Cole v. Cole

• Decision Date: 21 September 2018
• Docket Number: NO. 2018 CU 0523,2018 CU 0523
• Citation: 264 So.3d 537
• Parties: Russell COLE and Kim Cole v. Allison COLE
• Court: Court of Appeal of Louisiana — District of US

264 So.3d 537

Russell COLE and Kim Cole

v.Allison COLE

NO. 2018 CU 0523

Court of Appeal of Louisiana, First Circuit.

Judgment rendered September 21, 2018

ANGELA COX WILLIAMS, JESMIN BASANTI FINLEY, SLIDELL, LA, ATTORNEYS FOR PLAINTIFFS-APPELLEES, RUSSELL COLE AND KIM COLE

RICHARD DUCOTE, COVINGTON, LA, ATTORNEYS FOR DEFENDANT-APPELLANT, ALLISON COLE

BEFORE: PETTIGREW, WELCH, AND CHUTZ, JJ.

PETTIGREW, J.

At the center of this dispute is a purported stipulated judgment ("the stipulated judgment") between Allison Cole, the widowed mother of two young daughters, and Russell and Kim Cole, her deceased husband's parents, allowing for grandparent visitation. Ms. Cole challenges the trial court's judgment sustaining the grandparents' exception raising the objection of no cause of action and dismissing, with prejudice, Ms. Cole's petition to annul the stipulated judgment. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

After the death of their son John Cole, Russell and Kim Cole filed a petition for visitation, alleging that Ms. Cole had refused to allow them to visit with their granddaughters. In response, Ms. Cole filed exceptions raising the objections of non-conformity, vagueness, and no cause of action. On the date the exceptions were set for hearing, Ms. Cole and the grandparents were all present and represented by counsel. After a conference in chambers, counsel for the grandparents advised the trial court that there was a "stipulation on all matters" that would "render the exceptions filed by [Ms.] Cole moot." At that time, the stipulation was read into the record by the grandparents' counsel, and all parties indicated their full understanding of the stipulation. However, when the trial court inquired as to the parties' understanding of the stipulation's binding effect on them, there is no indication that Ms. Cole expressed her acquiescence thereto. Rather, only the grandparents answered in the affirmative when the trial court asked, "Does everybody understand that?"

On March 14, 2017, the trial court signed the stipulated judgment, granting the grandparents specific periods of weekend, summer, and holiday visitation. The stipulated judgment further provided that Ms. Cole was precluded from scheduling any activities for the children during the grandparents' visitation. Moreover, while the stipulated judgment afforded the grandparents the option to call and/or text the children, it prohibited Ms. Cole from calling her children during the grandparents' visitation, absent an emergency.

Thereafter, Ms. Cole filed a petition to annul the stipulated judgment, alleging, among other things, that she never consented to the stipulated judgment and that her counsel intentionally and fraudulently misrepresented the nature of the proceedings to cover up her own negligence.¹ Ms. Cole acknowledged that she "very reluctantly accepted" the terms of the stipulated judgment, but that her agreement was not based on any valid consent. Rather, Ms. Cole asserted her consent was vitiated by error, fraud, and duress within the purview of La. Code Civ. P. arts. 2001 et seq. Ms. Cole further alleged that when the terms of the stipulated judgment were read into the record, she was told by her counsel that she had to say that she agreed.

In response thereto, the grandparents filed an exception raising the objection of no cause of action and a motion to strike, which were set for hearing. The grandparents argued there was no evidence of ill practice or fraud by Ms. Cole's counsel at the February 22, 2017 hearing² and that Ms. Cole's allegations of coercion were ludicrous and insufficient to rise to the level required to vitiate her consent based on duress, ill practices, or fraud. They maintained that Ms. Cole's petition contained no argument that gave rise to a cause of action to annul the March 14, 2017 stipulated judgment. Moreover, the grandparents alleged that Ms. Cole's statements in the petition concerning their deceased son were inflammatory, insulting, and untrue and should be stricken from the record. On November 15, 2017, the trial court issued detailed written reasons for judgment and signed a judgment sustaining the no cause of action exception and granting the motion to strike with respect to the allegations contained in Paragraph 5 of Ms. Cole's petition to annul. Ms. Cole's appeal of this judgment followed.

RULE TO SHOW CAUSE

(Assignments of Error A & C)

After Ms. Cole appealed, this court issued a rule to show cause order indicating the November 15, 2017 judgment appeared to lack appropriate decretal language. Ms. Cole responded by filing a motion to stay her appeal pending the remand of the matter to the trial court for the entry of an amended judgment. On May 29, 2018, this court denied the motion to stay appeal, indicating that it had already issued an interim order to the trial court. In said interim order issued on May 29, 2018, the matter was remanded to the trial court for the entry of an amended judgment, containing precise, definite, and certain language regarding the relief granted.

