STATE v. SMITH (2026)

Appellant, Kaleigh Smith, Jr. (“Appellant”), the son of deceased Petitioner, Kaleigh Smith (“Petitioner”), Sr., appeals the trial court's September 24, 2024 judgment, which granted the State's motion to dismiss Petitioner's wrongful conviction compensation action and the December 20, 2024 judgment, which denied the Appellant's motion for new trial and motion to substitute party petitioner.

For the following reasons, we affirm the trial court's decision to deny the motion to substitute Appellant as petitioner and dismiss the suit.¹

FACTUAL AND PROCEDURAL HISTORY

Petitioner was convicted in 2010 of second-degree murder, a violation of La. R.S. 14:30.1, and sentenced to life imprisonment. Petitioner's conviction and sentence were affirmed by this Court in 2012. State v. Smith, 2011-0091 (La. App. 4 Cir. 7/11/12), 96 So.3d 678. The Louisiana Supreme Court thereafter denied writs. State v. Smith, 2012-2069 (La. 3/15/2013), 109 So.3d 375.

In 2020, Petitioner sought post-conviction relief based on Brady violations amongst other claims. On May 27, 2021, the State conceded to a Brady violation, and the trial court granted Petitioner a new trial. On June 4, 2021, the State entered a nolle prosequi and dismissed the charges.

Petitioner filed a petition for wrongful conviction compensation on May 31, 2022. The State, through the Louisiana Attorney General's Office, opposed the petition.

The trial court granted a joint motion to continue the April 25, 2024 trial date. The matter was set for a status hearing on June 27, 2024, and the trial on the merits was continued until July 19, 2024. However, on June 17, 2024, the trial court was advised that Petitioner had died on June 17, 2024.

On June 27, 2024, the State filed a motion to dismiss the petition for wrongful conviction compensation with prejudice based upon Petitioner's death. Petitioner's counsel opposed the motion in his capacity as counsel for the deceased Petitioner. After a contradictory hearing, on September 24, 2024, the trial court granted the State's motion to dismiss with prejudice.²

Following the trial court's ruling, new counsel enrolled on behalf of the deceased Petitioner's son, Appellant, on October 1, 2024. Appellant also filed a motion for new trial on the dismissal of the petition and an ex parte motion to substitute party petitioner. The State filed oppositions to both motions on October 25, 2024.

The trial court heard arguments on the motion for new trial and motion to substitute on October 29, 2024. The trial court denied both motions on December 17, 2024, and subsequently issued a written judgment December 20, 2024. The judgment provided in pertinent part:

The Wrongful Conviction Compensation Statute was specifically created to establish an administrative process to address the harm caused by wrongful convictions through monetary damages granted to a petitioner who could prove factual innocence.3 It is specific to the person who endured the damage and loss as a result of a wrongful conviction that resulted in imprisonment for a crime for which the conviction has been reversed or vacated and upon proof by clear and convincing evidence that the wrongfully convicted party is factually innocent of such crime. Based on a literal reading of the Statute, the cause of action or right of action appears to attach solely to the person who was wrongfully convicted and imprisoned.

La. R.S. 15:572.8 expressly states that all such petitions “shall be governed by the procedures outlined herein.” There is no reference in the statute or any other related statute in the Louisiana Criminal Code, Louisiana Code of Criminal Procedure, or Revised Statutes of the right of action of a spouse or the heritability of heirs relative to wrongful conviction claims. In civil lawsuits for injury and damages sustained by a plaintiff, the spouse has the right to join as a plaintiff in a lawsuit during the pendency of the case to seek damages for the loss of consortium. In addition, the Louisiana Code of Civil Procedure expressly allows for heirs to be substituted in civil lawsuits and to file claims to substitute a plaintiff upon the death of a party. However, there is no avenue under the Louisiana Criminal Code, Louisiana Code of Criminal Procedure, or Revised Statutes for any such actions. While this Court certainly acknowledges the harm endured by families of those who are wrongfully convicted, barring any provisions that create an avenue for an heir to be substituted as the wrongfully convicted party in a criminal conviction, this Court is not inclined to create such a cause of action, where it does not appear that such was intended by the State Legislature when the statute was established. Therefore, it is this Court's determination that there is no legal basis to substitute a petitioner on a Motion for Compensation for Wrongful Conviction. Accordingly, this Court must deny Mr. Smith Jr.’s Motions to Substitute the Petitioner and Motion for New Trial.

Appellant's timely appeal followed. While this appeal was pending, Appellant filed an ex parte alternative motion to substitute.⁴

ASSIGNMENTS OF ERROR

Appellant raises four interrelated assignments of error on appeal stemming from the September 24, 2024 judgment on the motion to dismiss and the December 20, 2024 judgment on the motion for new trial and motion to substitute.⁵ However, because we find the trial court correctly denied the motion to substitute party petitioner, we pretermit the remaining issues.

DISCUSSION

Louisiana's Wrongful Conviction Compensation Statute

The Wrongful Conviction Compensation Statute is set forth in La. R.S. 15:572, and states in relevant part:

A. A petitioner is entitled to compensation in accordance with this Section if he has served in whole or in part a sentence of imprisonment under the laws of this state for a crime for which he was convicted and:

(1) The conviction of the petitioner has been reversed or vacated; and

(2) The petitioner has proven by clear and convincing scientific or non-scientific evidence that he is factually innocent of the crime for which he was convicted.

B. For the purposes of this Section, “factual innocence” means that the petitioner did not commit the crime for which he was convicted and incarcerated nor did he commit any crime based upon the same set of facts used in his original conviction.

