Opinion
2024-CA-0006
07-30-2024
MINOR CHILDREN v. ROMAN CATHOLIC CHURCH OF THE ARCHDIOCESE OF NEW ORLEANS
Christopher Edmunds CHRIS EDMUNDS LAW OFFICE, LLC COUNSEL FOR PLAINTIFF/APPELLANT Michael L. DeShazo Christine W. Adams DESHAZO ADAMS, LLC COUNSEL FOR DEFENDANT/APPELLEE
APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2022-07280, DIVISION "A" Honorable Ellen M Hazeur, Judge
Christopher Edmunds CHRIS EDMUNDS LAW OFFICE, LLC COUNSEL FOR PLAINTIFF/APPELLANT
Michael L. DeShazo Christine W. Adams DESHAZO ADAMS, LLC COUNSEL FOR DEFENDANT/APPELLEE
Court composed of Judge Roland L. Belsome, Judge Paula A. Brown, Judge Karen K. Herman
Paula A. Brown Judge
This is a civil dispute involving allegations of discrimination. Appellants, E.R and B.R. (the "Plaintiffs"), seek to appeal the district court's October 5, 2023 judgment, which granted an exception of nonjoinder in favor of Appellee, Roman Catholic Church for the Archdiocese of New Orleans (the "Archdiocese"). The Archdiocese filed a motion to dismiss the instant appeal on the grounds that this Court lacks jurisdiction. For the reasons that follow, we dismiss the appeal upon a finding that the Plaintiffs are judicially estopped from bringing this appeal, and we deny the Archdiocese's motion to dismiss as moot.
In order to safeguard the anonymity of the minor children, we will use their initials throughout this opinion when referring to them individually.
RELEVANT FACTUAL AND PROCEDURAL HISTORY
On August 15, 2022, the Plaintiffs filed a class action petition for an injunction, seeking to enjoin the Archdiocese from including questions in its application process-whether orally or in writing-that require applicants to Catholic schools under its control to disclose disabilities that the applicants might have. The Archdiocese filed an exception of nonjoinder on September 19, 2023, arguing that Plaintiffs needed to name as defendants all the parish churches that operate schools in its territory because these churches are incorporated as separate legal entities under Louisiana law. The exception came for hearing on September 21, 2023. The Plaintiffs argued that they did not need to join all of the separate churches because they are wholly owned subsidiaries of the Archdiocese. In order to demonstrate this relationship, the Plaintiffs sought to enter into evidence articles of incorporation for several churches that it had obtained from the Louisiana Secretary of State's website. The district court excluded this evidence based on the premise that it had not been authenticated. On October 5, 2023, the district court signed a judgment, granting the Archdiocese's exception of nonjoinder, but gave the Plaintiffs fifteen days to amend their petition.
The notice of judgment was mailed on October 6, 2023.
On October 6, 2023, the Plaintiffs filed a third amended class action petition for injunction. The allegations were largely the same as the previous two petitions, including references to all "New Orleans-area Catholic schools" generally and the Archdiocese specifically; however, this petition included a footnote in which the Plaintiffs explained that "[t]his Third Amended Petition narrows the scope of relief sought to relief against only the named defendant, and such relief will not affect the interests of the allegedly separate apostolate churches." On the same day, the Plaintiffs filed a renewed motion for preliminary injunction. In their memorandum in support of that motion, the pleading included a section clarifying the scope of relief sought. It stated that "[t]o remove any doubt, the relief sought in this motion does not apply to the dozens of Catholic 'apostolate' schools that the Archdiocese indirectly controls, or 'religious order' schools." Also on October 6, 2023, the Archdiocese filed peremptory exceptions of no right of action and nonjoinder of parties. The exceptions of no right of action and nonjoinder and the petition for preliminary injunction all came for hearing on October 23, 2023. This time the district court, noting the narrowed scope of the Plaintiffs' amended petition, orally denied the exception of nonjoinder. The court issued a discrete written judgment on November 6, 2023, which granted in part the Archdiocese's exception of no right of action as to B.R., but denied it as to E.R, and denied the Archdiocese's exception of nonjoinder. In a separate judgment, signed on November 8, 2023, the district court granted the renewed motion for preliminary injunction in favor of E.R., but only as to the schools directly controlled by the Archdiocese as named in the third amended petition, and ordered that E.R. furnish security for the injunction in the amount of thirty thousand dollars ($30,000.00).
