Marcus Miller v. Harold Thibeaux,lafayette Parish School Board and American Alternative Insurance Corporation

Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #004

FROM: CLERK OF SUPREME COURT OF LOUISIANA

The Opinions handed down on the 28th day of January, 2015, are as follows:

BY HUGHES, J.:

2014-C -1107 MARCUS MILLER v. HAROLD THIBEAUX,LAFAYETTE PARISH SCHOOL BOARD
AND AMERICAN ALTERNATIVE INSURANCE CORPORATION (Parish of
Lafayette)

Judge Scott J. Crichton, assigned as Justice ad hoc, sitting for
Justice Jeffrey P. Victory, for oral argument. He now sits as an
elected Associate Justice at the time this opinion is rendered.

For the reasons stated herein, we reverse the February 12, 2014
decision of the appellate court and reinstate the district court
judgment, which denied the defendants’ peremptory exceptions
raising the objection of no right of action. The matter is
remanded to the appellate court for consideration of the appeals
filed following the April 16, 2013 district court judgment on the
merits, in favor of the plaintiff, Marcus Miller.
APPELATE COURT REVERSED; DISTRICT COURT JUDGMENT REINSTATED;
REMANDED.

GUIDRY, J., dissents.
CLARK, J., dissents with reasons.
CRICHTON, J., dissents for reasons assigned by Justice Clark.
01/28/15

SUPREME COURT OF LOUISIANA

NO. 2014-C-1107

MARCUS MILLER

VERSUS

HAROLD THIBEAUX, LAFAYETTE PARISH SCHOOL BOARD
AND AMERICAN ALTERNATIVE INSURANCE CORPORATION

ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
THIRD CIRCUIT, PARISH OF LAFAYETTE

HUGHES, J.*

The issue presented in this wrongful death and survival action is whether a

putative father is entitled to seek filiation of his deceased minor child by simply

alleging in his petition that he is the biological father of the child. Concluding that

the appellate court erred in holding that the plaintiff/father alleged insufficient facts

to constitute a filiation action, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

This case arose on March 14, 2011 when, unbeknownst to school bus driver

Harold Thibeaux, six-year-old La’Derion Miller’s arm became trapped in the

school bus door while he was attempting to board the bus. La’Derion was dragged

by the school bus some eighty feet, and, when his arm became dislodged from the

door, he fell beneath the wheels of the bus and was critically injured. La’Derion

died approximately forty minutes later.

La’Derion’s mother, Heather Jagneaux, witnessed the accident from her

front yard and heard La’Derion call out for her help, but she was unable to reach

him.

*Judge Scott J. Crichton, assigned as Justice ad hoc, sitting for Justice Jeffrey P. Victory, for oral
argument. He now sits as an elected Associate Justice at the time this opinion is rendered.
 On May 16, 2011, Marcus Miller filed the instant action, individually and

“on behalf of the estate of his deceased minor son,” seeking to recover damages for

the pain and suffering inflicted on La’Derion through the negligence of the bus

driver, as well as for his own damages arising out of the wrongful death of his son.1

Named as defendants in the suit were: Mr. Thibeaux; his insurer, Colony Specialty

Insurance Company (“Colony”);2 his employer, Lafayette Parish School Board

(“LPSB”); and, his employer’s insurer, American Alternative Insurance

Corporation (“AAIC”).3

In AAIC’s May 2012 answer to this suit, and among other defenses raised, it

was alleged that the plaintiff’s claims were “barred or limited to the extent that

[plaintiff had] not complied with the procedural formalities that would allow him

to bring this action as the legal father of La’Derion Miller.”

AAIC, LPSB, and Mr. Thibeaux filed peremptory exceptions, in December

of 2012, pleading the objection of no right of action as to the plaintiff’s claims.

The defendants contended that the plaintiff failed to establish, in accordance with

LSA-C.C. art. 198, that he was the father of La’Derion and that he had the right to

bring the instant action for wrongful death and survival damages pursuant to LSA-

C.C. arts. 2315.1 and 2315.2.