C. All petitions for compensation as provided in this Section shall be filed in the district court in which the original conviction was obtained, hereinafter referred to as “the court”, and shall be governed by procedures outlined herein and randomly re-allotted by the court.

D. The court shall render a final decision on all petitions for compensation filed in accordance with the provisions of this Section and shall be tried by the judge alone. The court may consider any relevant evidence regardless of whether it was admissible in, or excluded from, the criminal trial in which the petitioner was convicted.

The Louisiana Supreme Court has recognized that La. R.S. 15:572.8, “ ‘is sui generis, and governs a unique situation’ such that it is ‘the only relevant authority governing’ petitions for compensation for wrongful conviction and imprisonment.” Jones v. State, 2022-01455, p. 4 (La. 5/5/23), 362 So.3d 341, 344 (quoting Burge v. State, 2010-2229, p. 6 (La. 2/11/11), 54 So.3d 1110, 1113); see also Ballard v. State, 2024-0606, p. 18 (La. App. 4 Cir. 3/14/25), 414 So.3d 800, 810, writ denied, 2025-00450 (La. 6/3/25), 410 So.3d 789.

Motion to Substitute Party Petitioner

Appellant contends that because La. R.S. 15:572.8 is silent regarding the substitution of heirs when a petitioner dies, the Louisiana Civil Code of Procedure and the Louisiana Civil Code applies and should allow for the substitution of Appellant as party petitioner.  ⁶ Appellant claims that he is the legal successor and heir to the Petitioner within the meaning of La. C.C.P. art. 801.⁷ Appellant also maintains that a wrongful conviction compensation claim is heritable under La. C.C.P. arts. 426 and 428 ⁸ and La. C.C. arts. 1765 and 1766.⁹

Appellant further argues that Louisiana courts have routinely applied the Louisiana Code of Civil Procedure to supplement the provisions of La. R.S. 15:572.8. Appellant notes that while La. R.S. 15:572.8 does not address appellate review, courts of appeal and Louisiana Supreme Court have reviewed wrongful conviction compensation judgments.¹⁰ He also notes that the Third Circuit in State v. Pittman, 2015-717, p. 4 (La. App. 3 Cir. 9/9/15), 174 So.3d 778, 780, found that reference to the civil rules on appellate review regarding whether a particular ruling was appealable was appropriate where La. R.S. 15:572.8 failed to provide a provision for appellate review.¹¹ We note, however, that the application of the Louisiana Civil Code of Procedure in the circumstances above did not create a substantive right of action as Appellant seeks to do in the present case.

Appellant also relies on the Second Circuit's footnote in State v. Ford, 50,525, p. 1 (La. App. 2 Cir. 5/18/16); 193 So.3d 1242, 1244, n. 1, which permitted the substitution of the executrix of the deceased petitioner's estate as the petitioner while the matter was on appeal. In Ford, a former inmate filed a petition for wrongful conviction compensation. The trial court denied the petition, finding the petitioner failed to establish he was factually innocent as he had committed several other offenses and was “undeniabl[ly]” involved in the commission of the underlying offense. Ford, 50,525, p. 3, 193 So.3d at 1246; see also La. R.S. 15:572.8(B) (defining “factual innocence” as when “the petitioner did not commit the crime for which he was convicted and incarcerated nor did he commit any crime based upon the same set of facts used in his original conviction.”) (emphasis added). The petitioner took writs, but the case was “remanded for perfection as a civil appeal.” Id. Later, the Second Circuit was made aware that the petitioner died and after argument on appeal, “the executrix of the estate” was substituted for the deceased petitioner. Ford, 50,525, p. 4, 193 So.3d at 1246. The Ford Court explained, as follows:

Ford died on June 29, 2015, after this appeal was perfected. There was discussion by this court as to compliance with the provisions of La. C.C.P. art. 801 and the court considered noticing an exception of no right of action on its own motion. However, after oral argument, counsel for Ford filed in the district court an unopposed motion to substitute parties pursuant to La. C.C.P. art. 801. The motion was denied for lack of jurisdiction due to the pendency of the appeal. Counsel for Ford then requested leave to file the same motion in this court. While we note that the district court could likely have ruled on this motion under La. C.C.P. art. 2088, in the interest of judicial economy, this court subsequently granted the Article 801 motion allowing substitution of Andrea Armstrong, executrix of the estate of Glenn Ford, as the petitioner.

Ford, 50,525, p. 1, 193 So.3d at 1244, n.1. Ultimately, the Second Circuit affirmed the trial court's denial of the petition for wrongful conviction compensation. Id. at p. 22, 193 So.3d at 1256.

Appellant claims that Ford shows it is proper to apply La. C.C.P. art. 801 and permit the substitution of Appellant for Petitioner in this case. However, the statement regarding the substitution of the executrix in Ford is dicta – the motion to substitute filed therein was not contested and Ford did not address the heritability of the wrongful conviction compensation action. The issue on appeal in Ford was whether the petitioner established he was factually innocent as required by La. R.S. 15:572.8. Additionally, Ford is distinguishable because the trial court in Ford had addressed the merits of his wrongful conviction compensation case before the petitioner had died whereas the Petitioner in the instant case died before a trial on the claim had occurred. We do not find that a statement made by the Second Circuit in a footnote regarding the procedural history of the case binding to the matter at hand. Accordingly, Appellant's reliance on Ford is misplaced.

The State, on the other hand, claims that La. R.S. 15:572.8 is exclusive to a wrongfully convicted individual and does not include one's heirs. The State notes that language and purpose of the statute was to compensate an individual for the harm he suffered while incarcerated and does not allow for the substitution of parties. To support its argument, the State cites Burge, 2010-2229, pp. 5-6, 54 So.3d at 1113-14, wherein the Louisiana Supreme Court refused to apply civil provisions in a wrongful conviction case. We find the State's position persuasive.

