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Dean v. State of Louisiana12/8/1999
Application for rehearing may be filed within the delay allowed by Art. 2166, LSA-CCP.
Honorable Jenifer Ward Clason, Judge
DOTD filed a writ contesting the trial court's denial of a peremptory exception of no right of action asserted against decedent's natural daughters. We recall the writ, affirm and remand.
Facts
Kenneth Dean and Stacy married and had two children, Emelie and Kathryn. Kenneth and Stacy divorced; Kenneth married Tana Dean and Stacy married William Hollenshead. On June 28, 1997, Kenneth was involved in a single vehicular accident; his vehicle fell into a creek and he drowned. Approximately six months after his death, in an attempt to help the two girls cope with the death of their father and to create stability, William adopted Emelie and Kathryn. Shortly thereafter, Tana Dean and William and Stacy, as administrators of the girls' estates, filed wrongful death and survival actions against DOTD for the death of Kenneth. DOTD filed a peremptory exception of no right of action, asserting that pursuant to La. C.C. art. 214, the adoption of the children divested them of all legal rights in regard to their natural father, except for the right of inheritance. An evidentiary hearing was held, after which the trial court denied DOTD's exception. DOTD filed a writ contesting the trial court's ruling which this court granted for docket on June 24, 1999.
Law and Analysis
DOTD argues that once the girls were adopted, they were divested of any right to file wrongful death and survival actions for the death of their natural father. The Hollensheads counter argue that they are asserting a right which became a vested property right upon Kenneth's death. Both parties concede that if William had adopted the girls before Kenneth's death they would have no right of action. This is a matter of first impression.
The peremptory exception of no right of action raises the question of whether, as a matter of law, a particular plaintiff falls within the general class in whose exclusive favor the law extends a remedy. Massey v. Decca Drilling Co., Inc. 25,973 (La. 2d Cir. 12/7/94), 647 So. 2d 1196, writs denied 95-0069, 95-0411 (La. 4/21/95), 653 So. 2d 563, 564; Anderson v. Collins, 26,142 (La. App. 2d Cir. 1/6/95), 648 So. 2d 1371 writ denied 95-0629 (La. 4/21/95), 653 So. 2d 576. The surviving spouse and children of a decedent have the right to recover all damages for injury to a person who dies as a result of an offense or quasi offense and they may bring a separate, wrongful death claim to recover for damages they sustained as the result of that person's death. La. C.C. art. 2315.1, 2315.2. However, upon adoption, "the adopted person and his lawful descendants are relieved of all their legal duties and divested of all of their legal rights with regard to the blood parent, . . . except the right of inheritance from them." La. C.C. art. 214C.
Once a cause of action accrues, it becomes a vested property right which cannot be constitutionally divested. Cole v. Celotex Corp., 599 So. 2d 1058 (La. 1992); Burmaster v. Gravity Drainage Dist. No. 2, 366 So. 2d 1381 (La. 1978); Faucheaux v. Alton Ochsner Medical Foundation Hospital and Clinic, 470 So. 2d 878 (La. 1986). Statutes should not be applied in such a manner as to divest parties of a vested right. See Cole v. Celotex, supra. A cause of action accrues when a party has the right to sue. Prejean v. Dixie Lloyds Ins. Co., 94-2979 (La. 9/15/95), 660 So. 2d 836; See also Cole v. Celotex Corp, supra at 1063, n. 15.
Similarly, the right to child support arrears is a vested property right. Tutorship of Shea, 619 So. 2d 1236 (La. App. 3d Cir.), writ denied 626
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