text:
    Mindy Simon LEPINE v. Troy Joseph LEPINE
    NO. 17-CA-568
    Court of Appeal of Louisiana, Fifth Circuit.
    March 14, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, MINDY SIMON LEPINE, Jennifer C. deBlanc
    COUNSEL FOR DEFENDANT/APPELLANT, TROY JOSEPH LEPINE, Blaine M. Hebert, Loan H. Do
    Panel composed of Judges Susan M. Chehardy, Marc E. Johnson, and Marion F. Edwards, Judge Pro Tempore
   MARION F. EDWARDS, JUDGE PRO TEMPORE, JUDGE

Appellant, Troy Lepine ("Troy"), appeals an adverse judgment rendered by the trial court on July 25, 2017, partitioning co-owned property in full ownership to Appellee, Mindy Lepine ("Mindy"), and granting Mindy the right to refinance the property solely in her own name. For the following reasons assigned, we affirm the trial court's judgment.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Troy and Mindy Lepine were co-owners of immovable property located at 2746 Bayou Lours Court, Marrero, Louisiana, having purchased the property together on June 27, 2003, prior to their marriage on September 30, 2003. In September 2015, Mindy filed a petition for divorce. By judgment dated November 19, 2015, Mindy was granted exclusive use and occupancy of the family home, and both parties were ordered to pay one-half of the monthly mortgage obligation. Troy failed to timely pay his owed portion of the mortgage on several occasions; namely, amounts due for June and December 2016.

On June 25, 2017, Mindy filed a rule to show cause why Troy should not be held in contempt for failing to timely pay his portion of the mortgage obligation and why the home should not be made subject of a partial partition of the community in order that one party could assume the home and its mortgage. A hearing was set for July 12, 2017, and was continued to July 21, 2017.

After pre-qualifying to refinance the home, Mindy offered to do so in her namely only, thereby assuming the entirety of the liability and reimbursing Troy for his share of the equity in the home. Troy refused Mindy's offer. Given Troy's failure to make timely mortgage payments in the past, and his unstable employment situation creating the possibility that he may be unable to make timely payments in the future, Mindy feared that the home was in danger of foreclosure and her ability to refinance in jeopardy. Mindy lives in the home with the couple's two minor children, one of whom has special needs. The children attend public schools in the local school district where the home is situated.

On July 12, 2017, pursuant to the provisions of La. C.C. art. 807, Mindy filed a petition to partition the co-owned property, stating that she had qualified to refinance the property and that the refinance closing date was scheduled for the first week of August. The record reflects that counsel for Mindy served a certified copy of the petition to partition upon Lila Samuel, Troy's counsel of record, via FedEx Priority Overnight Mail, which was received and accepted on July 17, 2017. By agreement between counsel of record for the respective parties at that time, the partition of the co-owned property was set for trial on July 21, 2017, because other pending motions in the case were already set for hearing that same day.

After receiving the petition to partition and agreeing to the matter being tried on July 21, and after having personally met with Troy, Lila Samuel filed a motion to withdraw as his attorney of record. Contained in the motion to withdraw, filed on July 18, 2017, was notification to the trial court that there were matters set for hearing in the case for July 21, 2017, which matters expressly included the petition to partition the co-owned property. The record reflects that the motion to withdraw was granted the same day it was filed. Troy retained new counsel on the evening of July 18, 2017. On July 20, 2017, Troy filed a motion to continue the matters set for hearing on the following day on the basis that his newly retained counsel needed additional time to prepare a proper defense.

On the morning of July 21, 2017, prior to hearing the partition matter, the trial court heard argument from counsel regarding Troy's motion to continue. After denying the motion to continue the partition proceeding, the court proceeded with the trial to partition the co-owned property. The trial court heard testimony from both parties, received evidence, and heard argument from counsel for both parties. At no time during the trial did counsel for Troy object to the use of summary proceedings to resolve the matter or object as to the sufficiency of citation or service of process of the petition to partition. At the close of the hearing, the trial judge ordered that the co-owned property be partitioned to Mindy Lepine in full and that she be allowed to refinance the property solely in her name. Additionally, the trial judge reserved to both parties the right to make any claims for reimbursement, offset, equalizing payments, or any other claims either party may have to assert related to the co-owned or community property.

The trial judge's ruling was reduced to judgment and signed on July 25, 2017. This timely appeal followed.

ISSUES PRESENTED FOR REVIEW

Troy presents the following three issues for review on appeal: (1) whether the trial court erred in allowing Mindy's petition to partition co-owned property to proceed via summary proceeding rather than ordinary proceeding; (2) whether the July 25, 2017 judgment is an absolute nullity since the petition to partition was tried without citation, service, or an answer or other responsive pleading having been filed; and, (3) whether the trial court abused its discretion in refusing to grant Troy's motion to continue the trial of the petition to partition.

DISCUSSION

1. The trial court erred in allowing the trial of the petition to partition, an ordinary proceeding, to proceed via summary proceeding .

It is true, as urged by Troy, that the mode of procedure for an action seeking to partition co-owned property is, generally, an ordinary proceeding, rather than a summary proceeding. See La. C.C.P. art. 4603 ("Except as otherwise provided by law, a partition proceeding is subject to the rules regulating ordinary proceedings"). But the proper objection to the matter proceeding summarily would have been for Troy to have raised a dilatory exception of unauthorized use of summary proceeding under La. C.C.P. art. 926(A)(3). Moreover, "[a]ll objections which may be raised through the dilatory exception are waived unless pleaded therein." La. C.C.P. art. 926(B).