In Burge, after a former inmate filed a petition for wrongful conviction compensation, the State moved for an exception of sufficiency of service. The trial court granted the exception, noting the petitioner did not comply with La. C.C.P. art. 1201(C), which requires service be requested “within ninety days of commencement of the action.” Burge, 2010-2229, p. 3, 54 So.3d at 1112. The court of appeal affirmed the trial court's ruling but relied on La. R.S. 13:5107, the more specific service rule, which addresses suits against the State. The Louisiana Supreme Court reversed, finding that neither La. C.C.P. art. 1201(c) nor La. R.S. 13:5107 can apply to wrongful conviction compensation suits. The Burge Court found that wrongful conviction compensations are unique and thus the case was solely governed by La. R.S. 15:572.8. The Louisiana Supreme Court stated:

The language of L[a.] [ ] R.S. 13:5107, which is a part of the Louisiana Governmental Claims Act, does not apply to the compensation application of wrongful convictions; instead, it applies to any suit in contracts, personal and property injury, civil suits against the state, state agencies, political subdivisions of the state, and the employees of those entities. L[a.][ ] R.S. 13:5101. Although the statute governs lawsuits involving the state generally nothing in Section 5107 authorizes its application to a compensation proceeding for a wrongful criminal conviction.

Mr. Burge's application for wrongful conviction is not governed by L[a.] [ ] C.C.P. art. 1201(C) because this application is not a civil lawsuit. Instead, the only relevant authority governing Mr. Burge's application is contained in the Wrongful Conviction Compensation Statute, L[a.][ ] R.S. 15:572.8, which explicitly requires the court to submit the application to the Attorney General, the prosecuting district attorney, and the court that reversed the conviction.

L[a.][ ] R.S. 15:572.8 is sui generis, and governs a unique situation. It provides compensation from a special fund set aside in the state treasury to innocent persons wrongfully convicted. The statute sets out a unique notice procedure and, in its original version and in the amended version, places the notice requirement not on the petitioner, but on the court. So, it is fair to say that the ordinary requirements for service of petition involving claims against the state do not apply to this unique situation.

Burge, 2010-2229, pp. 5-6, 54 So.3d at 1113–14.

Although Burge involved service of process, we find that the Louisiana Supreme Court's decision is instructive in the present case. As the Burge Court found, La. R.S. 15:572.8 is unique and arises from a particular set of circumstances. Burge 2010-2229, p. 6, 54 So.3d at 1114. Louisiana courts have also consistently found that “[t]he Wrongful Conviction Compensation Statute ‘is sui generis, and governs a unique situation’ such that it is ‘the only relevant authority governing’ petitions for compensation for wrongful conviction and imprisonment. See Jones, 2022-01455, p. 4 (La. 5/5/23), 362 So.3d at 344; see also Ballard, 2024-0606, p. 18, 414 So.3d at 810; see also Santos v. State, 2025-0246, p. 7 (La. App. 4 Cir. 12/19/25) ––– So.3d –––– 2025 WL 3687592 at *4. Here, because this case involves a claim for wrongful conviction compensation, the sole relevant applicable statute is likewise La. R.S. 15:572.8.

La. R.S. 15:572.8 refers exclusively to compensation for petitioner for the harm suffered while incarcerated and does not contemplate the heritability of that right. La. R.S. 15:572.8(A) states that “the petitioner is entitled to compensation” for the imprisonment of the crime he was convicted where the “conviction of the petitioner has been reversed or vacated” and where the “petitioner has proven by clear and convincing scientific or non-scientific evidence that he is factually innocent of the crime for which he was convicted.” La. R.S. 15:572.8(C) also provides that “[a]ll petitions for compensation as provided in this Section ․ shall be governed by procedures outlined herein.” Further, La. R.S. 15:572.8(N)(3) states that “[m]onies appropriated from the fund shall be used exclusively to compensate petitioners who are found to be factually innocent of the crime of which they were convicted as provided in this Section.”

Appellant was not wrongfully convicted or incarcerated and thus is not the proper party in this case. We are bound by the language in La. R.S. 15:572.8, which limits the right to the incarcerated petitioner and does not permit the substitution of parties in the event of a petitioner's death. The right to wrongful conviction compensation is thus personal and not heritable. Accordingly, we find that the trial court was correct in finding that the right to seek wrongful conviction compensation pursuant to La. R.S. 15:572.8 is exclusive to the wrongfully convicted individual and does not include his heirs. As such, the trial court properly denied Appellant's motion to substitute party petitioner. We thus affirm the trial court's judgment.

AFFIRMED

I find the trial court's judgments of September 24, 2024, and December 20, 2024, which granted the State's motion to dismiss Petitioner's wrongful conviction compensation claim (“WCC”) and denied Appellant's motion for new trial are absolute nullities. Further, I disagree with the majority that La. R.S. 15:572.8 prohibits the substitution of parties in the event of the petitioner's death.

The majority opinion fails to address the invalidity of the underlying judgments on review: the September 24, 2024 judgment which granted the State's motion to dismiss following Petitioner's death and the December 20, 2024 judgment which denied the motion for new trial filed on behalf of the Petitioner by Appellant. Affirmation of the trial court's judgments on the premise that there is no cause of action because La. R.S. 15:572.8 does not create a heritable right and therefore substitution of a party is not an option, in this instance, is error.

