Summary
In Watts v. Gordon, 17-811 (La. App. 3 Cir. 10/3/18), 316 So. 3d 1049, 1051, the court ruled: "For the reasons set forth in Succession of Richard Stewart, Jr. et al. v. Gordon, et al., 17-812 (La. App. 3 Cir. 10/3/18), 316 So. 3d 1052, we find the trial court erred in denying Defendants’ exceptions of no right of action as to Watts’ survival and wrongful death claims due to the death of his biological father had half-siblings."
Summary of this case from Rismiller v. Gemini Ins. Co.Opinion
17-811
10-03-2018
David WATTS v. Mark GORDON, et al
Andre C. Gaudin, M. Joey Bernard, Burglass & Tankersley, LLC, 5213 Airline Drive, Metairie, LA 70001, (504) 836-0422, COUNSEL FOR DEFENDANT/APPLICANT: Kenneth Boone d/b/a Boone Trucking Timothy W. Hassinger, T.A., Patrick J. Schepens, Galloway, Johnson, Tompkins, Burr & Smith, 3 Sanctuary Boulevard, Third Floor, Mandeville, LA 70471, (985) 674-6680, COUNSEL FOR DEFENDANT/APPLICANT: Mark Isaiah Gordon Charles S. Norris, Jr., Christopher J. Norris, Norris Law Firm, LLC, P. O. Box 400, 8 North Oak Street, Vidalia, LA 71373, (318) 336-1999, COUNSEL FOR PLAINTIFF/RESPONDENT: Khristy Goins Rismiller, Tutrix for Daniel Goins Colt J. Fore, D. Blayne Honeycutt, Fayard and Honeycutt, 519 Florida Avenue, SW, Denham Springs, LA 70726, (225) 664-0304, COUNSEL FOR PLAINTIFF/RESPONDENT: David Watts Virgil Russell Purvis, III, Smith, Taliaferro & Purvis, 407 Mound Street, Jonesville, LA 71343, (318) 339-8526, COUNSEL FOR PLAINTIFFS/RESPONDENTS: Succession of Richard Stewart, Jr., Richard Stewart, Sr., Vera Anita Stewart, Raymond Kelly, Donna Kelly J. Rock Palermo, III, Veron, Bice, Palermo, P. O. Box 2125, Lake Charles, LA 70602-2125, (337) 310-1600, COUNSEL FOR PLAINTIFFS/RESPONDENTS: Succession of Richard Stewart, Jr., Richard Stewart, Sr., Vera Anita Stewart, Raymond Kelly, Donna Kelly Jeremy Z. Soso, Lambert & Nelson, 701 Magazine Street, New Orleans, LA 70130, (504) 581-1750, COUNSEL FOR PLAINTIFF/RESPONDENT: Sheila Smith Joe Meng, Attorney at Law, 205 South Broadway, Suite A, Natchez, MS 39120, (601) 445-8111, COUNSEL FOR PLAINTIFF/RESPONDENT: Sheila Smith Micah A. Gautreaux, Degan, Blanchard & Nash, 6421 Perkins Road, Bulding C, Suite B, Baton Rouge, LA 70808, (225) 610-1110, COUNSEL FOR DEFENDANT/RESPONDENT: Gemini Insurance Company
Andre C. Gaudin, M. Joey Bernard, Burglass & Tankersley, LLC, 5213 Airline Drive, Metairie, LA 70001, (504) 836-0422, COUNSEL FOR DEFENDANT/APPLICANT: Kenneth Boone d/b/a Boone Trucking
Timothy W. Hassinger, T.A., Patrick J. Schepens, Galloway, Johnson, Tompkins, Burr & Smith, 3 Sanctuary Boulevard, Third Floor, Mandeville, LA 70471, (985) 674-6680, COUNSEL FOR DEFENDANT/APPLICANT: Mark Isaiah Gordon
Charles S. Norris, Jr., Christopher J. Norris, Norris Law Firm, LLC, P. O. Box 400, 8 North Oak Street, Vidalia, LA 71373, (318) 336-1999, COUNSEL FOR PLAINTIFF/RESPONDENT: Khristy Goins Rismiller, Tutrix for Daniel Goins
Colt J. Fore, D. Blayne Honeycutt, Fayard and Honeycutt, 519 Florida Avenue, SW, Denham Springs, LA 70726, (225) 664-0304, COUNSEL FOR PLAINTIFF/RESPONDENT: David Watts