The record in this case shows that no such dilatory exception was filed by Troy, and the transcript of July 21, 2017 indicates that at no time prior to the commencement of trial of the partition was a written or oral objection made regarding the unauthorized use of summary proceeding. The record further shows that Troy's former counsel agreed to have the matter set as a summary proceeding, and his counsel of record on the date of the trial voiced no objection to proceeding summarily. Accordingly, we find that Troy's failure to timely raise the objection of unauthorized use of summary proceeding prior to trial of the partition operates as a waiver of that objection. La. C.C.P. art. 926(B) ; Judson v. Davis , 04-1699, p. 18 (La. App. 1 Cir. 6/29/05), 916 So.2d 1106, 1115. This assignment of error is without merit.

2. Whether the partition proceedings are an absolute nullity in the absence of citation, service of process, the filing of an answer or other responsive pleading?

Troy avers that the petition to partition is an ordinary proceeding that required citation and formal service of process, which was not accomplished in this case. Thus, pursuant to La. C.C.P. art. 1201, which states that "[c]itation and service thereof are essential in all civil actions except summary and executory proceedings, divorce actions under Civil Code Article 102, and proceedings under the Children's Code ...." Troy argues that the partition proceedings were absolutely null and void. Additionally, Troy contends that because no answer to the petition to partition was filed in accordance with La. C.C.P. art. 1001, the trial was improperly set pursuant to Rule 9.14 of the Local Rules of Court. Following a review of the facts and circumstances of this case, we disagree.

The usual procedure to annul a judgment is to bring a direct action in the trial court. La. C.C.P. art. 2006 ; Fouchi v. Fouchi , 442 So.2d 506, 508 (La. App. 5th Cir. 1983). However, the jurisprudence has held that where the judgment at issue is an absolute nullity, it may be attacked in direct or collateral proceedings at any time and before any court. Lexington Insurance Co. v. Tasch, Inc. , 12-339, p. 10 (La. App. 5 Cir. 11/27/12), 105 So.3d 950, 956. In order for an appellate court to consider the merits of a collateral attack based on vice of form, the defect raised must be apparent on the face of the record. GR Constr. & Renovation, LLC v. White , 14-62, p. 6 (La. App. 5 Cir. 5/21/14), 142 So.3d 207, 209.

After reviewing the record in the case sub judice , we find no defect in the citation or service of the petition to partition upon Troy's counsel of record at the time service was made. The affidavit of service reflects that service of the petition to partition was made pursuant to La. C.C.P. art 1313(C). Specifically, the record shows, and Troy's current counsel concedes, that a certified copy of the petition to partition was served upon Lila Samuel, Troy's counsel of record at that time, via FedEx Priority Overnight Mail, which was received and accepted on July 17, 2017. This manner of service was in compliance with La. C.C.P. art. 1313(C), which provides that "if a pleading or order sets a court date, then service shall be made either by registered or certified mail or as provided in Article 1314, or by actual delivery by a commercial courier." Additionally, Article 1313(D) defines a "commercial courier" as "any foreign or domestic business entity having as its primary purpose the delivery of letters and parcels of any type ...."

By agreement of counsel of record for both parties at the time the petition to partition was filed, the order accompanying the pleading set the matter for trial on July 21, 2017. Because the petition contained a court date, counsel for Mindy served a certified copy of the pleading via actual delivery by a commercial courier, which the record confirms was received on July 17, 2017. Having complied with the requirements of La. C.C.P. art. 1313(C), we find no defect in the citation or service of process of the petition to partition.

We further find that the record clearly demonstrates that Troy had notice and/or knowledge that Mindy had filed a petition to partition, that his former counsel had received a copy of that petition to partition, and that the matter was scheduled for trial on July 21, 2017, along with other pending matters. Specifically, on June 24, 2017, Mindy filed a rule to show cause why Troy should not be held in contempt for his failure to timely pay his portion of the monthly mortgage obligation and why the home should not be made subject of a partial partition of the community in order that one party could assume the home and its mortgage. The hearing on these rules was originally set for July 12, 2017, but was continued to July 21, 2017. Subsequently, on July 12, 2017, Mindy filed the subject petition to partition asking for the same relief set forth in the prior rule to show cause. The record also reflects that Troy met with Lila Samuels to discuss the partition proceeding prior to her withdrawal as his counsel of record in this case. Additionally, in her motion to withdraw filed on July 18, 2017, Ms. Samuels notified the court that the petition to partition was pending and set for trial on July 21, 2017. The record further establishes that Troy appeared for trial and testified on his own behalf in the partition proceedings. Notably, absent from the record, specifically from the transcript of the trial of the petition to partition, is any objection on behalf of Troy as to either the insufficiency of citation and/or service of process of the petition. Thus, to the extent an issue with the citation and service of process existed, pursuant to La. C.C.P. art. 925(C), a party's failure to plead the declinatory exception of insufficiency of citation and service of process prior to the trial of the matter operates as a waiver of that objection.

Troy further contends that because Mindy's petition to partition co-owned property involved an ordinary proceeding, which required the filing of an answer or some other responsive pleading prior to being set for trial, the trial court erred in setting the partition proceeding for trial and in rendering judgment before he had the opportunity to file an answer or other responsive pleading. Thus, Troy argues, any judgment resulting therefrom is null and void and must be reversed. La. C.C.P. art 1571 states, in pertinent part, as follows:

A. (1) District courts shall prescribe the procedure for assigning cases for trial, by rule which shall:
(a) Require adequate notice of trial to all parties; and
(b) Prescribe the order of preference in accordance with law.
(2) These rules shall not allow the assignment of ordinary proceedings for trial except after answer filed.