Absolute Nullities

A review of the record shows that at the time of the hearing on the State's motion to dismiss, Appellant had not yet filed a motion to substitute. The record reveals that Petitioner's Counsel informed the trial court that the family was working diligently to open a succession and suggested that the hearing be deferred pending opening of the succession and to allow additional time for briefing. However, the trial court rejected that course of action and granted the motion to dismiss. The trial court reasoned as followed:¹

I think the proper way for Defense counsel to have maybe approached this, and I'm not here to give advisory opinions, would have been to file a Motion to Continue pending intervention by the third-party executor, executrix. That's what I think should have happened. Otherwise, right now, at this particular point, what we have is a wrongful death claim - - not a wrongful death. A wrongful conviction claim for compensation for that wrongful - - alleged wrongful conviction by a party who no longer, unfortunately, exists. And I have no other parties that have intervened or come into court today to show they have a right to that claim for wrongful conviction.

So at this time, I am going to grant the State's Motion to Dismiss at this time based on the information that I have today in court.

Jurisprudence establishes that a judgment rendered for or against a deceased person is an absolute nullity. Charia v. Allstate Ins. Co., 635 So.2d 370, 372 (La. App. 4th Cir. 1994).

In Charia, the case came before the court for trial on the merits; and a judgment was rendered against a deceased person when no one had been appointed to represent the succession of the decedent. 635 So.2d at 372. The appellant in Charia—the proposed succession representative—was not a party to the action when it came up for trial. Id. The Charia Court noted that had the appellant previously intervened, a judgment could have only been rendered against the appellant, and not her deceased husband, noting that any judgment against the deceased was an absolute nullity. Id. Therefore, the judgment was reversed and remanded. Id. 635 So.2d at 373. See also Succession of Horrell, 2019-0269, p. 4 (La. App. 4 Cir. 11/16/19), 285 So.3d 27, 30, where this Court agreed that a judgment homologating the tableau of distribution in a succession was an absolute nullity when one of the parties to the succession had died without substitution of a proper party as required by law.

“A null judgment is never valid and any proceedings conducted under the authority of a null judgment are absolutely void.” Succession of Crute v. Crute, 2016-0836, p. 22 (La App. 1 Cir. 8/30/17), 226 So.3d 1161, 1177. Consequently, in addition to the September 24, 2024 judgment, the December 20, 2024 judgment which denied the motion for new trial made on Petitioner's behalf is also an absolute nullity. Accordingly, I would vacate the judgments granting the motion to dismiss and denying the motion for new trial as they are without any legal effect.

 La. R.S. 15:572.8 As A Civil/Criminal Action

I also find the majority's reliance on the trial court's December 20, 2024 written reasons for judgment which denied the motion for new trial and motion to substitute is misplaced. Additionally, the majority's interpretation of Burge v. State, 2010-2229 (La. 2/11/11), 54 So.3d 1110, to find that “[w]e are bound by the language in La. R.S. 15:572.8, which limits the right to the incarcerated petitioner and does not permit the substitution of parties in the event of a petitioner's death” and to conclude that “[t]he right to wrongful conviction compensation is thus personal and not heritable” is misplaced.

The trial court's December 20, 2024 written reasons for judgment interprets La. R.S. 15:572.8 as follows:

La. R.S. 15:572.8 expressly states that all such petitions “shall be governed by the procedures outlined herein.” There is no reference in the statute or any other related statute in the Louisiana Criminal Code, Louisiana Code of Civil Procedure, or Revised Statute of the right of action of a spouse or the heritability of heirs relative to wrongful conviction claims. In civil lawsuits for injury and damages sustained by a plaintiff, the spouse has the right to join as a plaintiff in a lawsuit during the pendency of the case to seek damages for the loss of consortium. In addition, the Louisiana Code of Civil Procedure expressly allows for heirs to be substituted in civil lawsuits and to file claims to substitute a plaintiff upon the death of a party. However, there is no avenue under the Louisiana Criminal Code, Louisiana Code of Criminal Procedure for such actions.

The majority adopts that same line of reasoning and notes that Burge referenced a WCC claim as a “non-civil” action; and hence, concludes that any application of La. R.S. 15:572.8 must be limited strictly to the language included in the statute. Closer scrutiny of Burge and other jurisprudence, however, compels a different result.

The underlying facts in Burge show the petitioner did not include a request for service in his application for wrongful conviction. 2010-2229, p. 2, 54 So.3d at 1111. The State filed an exception of insufficiency of service of process, arguing that Mr. Burge failed to request service on the State within 90 days as required by La. R.S. 13:5107(D)(1), (2).² Id. The appellate court affirmed the trial court's grant of the exception on the premise that the pertinent authority for service of all suits against the State was set forth in La. R.S. 13:5107; and moreover, found that La. R.S. 15:572.8 did not supersede La. R.S. 13:5107. Id., 2010-0229, p. 3, 54 So.3d at 1112. In its decision to reverse, the Supreme Court reasoned as follows:

The language of LSA–R.S. 13:5107, which is a part of the Louisiana Governmental Claims Act, does not apply to the compensation application of wrongful convictions; [ ] instead, it applies to any suit in contracts, personal and property injury, civil suits against the state, state agencies, political subdivisions of the state, and the employees of those entities. LSA–R.S. 13:5101. Although the statute governs lawsuits involving the state generally, nothing in Section 5107 authorizes its application to a compensation proceeding for a wrongful criminal conviction.

Mr. Burge's application for wrongful conviction is not governed by LSA–C.C.P. art. 1201(C) because this application is not a civil lawsuit. Instead, the only relevant authority governing Mr. Burge's application is contained in the Wrongful Conviction Compensation Statute, LSA–R.S. 15:572.8, which explicitly requires the court to submit the application to the Attorney General, the prosecuting district attorney, and the court that reversed the conviction.