Virgil Russell Purvis, III, Smith, Taliaferro & Purvis, 407 Mound Street, Jonesville, LA 71343, (318) 339-8526, COUNSEL FOR PLAINTIFFS/RESPONDENTS: Succession of Richard Stewart, Jr., Richard Stewart, Sr., Vera Anita Stewart, Raymond Kelly, Donna Kelly
J. Rock Palermo, III, Veron, Bice, Palermo, P. O. Box 2125, Lake Charles, LA 70602-2125, (337) 310-1600, COUNSEL FOR PLAINTIFFS/RESPONDENTS: Succession of Richard Stewart, Jr., Richard Stewart, Sr., Vera Anita Stewart, Raymond Kelly, Donna Kelly
Jeremy Z. Soso, Lambert & Nelson, 701 Magazine Street, New Orleans, LA 70130, (504) 581-1750, COUNSEL FOR PLAINTIFF/RESPONDENT: Sheila Smith
Joe Meng, Attorney at Law, 205 South Broadway, Suite A, Natchez, MS 39120, (601) 445-8111, COUNSEL FOR PLAINTIFF/RESPONDENT: Sheila Smith
Micah A. Gautreaux, Degan, Blanchard & Nash, 6421 Perkins Road, Bulding C, Suite B, Baton Rouge, LA 70808, (225) 610-1110, COUNSEL FOR DEFENDANT/RESPONDENT: Gemini Insurance Company
Court composed of Sylvia R. Cooks, Billy H. Ezell, Shannon J. Gremillion, Phyllis M. Keaty, John E. Conery, D. Kent Savoie, and Van H. Kyzar, Judges.
GREMILLION, Judge. This consolidated matter arises out of a tragic auto accident that occurred on October 1, 2015, on U.S. Highway 84 in Concordia Parish. An eighteen-wheeler truck driven by Mark Gordon and owned by Kenneth Boone d/b/a Boone Trucking was involved in a head-on collision with a vehicle being driven by Richard Stewart, Jr. Stewart and his two minor children, George Stewart and Vera Cheyenne Stewart, were killed in the accident.
This writ is consolidated with 17-809 and 17-812.
George and Vera Cheyenne were Stewart's biological children from a relationship with Brandi Hardie; however, Stewart and Hardie were never married. At the time of the accident, Raymond and Donna Kelly had custody of Vera Cheyenne, and Jimmy and Tammy Johnese had custody of George.
Stewart had two other biological children who were adults at the time of the accident: Daniel Goins and David Watts. Goins and Watts were born during Stewart's marriage to Lisa Watts Stewart, and they were given up for adoption. Goins was adopted by George and Joyce Goins, who are Stewart's uncle and aunt. Watts was adopted by his maternal grandparents, Mary and Jimmy Watts. At the time of the accident, Stewart and Lisa were physically separated, but they had never legally divorced. It has been alleged that Lisa currently resides in a care facility in another state.
Following the accident, three separate survival and wrongful death actions arising out of Stewart's and the minor children's deaths were filed in the trial court. Two of these actions involve claims filed by or on behalf of Goins and Watts. The plaintiffs in the third action are: Stewart's Succession; Stewart's parents, Richard Stewart, Sr. and Vera Stewart; and Raymond and Donna Kelly (collectively, "the Stewart Plaintiffs"). All three actions were consolidated in the trial court.
Khristy Goins Rismiller, Tutrix for Daniel Edward Goins v. Gemini Insurance Company, et al. , Louisiana 7th Judicial District Court Docket Number 49,686; and David Watts v. Mark Gordon, et al. , Louisiana 7th Judicial District Court Docket Number 49,751.
Succession of Richard Stewart, Jr ., et al. v. Mark Isaiah Gordon, et al., Louisiana 7th Judicial District Court Docket Number 49,832.