The memorandum also included a footnote to explain that "[t]he Archdiocese directly controls the following schools: Academy of Our Lady, Archbishop Chapelle, Archbishop Hannan, Archbishop Rummel, Archbishop Shaw, Pope John Paul II, St. Charles Catholic, St. Michael Special School, and St. Scholastica Academy."
That portion of the judgment granting in part and denying in part the exception of no right of action is subject to a separate appeal lodged with this Court as Case No. 2024-CA-0249.
The judgment specifies that the injunction does not apply to St. Michael Special School or the G.R.A.C.E. program at Archbishop Hannan High School-the school and the program were specifically created to accommodate the needs of students with disabilities.
On November 10, 2023, the Plaintiffs filed a motion for appeal, seeking to appeal the district court's October 5, 2023 judgment, granting the exception of nonjoinder. In opposition, the Archdiocese filed a motion to dismiss the appeal, alleging that this Court lacks jurisdiction to hear this appeal. Because we find that an examination of the procedural issues presented to us are dispositive of the case, we will begin by addressing the Archdiocese's motion to dismiss appeal.
Motion to Dismiss Appeal
In support of its motion to dismiss appeal, the Archdiocese avers that our jurisprudence dictates that the October 5, 2023 judgment, which granted the exception of nonjoinder and ordered that the Plaintiffs amend their petition is a non-appealable judgment.
Louisiana Code of Civil Procedure Article 927 provides that an exception of nonjoinder is peremptory in nature:
A. The objections that may be raised through the peremptory exception include but are not limited to the following:
(4) Nonjoinder of a party under Articles 641 and 642.
Louisiana Code of Civil Procedure article 641 provides:
A person shall be joined as a party in the action when either:
(1) In his absence complete relief cannot be accorded among those already parties.
(2) He claims an interest relating to the subject matter of the action and is so situated that the adjudication of the action in his absence may either:
(a) As a practical matter, impair or impede his ability to protect that interest.
(b) Leave any of the persons already parties subject to a substantial risk of incurring multiple or inconsistent obligations.Louisiana Code of Civil Procedure article 642 provides:
If a person described in Article 641 cannot be made a party, the court shall determine whether the action should proceed among the parties before it, or should be dismissed. The factors to be considered by the court include:
(1) To what extent a judgment rendered in the person's absence might be prejudicial to him or those already present.
(2) The extent to which the prejudice can be lessened or avoided by protective provisions in the judgment, by the shaping of relief, or by other measures.
(3) Whether a judgment rendered in the person's absence will be adequate.
(4) Whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.
Louisiana Code of Civil Procedure Article 934 explains the effect and procedure following a court's granting or sustaining of a peremptory exception:
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 raised
through the exception cannot be so removed, or if the plaintiff fails to comply with the order to amend, the action, claim, demand, issue, or theory shall be dismissed.
"This Court has long held that a judgment ordering a party to amend a pleading is not final or appealable, even where the judgment states that failure to amend shall result in the pleading's dismissal." Universal Servs. & Associates, LLC v. Grundmeyer, 23-0196, p. 3 (La.App. 4 Cir. 9/12/23), 372 So.3d 821, 824 (first citing Taylor v. Consol. Rail Corp., 391 So.2d 1351, 1352 (La.App. 4th Cir. 1980); then citing Coulon v. Gaylord Broadcasting, 408 So.2d 16, 17 (La.App. 4th Cir. 1981)). "Moreover, a judgment ordering amendment of a pleading 'is incapable of being designated as final pursuant to [La. C.C.P.] art. 1915(B) because it does not rule, in whole or in part, on the merits of the suit and is, at best, an interlocutory ruling.'" Id. at p. 4, 372 So.3d at 825 (quoting Hernandez v. Excel Contractors, Inc., 18-1091, p. 13 (La.App. 1 Cir. 3/13/19), 275 So.3d 278, 286-87).
The Plaintiffs cite to the opinion this Court rendered in Weeks, Kavanagh & Rendeiro v. Blake, for the proposition that '[a] judgment sustaining an exception is a final judgment." 02-0964, pp. 3-4 (La.App. 4 Cir. 8/14/02), 826 So.2d 577, 579). While it is true that, like the matter before us, the Weeks Court was considering an exception of nonjoinder, that judgment granting the exception did not include the order to amend the petition. As a result, the Weeks case is inapposite to the case sub judice and does not persuade us. We conclude that, consistent with our holding in Universal, the October 5, 2023 judgment is a non-appealable judgment.