However, prior to this order being issued, the trial court signed an amended judgment on May 16, 2018, clarifying the court's rulings on the no cause of action exception and the motion to strike, and dismissing Ms. Cole's petition to annul for failure to state a cause of action. The appellate record herein was supplemented with the May 16, 2018 amended judgment on May 30, 2018. The November 15, 2017 judgment, as amended by the May 16, 2018 judgment, contains the appropriate decretal language to be a valid final judgment, i.e., it names the party in favor of whom the ruling is ordered, the party against whom the ruling is ordered, and the relief that is granted. See Jenkins v. Recovery Technology Investors, 2002-1788 (La. App. 1 Cir. 6/27/03), 858 So.2d 598, 600.

Because the November 15, 2017 judgment lacked decretal language actually dismissing Ms. Cole's petition for nullity, it was an interlocutory judgment. See State in Interest of J.C., 2016-0138 (La. App. 1 Cir. 6/3/16), 196 So.3d 102, 107. Accordingly, Ms. Cole's motion for appeal was premature since the trial court had not signed a final judgment at the time the motion was granted. See La. Code Civ. P. art. 1918(B). Any defect arising from a premature motion for appeal is cured, however, once a final judgment has been signed. Therefore, when the trial court signed a final judgment on May 16, 2018, which contained proper decretal language, the prematurity of her motion for appeal was cured. Overmier v. Traylor, 475 So.2d 1094, 1094-1095 (La. 1985) (per curiam) ("once the final judgment has been signed, any previously existing defect has been cured, and there is no useful purpose in dismissing an otherwise valid appeal"); Chauvin v. Chauvin, 2010-1055 (La. App. 1 Cir. 10/29/10), 49 So.3d 565, 568 n.1. Accordingly, we maintain the appeal. See Goux v. St. Tammany Parish Government, 2013- 1387 (La. App. 1 Cir. 10/24/14), 156 So.3d 714, 719-720, writ not considered, 2014- 2471 (La. 2/13/15), 158 So.3d 828.

NO CAUSE OF ACTION

(Assignments of Error B & D)

Ms. Cole assigns error to the trial court's judgment maintaining the grandparents' no cause of action exception. Ms. Cole argues further that the trial court erred in failing to allow her an opportunity to amend her petition to annul to attempt to state a cause of action pursuant to La. Code Civ. P. art. 934.

The function of an exception raising the objection of no cause of action is to test the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the pleading. Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1235 (La. 1993) ; Copeland v. Treasure Chest Casino, L.L.C., 2001-1122 (La. App. 1 Cir. 6/21/02), 822 So.2d 68, 70. All facts pled in the petition must be accepted as true. Rebardi v. Crewboats, Inc., 2004-0641 (La. App. 1 Cir. 2/11/05), 906 So.2d 455, 457. Furthermore, the facts shown in any documents annexed to the petition must also be accepted as true. B & C Elec., Inc. v. East Baton Rouge Parish School Bd., 2002-1578 (La. App. 1 Cir. 5/9/03), 849 So.2d 616, 619 ; see also La. Code Civ. P. art. 853 ("A copy of any written instrument that is an exhibit to a pleading is a part thereof."). The exception is triable on the face of the pleading, and for the purpose of determining the issues raised by the exception, the well-pleaded facts in the pleading must be accepted as true. Richardson v. Richardson, 2002-2415 (La. App. 1 Cir. 7/9/03), 859 So.2d 81, 86. Thus, the only issue at the trial of the exception is whether, on the face of the petition, the plaintiff is legally entitled to the relief sought. Perere v. Louisiana Television Broadcasting Corp., 97-2873 (La. App. 1 Cir. 11/6/98), 721 So.2d 1075, 1077.

The only documentary evidence that may be considered on an exception raising the objection of no cause of action is that which has been annexed to the petition, unless the evidence is admitted without objection to enlarge the petition.

Woodland Ridge Ass'n v. Cangelosi, 94-2604 (La. App. 1 Cir. 10/6/95), 671 So.2d 508, 511. In reviewing a trial court's ruling sustaining an exception raising the objection of no cause of action, the appellate court conducts a de novo review. The exception raises a question of law, and the trial court's decision is based only on the sufficiency of the petition. Fink v. Bryant, 2001-0987 (La. 11/28/01), 801 So.2d 346, 349 ; B & C Elec., Inc., 849 So.2d at 619. Simply stated, a petition should not be dismissed for failure to state a cause of action unless it appears beyond doubt that the plaintiff can prove no set of facts in support of any claim that would entitle him to relief. Every reasonable interpretation must be accorded the language of the petition in favor of maintaining its sufficiency and affording the plaintiff the opportunity to present evidence at trial. Richardson, 859 So.2d at 86. The question,...