Thereafter, the plaintiff filed a motion for judgment of paternity, alleging

that: (1) his deceased son, La’Derion Miller, was born on January 11, 2005 in
1
A separate suit was filed by La’Derion’s mother, Heather Jagneaux, which was consolidated
with the instant action in the district court.
2
During the course of the consolidated proceedings, a mediation was conducted between Ms.
Jagneaux, Mr. Miller, and Colony, resulting in a settlement in which Colony purportedly agreed
to tender its $500,000 policy limits to Ms. Jagneaux in exchange for dismissal of her suit. Mr.
Miller thereafter amended his petition to claim that Colony had not negotiated in good faith or
dealt fairly with him, by settling its full policy limits on Ms. Jagneaux’s damage claims alone, to
the exclusion of his claims. In response to Mr. Miller’s demand for discovery of the signed
settlement agreement between Colony and Ms. Jagneaux, Colony countered that the agreement
was confidential and not subject to discovery. We note that the appellate record does not show
any further participation in the litigation by Ms. Jagneaux after the mediation, and the settlement
agreement has not been made a part of the appellate record.
3
AAIC was added to the suit by the plaintiff’s March 9, 2012 amended petition.

2
Lafayette, Louisiana; (2) two days after the birth, on January 13, 2005, he and

La’Derion’s mother, Heather Jagneaux, executed an acknowledgment of paternity,

which stated that he was the biological father of La’Derion; (3) his name appears

on La’Derion’s birth certificate; and (4) in an action filed by the State of Louisiana

on May 12, 2009, to establish court-ordered child support, he was judicially

determined to be the legal and biological father of La’Derion.4 The plaintiff

contended that, since he pled in his petition in the instant case that he was the

biological father of La’Derion, the necessary material facts to constitute an avowal

action were alleged, and the defendants were put on notice that he was seeking a

judgment of paternity, even though he did not make a specific request for that

relief, citing this court’s decision in Udomeh v. Joseph, 11-2839 (La. 10/26/12),

103 So.3d 343.

Following a January 14, 2013 hearing on the defendants’ exceptions and the

plaintiff’s motion for judgment of paternity, as well as on motions for partial

summary judgment previously filed by the parties,5 the district court denied the

4
We note that the records of the child support enforcement action that appear in the record
before this court do not support this allegation, as child support was awarded pursuant to the
LSA-C.C. art. 196 presumption that arose from Mr. Miller’s acknowledgment by authentic act of
La’Derion as his child; the presumption can be invoked only on behalf of the child. “The man
who executes the acknowledgment will not create a presumption in his own favor that he is the
father of the child.” LSA-C.C. art. 196, 2005 Revision Comment (a). However, pursuant to
LSA-R.S. 9:392.1 and LSA-R.S. 9:405, “[i]n child support, custody, and visitation cases, the
acknowledgment of paternity by authentic act is deemed to be a legal finding of paternity and is
sufficient to establish an obligation to support the child and to establish visitation without the
necessity of obtaining a judgment of paternity.” (Emphasis added.) In the child support
enforcement action, a finding of fact was made that Mr. Miller had a “legal obligation to support
his minor child(ren),” and a judgment was rendered ordering him to pay child support, but no
judgment of paternity was rendered.
5
AAIC, LPSC, and Mr. Thibeaux filed motions for partial summary judgment in November
2012, seeking a ruling that a single statutory damage cap of $500,000 applied in this case,
pursuant to LSA-R.S. 13:5106 of Louisiana’s Governmental Claims Act (LSA-R.S. 13:5101 et
seq.). The plaintiff filed a motion for partial summary judgment on December 20, 2012, seeking
rulings from the district court that: (1) Mr. Thibeaux was an insured under the AAIC policy
(citing LSA-R.S. 17:416.4(A), requiring a school board to fully indemnify a school board
employee against whom a judgment has been rendered for negligence arising out of any action or
omission that occurred in the proper course and scope of his duties); and (2) Mr. Thibeaux was
not subject to the Governmental Claims Act statutory cap (asserting the instant action was
brought pursuant to LSA-R.S. 17:439(D), excepting from the statutory civil immunity otherwise
granted to school employees the negligence of any school employee operating a motor vehicle,
to the extent that liability for such negligence was covered by insurance or self-insurance).
3
defendants’ exceptions of no right of action and granted the plaintiff’s motion for

judgment of paternity, issuing a judgment decreeing that “Marcus Miller is found

to be the biological and legal father of the minor child, La’Derion Miller.”6

Further, the motions for partial summary judgment filed by the defendants were

denied, and the motion for partial summary judgment presented by the plaintiff

was granted.