LSA–R.S. 15:572.8 is sui generis, and governs a unique situation.

Id., 2010-2229, pp. 5-6, 54 So.3d at 1113. (Emphasis added).

A review of the context in which the Burge Court declared a WCC action was a non-civil lawsuit arose out of the acknowledgment that, in general, traditional civil lawsuits against the State and governmental agencies are governed by La. R.S. 13:5101. However, the Court recognized that La. R.S. 15:572.8 was specifically enacted as the relevant and superseding authority over any other statutory authority for litigating WCC actions. Id. To that end, the Court applied the general rule of statutory construction “that a specific statute controls over a broader, more general statute.” Id., 2010-2229, p. 5, 54 So.3d at 1113. Hence, the result in Burge was not decided by whether an action pursuant to La. R.S. 15:572.8 is a criminal or civil proceeding, per se, but rather, on the Court's finding that the provisions of the specific statute prevail over the general statute when two statutes deal with the same subject matter.

Unlike Burge, in the present matter, the question as to whether Appellant has a right of action to file a motion to substitute presents no conflict with the express statutory provisions of La. R.S. 15:572.8. Therefore, despite Burge's characterization of a WCC application as “not a civil lawsuit,” this characterization does not stand for the broad proposition that provisions of the Code of Civil Procedure or the Civil Code cannot apply where La. R.S. 15:572.8 is silent and their application does not contravene the express provisions of La. R.S. 15:572.8. Indeed, where there is silence and conflicts do not exist, a litany of cases has relied on provisions of the Code of Civil Procedure to enforce the statute.

In State v. Pittman, 2015-717 (La. App. 3 Cir. 9/9/15), 174 So.3d 778, the State appealed the trial court's judgment which denied its motion to dismiss the petitioner's WCC action as untimely because the petitioner had filed his original action in the wrong jurisdiction. The State alleged it was entitled to appeal the judgment pursuant to La. C.Cr. P. art. 912. Id., 2015-717, p. 2, 174 So.3d at 779. The Pittman Court rejected the State's contention that the procedural provisions of the Louisiana Code of Criminal Procedure controlled the appeal of a WCC judgment. Id., 2015-717, p. 3, 174 So.3d at 779. In rebutting the State's position, the Court reasoned:

However, La. R.S. 15:572.8 sets forth no specific provision for appellate review. Therefore, we find that reference to the general rules regarding appellate review of civil cases is appropriate and that the appealable nature of the ruling rendered in this action must be determined by reference to the applicable rules set forth in the Louisiana Code of Civil Procedure.

Moreover, although La. R.S. 15:572.8 is a criminal statute, our jurisprudence recognizes that the civil elements within the statute permit the application of civil codal provisions to enforce the statute. These civil elements encompass the evidentiary burden of proof and the civil relief offered by the statute.

For example, in a criminal court proceeding, the State has the burden to prove a defendant's guilt beyond a reasonable doubt. In contrast, the “petitioner” in a WCC action, akin to a plaintiff in a civil matter, bears the burden of proof. The differences in the burdens of proof were highlighted in State v. Alexander, 2022-12, p. 14 (La. App. 5 Cir. 6/21/23), 367 So.3d 867, 879, where the Fifth Circuit espoused that “in a civil petition for compensation for wrongful conviction and imprisonment, a petitioner does not have the benefit of a presumption of innocence, but rather is tasked with producing evidence to prove his factual innocence.” (Emphasis added). Similarly, in State v. Ballard, 2024-0606, p. 20 (La. App. 4 Cir. 3/14/25), 414 So.3d 800, 811, the State noted that the legal presumption of actual innocence associated in a criminal proceeding did not apply in a WCC action, specifically referencing Alexander's finding that a WCC action amounts to a “civil petition for compensation.”  ³

Next, the relief afforded by La. R.S. 15:572.8—awards of monetary damages—aligns with the relief afforded in civil matters. Similar to a civil matter, in the event the petitioner prevails in a WCC action, the State becomes obligated to compensate the petitioner in the form of monetary damages for physical harm and injuries and loss of life opportunities, and the petitioner receives no compensation if he does not prevail. See La. R.S. 15:572.8 (H)(2 (a) and (H)(3)).⁴ On the other hand, the Criminal Code imposes incarceration and/or other criminal penalties if the defendant is found guilty.

In State v. Ford, 50,525, pp. 3-4 (La. App. 2 Cir. 5/18/16), 193 So.3d 1242, 1246, the Second Circuit found that the Code of Civil Procedure applied to require the petitioner's request for review of the denial of his WCC action be perfected as a civil appeal,⁵ finding that the “denial of wrongful conviction compensation is in the nature of a final judgment on a demand for the payment of a sum of money and is quasi-civil in nature.” Id.  ⁶

Louisiana Constitution art. 5, Section 8(B) and Uniform Rules—Courts of Appeal, Rule 1-5 ⁷ set forth specific procedures to review civil matters for re-argument on appeal as explained in State v. Allen, 2011-2843 (La. 4/13/12), 84 So.3d 1288. In Allen, 2011-2843, p. 1, 84 So.3d at 1288, the State appealed the district court's judgment which set aside two bond forfeiture judgments that was reversed on appeal with one dissent. The commercial surety sought review before the Supreme Court when the appellate court declined to refer the matter for re-argument before a five-judge panel. Id. In its review, the Supreme Court noted that the appellate court had declined to apply La. Const. art. 5, Section 8(B); and instead, adhered to the position that a review of an order or judgment from the criminal district court would only be heard by a three-judge panel regardless of whether the judgment sounded in criminal law or civil law. Id. 2011-2843, pp. 1-2, 84 So.3d at 1288. However, the Supreme Court reversed, finding the court of appeal erred as “there [was] no question of jurisdiction and the cases relied on by the courts below provide[d] no authority for failing to follow the mandatory language of La. Const. art. 5, Section 8(B).” Id., 2011-2843, p. 2, 84 So.3d at 1288-89. Consequently, inasmuch as a WCC action is a claim for money damages and money damages are civil in nature, this precept was followed by this Court in the present matter on review and in State v. Gordon, 2024-0244, (La. App. 4 Cir. 1/9/26), ––– So.3d. ––––, 2026 WL 73943.

