Succession of Louis Kenneth Hebert, Jr.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

13-954

SUCCESSION OF LOUIS KENNETH HEBERT, JR.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF VERMILION, NO. 80086
HONORABLE EDWARD D. RUBIN, DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and
Jimmie C. Peters, Judges.

REVERSED AND RENDERED.

Ronald W. Melebeck
124 N. State Street - Suite 300
Abbeville, LA 70510
Telephone: (337) 893-5776
COUNSEL FOR:
Appellee - Karla Coleman

Raven Matthews Pillette
Matthews Pillette Law, LLC
P. O. Box 44
Abbeville, LA 70511
Telephone: (337) 740-8828
COUNSEL FOR:
Appellant - Louis Hebert, III

THIBODEAUX, Chief Judge.

In this succession proceeding opened in 2003, the trial court granted

the appellee’s petition, filed in 2012, to intervene and establish paternity and

heirship. The trial court awarded the appellee full rights and privileges as a forced

heir. Since the trial court improperly applied La.Civ.Code art. 197 1 governing

filiation actions retroactively to appellee’s prescribed claim under the then-in-

effect law, we reverse the trial court’s judgment and dismiss all claims with

prejudice.

I.

ISSUE

We shall consider whether La.Civ.Code art. 197 governing filiation

actions applies retroactively to revive a child’s prescribed action for paternity and

heirship.

II.

FACTS AND PROCEDURAL HISTORY

The decedent, Louis Kenneth Hebert Jr., died on June 27, 2003. His

succession was opened in 2003, listing the appellant, Louis Kenneth Hebert III, as

his only child. While the appellee, Karla Coleman, filed parentage test results with

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Louisiana Civil Code Article 197 states:

A child may institute an action to prove paternity even though he is
presumed to be the child of another man. If the action is instituted after the death
of the alleged father, a child shall prove paternity by clear and convincing
evidence.

For purposes of succession only, this action is subject to a peremptive
period of one year. This preemptive period commences to run from the day of the
death of the alleged father.

the court on October 2, 2003, indicating that the decedent was her biological

father, Ms. Coleman did not file a formal petition of intervention to establish

paternity and heirship until June 13, 2012.

The trial court granted Ms. Coleman’s petition, decreeing her to be the

biological child of the decedent and awarding her full rights and privileges as a

forced heir. Considering Ms. Coleman turned nineteen on March 28, 2003, Mr.

Hebert filed a motion for new trial, arguing that Ms. Coleman’s paternity action

had prescribed under the then-in-effect La.Civ.Code art. 209, which provided that a

paternity action must be brought within one year of the death of the alleged parent

or within nineteen years of the child’s birth, whichever occurs first. The trial court

denied the motion for new trial, reasoning that Article 209 was repealed in 2005 by

La.Civ.Code art. 197, which provided for a peremptive period of one year

commencing on the day of the alleged father’s death and eliminated the

requirement that a child’s paternity claim be brought prior to the age of nineteen.

III.

STANDARD OF REVIEW

The determination of whether a codal article applies retroactively is

one of statutory interpretation that is reviewed de novo. In re Succession of Smith,

09-969 (La.App. 3 Cir. 2/3/10), 29 So.3d 723, writ denied, 10-829 (La. 6/18/10),

38 So.3d 325; Stewart v. Estate of Stewart, 07-333 (La.App. 3 Cir. 10/3/07), 966

So.2d 1241.

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IV.

LAW AND DISCUSSION

Mr. Hebert argues that La.Civ.Code art. 197 does not apply

retroactively to Ms. Coleman’s paternity action as she turned nineteen prior to the

amendment, which cannot revive already prescribed claims. As our court has

already ruled on this particular matter, we agree.

The now-vacated La.Civ.Code art. 209 stated that a child not entitled

to legitimate filiation must institute an action for paternity “within one year of the

death of the alleged parent or within nineteen years of the child’s birth, whichever

first occurs.” The Filiation of Parents and Children Act, effective June 29, 2005,

No. 192, 2005 La. Acts 1444 substantively changed the law through the enactment

of La.Civ.Code art. 197, which provides that “[f]or purposes of succession only,” a

child’s paternity action “is subject to a peremptive period of one year” that

“commences to run from the day of the death of the alleged father.”

