proceedings. Costs are assessed to

Defendants/Appellees, James Nations, Jr. and Steak House Steaks, Inc.

REVERSED AND REMANDED.

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