Yvette Perry & James Paul Perry v. Dorothy Mae Clay, in Re Estate of James Paul Green

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

19-135

YVETTE PERRY & JAMES PAUL PERRY, ET AL

VERSUS

DOROTHY MAE CLAY, IN RE ESTATE

OF JAMES PAUL GREEN

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APPEAL FROM THE
ELEVENTH JUDICIAL DISTRICT COURT
PARISH OF SABINE, NO. 69,159
HONORABLE STEPHEN B. BEASLEY, DISTRICT JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of Sylvia R. Cooks, Shannon J. Gremillion, and Van H. Kyzar,
Judges.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

Ronald D. Brandon
Brandon Law Firm
P. O. Box 216
Many, LA 71449
(318) 256-5910
COUNSEL FOR DEFENDANT/APPELLEE:
Dorothy Mae Clay, in re Estate of James P Green

Yvette Perry
941 Lucille Street
Natchitoches, LA 71457
(318) 332-4450
In Proper Person

James Paul Perry
941 Lucille Street
Natchitoches, LA 71457
(318) 332-4450
In Proper Person

GREMILLION, Judge.

From the judgment of the trial court that maintained the exception of no right

of action filed by Appellee, Dorothy Mae Clay (Mrs. Clay), Appellants filed the

instant appeal. For the reasons that follow, we affirm in part, reverse in part, and

remand the matter for further proceedings.

FACTS

This matter involves the succession of James Paul Green (Mr. Green), who

died in 2014. Appellants, James Paul Perry (Mr. Perry) and his daughter, Yvette

Perry (Ms. Perry), sought to be recognized as Mr. Green’s father and sister,

respectively, when, on August 20, 2018, they filed a Rule to Show Cause contesting

the propriety of Mrs. Clay’s administration of Mr. Green’s succession.1 Mr. Perry

asserted that he fathered Mr. Green, Mr. Green’s brother, Michael McClanahan, and

Mr. Green’s sister, Laura Ann Green, during an extra-marital affair between himself

and Mr. Green’s mother, Mrs. Clay, who was married to James Charles Green during

the pertinent period. Mr. Perry’s testimony on this point was corroborated by his

ex-wife, Estella Patton, who was aware at the time of Mr. Perry’s relationship with

Mrs. Clay, and by three of his biological children fathered with Mrs. Patton. Mr.

Perry’s paternity of Mr. Green was disputed by Mr. Green’s sister, Lenora Green.

Mrs. Clay answered the rule with exceptions of no cause of action and no right

of action. The trial court maintained the exception of no right of action and denied

the exception of no cause of action. This appeal ensued.

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Appellants entitled their action, “YVETTE PERRY & JAMES PAUL PERRY, ET AL.“ and
assert therein that, besides themselves, Patrice Perry, James Sylvester Perry, and James Jerome
Perry seek to be recognized as heirs of James Paul Green. However, none of these putative heirs
have joined the action. The judgment appealed is silent as to these putative heirs. This court is
limited to addressing the rights of the actual parties to the litigation.

ANALYSIS

The law establishes the presumption that the husband of the mother is the

father of the child born during the marriage. La.Civ.Code art. 185. Thus, Mr. James

Charles Green is presumed to be Mr. Green’s father. The law also establishes

peremptive periods within which a putative biological father may seek filiation of a

child. Louisiana Civil Code Article 198 provides:

A man may institute an action to establish his paternity of a child
at any time except as provided in this Article. The action is strictly
personal.

If the child is presumed to be the child of another man, the action
shall be instituted within one year from the day of the birth of the child.
Nevertheless, if the mother in bad faith deceived the father of the child
regarding his paternity, the action shall be instituted within one year
from the day the father knew or should have known of his paternity, or
within ten years from the day of the birth of the child, whichever first
occurs.

In all cases, the action shall be instituted no later than one year
from the day of the death of the child.

The time periods in this Article are peremptive.

Mrs. Clay filed an exception of no right of action in response to Appellants’

rule.

The focus in an exception of no right of action is on whether the
particular plaintiff has a right to bring the suit, but it assumes that the
petition states a valid cause of action for some person and questions
whether the plaintiff in the particular case is a member of the class that
has a legal interest in the subject matter of the litigation.

Reese v. State Dep’t of Pub. Safety & Corr., 03-1615, p. 3 (La. 2/20/04), 866 So.2d

244, 246.