The defendants first sought relief from the appellate court by filing writ

applications; however, writs were denied by the appellate court, which found no

error in the district court ruling denying the defendants’ exceptions of no right of

action; “no irreparable injury” was found as to the rulings on the motions for

summary judgment. As to the district court’s granting of the plaintiff’s motion for

judgment of paternity, the appellate court ruled that an adequate remedy existed on

appeal. See Miller v. Thibeaux, 13-CW-0137, 13-CW-0138, 13-CW-0183, 13-

CW-0184 (La. App. 3 Cir. 3/22/13) (unpublished).7

6
Although no witnesses testified at the hearing during which the paternity ruling was issued in
favor of Marcus Miller, Mr. Miller submitted into evidence, without objection by the defendants,
the following documentary evidence of paternity: a copy of La’Derion’s birth certificate,
showing Marcus Miller named as his father; a copy of an “Acknowledgment of Paternity
Affidavit,” executed on January 13, 2005 by Marcus Miller, stating that he was the biological
father of La’Derion, but which contained the signature of only one witness (instead of the
requisite two witnesses for an authentic act); a copy of an “Acknowledgment of Paternity
Affidavit,” executed on April 5, 2007 by Marcus Miller, before two witnesses, stating that he
was the biological father of La’Derion; and copies of pleadings and court rulings in State in the
Interest of La’Derion J. Miller and Jaidon J. Miller, Minor Children of Heather Jagneaux
v. Marcus Joseph Miller, Docket No. 2009V60, 15th Judicial District Court, Vermilion Parish,
including the “Petition and Rule to Show Cause Why Child Support Should not be Ordered
Pursuant to LSA-R.S. 46:236.1,” filed May 12, 2009, alleging Marcus Miller was the legal and
biological father of the children via formal acknowledgment of paternity; the August 18, 2009
district court hearing officer recommendation of support, finding that “[d]efendant has a legal
obligation to support to his minor child(ren)”; and an August 19, 2009 judgment signed by the
district court judge, making the recommendations of the hearing officer the judgment of the
court.
7
Although the district court rulings on the parties’ motions for partial summary judgment were
rendered at the same time as the matters currently under consideration by this court, the summary
judgment rulings have not been presented to this court for review. As indicated, in March of
2013, the appellate court denied writs on the matters ruled on by the district court following the
January 14, 2013 hearing. In the defendants’ subsequent appeal of the judgment of paternity and
the grant of the plaintiff’s motion for partial summary judgment, and, after reversing the district
court denial of the defendants’ no right of action exception and dismissing the plaintiff’s suit, the
appellate court found it unnecessary to consider the assignment of error urged as to the partial
summary judgment rendered in the plaintiff’s favor by the district court. See Miller v.
4
 On subsequent appeal, the appellate court ruled that the plaintiff failed to

present “sufficient allegations of fact to state a cause of action for filiation, as [his

petition contained] only the bare allegation that [he] was the biological father of

La’Derion.” Accordingly, the appellate court reversed the judgment of the district

court, which had denied the defendants’ exceptions of no right of action, and

rendered judgment dismissing the plaintiff’s action for wrongful death and survival

damages, with prejudice. See Miller v. Thibeaux, 13-1029 (La. App. 3 Cir.

2/12/14), ___ So.3d ___.8

This court granted the plaintiff’s subsequent writ application to determine

whether the appellate court properly interpreted and applied the principles

announced in Udomeh v. Joseph. See Miller v. Thibeaux, 14-1107 (La.

10/3/14), 149 So.3d 276.

LAW AND ANALYSIS

Plaintiff’s Right of Action

Except as otherwise provided by law, an action can be brought only by a

person having a real and actual interest, which he asserts. LSA-C.C.P. art. 681.

See also Reese v. State Department of Public Safety and Corrections, 03-1615

(La. 2/20/04), 866 So.2d 244, 246. The function of the exception of no right of

action is to determine whether the plaintiff belongs to the class of persons to whom

Thibeaux, ___ So.3d at ___. Furthermore, the plaintiff has presented only two assignments of
error to this court: (1) the appellate court erred in reversing the district court’s denial of the
defendants’ exceptions pleading the objection of no right of action; and (2) the appellate court
erred in failing to consider the assignment of error that the district court abused its discretion in
the general damages awarded, which he contends were abusively low.
8
We note that after the May 2013 appellate court writ denials, but prior to the appellate court’s
subsequent February 2014 decision on appeal of these issues, the district court held a bench trial
on the merits of the plaintiff’s wrongful death and survival action in April 2013. After trial,
judgment was rendered in favor of the plaintiff in the amounts of $50,000 for his survival claim
and $250,000 for his wrongful death claim. Following rendition of that judgment, the plaintiff
filed a devolutive appeal to contest the amounts awarded, and the defendants filed suspensive
appeals. There is no indication in the record presented to this court that these appeals were
litigated to conclusion, presumably since the February 2014 appellate court decision reversing
the district court’s denial of the defendants’ exceptions of no right of action and dismissing the
plaintiff’s action with prejudice, rendered the continued appeal of the judgment on the merits
moot.