In each of the three actions, Defendants Mark Gordon and Kenneth Boone d/b/a Boone Trucking filed exceptions of no right action, which the trial court denied. In connection with Watts' and Goins' survival and wrongful death actions arising from Stewart's death, the trial court found that:
the cases of Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436, (1968), and Turner v. Busby, 03-3444 (La. 9/9/04), 883 So.2d 412 are persuasive in holding that "it is the biological relationship and dependency which is determinative of the child's rights in these cases, and not the classification into which the child is placed by the statutory law of the State." Thus, the fact that Watts [and Goins] w[ere] adopted does not prevent [them] from bringing survival and wrongful death claims for the death of [Mr.] Stewart, [their] biological father.
Further, in connection with Watts' and Goins' survival and wrongful death actions arising from the deaths of their biological half-siblings, George and Vera Cheyenne, the trial court found that the children's mother, Brandi Hardie, had abandoned the children during their minority, and, therefore, in accordance with La.Civ.Code arts. 2315.1 and 2315.2, she was deemed to have predeceased the children. The trial court concluded that Goins and Watts were allowed to assert survival and wrongful death claims arising out of the children's deaths. No specific reasons for the trial court's denial of Defendants' exceptions of no right of action can be found in the record.
Following the trial court's ruling, Defendants filed three separate writ applications with this court seeking review of the trial court's denial of their exceptions. We granted the writ applications and heard oral argument. This particular writ involves the trial court's denial of Defendants' exception of no right of action pertaining to the claims asserted by Watts, Stewart's biological son, who was adopted as a minor and who is a biological half-sibling of the deceased minor children.
Trial Court Docket Number 49,751
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For the reasons set forth in Succession of Richard Stewart, Jr. et al. v. Gordon, et al. , 17-812 (La.App. 3 Cir. 10/3/18), 316 So.3d 1052, we find the trial court erred in denying Defendants' exceptions of no right of action as to Watts' survival and wrongful death claims due to the death of his biological father and half-siblings. Costs of these proceedings are assessed to David Watts.
WRIT GRANTED AND MADE PEREMTORY; EXCEPTIONS OF NO RIGHT OF ACTION GRANTED.
Cooks, J., dissents and would deny the writ.
Savoie, J., dissents for the reasons expressed by Judge Cooks, and for the additional reasons assigned.
Conery, J., concurs in part and dissents in part for the reasons expressed by Judges Savoie and Cooks, and for additional reasons assigned.
COOKS, J., Dissents and would deny the writ. For the reasons set forth in my concurrence in part and dissent in part in Succession of Richard Stewart, Jr. et. al. vs. Gordon, et al. , 17-812 (La.App. 3 Cir. 10/3/18), 316 So.3d 1052, I dissent and would deny this writ. There was no error in the trial court's ruling denying Defendants' exceptions of no right of action as to Watts' survival and wrongful death claims due to the death of his biological father and the death of his half-siblings.
SAVOIE J., dissents and assigns the following reasons:
I disagree with the majority's conclusion to grant the exceptions in this matter. For the reasons set forth in my concurring and dissenting opinion in Succession of Richard Stewart, Jr. et. al. vs. Gordon, et. al. , 17-812 (La.App. 3 Cir. 10/3/18), 316 So.3d 1052, Mr. Watts, who is Mr. Stewart's biological child, has a right to assert a wrongful death and survival action arising out of Mr. Stewart's death. Therefore, the trial court's ruling in this regard was not in error.
In addition, I would remand Defendants' exceptions as to Mr. Watts' survival and wrongful death action arising out of the minor children's deaths. As recognized by the court's opinion in Succession of Richard Stewart, Jr. et. al. , Id. , the children's biological mother, Ms. Hardie, is an indispensable party and should be made a party to these proceedings. In the event Ms. Hardie is determined on remand to have abandoned the deceased children as contemplated by La.Civ.Code arts. 2315.1(E) and 2315.2(E), then Mr. Watts, as the children's sibling, would have a right to assert a survival and wrongful death action arising out of their deaths.