In the instant case, it is undisputed that Troy did not file an answer to Mindy's petition to partition. Generally, no valid judgment may be rendered against a party with whom issue has not been joined by way of an answer, default, or waiver. Northshore Ins. Agency v. Farris , 634 So.2d 867 (La. App. 1st Cir. 1993). Thus, the issue before this Court is whether there was a waiver by Troy of the right to answer and the delays for answering the claims Mindy asserted against him. The record clearly shows, and Troy does not dispute, that Ms. Samuels, his attorney of record at the time the partition petition was filed and served, had notice of and agreed to the matter being placed on the summary docket to be heard with other matters previously pending between the parties, including a rule to show cause why the co-owned property should not be partitioned. The record further evidences that Troy and Ms. Samuels had a meeting on the evening that she was served with a copy of the partition petition, which petition sought the same relief as the already pending rule to show cause. The following day, Ms. Samuels filed a motion to withdraw as counsel for Troy, which motion expressly identified the petition to partition co-owned property as one of the matters that was set to be heard on July 21, 2017.

While the record does not contain an answer or other responsive pleading by Troy to Mindy's petition to partition, the record does show that Troy appeared at the trial represented by counsel, that he testified on his own behalf and participated in the proceedings, and that no objection was made as to the matter proceeding due to the lack of an answer having first been filed. We find that Troy's appearance and participation at the trial of the partition, and the lack of an objection to the matter proceeding without an answer having previously been filed, in effect, constituted a waiver of his right to answer the petition to partition. Accordingly, we find the trial court did not err in proceeding with the trial and in thereafter rendering judgment partitioning the property, reserving to both parties the right to make any claims for reimbursement, offset, equalizing payments, or any other claims related to the co-owned property.

3. The trial court erred in denying Troy's motion to continue the hearing on the petition to partition co-owned property

In his final assignment of error, Troy avers that he was entitled to a continuance and that the trial court erred in not granting him one. "A continuance may be granted in any case if there is good ground therefor." La. C.C.P. art. 1601. The court must consider the particular facts of a case when deciding whether to grant or deny a continuance. Armand v. Delgado , 99-2274, p. 7 (La. App. 1 Cir. 11/3/00), 770 So.2d 896, 898. Such a determination is within the sound discretion of the trial court. Ten Point Properties, LTD v. Roussel , 506 So.2d 179, 180 (La. App. 5th Cir. 1987). The trial court's ruling will not be disturbed on appeal in the absence of a clear abuse of discretion. In re Leaman , 94-119, p. 3 (La. App. 5 Cir. 9/14/94), 643 So.2d 1286, 1287 ; Young v. Bayou Steel Corp. , 588 So.2d 171, 172 (La. App. 5th Cir. 1991). Fairness to both parties and the need for orderly administration of justice are proper considerations in deciding whether to grant or deny a continuance. Gilcrease v. Bacarisse , 26,318, pp. 13-14 (La. App. 2 Cir. 12/7/94), 647 So.2d 1219, 1223. Appellate courts interfere in such matters only with reluctance and in extreme cases. Sparacello v. Andrews , 501 So.2d 269, 274 (La. App. 1st Cir. 1986).

The record in the instant case shows that late in the afternoon of the day preceding the trial of the partition and other matters, Troy's newly retained counsel filed a motion to continue contending that Mindy had failed to present "an emergency or exigent circumstances for having the former family home partitioned immediately," and that Troy would be "severely prejudiced if no continuance [was] granted." Contrary to Troy's contention that Mindy was "unable to demonstrate any hardship that would have resulted from a continuance," the record suggests that the petition to partition was actually precipitated by Troy's failure to timely pay his ordered portion of the mortgage obligation thereby creating the possibility of the property facing foreclosure and/or jeopardizing either party's ability to re-qualify for refinancing in the future. Counsel for Mindy advised the court that Mindy had originally been approved to refinance the home in January 2017, but that opportunity had been lost when the parties were unable to come to an agreement. Mindy subsequently re-qualified to refinance and the date for the refinance closing was set for August 1, 2017, ten days after the trial of the partition. At that point, all required documentation had been presented to the mortgage company except for an order from the court (and the appraisal, which was due that same day). It was undisputed that Mindy and the children lived together in the former family home and that the children attended public schools located in the local school district where the home is situated. In the event Troy's motion for continuance was granted and the partition proceedings did not go forward, the August 1, 2017 refinancing date would have been lost and Mindy would have been faced with the possibility of not being allowed to remain in the home (if the property was later foreclosed upon due to Troy's inability or failure to continue to pay his portion of the monthly mortgage), and the children would have been subject to having to attend schools in another district to their detriment.

The record indicates that the sole issue being presented to the trial court for determination in the partition proceedings was which of the two parties, Mindy or Troy, could demonstrate the ability to, and should be entitled to, refinance the former family home. Any issues regarding reimbursement, offsets, or equalizing payments due as result of the refinancing or partition of the property were not before the court. Under the circumstances, given the limited scope of the proceeding, Troy's counsel failed to show that additional preparation time was needed.

Moreover, the two cases he relied upon in support of his argument that the trial court erred in refusing to grant the continuance, namely, Norwood v. Winn Dixie, 95-2123 (La. App. 1 Cir. 5/10/96), 673 So.2d 360 and Halley v. Halley , 457 So.2d 108 (La. App. 2d Cir. 1984), are factually inopposite. In Norwood , a workers' compensation claim, the employee's counsel withdrew from the case two weeks prior to trial. The employer subsequently filed a motion for summary judgment, which was served on the employee by mail and a copy sent to the employee's former counsel. On the day prior to trial, the employee faxed a letter to the hearing officer requesting a continuance on the basis that he was unrepresented. The motion for continuance was denied. The employee failed to appear for trial, and the employer's motion for summary judgment was granted. On appeal, the court reversed finding the hearing officer had abused his discretion in failing to continue the hearing because there was no evidence in the record that the employee was aware that his counsel had withdrawn, that he had received the motion for summary judgment filed after his counsel had withdrawn, or that he was ever served with the motion for summary judgment. The court determined that fairness and due process dictated that the employee be given an opportunity to have his claim heard. In the instant case, though Troy's former counsel withdrew only days prior to trial, the record reflects that the issue of partitioning the co-owned property had been pending for over a month, albeit originally as the subject of a rule to show cause. Moreover, unlike the employee in Norwood , Troy was represented by counsel at the trial of the partition and he was given an opportunity to testify on his own behalf.