5
the law grants the cause of action asserted in the suit. Id. (citing LSA-C.C.P. art.

927). 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. Id. For purposes of the exception, all well-pleaded facts in the petition

must be taken as true. Eagle Pipe and Supply, Inc. v. Amerada Hess

Corporation, 10-2267 (La. 10/25/11), 79 So.3d 246, 253.

In the petition filed in the instant case, the plaintiff referred to La’Derion as

his “son” and specifically alleged that he was “the biological father of the

deceased, La’Derion Miller.” The district court ruled, as stated in written reasons

issued January 26, 2013, that the plaintiff alleged sufficient facts in his wrongful

death petition to put defendants on notice that his paternity was at issue pursuant to

our recent decision in Udomeh v. Joseph.

In reversing the district court’s determination that the plaintiff had alleged

sufficient facts in his petition to put the defendants on notice that his paternity was

at issue, the appellate court found persuasive the defendants’ argument that Mr.

Miller had not timely filed an avowal action and, thus, had no right to pursue an

action for wrongful death and survival damages. Although the appellate court

acknowledged this court’s holding in Udomeh that, if a plaintiff files a personal

injury petition within one year of his illegitimate child’s death and alleges

sufficient facts in the petition to state an avowal action to provide notice to the

defendant(s) of the issue of his paternity, then a timely action for filiation has been

commenced. See Udomeh v. Joseph, 103 So.3d at 348-52. Notwithstanding, the

appellate court in this case concluded that the plaintiff’s original and first amended

petitions, though filed within a year of La’Derion’s death, did not contain

sufficient allegations of fact to state a cause of action for filiation, as Mr. Miller

6
had alleged only that he was the biological father of La’Derion.

This court concluded in Udomeh that the filiation provisions of LSA-C.C.

art. 1989 apply to actions under LSA-C.C. arts. 2315.1 and 2315.2; therefore, a

putative father must file a timely avowal action in order to maintain a wrongful

death and survival action for the death of his illegitimate child. See Udomeh v.

Joseph, 103 So.3d at 348. Further, Udomeh recognized that the temporal

limitations of LSA-C.C. art. 198 are peremptive, such that amendment of a petition

so that it relates back to the filing date of the original petition is not allowed to

avoid the running of the peremptive period. Id.

However, we also recognized in Udomeh that a plaintiff need only plead the

material facts necessary to state an avowal action to give fair notice to the

defendant(s) that his paternity is at issue in the action. Id. As stated in Udomeh,

Louisiana’s Code of Civil Procedure uses a system of pleading based upon the

narration of factual allegations. No technical forms of pleading are required. All

allegations of fact of the petition, exceptions, or answer shall be simple, concise,

and direct, and shall be set forth in numbered paragraphs, as required by LSA-

C.C.P. art. 854.10 Pursuant to LSA-C.C.P. art. 862,11 except in cases of a default

9
LSA-C.C. art. 198 states:

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.
10
Article 854 provides:

No technical forms of pleading are required.

7
judgment, a final judgment must grant the relief to which the party in whose favor

it is rendered is entitled, even if the party has not demanded such relief in his

pleadings and there has been no prayer for general and equitable relief. Article 862

permits courts to render substantive justice on the basis of facts pled and to refuse

to permit a denial of substantive rights due to technical defects of language or

characterization of the case. So long as the facts constituting the claim or defense

have been alleged and proved, the party may be granted any relief to which he is

entitled under the fact pleadings and evidence, when the due process requirement

of adequate notice to the parties of the matters to be adjudicated has been satisfied.

See Udomeh v. Joseph, 103 So.3d at 348-49.

Furthermore, although Article 862 abolished the theory-of-the-case pleading

requirement, Article 891 provides that a petition “shall contain a short, clear, and

concise statement of all causes of action arising out of, and of the material facts of,

the transaction or occurrence that is the subject matter of the litigation.”12 In order

to plead “material facts” within Louisiana’s fact-pleading system, the pleader must

state what act or omission he will establish at trial. Udomeh v. Joseph, 103 So.3d

at 349.