In Smith, 29 So.3d at 725, this court held that the 2005 amendment did

not apply retroactively to revive a child’s filiation action that had already

prescribed under La.Civ.Code art. 209. In pertinent part, the court reasoned:

This and other Louisiana courts have already
examined the 2005 amendment’s effect. Thus, where the
alleged father died prior to the amendment, but the
children’s appeal was pending when the amendment
became effective, this court rejected the amendment’s
applicability to the filiation actions of the alleged heirs
who were well beyond nineteen years of age. This court
explained that although, generally, prescriptive statutes
are procedural, once the prescriptive period elapses, a
party acquires a right to plead the exception of
prescription. A change in the right to plead the exception
is a substantive change in the law. Because procedural
statutes that also change substantive law must be
construed to apply only prospectively, we required a
clear and unequivocal expression of legislative intent for

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the statute to apply retroactively. This court concluded
the language in section 3 of the Filiation of Parents and
Children Act that “[t]he provisions of this Act shall be
applicable to all claims existing or actions pending on its
effective date and all claims arising or actions filed on
and after its effective date” expressed no such legislative
intent.

Id. (citations omitted).

Finding that La.Civ.Code art. 209 was in effect at the time the alleged heir reached

the age of nineteen, our circuit concluded that the claim had prescribed and the

2005 amendment did not apply.

Here, Ms. Coleman turned nineteen on March 28, 2003, before filing

any petition for filiation. At this time, she was never formally acknowledged so

her only means of establishing paternity was through La.Civ.Code art. 209. Under

Article 209, her claim prescribed on her nineteenth birthday. Following Smith, the

2005 amendment, La.Civ.Code art. 197, cannot revive this already prescribed

claim as there is no expressed legislative intent to allow this amendment to apply

retroactively.

Ms. Coleman argues that Mr. Hebert improperly brought an exception

for prescription for the first time on appeal since Mr. Hebert filed his exception

after the briefs were filed. We disagree. The peremptory exception of prescription

may be heard for the first time on the appellate level “if pleaded prior to a

submission of the case for a decision, and if proof of the ground of the exception

appears of record.” La.Code Civ.P. art. 2163. Here, there was ample evidence in

the record to indicate that Ms. Coleman did not file her filiation action timely.

Furthermore, a case is not submitted for decision on the appellate level until after it

has been argued by briefs and oral arguments if requested. See Smith v. Jones, 8

So.2d 718 (La.App. 1 Cir. 1942). Here, while Mr. Hebert filed his exception after

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the briefs, it was still submitted prior to oral arguments. As such, it was timely

filed and may be considered for the first time by this court.

Ms. Coleman also argues that this case should be remanded to the trial

court for trial of the exception of prescription as she properly demanded this

remand in accordance with La.Code Civ.P. art. 2163. Again, we disagree.

Louisiana Code of Civil Procedure Article 2163 does not mandate that the

appellate court remand the case for trial of the prescription issue upon request;

rather, “[t]he appellate court has discretion to do so should the interests of justice

require a full hearing.” Willett v. Premier Bank, 97-187, p. 10 (La.App. 3 Cir.

6/4/97), 696 So.2d 196, 201. Here, the record clearly indicates that Ms. Coleman

did not timely file her filiation action. As such, a full hearing is not required in the

interests of justice to adequately decide this issue, and we exercise our

discretionary authority to hear this exception for the first time and conclude that

Ms. Coleman’s claim has prescribed.

Even if La.Civ.Code art. 197 did apply, Ms. Coleman’s claim would

still be perempted. Article 197 requires that a filiation claim be brought within one

year of the death of the alleged father. Here, while the decedent died in 2003, Ms.

Coleman did not file her petition for filiation until 2012. While Ms. Coleman

argues the date of commencement should be October 2, 2003, as that is the date

she filed the parentage test, this argument fails as a civil action “is commenced by

the filing of a pleading presenting the demand to a court of competent jurisdiction”

and the parentage results do not constitute a proper pleading. La.Code Civ.P. art.

421.

Nevertheless, we conclude that Ms. Coleman’s action for paternity

and forced heirship prescribed under the then-in-effect La.Civ.Code art. 209.

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Since this action has prescribed, we need not address Mr. Hebert’s other

assignments of error as they have been rendered moot.

V.

CONCLUSION

For the foregoing reasons, we reverse the judgment of the trial court

and dismiss Ms. Coleman’s claims with prejudice.

All costs are assessed against Karla Coleman, appellee.

REVERSED AND RENDERED.

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