In Halley , defendant's counsel withdrew one day before trial. That same day, defendant filed a written motion in proper person requesting a continuance. Defendant introduced into evidence a letter showing she had retained an attorney, and that a reasonable period of time was needed to prepare for trial. The trial court denied the motion. The defendant renewed the motion in court on the day of trial; it was denied and she proceeded unrepresented. The appellate court reversed finding that the court's refusal to grant the continuance had effectively denied the defendant her day in court. In the case sub judice , Troy did not go unrepresented at the trial of the partition. His new counsel of record was present and was able to cross-examine Mindy. Additionally, Troy was present to testify on his own behalf with the assistance of his counsel.

Based on the record before us, we find no abuse of discretion in the trial court's ruling denying Troy's motion for continuance. This assignment is without merit.

DECREE

For the reasons assigned, we find no error in the trial court's judgment.

AFFIRMED

      Despite allegations contained in Troy's brief on appeal that his motion to continue the July 21, 2017 hearing sought "additional time to ... file an Answer, as well as any other responsive pleadings," the motion to continue contained in the record is devoid of any reference to the need for additional time to prepare an answer or other responsive pleadings in the matter.

      The trial court granted Troy's motion to continue, in part, as to the hearing on the La. C.C.P. art. 3945 motion for emergency ex parte sole custody and the pending rule for contempt, which matters were continued to September 22, 2017 by consent of the parties.

      In further support of his position that the filing of an answer was required prior to setting the matter for trial, Troy cites Rule 9.14 of the Local Rules of Court, which provides:
      All cases that have been allotted and all proceedings in connection therewith may, at the discretion of the Division Judge, be set for trial upon written motion filed by the attorney seeking such trial. In this instance, the motion to set shall be accompanied by a certificate that all parties have answered or preliminary defaults have been taken against them, including third-party defendants, all depositions and discovery have been completed, all exceptions and preliminary matters have been disposed of, and the matter is ready for a pretrial conference or to be set for trial.
      Alternatively, after the completion of a sufficient amount of discovery that allows the lawyer/parties to reasonably anticipate the length of the trial, any party may seek a status conference for the purpose of selecting a trial date appropriately in the future, as well as cut off dates for witness lists, expert reports, and discovery. At this status conference a date for a pretrial conference to occur shortly before trial may also be selected. The dates selected will be reduced to a scheduling order signed by the parties and the court.

      The record does reflect that counsel for Troy filed a motion to continue the hearing on the basis that she had only been retained three days prior to the hearing and needed additional time to "prepare a defense or to file the proper oppositions ..."

      A motion for contempt was pending against Troy that same day based upon his failure to make timely mortgage payments as ordered.


source: Caselaw Access Project

license: Public Domain

text:
    Karen Cohen KINNETT v. Jarred Brandon KINNETT
    NO. 17-CA-625
    Court of Appeal of Louisiana, Fifth Circuit.
    March 23, 2018
   COUNSEL FOR PLAINTIFF/APPELLEE, KAREN COHEN KINNETT, Allison K. Nestor

COUNSEL FOR DEFENDANT/APPELLEE, JARRED BRANDON KINNETT, Tracy G. Sheppard, Jacqueline F. Maloney

COUNSEL FOR INTERVENOR/APPELLANT, KEITH EDWARD ANDREWS, Thomas A. Robichaux, Stephanie A. Fratello, Sharon L. Andrews, Desiree M. Valenti

COUNSEL FOR MINOR/APPELLEE, G. J. K., MINOR CHILD, Ramona G. Fernandez

Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Jude G. Gravois

WICKER, J.

Appellant-Intervenor, the biological father of G.J.K, seeks review of the trial court's judgment sustaining the exception of peremption filed by Appellee-Defendant, G.J.K.'s legal father, resulting in a dismissal of Appellee-Intervenor's petition to establish paternity. For the following reasons, given the unique facts of this case and in the interest of justice and judicial economy, we stay the pending appeal of the trial court's judgment sustaining the exception of peremption and remand this matter to the trial court so as to afford the parties the opportunity to properly challenge the constitutionality of La. C.C. art. 198, which sets forth the period of time within which a biological father must institute an action to establish his paternity.

FACTUAL AND PROCEDURAL BACKGROUND

This is an avowal action by an unmarried man, K.A., to establish paternity of a child, G.J.K. At the time of G.J.K.'s birth, his biological mother was married to J.B.K. On January 20, 2017, the child's mother filed a petition for divorce from J.B.K. In the petition for divorce, the mother sought joint custody of the couple's first child, B.A.K., and sole custody of her second child, G.J.K.

On February 10, 2017, K.A. filed his "Petition In Intervention to Establish Paternity and to Obtain Custody Rights," asserting that he and the child's mother had an intimate relationship in November of 2014, during the mother's marriage to J.B.K., and that the child's mother concealed from K.A. that he was in fact G.J.K.'s biological father. K.A. attached to his petition a DNA test report confirming that he is G.J.K's biological father to a scientific certainty of 99.999999998%.