All allegations of fact of the petition, exceptions, or answer shall be
simple, concise, and direct, and shall be set forth in numbered paragraphs. As far
as practicable, the contents of each paragraph shall be limited to a single set of
circumstances.
11
Article 862 provides:

Except as provided in Article 1703, a final judgment shall grant the relief
to which the party in whose favor it is rendered is entitled, even if the party has
not demanded such relief in his pleadings and the latter contain no prayer for
general and equitable relief.
12
Article 891(A) provides:

The petition shall comply with Articles 853, 854, and 863, and, whenever
applicable, with Articles 855 through 861. It shall set forth the name, surname,
and domicile of the parties; shall contain a short, clear, and concise statement of
all causes of action arising out of, and of the material facts of, the transaction or
occurrence that is the subject matter of the litigation; shall designate an address,
not a post office box, for receipt of service of all items involving the litigation;
and shall conclude with a prayer for judgment for the relief sought. Relief may be
prayed for in the alternative.

8
 As in Udomeh, the plaintiff herein stated in his petition that he was the

biological father of the deceased minor child. In Udomeh, we concluded that,

because the plaintiff had alleged a biological relationship between himself and the

child, he had set forth the material facts necessary for an avowal action. Udomeh

reaffirmed this court’s prior holding in Reese, 866 So.2d at 250, that “bare

allegations” set forth in a plaintiff’s initial petition for wrongful death damages

gave the defendants adequate notice of an avowal action.13 See Udomeh v.

Joseph, 103 So.3d at 349.

A party is entitled to any relief available based on the facts pled, regardless

of the specific relief requested. Udomeh v. Joseph, 103 So.3d at 351. Thus, the

failure of a putative father to request a finding of filiation does not prevent a court

from rendering a judgment of paternity based on the facts pled. Within the context

of a wrongful death and survival action, the putative father’s allegations of

biological paternity of the decedent child can be reasonably construed as stating an

avowal action, as there was no other purpose an allegation of paternity could have

served. See id.

We concluded in Udomeh that the plaintiff’s bare allegations of paternity

adequately stated an action to establish filiation, even though there was no specific

request for a judgment of paternity. See Udomeh v. Joseph, 103 So.3d at 350-53.

By alleging his biological paternity of the child in his wrongful death and survival

petition, the plaintiff provided the defendants fair notice of the issue of filiation in

this case. See Udomeh v. Joseph, 103 So.3d at 353. Thus, under LSA-C.C.P. art.

13
In Reese, the decedent’s surviving children filed suit for wrongful death and survival damages;
the defendants filed a peremptory exception raising the objection of no right of action, claiming
that the plaintiffs were without a legal right of action since they were not the legitimate children
of the decedent and they had failed to timely file a filiation action. Reese v. State Department
of Public Safety and Corrections, 866 So.2d at 246. Although Reese involved a prescriptive
rather than peremptive period, the holding that the bare allegations in the plaintiffs’ petition
(showing the children each had a different last name from that of the decedent, naming the
decedent as their father, and indicating they were the decedent’s sole surviving children) were
found sufficient to put the defendants on notice that filiation was at issue in that case. Id. at 250.

9
862, a court could grant plaintiff a judgment of paternity, provided the plaintiff

proved he was entitled to such relief. Id.

Likewise, in the instant case, we conclude that the plaintiff’s bare allegations

of biological paternity were sufficient to state an action to establish filiation, as

there was no other purpose an allegation of biological paternity could have served,

and the defendants received fair notice of the issue of filiation.

We reject the defendants’ attempt to distinguish Udomeh on the facts.

Defendants point to Mr. Udomeh’s allegation that, not only was he the deceased

child’s biological father, but that he had also acknowledged and provided support

for his minor child during the child’s life. While we mentioned the allegations of

acknowledgment and child support in the Udomeh opinion, it was in the context of

enumerating the allegations pled by Mr. Udomeh that were in addition to the basic

material facts of filiation. In comparing the allegations made by Mr. Udomeh with

those made by the Reese plaintiffs, this court was simply noting the extent to

which Mr. Udomeh’s petition “exceed[ed] the bare allegations” made by the Reese

plaintiffs. See Udomeh v. Joseph, 103 So.3d at 350-51. In making such a

comparison, this court was not implying that support and acknowledgment were

allegations necessary to state an action for filiation.