In Leger v. Leger, 15-151 (La.App. 3 Cir. 9/30/15), 215 So.3d 773, a mother’s

paramour intervened in her divorce to establish his paternity of the second child born

during her marriage. The intervention was filed approximately twenty months after

the child was born and eighteen months after a DNA test proved to a 99.99%

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probability that he was the child’s father. We affirmed the trial court’s maintenance

of exceptions of peremption, no right of action, and no cause of action asserted by

the mother’s husband.

Applying the precepts of La.Civ.Code art. 198 and the reasoning in Leger, it

is apparent that Mr. Perry’s action is perempted: it was filed more than a year after

Mr. Green’s death, which was the absolute latest such a claim could be made under

any circumstance. Accordingly, Mr. Perry no longer enjoys the status of one

afforded a remedy in Mr. Green’s succession.

The same cannot be said of Ms. Perry. La.Civ.Code art. 875 defines intestate

successions, in part: “Intestate succession results from provisions of law in favor of

certain persons[.]” Under the provisions of La.Civ.Code art. 880, when there is no

valid testamentary disposition of decedent’s property, i.e. an intestate succession,

“the undisposed property of the deceased devolves by operation of law in favor of

his descendants, ascendants, and collaterals, by blood or by adoption, and in favor

of his spouse not judicially separated from him, in the order provided in and

according to the following articles.” Comment (c) of the Revision Comments of

1997 to this article state, in pertinent part, “Once a relationship is proven by blood

or adoption, the succession rights of such a relative are established without reference

to the legitimacy of that relationship.” Thus, this revision of the Civil Code removed

any distinction between legitimate and illegitimate siblings, and, under Article 880,

this decedent’s half-siblings are entitled to inherit their share “by operation of law.”

Nothing in the law required these siblings to prove their blood relationship to

decedent at any time before they made a claim in his succession.

In Gibbs v. Delatte, 05-821 (La.App. 1 Cir. 12/22/05), 927 So.2d 1131, writ

denied, 06-0198 (La. 4/24/06), 926 So.2d 548, the first circuit addressed the question

concerning half-siblings’ right to proceed under wrongful death and survival actions
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even though their deceased father never filiated their half-brother, the decedent. The

court of appeal ruled in favor of the half-siblings, finding that they enjoyed the right

to bring these actions within the appropriate time delays. This ruling relied in part

on the supreme court’s holding in Warren v. Richard, 296 So.2d 813 (La.1974), and

its reliance on several landmark United States Supreme Court decisions establishing

the principle that the test for equal protection under the law is the biological

relationship of the parties, not their legal classification. Put another way, blood is

the determining factor with siblings. Additionally, in Warren, the fact that the

claimant was presumed to be the child of her mother’s husband was not a bar to her

proving that the decedent was her biological father.

Under the current provisions of the Civil Code “[s]uccession occurs at the

death of a person[,]” La.Civ.Code art. 934, and universal successors immediately

“acquire ownership of the [decedent’s] estate[,]” La.Civ.Code art. 935. Universal

successors are now defined in La.Civ.Code art. 3506(28) to include intestate heirs

and the former La.Civ.Code art. 949 (1870) “is obsolete because of the elimination

of irregular successors and therefore has been deleted.” La.Civ.Code art. 935,

Revision Comment (f) (1997). Louisiana Civil Code Article. 893 makes no

distinction between legitimate and illegitimate siblings related by half-blood as

evidenced in Comment (a) of the Revision Comments of 1981 to that article.

Thus, the trial court erred in finding that Ms. Perry has no right of action

without addressing the legal distinction between Mr. Perry’s right of action and Ms.

Perry’s potential right of action. No factual findings were adduced, and, in the mind

of this court, whether Ms. Perry enjoys a right of action is dependent upon an

assessment of the credibility of the witnesses in the matter, which we are poorly

positioned to assess. We remand the matter to the trial court for proceedings to

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determine whether Yvette Perry has proven her sibling relationship to James Paul

Green.

For these reasons, the judgment of the trial court maintaining the exception of

no right of action is affirmed in part and reversed in part, and the matter is remanded

for further proceedings. All costs of these proceedings are taxed equally to

Appellant, James Paul Perry, and Appellee, Dorothy Mae Clay.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

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