 Right to Substitute

I agree with the majority that La. R.S. 15:572.8 arises out of the Criminal Code and that the provisions of the statute governs the enforcement of a WCC action. Contrary to the majority's assertions, however, the express language of La. R.S. 15:572.8 does not preclude the right to substitute in the event of the petitioner's death. Rather, the statute is silent. In Gordon, this Court specifically recognized the unique blend of criminal and civil concepts” within La. R.S. 15: 572.8. Id. at *2. Upon examining these “criminal” and “civil” components in their totality and applying established jurisprudence, it is my position that because the statute does not expressly prohibit substitution, a WCC claim may be treated as a civil proceeding for purposes of determining whether the action permits a right of action to substitute in the event of the petitioner's death.

The relevant applicable civil codal provisions to determine the right to substitute are covered by La. C.C.P. art. 801 and La. C.C. art. 2315.1 Louisiana Code of Civil Procedure art. 801 includes the following regarding the procedure to substitute for a decedent petitioner:

When a party dies during the pendency of an action which is not extinguished by his death, his legal successor may have himself substituted for the deceased party, on ex parte written motion supported by proof of his quality.

As used in Articles 801 through 804, “legal successor” means:

(1) The survivors designated in Article 2315.1 of the Civil Code, if the action survives in their favor; and

(2) Otherwise, it means the succession representative of the deceased appointed by a court of this state, if the succession is under administration therein; or the heirs and legatees of the deceased, if the deceased's succession is not under administration therein.

Louisiana Civil Code art. 2315.1 includes the following:

A. If a person who has been injured by an offense or quasi offense dies, the right to recover all damages for injury to that person, his property or otherwise, caused by the offense or quasi offense, shall survive for a period of one year from the death of the deceased or two years from the day that injury or damage is sustained, whichever is longer, in favor of:

(1) The surviving spouse and child or children of the deceased, or either the spouse or the child or children.

***

B. In addition, the right to recover all damages for injury to the deceased, his property or otherwise, caused by the offense or quasi offense, may be urged by the deceased's succession representative in the absence of any class of beneficiary set out in Paragraph A.

In the case sub judice, Appellant timely brought his motion to substitute within four months of Petitioner's death as required by La. C.C. art. 2315.1(A)(1). The motion asserted that he qualifies to substitute for the deceased Petitioner in his capacity as the decedent's son and as his succession representative. Appellant also attached supporting certified documents to prove his status. Therefore, Appellant has clearly satisfied the prerequisites under La. C.C.P. art. 801 and La. C.C. art. 2315.1 to substitute as result of Petitioner's death.

 Remand

“Upon the death of a litigant, a proper party plaintiff must be substituted to allow the action to continue.” Horrell, 2019-0269, p. 5, 285 So.3d at 31. Thus, notwithstanding that a cause of action has not been established as to whether the WCC action extinguished with Petitioner's death, Appellant must be granted the right to substitute on Petitioner's behalf to litigate if a cause of action exists. Accordingly, the following decree should go forth in this matter: The judgment granting the State's motion to dismiss the petition and the judgment denying the motion for new trial are vacated. This Court grants Appellant's motion to substitute to bring this appeal in the place of Petitioner. This matter is remanded to the trial court for further proceedings.

Per Judge Morial's dissent, the State may re-urge its motion to dismiss as to whether a WCC action abates or survives the petitioner's death. Specifically, the following instructions should accompany the remand. In the event the State re-urges its motion to dismiss, the trial court is instructed to consider La. C.C.P. art. 428 and La. C.C. art. 1766 in its review as to whether a WCC action survives a petitioner's death or is a strictly personal action.  ⁸

I respectfully dissent.

Upon review of the majority opinion, I respectfully dissent. The Louisiana Supreme Court has recently permitted courts to consider and apply the Louisiana Code of Civil Procedure in connection with wrongful conviction compensation claims when a procedural issue or obstacle is presented and not provided for in La. R.S. 15:572.8, as discussed below.

It is my opinion that La. C.C.P. art. 801 permits substitution of petitioner's legal representative to proceed in the trial court and to determine whether the wrongful conviction compensation claim under La. R.S. 15:572.8 has merit. This Court has recently determined that wrongful conviction compensation claims “are a unique mix of criminal and civil concepts.” State v. Gordon, 24-0244, p. 4 (La. App. 4 Cir. 1/9/26), ––– So.3d ––––, 2026 WL 73943, at * 2. Moreover, the Louisiana Supreme Court has recently applied the civil concept of res judicata, found in Article 532 of the Code of Civil Procedure, in permitting a stay of a state-court wrongful conviction compensation claim where a federal 42 U.S.C. § 1983 claim is simultaneously asserted and pending in federal court. See Dent v. State, 25-01115 (La. 9/5/25), 415 So.3d 1266 (wherein the Louisiana Supreme Court denied writs and in a concurring opinion, Justice Weimer set forth the Court's recent practice of applying the principles of res judicata, set forth in the Code of Civil Procedure, to wrongful conviction compensation claims), and cases cited therein.