On February 21, 2017, J.B.K. filed "Exceptions of No Cause and/or No Right of Action, Prescription, Peremption to the Verified Petition In Intervention to Establish Paternity and to Obtain Custody[ ]," contending that K.A.'s petition, filed more than one year from the time of G.J.K.'s birth, was prescribed or perempted as a matter of law under La. C.C. art. 198.

On March 23, 2017, the trial court issued a judgment appointing the Stuart H. Smith Law Clinic and Center for Social Justice through Loyola University School of Law to represent G.J.K. On April 12, 2017, approximately three weeks later, J.B.K.'s various exceptions were heard before the Domestic Commissioner. The Commissioner issued a judgment on April 13, 2017, overruling J.B.K.'s exception of no right of action, overruling in part his exception of no cause of action as to the paternity action and sustaining in part his exception of no cause of action as to the custody claims. The Commissioner further sustained the exception of peremption, finding that K.A.'s right to establish paternity was perempted under the time limitations provided in La. C.C. art. 198.

K.A. filed an Objection to the Commissioner's ruling, contending in part that the "time limitations in Civil Code article 198 are constitutionally invalid."

At the trial on J.B.K.'s exceptions to K.A.'s petition, K.A.'s counsel asked the trial court to rule on the constitutionality of the statute, contending that the time limitations provided in La. C.C. art. 198 unconstitutionally infringe upon a biological father's right to parent. J.B.K.'s counsel objected to the consideration of K.A.'s constitutional argument because K.A. had failed to timely notify the attorney general of a challenge to the constitutionality of La. C.C. 198 as required under La. C.C.P. art. 1880. Thereafter, K.A.'s counsel orally moved for additional time to permit notification to the attorney general and further plead the constitutionality issue. The trial judge refused this oral request.

Following the trial on J.B.K.'s exceptions, at which the trial judge did not consider the constitutional arguments raised due to the aforementioned failure to properly notice an indispensable party, the trial judge issued a written judgment sustaining J.B.K.'s exception of peremption and finding that K.A.'s petition to establish paternity was perempted under La. C.C. art. 198.

DISCUSSION

Our review of the record and the briefs filed by the parties in this matter reveals that this litigation, which involves Louisiana's unique dual paternity principle, implicates both the constitutional issue of the right of a father to parent as well as the concomitant constitutional rights of a child. See Troxel v. Granville , 530 U.S. 57, 65, 120 S.Ct. 2054, 2060, 147 L.Ed.2d 49, 56 (2000).

In Reeder v. North , 5 97-0239 (La. 10/21/97), 701 So.2d 1291, 1299-1300, relying on Vallo v. Gayle Oil Co., Inc. , 94-1238 (La. 11/30/94), 646 So.2d 859, 864-865, the Louisiana Supreme Court reiterated the long-standing jurisprudential rule of law:

[A] statute must first be questioned in the trial court, not the appellate courts, and the unconstitutionality of a statute must be specially pleaded and the grounds for the claim particularized.
* * *
However, the law takes a liberal approach toward allowing amended pleadings in order to promote the interests of justice. Whitnell v. Menville , 540 So.2d 304, 309 (La. 1989). La. C.C.P. art. 934 provides as follows: When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection cannot be so removed, or if plaintiff fails to comply with the order to amend, the action shall be dismissed.

Given the lifetime impact this litigation will have upon the parties involved, particularly the minor child, G.J.K, we find, in the interest of justice and judicial economy, that K.A. should be allowed the opportunity to amend his petition and appropriately challenge the constitutionality of La. C.C. art. 198 in the trial court.

DECREE

For the foregoing reasons, in accordance with La. C.C.P. art. 934 and the jurisprudence, in the interest of justice and judicial economy, we stay the pending appeal and pretermit review of the trial court's judgment sustaining the exception of peremption and remand this matter to the trial court solely to afford the parties the opportunity to properly challenge the constitutionality of La. C.C. art. 198 and to give notice to the attorney general pursuant to La. C.C.P. art. 1880. Accordingly, the matter is remanded to the trial court solely for proceedings consistent with the reasons articulated in this opinion.

      Pursuant to Uniform Rules-Courts of Appeal Rule 5-2, we will use the initials of all parties to protect the minor's identity and to ensure the confidentiality of the minor who is a party to and whose interests are the subject matter of the proceedings on appeal.

      In her petition for divorce, the mother further sought child support from J.B.K. for their first child, B.A.K., but did not seek any financial support for her second child, G.J.K., who is the subject of this litigation.

      La. C.C. art. 198, in pertinent part, provides:
      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.

      The trial court's June 27, 2017 judgment further overruled the exception of no right of action and the exception of no cause of action as to the paternity claim but sustained the exception of no cause of action as to the custody claim. After the lodging of the appeal, this Court ordered that the trial judge amend the written judgment to include the required decretal language that K.A.'s claims were dismissed.

      It is not our intent to afford the parties the opportunity to relitigate the facts of the case presented at the trial court hearing on the exception.


author: LILJEBERG, J.

text:
    JEFFERSON PARISH SCHOOL BOARD v. TIMBRIAN, LLC
    NO. 17-CA-668
    Court of Appeal of Louisiana, Fifth Circuit.
    March 28, 2018
    COUNSEL FOR DEFENDANT/APPELLANT, TIMBRIAN, LLC: Scott L. Sternberg, Michael S. Finkelstein, Joseph R. Marriott, New Orleans
    Panel composed of Judges Jude G. Gravois, Marc E. Johnson, and Hans J. Liljeberg
   LILJEBERG, J.

This matter comes before the Court on motions filed by appellees, Jefferson Parish (the "Parish"), and Jefferson Parish School Board (the "School Board"), seeking dismissal of the appeal filed by appellant, TimBrian, L.L.C. ("TimBrian"). Appellees contend dismissal of the appeal is warranted because TimBrian acquiesced in the judgment entered against it by the lower court. For reasons set forth more fully below, we cannot consider the motions to dismiss filed by the Parish and the School Board, and instead must dismiss this appeal without prejudice for lack of subject matter jurisdiction due to the absence of a final, appealable judgment.

