Succession of Victor Preston Clark,iii.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

24-416

SUCCESSION OF VICTOR PRESTON CLARK, III

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APPEAL FROM THE
THIRTY-SIXTH JUDICIAL DISTRICT COURT
PARISH OF BEAUREGARD, NO. 2019-77
HONORABLE MARTHA ANN O’NEAL, DISTRICT JUDGE

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CHARLES G. FITZGERALD
JUDGE

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Court composed of Shannon J. Gremillion, Charles G. Fitzgerald, and Guy E.
Bradberry, Judges.

AFFIRMED.

David L. Wallace
518 North Pine Street
DeRidder, Louisiana 70634
(337) 462-0473
Counsel for Appellant:
Savanna L. Hutson

Samuel R. Ducote
Timothy O’Dowd
O’Dowd Law Firm, LLC
924 Hodges Street
Lake Charles, Louisiana 70601
(337) 310-2304
Counsel for Appellee:
Bailey Koonce, as Administrator of the
Succession of Victor Preston Clark, III

FITZGERALD, Judge.

This is an appeal of a judgment sustaining an exception of peremption and

dismissing all claims filed by the appellant, Savanna L. Hutson.

Victor Preston Clark III died in September 2017. The administration of his

estate began two years later. Then, in November 2023, Savanna filed a petition to

establish paternity for succession purposes only under La.Civ.Code art. 197.1

Two months after that, the Succession responded by filing various exceptions,

including peremption. As to peremption, the Succession alleged that Savanna’s

petition was filed more than one year after the decedent’s death and that the action

was therefore barred by the express language of La.Civ.Code art. 197.

Three weeks later, Savanna filed a pleading styled Motion to Dismiss

Exception(s). In relevant part, the motion alleged as follows:

2.

Exceptor . . . filed peremptory exception under Article 927 of the
Louisiana Code of Civil Procedure that [Savanna’s] right to be
recognized as an heir had been perempted by Louisiana Civil Code
Article 197 . . . . Article 197 of the Louisiana Civil Code violated the
equal protection clause of the United States Constitution and the
Louisiana State Constitution.

3.

Article 197 of the Louisiana Civil Code excludes an entire class
of people by its action. There is no provision in the law that allows
citizens who were minors at the date of death of their putative parent
any method to claim paternity. The statute provides no remedy for

1
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 peremptive period commences to run from the day of the death
of the alleged father.

minors under the age of 18 who[se] putative parent dies during their
minority. The action of Article 197 forever prohibits a petitioner who
has waited more than one (1) year to file to lose any right or chance to
prove their case.

4.

Our law tries to provide for minors whose rights come to fruition
in their minority some methodology to exercise their claim. Louisiana
Civil Code Article 197 does not. It excludes the entire class of minors
with no provision to protect that right during their minority. For this
reason, this Article of the Louisiana Civil Code violates the equal
protection clause guaranteed under the United States Constitution and
the Louisiana Constitution.

The hearing on all matters was held in April 2024. The trial court ruled from

the bench, sustaining the Succession’s exception of peremption. A written judgment

memorializing this ruling was signed by the trial court on June 14, 2024. Savanna

appealed.

Early in the appeal process, we issued an order instructing the trial court to

amend its judgment to include the proper decretal language. The trial court, in turn,

signed an amended judgment on August 15, 2024, stating that it had sustained the

exception of peremption and “that any and all claims of Savanna L. Hutson as filed

in the Succession of Victor Preston Clark, III are dismissed.”

On appeal, Savanna asserts one assignment of error: “Article 197 of the

Louisiana [Civil] Code is unconstitutional as written. The Article discriminates

against minor[s] without due process of law by taking away the right of inheritance.”

(Emphasis added). She argues that La.Civ.Code art. 197 is unconstitutional because

it violates “the due process clause of the United States Constitution and the

Louisiana State Constitution.” She then reiterates that La.Civ.Code art. 197 deprives

minors of property without due process of law. But all of this is new.

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In other words, our review of the record shows that there was never a due

process challenge in the trial court: due process was never pleaded and never argued.

Equal protection—not due process—was the constitutional ground pleaded and

adjudicated in the trial court.

The Louisiana Supreme Court established the mandatory procedure for

challenging the constitutionality of a statute in Vallo v. Gayle Oil Co., Inc., 94-1238

(La. 11/30/94), 646 So.2d 859. There, the supreme court explained that “a statute

must first be questioned in the trial court, not the appellate courts, and the

unconstitutionality of a statute must be specially pleaded and the grounds for the

claim particularized.” Id. at 864–65.

With that in mind, Savanna’s motion to dismiss was premised only on federal

and state equal protection grounds—nothing else. Due process was never pleaded.

And due process was not argued (or even mentioned) at the April 2024 contradictory

hearing. Equal protection and due process challenges are distinct, based on different

constitutional provisions, requiring different analyses.

“As a general rule, appellate courts will not consider issues that were not

raised in the pleadings, were not addressed by the trial court, or are raised for the

first time on appeal.” Johnson v. Montoya, 13-1951 (La.App. 1 Cir. 5/2/14), 145

So.3d 418, 422; see also Uniform Rules—Courts of Appeal, Rule 1–3.

In sum, because due process was not raised in Savanna’s motion, because due

process was not addressed by the trial court, and because due process is being raised

for the first time on appeal, we conclude that review of this issue is inappropriate.

The trial court judgment is therefore affirmed.

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DISPOSITION

The trial court judgment sustaining the exception of peremption and

dismissing the claims of the appellant, Savanna L. Hutson, is affirmed. The costs of

this appeal are assessed to Savanna L. Hutson.

AFFIRMED.

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