Nevertheless, "[w]hen, as here, a non-appealable judgment is appealed, this [C]ourt has the discretion to convert the appeal to an application for supervisory writ." Chenet v. Colgate-Palmolive Co., 22-0666, p. 19 (La.App. 4 Cir. 2/1/23), 357 So.3d 479, 492 (quoting Forstall v. City of New Orleans, 17-0414, p. 5 (La.App. 4 Cir. 1/17/18), 238 So.3d 465, 469). However, this Court has consistently declined to exercise its jurisdiction unless each of two specific circumstances are met: (1) the motion for appeal has been filed within the thirty-day time period allowed for the filing of an application for supervisory writs under Rule 4-3 of the Uniform Rules, Courts of Appeal; and (2) when the circumstances indicate that an immediate decision of the issue sought to be appealed is necessary to ensure fundamental fairness and judicial efficiency, such as where reversal of the trial court's decision would terminate the litigation. See, e.g. Reed v. 21st Century Centennial Ins. Co., 18-1071, p. 2 (La.App. 4 Cir. 4/17/19), 268 So.3d 1273, 1275; Petkovich v. Franklin Homes, Inc., 21-0448, p. 21 (La.App. 4 Cir. 9/22/22), 349 So.3d 1042, 1058.
Rule 4-3 of the Uniform Rules-Courts of Appeal provides, in pertinent part:
The judge who has been given notice of intention as provided by Rule 4-2 shall immediately set a reasonable return date within which the application shall be filed in the Court of Appeal. The return date in civil cases shall not exceed 30 days from the date of notice of the judgment, as provided in La. C.C.P. art. 1914.
While, at first blush, it appears that this non-appealable judgment could be converted to a writ, considering the procedural posture of this case and based upon the following discussion, we find that the Plaintiffs' claims are subject to judicial estoppel; therefore, we are constrained from considering the merits of the matter before us either as an appeal or as a supervisory writ.
Judicial Estoppel
We find persuasive the case of Gonsoulin v. Broussard, 22-202 (La.App. 3 Cir. 12/14/22), 353 So.3d 1044. In that case the plaintiff-landowners brought a boundary action against their neighbor, alleging that the defendant-neighbor encroached on their property when he erected a fence. The plaintiffs later amended their petition to claim damages and filed a motion for a preliminary injunction to prohibit the defendants from encroaching on the property during the pendency of the proceedings. The defendants filed a peremptory exception of nonjoinder, alleging that numerous parties claiming an ownership interest in the property should be added either as plaintiffs or made defendants in the proceedings for a complete adjudication of the cause of action. At the hearing on the exception and the injunction, the plaintiffs informed the court that they intended to amend their original boundary action to a petitory action and that if they did so, the issue of non-joinder would become moot. The district court agreed and gave the plaintiffs thirty days to amend, which they timely did.
Louisiana Code of Civil Procedure article 3651 defines a petitory action:
The petitory action is one brought by a person who claims the ownership of, but who does not have the right to possess, immovable property or a real right therein, against another who is in possession or who claims the ownership thereof adversely, to obtain judgment recognizing the plaintiff's ownership.
Following, the matter went to trial. The district court ruled in favor of the defendants, finding that the defendants had acquired the property in dispute by thirty years' acquisitive prescription. The plaintiffs then appealed this decision based upon the nonjoinder of the parties claiming an ownership interest in the property. In their brief to the appellate court, the defendants pointed to the Louisiana Supreme Court's application of the common law doctrine of judicial estoppel in Webb v. Webb, 18-0320 (La. 12/5/18), 263 So.3d 321. "Therein, the Supreme Court explained that 'judicial estoppel [is] an equitable doctrine designed to protect the integrity of the judicial process by prohibiting parties from deliberately changing positions according to the exigencies of the moment.'" Gonsoulin, 22-202, p. 6, 353 So.3d at 1047 (quoting Webb at p. 9, 263 So.3d at 328. In deciding whether the doctrine of judicial estoppel applies, we must consider whether: "(1) the party against whom judicial estoppel is sought has asserted a legal position that is plainly inconsistent with a prior position; (2) a court accepted the prior position; and (3) the party did not act inadvertently." Id. (quoting Hawkins v. Meridian Res. & Expl. LLC, 16-1545, p. 11 (La.App. 1 Cir. 12/6/17), 236 So.3d 610, 618). The appellate court agreed and affirmed the district court's judgment.