We further noted in Udomeh that the holding announced therein did not

offend the policies underlying LSA-C.C. art. 198, particularly with respect to the

statute’s one-year peremptive period, one purpose of which, as stated in LSA-C.C.

art. 198, 2005 Official Revision Comment (d), was to prevent a father who failed

“to assume his parental responsibilities” during the child’s lifetime from having

“unlimited time to institute an action to benefit from the child’s death.” See

Udomeh v. Joseph, 103 So.3d at 351. A plaintiff who has timely filed (within the

one-year period) an action that seeks filiation has not delayed exercising his

parental rights for an “unlimited time,” and thus has not run afoul of this

10
restriction.

The defendants cite the following jurisprudence as additional authority for

the contention that an allegation of a biological relationship by a father to his

illegitimate child is not enough to constitute an avowal action and that a father

must also allege that he had maintained an “actual relationship” with his child:

Smith v. Cole, 553 So.2d 847 (La. 1989); Parker v. Buteau, 99-0519 (La. App. 3

Cir. 10/13/99), 746 So.2d 127; Bolden v. Rodgers, 99-0417 (La. App. 5 Cir.

9/28/99), 746 So.2d 88; Geen v. Geen, 95-0984 (La. App. 3 Cir. 12/27/95), 666

So.2d 1192, writ denied, 96-0201 (La. 3/22/96), 669 So.2d 1224; Putnam v.

Mayeaux, 93-1251 (La. App. 1 Cir. 11/10/94), 645 So.2d 1223; Smith v. Jones,

566 So.2d 408 (La. App. 1 Cir.), writ denied sub nom. Kemph v. Nolan, 569

So.2d 981 (La. 1990).

However, such statements in these cases arose under prior law. See W.R.M.

v. H.C.V., 06-0702 (La. 3/9/07), 951 So.2d 172, 173-74 (per curiam) (Justice

Johnson, concurring). In concurring with the majority opinion (which held that the

plaintiff/father’s petition to establish filiation was subject to dismissal, as untimely,

since it had not been filed within the period established by 2004 La. Acts, No. 530,

which was enacted and made retroactive after the filing of the petition for filiation

in that case), Justice Johnson pointed out that, prior to Act No. 530’s enactment of

LSA-C.C. art. 191’s two-year peremptive period for bringing an avowal action,14

filiation by a putative father was a judicially-recognized action only and was

required to be filed within a “reasonable” period of time from the birth of the child.

See W.R.M. v. H.C.V., 951 So.2d at 173-74 (Justice Johnson, concurring). Thus,

the defendants’ cited cases (listed hereinabove), which were rendered prior to the

2004 enactment of a peremptive period for the filing of an avowal action,

14
Article 191 was renumbered and reenacted as LSA-C.C. art. 198 by 2005 La. Acts, No. 192.
See W.R.M. v. H.C.V., 951 So.2d at 175 (Justice Johnson, concurring).

11
discussed the standard for determining when an avowal suit was instituted within a

reasonable period of time under the then-existing jurisprudential law, a substantial

factor of which analysis was whether the putative father had an actual relationship

with the child. See Smith v. Cole, 553 So.2d at 851; Parker v. Buteau, 746 So.2d

at 129 (“[A] biological father who knows or has reason to know of the existence of

his biological child, and who fails to assert his rights for a significant period of

time, cannot later come forward and assert paternity.”); Bolden v. Rodgers, 746

So.2d at 92 (“There is no prescription statute applicable to a father’s action to

avow his biological child . . . . The right of avowal is not absolute, however. It is

the actual relationship with the child that is determinative, not the mere biological

connection.”); Geen v. Geen, 666 So.2d at 1194-95; Putnam v. Mayeaux, 645

So.2d at 1225-26 (“After reviewing the testimony, it is clear that [the putative

father had] no relationship with his alleged biological child. However, [the

putative father] filed the paternity action one year and three days following the

birth of the child, which we believe to be ‘within a reasonable time of the child’s

birth,’ considering that, within that year, he attempted unsuccessfully to see the

child, he offered to provide for the child, and he attempted to get [the child’s

mother] and the child to submit to blood tests. Therefore, [the putative father’s]

avowal action was timely.”); Smith v. Jones, 566 So.2d at 414.