FACTUAL AND PROCEDURAL BACKGROUND

This matter arises from a dispute regarding ownership of a piece of immovable property used as a playground in the front of Metairie Academy for Advanced Studies located on Metairie Road in Jefferson Parish (the "Property"). TimBrian acquired the Property at a tax sale held by the Sheriff and Ex-Officio Tax Collector for Jefferson Parish in exchange for $111,318.29, which included unpaid property taxes and other costs. A Tax Sale Certificate dated September 27, 2010, was recorded in the Jefferson Parish conveyance records on November 4, 2010.

On May 19, 2014, TimBrian filed a Petition for Monition in the 24th Judicial District Court to cure any defects in the tax sale and to quiet title to the Property. On August 13, 2014, the district court in that matter rendered a "Judgment Confirming and Homologating Sale," which perfected TimBrian's title to the Property. This judgment was recorded in the Jefferson Parish conveyance records on August 13, 2014.

On December 22, 2014, the School Board filed a "Petition to Annul Tax Sale," naming TimBrian as a defendant. The School Board alleged the Property TimBrian purchased at the tax sale included portions of land already owned by the School Board and further alleged the tax sale was an absolute nullity. The School Board requested a judgment declaring it owner of the portions of the Property described in the petition, as well as a judgment nullifying the tax sale, nullifying the judgment homologating the tax sale, and cancelling the inscriptions of the tax sale and homologating judgment from the Jefferson Parish Clerk of Court's conveyance records.

On February 10, 2015, TimBrian filed an answer, exceptions and reconventional demand seeking damages against the School Board and a declaratory judgment naming TimBrian as the owner of the Property. On April 1, 2015, the School Board filed a first supplemental and amending petition to annul the tax sale, which added the Parish as a defendant to the proceedings based on the Parish's assertion that it owned the Property. The School Board further alleged that it enjoyed possession of the Property since 1939, and that it acquired predial servitudes of use, passage and right of way through its possession thereby entitling it to notice of the tax sale. The School Board sought a declaratory judgment recognizing its predial servitudes. It also alleged that as the true owner of the Property, the Parish was also entitled to notice of the tax sale proceedings and bore the responsibility to attack and seek to nullify the tax sale and judgment of homologation to protect the School Board's peaceful possession of the Property.

On June 4, 2015, the School Board filed a second supplemental and amending petition which contained minor amendments to its prior allegations. In its answer to the amending petitions to annul the tax sale, TimBrian reincorporated its reconventional demand alleged against the School Board. In response to the original, first amending and second amending petitions, Jefferson Parish filed an answer and cross-claim against TimBrian and the School Board seeking a declaratory judgment recognizing the Parish as the owner of the Property.

On May 23, 2016, the Parish filed a motion for summary judgment seeking a declaration recognizing it as owner of the Property and for judgment dismissing TimBrian's reconventional demand. The trial court dismissed the motion as premature due to outstanding discovery issues. After completing additional discovery, the Parish and the School Board filed a motion to re-urge the previously filed summary judgment motion. In response, TimBrian filed an opposition and a cross-motion motion for summary judgment seeking the dismissal of the Parish's cross-claim.

On July 14, 2017, the trial court heard oral argument on the summary judgment motions, and on July 21, 2017, the trial court entered a judgment granting the Parish's motion for summary judgment and further declaring that "Jefferson Parish is the owner of the property at issue by dedication for Hypolite de Courval in the year 1837." The judgment also denied TimBrian's motion for summary judgment and further stated that "all reconventional demands of defendant TimBrian, LLC asserting ownership of the property at issue are hereby DISMISSED." The judgment did not address the claims alleged by the School Board against the Parish and TimBrian.

On July 31, 2017, the Parish, School Board and TimBrian filed a timely Joint Consent Motion for New Trial requesting that the trial court amend the July 21, 2017 judgment to include a legal description of the Property. The trial court granted the motion for new trial and amended the judgment on August 1, 2017. On August 31, 2017, TimBrian filed a motion for devolutive appeal, which the trial court granted.

We recognize that the procedural posture of the parties is unusual in this matter as the School Board originally alleged it was owner of portions of the Property at issue and then conceded in its amending petitions that the Parish was the owner of the disputed property and joined the Parish as a defendant. However, based on our review of the pleadings, the School Board alleged claims against both TimBrian and the Parish that were not addressed by the judgments and therefore, remain pending against both of those parties. As explained more fully below, we must find this Court lacks appellate jurisdiction as the July 21, 2017 and August 1, 2017 judgments are not final, appealable judgments and were not designated as final judgments pursuant to La. C.C.P. art. 1915(B)(1).

LAW AND DISCUSSION

Before considering the merits in any appeal, appellate courts have the duty to determine sua sponte whether subject matter jurisdiction exists, even when the parties do not raise the issue. Input/Output Marine Sys. v. Wilson Greatbatch Techs., Inc. , 10-477 (La. App. 5 Cir. 10/29/10), 52 So.3d 909, 910. This Court cannot determine the merits of an appeal unless our appellate court jurisdiction is properly invoked by a valid final judgment. Id. at 915.