Louisiana Code of Civil Procedure article 742 sets forth the requirements for acquisitive prescription, and provides:
The laws governing acquisitive prescription of immovable property apply to apparent servitudes. An apparent servitude may be acquired by peaceable and uninterrupted possession of the right for ten years in good faith and by just title; it may also be acquired by uninterrupted possession for thirty years without title or good faith.
As we previously noted, after the initial hearing on the exception of nonjoinder the Plaintiffs amended their petition to narrow the scope of relief sought to include only those schools directly controlled by the Archdiocese. They confirmed this position to the district court at the second hearing on the exception. Specifically, the following exchange occurred between the Plaintiffs' counsel and the district court:
The October 23, 2023 hearing transcript does not appear in the record of this case; however, it appears in a companion appeal lodged with this Court as Case No. 2024-CA-0008. Pursuant to Uniform Rules, Louisiana Court of Appeal, Rule 2-1.14, we are able use any record lodged with this Court.
COUNSEL: So we are absolutely, crystal clear, that we're not seeked [sic] today seeking to litigate the conduct of any school, other than the ones controlled by the Archdiocese.
THE COURT: So you want your Preliminary Injunction only to apply to the eight schools that are directly controlled by the Archdiocese; is that correct?
COUNSEL: Yes, Judge. And we make that clear in our renewed Motion. There's a provision that says that the scope of review, and it is at Page - legal standard, scope of review sought, Page 4, "To remove any doubt, the release [sic] sought on this Motion does not apply to the dozens of catholic, Apostolic schools that the Archdiocese indirectly controls or religious order schools, nor should this Motion should be interpreted to imply the communications in which, 'disability related discussions are initiated by parent.'"
The district court accepted this changed position and, accordingly, denied the Archdiocese's exception of nonjoinder. Our review of the record as a whole leads us to the conclusion that the Plaintiffs did not take this new position inadvertently-they carefully spelled out the intent of their amendment, both in their pleadings and at the hearing. Based upon this change in scope, the district court also granted the Plaintiffs' motion for preliminary injunction.
Now, in this appeal the Plaintiffs seek review of the district court's evidentiary rulings in the September 21, 2023 hearing. They allege that because of the fifteen-day time limit within which to amend their petition they did not have time to submit affidavits to authenticate their exhibits and rebut the exception. Additionally, the Plaintiffs argue that nonjoinder is inapplicable since complete relief can be accorded among the parties because the Archdiocese has complete control over all of the Catholic churches in its territory as a matter of both Louisiana corporate law and Canon law. We find this position to be inconsistent with the stance adopted by the Plaintiffs in their third amended petition. Moreover, as we just noted, the Plaintiffs received the added benefit of the granting of the preliminary injunction in their favor.
We find that this appeal is not a final, appealable judgment and that exercising our discretion to convert this appeal to a writ application for supervisory review would be procedurally improper when we apply the reasoning set forth in Gonsoulin. Rather than seeking supervisory review of the sustaining of the exception and exclusion of evidence or seeking an extension of time to amend their petition, the Plaintiffs chose instead to proceed with amending their petition. Following, they then participated in a subsequent hearing where they confirmed their new position. We find that all of the factors for judicial estoppel laid out by the court in Webb have been met. Accordingly, Plaintiffs are barred from bringing the claims they have asserted in the case sub judice.
DECREE
For the foregoing reasons, we dismiss this appeal and deny the Archdiocese's motion to dismiss as moot.
APPEAL DISMISSED MOTION TO DISMISS DENIED AS MOOT
BELSOME, J., CONCURS WITH REASONS.
I write to emphasize that this opinion is limited to claims made against the eight high schools owned and operated by defendant, Roman Catholic Church of the Archdiocese of New Orleans. All other schools named in the original and amended petitions were voluntarily dismissed by plaintiffs' Third Amended Class Action Petition for Injunction filed on October 6, 2023. The schools affected are: Academy of Our Lady High School; Archbishop Chapelle High School; Archbishop Hannan High School; Archbishop Rummel High School; Archbishop Shaw High School; Pope John Paul II High School; St. Charles Catholic High School; St. Scholastica Academy; and St. Michael Special School.