Although not specifically addressing the exact issue of substitution of a deceased party in a wrongful conviction compensation proceeding, this practice by the Louisiana Supreme Court supports the analysis that—in the realm of wrongful conviction compensation proceedings which are sui generis—courts may look to the Code of Civil Procedure for guidance on how to address various procedural obstacles not specifically provided for under the specific provisions of La. R.S. 15:572.8. Accordingly, it is my opinion that the court may look to the Code of Civil Procedure for guidance on the issue of substitution of a deceased petitioner, which is not provided for in La. R.S. 15:572.8. Thus, it is my opinion that substitution is proper.

However, because the motion to dismiss in this case was filed against a deceased party, it is my opinion that the matter should be remanded to the trial court for further proceedings and for the State, if it so chooses, to reurge its motion to dismiss against the properly substituted party to allow that party to properly oppose the motion prior to a hearing.

FOOTNOTES

1.   As noted later herein, because we affirm the denial of the motion to substitute, we do not address the remaining issues.

2.   The trial court stated, in part:[W]hat we have is ․ [a] wrongful conviction claim for compensation for that wrongful -- alleged wrongful conviction by a party who no longer, unfortunately, exists. And I have no other parties that have intervened or come into court today to show they have a right to that claim for wrongful conviction. So at this time, I am going to grant the State's Motion to Dismiss at this time based on the information that I have today in court.The trial court rendered written reasons regarding its dismissal of the petition in compliance with an order from this Court on June 26, 2025.

3.   Louisiana Bill Digest, Conference Committee, 2005 Reg. Sess. H.B. 663.

4.   Appellant argues that State v. Ford, 50,525 (La. App. 2 Cir. 5/18/16); 193 So.3d 1242, 1244, n. 1, permitted the substitution of the executrix of the deceased petitioner's estate as the petitioner in a wrongful conviction compensation case on appeal. Ford will be discussed herein.

5.   Appellant notes in his brief that the trial court rulings are all predicated on the same legal errors. Appellant then asserts the following assignments of error: (1) the trial court erred in not applying the Louisiana Code of Civil Procedure in a situation in which La. R.S. 15:572.8 is silent; (2) the trial court erred in dismissing the petition for wrongful conviction compensation following the death of the Petitioner; (3) the trial court erred in denying Appellant's motion to substitute; and (4) the trial court erred in denying Appellant's motion for new trial based on its erroneous conclusion that an action for wrongful conviction compensation under La. R.S. 15:572.8 is strictly personal and not heritable.

6.   Appellant claims that he is the legal successor and heir to the Petitioner within the meaning of La. C.C.P. art. 801. Appellant also claims that a wrongful conviction compensation claim is heritable under La. C.C.P. arts. 426 and 428 and La. C.C. arts. 1765 and 1766.

7.   La. C.C.P. art. 801 provides:When a party dies during the pendency of an action which is not extinguished by his death, his legal successor may have himself substituted for the deceased party, on ex parte written motion supported by proof of his quality.As used in Articles 801 through 804, “legal successor” means:(1) The survivors designated in Article 2315.1 of the Civil Code, if the action survives in their favor; and(2) Otherwise, it means the succession representative of the deceased appointed by a court of this state, if the succession is under administration therein; or the heirs and legatees of the deceased, if the deceased's succession is not under administration therein.As discussed later herein, based on the language of La. R.S. 15:572.8, a petitioner's claim for wrongful conviction does not survive the petitioner's death.

8.   La. C.C. art. 426 states in part:An action to enforce an obligation is the property of the obligee which on his death is transmitted with his estate to his heirs, universal legatees, or legatees under a universal title, except as otherwise provided by law. An action to enforce an obligation is transmitted to the obligee's legatee under a particular title only when it relates to the property disposed of under the particular title.La. C.C. art. 428 provides that an “action does not abate on the death of a party.” “The only exception to this rule is an action to enforce a right or obligation which is strictly personal.” Id.

9.   La. C.C. art. 1765 states, in part that an “obligation is heritable when its performance may be enforced by a successor of the obligee or against a successor of the obligor.”La. C.C. art. 1766 in turn provides:An obligation is strictly personal when its performance can be enforced only by the obligee, or only against the obligor.When the performance requires the special skill or qualification of the obligor, the obligation is presumed to be strictly personal on the part of the obligor. All obligations to perform personal services are presumed to be strictly personal on the part of the obligor.When the performance is intended for the benefit of the obligee exclusively, the obligation is strictly personal on the part of that obligee.

10.   See e.g, Jones v. State, 2022-01455 (La. 5/5/23), 362 So.3d 341; State v. Ruano, 2019-0709 (La. App. 4 Cir. 3/4/19), 294 So.3d 44; State v. Alexander, 2022-12 (La. App. 5 Cir. 6/21/23), 367 So.3d 867 (addressing the merits of a claim for wrongful conviction compensation on appeal).

11.   The Pittman Court stated, in relevant part:[ ] La. R.S. 15:572.8 sets forth no specific provision for appellate review. Therefore, we find that reference to the general rules regarding appellate review of civil cases is appropriate and that the appealable nature of the ruling rendered in this action must be determined by reference to the applicable rules set forth in the Louisiana Code of Civil Procedure. As the ruling appealed does not decide the merits of this matter, we find that the ruling is interlocutory pursuant to La.[C.C.]P. art. 1841. Further finding no statute that expressly provides for an appeal of this judgment, we conclude that an appeal does not lie in this instance. La. [C.C.]P. art. 2083. Therefore, we hereby dismiss this appeal without prejudice.Id., 2015-717, p. 4, 174 So.3d at 780.