Because the time limit for the filing of an avowal action is now expressly set

forth in Civil Code Article 198, this codal article governs, and the prior

jurisprudential standard is no longer relevant. See LSA-C.C. art. 1 (“The sources

of law are legislation and custom.”); LSA-C.C. art. 2 (“Legislation is a solemn

expression of legislative will.”); LSA-C.C. art. 3 (“Custom results from practice

repeated for a long time and generally accepted as having acquired the force of

law. Custom may not abrogate legislation.”); LSA-C.C. art. 1, 1987 Revision

Comment (a) (“Articles 1 and 3 of the Louisiana Civil Code of 1870 make it clear

12
that the sources of law in Louisiana are legislation and custom. However, as in all

codified systems, legislation is the superior source of law in Louisiana.”). See also

W.R.M. v. H.C.V., 951 So.2d at 176 (recognizing that the cases defendants now

cite represent statements of prior law) (Justice Johnson, concurring).15

Accordingly, we conclude the appellate court erred in reversing the district

court’s denial of the defendants’ peremptory exceptions pleading the objection of

no right of action.

Request for Review of Damages Awarded

In his brief, the plaintiff has asked this court to review the damage amounts

awarded to him by the district court, which he contends were abusively low.

However, the instant writ was granted only to review the district court’s January

2013 pre-trial rulings, related to the plaintiff’s paternity claim, and we find it

procedurally inappropriate to address issues raised by the plaintiff in his separate

and subsequent post-trial appeal.

As we indicated hereinabove, while appellate review of the January 2013

pre-trial rulings was ongoing, the district court proceeded with the trial on the

merits in April 2013 and, following the bench trial, rendered judgment in the

plaintiff’s favor. The plaintiff and the defendants timely perfected appeals from

that April 2013 decision, AAIC timely posted its suspensive appeal bond, and

return dates were fixed by the district court.16 The record before this court does not

15
We also reject jurisprudence cited by AAIC: In re Succession of Morris, 13-533 (La. App. 5
Cir. 12/12/13), 131 So.3d 274 (involving filiation by an adult child to his deceased father for
succession purposes); Caceras v. Work, 12-1097 (La. App. 4 Cir. 2/27/13), 110 So.3d 275
(holding, in a wrongful death action, that the putative father’s petition set forth sufficient facts to
be construed as an action for filiation as well as a petition for damages); Thomas v. Ardenwood
Properties, 10-0026 (La. App. 1 Cir. 6/11/10), 43 So.3d 213, writ denied, 10-1629 (La. 10/8/10),
46 So.3d 1271 (holding that a putative father’s amended petition, to assert paternity of his
deceased illegitimate child, filed after the one-year peremptive period had expired, could not
relate back to the timely-filed wrongful death petition). Though decided under current law, these
cases do not support the defendants’ position relative to the issue currently before the court.
16
For the plaintiff’s devolutive appeal and AAIC’s suspensive appeal, the return dates were set
for “45 days after payment of costs.” For the appeal filed by LPSB and Mr. Thibeaux, the return
date was set for July 8, 2013.
13
reflect what, if anything, was filed with the appellate court in connection with these

post-trial appeals or whether the appellate court issued any ruling in connection

with the post-trial appeals. However, counsel for the parties indicated at the oral

argument of the instant matter that, because the appellate court’s February 12,

2014 action, reversing the district court’s pre-trial paternity-related ruling on the

exception of no right of action and dismissing the plaintiff’s action, with prejudice,

nullified the trial award in the plaintiff’s favor, the post-trial appeals were deemed

moot. Because we reverse herein the February 12, 2014 appellate court decision,

the plaintiff’s trial award is reinstated, and the parties’ post-trial appeals are no

longer moot. Therefore, the matter should be remanded to the appellate court for

consideration of the post-trial appeals.

CONCLUSION

A putative father’s allegations of biological paternity of his decedent child,

in a wrongful death action, provide notice to the defendant(s) that paternity is an

issue in the case and can be reasonably construed as stating an action for filiation.

See Udomeh v. Joseph, 103 So.3d at 350-53.

DECREE

For the reasons stated herein, we reverse the February 12, 2014 decision of

the appellate court and reinstate the district court judgment, which denied the

defendants’ peremptory exceptions raising the objection of no right of action. The

matter is remanded to the appellate court for consideration of the appeals filed

following the April 16, 2013 district court judgment on the merits, in favor of the

plaintiff, Marcus Miller.

APPELATE COURT REVERSED; DISTRICT COURT JUDGMENT
REINSTATED; REMANDED.

14
01/28/15

SUPREME COURT OF LOUISIANA

NO. 2014-C-1107

MARCUS MILLER

VERSUS

HAROLD THIBEAUX, LAFAYETTE PARISH SCHOOL BOARD
AND AMERICAN ALTERNATIVE INSURANCE CORPORATION

ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
THIRD CIRCUIT, PARISH OF LAFAYETTE

Clark, J. dissenting with reasons.