La. C.C.P. art. 1915 provides, in pertinent part:

A. A final judgment may be rendered and signed by the court, even though it may not grant the successful party or parties all of the relief prayed for, or may not adjudicate all of the issues in the case, when the court:
(1) Dismisses the suit as to less than all of the parties, defendants, third party plaintiffs, third party defendants, or intervenors.
* * *B. (1) When a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands, issues, or theories against a party, whether in an original demand, reconventional demand, cross-claim, third-party claim, or intervention, the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.
(2) In the absence of such a determination and designation, any such order or decision shall not constitute a final judgment for the purpose of an immediate appeal and may be revised at any time prior to rendition of the judgment adjudicating all the claims and the rights and liabilities of all the parties.

After thoroughly reviewing the record and the holdings in the relevant judgments, we find that while the judgments resolved the issue of ownership of the property, the district court did not resolve all of the claims alleged against TimBrian or the Parish by the School Board such that the judgments at issue would qualify as a final judgments dismissing the suit against either party pursuant to La. C.C.P. art. 1915(A)(1). The judgments do not resolve the School Board's claims and prayer to nullify the tax sale and judgment of homologation previously entered in favor TimBrian and does not resolve the School Board's request for a declaratory judgment seeking recognition of its servitudes of use, passage and right of way. More importantly, the judgment declaring Jefferson Parish as the owner of the Property is not designated as a partial final judgment pursuant to La. C.C.P. art. 1915(B).

DECREE

Based on the foregoing, we find this Court lacks appellate jurisdiction over this matter and dismiss the appeal filed by TimBrian, L.L.C., without prejudice, and remand this matter to the trial court for further proceedings.

APPEAL DISMISSED WITHOUT PREJUDICE AND REMANDED

      Even if a final, appealable judgment existed in this matter, the Court would be unable to consider the motions to dismiss the appeal filed by appellees because this Court is not able to receive the new evidence attached to these motions. See Verret v. State Farm Mut. Auto Ins. , 99-1250 c/w 99-1251 (La. App. 3 Cir. 2/2/00), 759 So.2d 115, 120, writ denied , 00-690 (La. 4/20/00), 761 So.2d 535 and writ denied , 00-673 (La. 4/20/00), 760 So.2d 1159.

      The judgment does not address the School Board's joinder in the re-urged motion for summary judgment.

      Furthermore, a judgment declaring a tax sale a nullity is without effect and is not final unless the tax payer is also awarded taxes, costs and interest in accordance with La. Const. Art. VII, § 25 (C). See also La. R.S. 47:2291 ; Mooring Tax Asset Group, L.L.C. v. James , 14-109 (La. 12/9/14), 156 So.3d 1143, 1147-49 ; Surcouf v. Darling , 15-278 c/w 15-279 (La. App. 4 Cir. 10/21/15), 177 So.3d 1085, 1088-89.


author: LEE, C.J., FOR THE COURT:

text:
    Bobbie Jean LOWE, Appellant v. CITY OF MOSS POINT, Mississippi, a Municipal Corporation, Appellee
    NO. 2016-CA-01012-COA
    Court of Appeals of Mississippi.
    October 3, 2017 Rehearing Denied February 6, 2018 Certiorari Denied May 10, 2018
    ATTORNEY FOR APPELLANT: DAVID C. FRAZIER
    ATTORNEYS FOR APPELLEE: AMY LASSITTER ST. PE', JAMES EVERETT LAMBERT III
    EN BANC.
   LEE, C.J., FOR THE COURT:

¶ 1. Bobbie Jean Lowe brought a suit against the City of Moss Point (the City) for an injury she sustained while on municipal property. The Jackson County Circuit Court granted the City's motion for summary judgment, finding that the City was entitled to discretionary-function immunity under Mississippi Code Annotated section 11-46-9(1)(d) (Rev. 2012). Lowe now appeals. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On October 20, 2012, Lowe attended a breast-cancer-awareness event called "Bras Across the Bridge" held in Moss Point, Mississippi. During the course of the event, many participants, including Lowe, congregated at Pelican Landing, a community rental space owned by the City. After being at the event for a few hours, Lowe began to walk to her car to leave when she stepped in a grass-covered hole, fell, and injured her ankle.

¶ 3. Lowe filed suit against the City, alleging that the City was negligent in its maintenance of the lawn and facility at Pelican Landing, proximately causing Lowe's injuries. The City's answer denied any negligence on its part and also asserted that it was immune from suit under the Mississippi Tort Claims Act (MTCA). Miss. Code Ann. §§ 11-46-1 to -23 (Supp. 2016). After the parties participated in limited discovery, the City filed a motion for summary judgment, arguing that it was immune from suit specifically under sections 11-46-9(1)(d) and (v). After a hearing on the motion, the trial court granted the City's motion for summary judgment, finding that the City was immune from suit under section 11-46-9(1)(d). Lowe now appeals.

STANDARD OF REVIEW

¶ 4. The MTCA provides "that governmental entities and their employees shall be exempt from liability in certain situations as outlined in the MTCA." Brantley v. City of Horn Lake , 152 So.3d 1106, 1108-09 (¶ 6) (Miss. 2014) (citing § 11-46-9 ). Whether governmental immunity applies "is a question of law and is a proper matter for summary judgment." Id.

(quoting Mitchell v. City of Greenville , 846 So.2d 1028, 1029 (¶ 8) (Miss. 2003) ). An appellate court reviews the application of the MTCA under a de novo standard. Id. (citing Lee v. Mem'l Hosp. at Gulfport , 999 So.2d 1263, 1266 (¶ 8) (Miss. 2008) ).

¶ 5. The grant or denial of summary judgment is also reviewed de novo. Mitchell v. Ridgewood E. Apartments LLC , 205 So.3d 1069, 1073 (¶ 13) (Miss. 2016). In viewing the evidence in the light most favorable to the nonmoving party, summary judgment is proper where "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Id. (quoting M.R.C.P. 56(c) ).