1.   The hearing on the State's motion to dismiss took place on September 24, 2024.

2.   Louisiana Revised Statute 13:5107(D)(1), (2) provide in pertinent part the following:(1) In all suits in which the state ․ is named as a party, service of citation shall be requested within ninety days of the commencement of the action or the filing of a supplemental or amended petition which initially names the state ․ as a party. This requirement may be expressly waived by the defendant in such action by any written waiver.(2) If service is not requested by the party filing the action within that period, the action shall be dismissed without prejudice, after contradictory motion as provided in Code of Civil Procedure Article 1672(C), as to the state, ․ who has not been served.

3.   Upon docketing this case for appeal, this Court also issued an order to the trial court to issue a signed judgment, noting, in part that “[a”] proceeding involving a petition for compensation for wrongful conviction and imprisonment under La. R.S. 15:572.8 is a civil matter,” citing Alexander, supra. See State v. Smith, 2025-KA-0184 (La. App. 4 Cir. 6/24/25).

4.   Louisiana Revised Statute 15:572.8(H)(2)(a)(b) and (H)(3) provide, in pertinent part:(2)(a) Compensation for the physical harm and injury suffered by the petitioner shall be calculated at a rate of twenty-five thousand dollars per year incarcerated, not to exceed a maximum total amount of two hundred fifty thousand dollars, to be paid at a rate of twenty-five thousand dollars annually.(b) After July 1, 2022, compensation for the physical harm and injury suffered by the petitioner shall be calculated at a rate of forty thousand dollars per year incarcerated, not to exceed a maximum total amount of four hundred thousand dollars, to be paid at a rate of forty thousand dollars annually.․(3) In addition to the compensation provided in Paragraph (2) of this Subsection, the court shall order that the petitioner receive eighty thousand dollars total in compensation for the loss of life opportunities resulting from the time spent incarcerated and to cover expenses relating to job skills training, education, housing, and any other services the wrongfully convicted person may need.․

5.   The petitioner died after the appeal was perfected. After oral argument, the Second Circuit Court granted the executrix's motion to substitute as the party petitioner in the place of the decedent where, unlike the instant matter, the State did not oppose the motion to substitute. See Ford, 50,525, p. 1, 193 So.3d at 1244, n.1.

6.   Ford further expounded on its reasons for considering a WCC action as a civil proceeding:The Supreme Court has stated that La. R.S. 15:572.8 is sui generis and governs a unique situation. Burge v. State, 2010–2229 (La.2/11/11), 54 So.3d 1110. Regarding the nature of an action under the statute, we explained in Burrell and Graham v. State of Louisiana, 50,157 and 50,158 (La.App.2d Cir.1/13/16), 184 So.3d 246, that the original intent of the legislature in drafting the compensation statute was for the procedure to be administrative in nature, to be governed by the Louisiana Administrative Procedure Act, with an application for compensation to be filed with the Board of Pardons. House Bill No. 663; Act 486 of 2005 Regular Legislative Session. When the statute was ultimately enacted in 2005, the statute required applications to be filed in the 19th Judicial District Court and allotted to the civil division. In 2007, the statute was amended to change “application” to “petition” with the requirement that the action be filed in the district court in which the conviction was obtained. The statute does not specify whether the action is to be filed in the criminal or civil division of the district court.Pursuant to the instructions of this court in its ruling on the writ application, as well as the request of counsel for guidance in this proceeding as to the procedural mechanism, we find that these proceedings are primarily civil in nature. The statute gives little guidance in Section C. There are no specific procedures mentioned other than that the rules of evidence apply. While the statute requires that the action be filed in the district court from which the conviction emanated, again, there is no requirement that the petition be filed in the criminal, rather than the civil division. Significantly, the burden of proof of clear and convincing evidence is on the petitioner seeking compensation, a variation of a petition for damages as would appear in civil proceedings. (Emphasis added).50,525, pp. 3-4, 193 So.3d at 1246, n.3.

7.   Louisiana Const. art. 5, Section 8(B) provides the following:(B) Judgments. A majority of the judges sitting in a case shall concur to render judgment. However, in civil matters only, when a judgment of a district court or an administrative agency determination in a workers’ compensation claim is to be modified or reversed and one judge dissents, the case shall be reargued before a panel of at least five judges prior to rendition of judgment, and a majority shall concur to render judgment.․Rule 1-5. PanelsThe Court will ordinarily sit in randomly assigned panels, each composed of at least 3 judges, as may be directed by the Chief Judge. In civil cases, when a judgment or ruling of a trial court is to be modified or reversed and one judge dissents, the case shall be reargued or resubmitted before a panel of at least 5 judges․

8.   Louisiana Code of Civil Procedure art. 428 states that “[a]n action does not abate on the death of a party. The only exception to this rule is an action to enforce a right or obligation which is strictly personal.”Louisiana Civil Code art. 1766 defines a strictly personal obligation as follows:An obligation is strictly personal when its performance can be enforced only by the obligee, or only against the obligor.When the performance requires the special skill or qualification of the obligor, the obligation is presumed to be strictly personal on the part of the obligor. All obligations to perform personal services are presumed to be strictly personal on the part of the obligor.When the performance is intended for the benefit of the obligee exclusively, the obligation is strictly personal on the part of that obligee.

Judge Karen K. Herman

JENKINS, J., DISSENTS WITH REASONS MORIAL, J. DISSENTS AND ASSIGNS REASONS