I respectfully dissent. The majority holds the allegations in Miller’s petition

are sufficient to state a cause of action for filiation because they provide fair notice

to the defendants that paternity is at issue. Accordingly, it finds Miller has a right

of action for wrongful death and survival damages. For the following reasons, I

disagree.

To recover under a claim for wrongful death and survival, a plaintiff must

fall within the class of persons designated as a beneficiary under La.Civ.Code arts.

2315.1 and 2315.2. Turner v. Busby, 03-3444, p. 4 (La. 9/9/04), 883 So.2d 412,

416. When the decedent leaves no surviving spouse or child, the decedent’s

surviving father and mother are the proper beneficiaries entitled by law to bring

these actions.

Filiation is the legal relationship between a child and his parent.

La.Civ.Code art. 178. Filiation is established by proof of maternity, paternity, or

adoption. La.Civ.Code art. 198 provides, in relevant part:

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

In all cases, the action shall be instituted no later than one year from
the day of the death of the child.
Thus, a father must timely file an avowal action pursuant to La.Civ.Code art. 198

in order to bring a wrongful death and survival action. Miller could only have a

right of action in the instant case if his petition in the wrongful death and survival

action could be said to constitute the institution of an avowal action. Otherwise, the

peremptive period ran and he would not fit into the limited categories of those who

can file suit under La.Civ.Code arts. 2315.1 and 2315.2. The instant case, then,

asks us to determine what is sufficient to plead an avowal action.

As acknowledged by Chief Justice Kimball in her dissent in Udomeh v.

Joseph, 11-2839, p. 3 (La. 10/26/12), 103 So.3d 343, 353, merely pleading

conclusory statements is insufficient to state a cause of action. Reciting a

conclusion without pleading any specific facts to support that conclusion is

insufficient to constitute a material fact under Louisiana’s fact-pleading system,

which “requires the pleader to state what act or omission he or she will establish at

trial.” Greemon v. City of Bossier City, 10-2828, 11-0039 (La. 7/1/11), 65 So.3d

1263. In the case at hand, Miller only alleged that he was the biological father of

the deceased child. This bare allegation, in an actual avowal action, without the

accompaniment of supporting facts or evidence would not be enough to set forth a

cause of action for avowal. Making the same minimal allegation in a petition for

wrongful death and survival damages, is not sufficient, either. The conclusory

claim of biological filiation cannot be considered a material fact that states “what

act or omission would be established at trial” because the pleader, Miller, does not

actually intend to prove his filiation at trial. Rather, he intends to prove only the

elements of the wrongful death and survival actions. This fact is evidenced by the

separate judgment of paternity Miller sought that is not directly before us.

The majority focuses on notice as being the determinative factor of whether

an avowal action was sufficiently pled. Specifically, it asks whether the defendants

were put on notice that Miller’s paternity was at issue. However, La.Civ.Code art.

2
198 strictly requires that an avowal action be instituted within the year of a

decedent’s death. This provision regarding peremption was added to ensure that a

father who failed to assume his parental obligations during the life of a child did

not benefit from the child’s death in an unrestricted way. When constructing this

peremptive time period, the legislature did not say notice must be given that the

father’s paternity is at issue. Rather, it provided that an action for avowal must be

instituted. Thus, in order to prove filiation and thereby receive the right to sue for

wrongful death and survival damages, the legislature required more than the

passive act of giving notice to defendants by way of filing the wrongful death and

survival action---the very action that it sought to prevent a putative father who has

not proven filiation from bringing in the first place.

Last, I note that an avowal action is not an absolute right. Any limitations

placed on it, temporal or otherwise, are allowed and act to further the legislative

purpose and public policy.

Thus, I respectfully find that merely alleging one’s biological filiation

without more in a petition for a wrongful death and survival action does not

constitute instituting an avowal action. Thus, I would have affirmed the appellate

court’s ruling that Miller did not have a right of action.

3
01/28/15

SUPREME COURT OF LOUISIANA

NO. 2014-C-1107

MARCUS MILLER

VERSUS

HAROLD THIBEAUX, LAFAYETTE PARISH SCHOOL BOARD
AND AMERICAN ALTERNATIVE INSURANCE CORPORATION

ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
THIRD CIRCUIT, PARISH OF LAFAYETTE

Crichton, J., dissents for the reasons assigned by Justice Clark