DISCUSSION

¶ 6. The trial court found that the City was immune from suit under section 11-46-9(1)(d). Section 11-46-9(1)(d) provides governmental entities with immunity when the function performed is a discretionary one:

(1) A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim:
(d) Based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee thereof, whether or not the discretion be abused[.]

Thus, the case hinges on whether the City's lawn maintenance at Pelican Landing is a discretionary function.

¶ 7. In Boroujerdi v. City of Starkville , 158 So.3d 1106, 1112 (¶ 19) (Miss. 2015), the Mississippi Supreme Court explained that a function is discretionary "[i]f the duty or activity [that] forms the basis of the suit 'is not imposed by law and depends upon the judgment or choice of the government entity or its employee[.]' " (Quoting Pratt v. Gulfport-Biloxi Reg'l Airport Auth. , 97 So.3d 68, 72 (¶ 9) (Miss. 2012) ). "[A]ll acts performed in furtherance of a discretionary function or duty are themselves entitled to immunity." Brantley , 152 So.3d at 1113 (¶ 22). In contrast, "[i]f the function is ministerial, rather than discretionary, there is no immunity for the acts performed in furtherance of the function." Little v. Miss. Dep't of Transp. , 129 So.3d 132, 136 (¶ 8) (Miss. 2013). "A ministerial function is one that is 'positively imposed by law.' " Id. (quoting Pratt , 97 So.3d at 72 (¶ 9) ). Notwithstanding the distinctions, "narrower duties encompassed in a broad discretionary function may be rendered ministerial through statute or regulation." Brantley, 152 So.3d at 1113 (¶ 22).

¶ 8. To determine whether the City's lawn maintenance at Pelican Landing is a ministerial or discretionary duty, we must apply the following test as set forth in Brantley :

The Court first must consider the broadest function involved in order to make a baseline determination of whether the overarching function is discretionary or ministerial. The Court then must examine any narrower duty associated with the activity at issue to determine whether a statute, regulation, or other binding directive renders that particular duty a ministerial one, notwithstanding that it may have been performed within the scope of a broader discretionary function.

Id. at 1115 (¶ 26).

¶ 9. Lowe asserts that lawn maintenance constitutes the broadest function involved here and the ownership, operation, and care of Pelican Landing, the narrower function. Lowe, however, confuses and inverts the two. In the instant case, the broadest function involved is the City's ownership and holding of Pelican Landing-the premises at issue. Mississippi Code Annotated section 21-17-1(1) (Rev. 2015) provides, in pertinent part, that "[e]very municipality ... shall have [the] power ... to purchase and hold real estate ... for all proper municipal purposes ...." Lowe argues that section 21-17-1, when read together with Mississippi Code Annotated sections 21-17-3 (Rev. 2015), 21-17-5 (Supp. 2016), and 21-37-3 (Rev. 2015), renders the care, management, and control of municipal property an affirmative ministerial duty to which immunity does not apply. This is incorrect. Section 21-17-1 empowers the City to purchase and hold real estate, such as Pelican Landing. It does not require the City to do so. Similarly, section 21-17-5 provides municipalities with general authority and jurisdiction in regard to the care, management, and control of their property. Section 21-17-3 instructs that municipalities must exercise their powers lawfully. None of the statutes cited by Lowe require or impose an affirmative duty on the City to purchase, maintain, care, or control the property. Rather, the statutes empower the City with the authority to do so. Thus, the overarching function-the City's ownership and holding of Pelican Landing-is a discretionary one.

¶ 10. Again, notwithstanding that the broader function is discretionary, the supreme court has explained that

while one statute may render a broad function ministerial, another statute or regulation may render a duty involved with that function discretionary, thus allowing the performance of such a duty to enjoy immunity. And clearly, the converse must be true, such that narrower duties encompassed in a broad discretionary function may be rendered ministerial through statute or regulation.

Miss. Transp. Comm'n v. Adams , 197 So.3d 406, 412 (¶ 14) (Miss. 2016) (quoting Brantley , 152 So.3d at 1113 (¶ 22) ).

¶ 11. Lowe does not cite, and this Court does not find, any statute, regulation, or other binding directive that imposes a duty on the City to maintain the grass, lawn, grounds, or premises of its properties. Where a duty is not imposed by law, it is discretionary. City of Natchez v. De La Barre , 145 So.3d 729, 732 (¶ 12) (Miss. Ct. App. 2014). Thus, the City's maintenance of its lawn at Pelican Landing-the narrower duty at issue-is a discretionary one. Curiously, Lowe admits as much in her brief before this Court: "To be sure, the decision ... of when and under what circumstances the [City] performs lawn maintenance at Pelican Landing is a discretionary function." Yet Lowe attempts to circumvent the outcome of Brantley 's application by asserting that lawn maintenance is the broad discretionary function, while the power to purchase, hold, care for, and control Pelican Landing as municipal property is a narrower ministerial duty. The categorization is illogical and lacks authoritative support.

¶ 12. Here, Lowe has wholly failed to meet the "burden of proving that the narrower function or duty at issue has lost its discretionary-function immunity[,]" ... as she has failed to show "that the [discretionary] act also furthered a more narrow function or duty that is made ministerial by another specific statute, ordinance, or regulation promulgated pursuant to lawful authority." Brantley , 152 So.3d at 1115 (¶ 28). Both the governmental function in this case and the activity at issue in furtherance of that function are discretionary, and accordingly, are entitled to immunity. Thus, summary judgment in favor of the City pursuant to section 11-46-9(d)(1) was proper. Because immunity has been established, it is unnecessary for us to address the parties' alternative arguments, which were, likewise, not relied upon or addressed by the trial court.

¶ 13. AFFIRMED.

IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, GREENLEE AND WESTBROOKS, JJ., CONCUR. WILSON, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.