Opinion
2021 CW 0907 2021 CW 0908
02-25-2022
JAYLYN MARIE BERTHELOT v. PATRICK JAMES HOPPE HENRY BERTHELOT, JR. v. JAYLYN BERTHELOT
Julie B. Distefano Counsel for Plaintiff/Appellant Jaylyn Marie Berthelot Shelley D. Moore, Burgundy C. Hammond Counsel for Plaintiff/Appellee Henry Berthelot, Jr.
NOT DESIGNATED FOR PUBLICATION
Appealed from the 18th Judicial District Court In and for the Parish of West Baton Rouge State of Louisiana Civil Suit No. 44, 311 c/w 46, 130 The Honorable J. Kevin Kimball, Judge Presiding
Julie B. Distefano Counsel for Plaintiff/Appellant Jaylyn Marie Berthelot
Shelley D. Moore, Burgundy C. Hammond Counsel for Plaintiff/Appellee Henry Berthelot, Jr.
BEFORE: McDONALD, LANIER, AND WOLFE, JJ.
LANIER, J.
The appellant, Jaylyn Marie Berthelot, appeals a judgment of the Eighteenth Judicial District Court in favor of the appellee, Henry Berthelot, Jr. For the following reasons, we convert the instant appeal to an application for supervisory writs, grant the writ, and affirm.
FACTS AND PROCEDURAL HISTORY
A petition to establish paternity, child custody, and child support was filed by Ms. Berthelot against Patrick James Hoppe on March 21, 2018 with regard to her minor child, born November 3, 2017. A hearing officer's findings of fact determined that Mr. Hoppe was the father of Ms. Berthelot's son. The parties stipulated to a visitation and custody schedule, with Ms. Berthelot designated as the domiciliary parent. Mr. Hoppe was also required to pay child support. The district court signed the hearing officer's recommendations, making them the judgment of the court, on November 7, 2018.
On July 22, 2020, Mr. Berthelot, Ms. Berthelot's father and her child's grandfather, filed a petition for grandparent visitation in a docket number separate from Ms. Berthelot's suit. Mr. Berthelot sought visitation rights with the child because he alleged that he had developed a "strong and continuous relationship" with the child since birth. Mr. Berthelot claimed that Ms. Berthelot disallowed visitation between him and the child after Mr. Berthelot ceased providing financial assistance to Ms. Berthelot. In the findings of fact by the district court's hearing officer dated August 10, 2020, it was stipulated by the parents that the child would "not be allowed to speak to or be in the presence of the child's maternal grandparents, Henry and Julie Berthelot. While signed by the hearing officer, this stipulation was not converted into a judgment by the district court.
On September 4, 2020, Ms. Berthelot filed peremptory exceptions of no cause of action, no right of action, nonjoinder of a party, and a dilatory exception of nonconformity of the petition. Ms. Berthelot asserted in her exceptions that Mr. Berthelot had not raised any extraordinary circumstances which would warrant the district court to grant him visitation, and therefore he had no cause of action to request visitation. Furthermore, Ms. Berthelot asserted that since both parents were awarded joint custody of the child, Mr. Berthelot had no right of action to request visitation.
On March 4, 2021, the parties agreed to consolidate both suits, but not for the purposes of trial. On March 10, 2021, the district court signed a judgment which denied Ms. Berthelot's exception of no cause of action. The district court further decreed that the judgment was designated as final. Ms. Berthelot has appealed this judgment.
DISCUSSION
Ms. Berthelot's sole assignment of error is that the district court committed an error of law when it denied her peremptory exception of no cause of action.
Initially we note that the judgment only denied the exception of no cause of action, and is silent as to all the other exceptions raised by Ms. Berthelot. The basis for the peremptory exception of nonjoinder of a party was that Mr. Berthelot failed to name Mr. Hoppe as a defendant in his petition. The basis for the dilatory exception of nonconformity of the petition was that it did not meet the legal requirements of La. C.C.P. arts. 863(A) and 891(A), in that counsel for Mr. Berthelot did not provide an address for receipt of service. In a supplemental and amended petition filed September 16, 2020, Mr. Berthelot named Mr. Hoppe as a defendant in his suit, and included the addresses of his legal counsel. Although the district court did not rule on these two exceptions, we now find these exceptions to be moot.
Leave to file same was granted on September 21, 2020.
As for the peremptory exception of no right of action, in what appears to be a typographical error on the judgment, the district court denied the peremptory exception of no cause of action twice. The district court also designated this judgment as final. In the transcript for the March 4, 2021 hearing on the exceptions, it appears as though the district court intended to deny the peremptory exceptions of no cause of action and peremptory exception of no right of action. The pre-trial order signed by the trial court on the same date also reflects that the exceptions of no cause of action and no right of action were denied. The court minutes for that date reflect that "the exceptions which were submitted on the pleadings" were denied. However, Ms. Berthelot has not raised the peremptory exception for no right of action as an assignment of error, nor has she argued it in her brief.
A judgment which denies a peremptory exception raising the objection of no cause of action is normally not appealable, unless expressly provided by law. La. C.C.P. art. 2083(C); CamSoft Data Systems, Inc. v. Southern Electronics Supply, Inc., 2015-1260 (La.App. 1 Cir. 9/23/15), 182 So.3d 1009. However, since the peremptory exception of no right of action has not been appealed, and since appellate courts disfavor piecemeal appeals, we will look to whether the instant appeal can be converted into a supervisory writ application. See R.J. Messinger, Inc. v. Rosenblum, 2004-1664 (La. 3/2/05), 894 So.2d 1113, 1119.
We also note that the judgment is improperly designated as final, since it does not satisfy La. C.C.P. art. 1915(A). See In re Succession of Scheuermann, 2015-0040 (La.App. 4 Cir. 5/22/15), 171 So.3d 975, 983. (Any partial judgment that does not dismiss a party and that is not expressly authorized by La. C.C.P. art. 1915 is interlocutory rather than final.)
The notice of judgment certifies that the judgment was mailed to all counsel of record on March 26, 2021. Mr. Berthelot filed the motion for appeal on April 13, 2021. Ms. Berthelot did not give notice to the court of intention to apply for supervisory writs pursuant to Uniform Rules-Courts of Appeal, Rule 4-2 and La. C.C.P. art. 1914; had she done so, the trial court would have been required to set a return date not to exceed thirty days from the date of notice, pursuant to Uniform Rules-Courts of Appeal, Rule 4-3. According to Rule 4-3 's revision comment, the "ruling at issue" pertaining to civil cases refers to any interlocutory judgment, order, or ruling of the trial court. Furthermore, the comment states that in the interests of judicial efficiency and fairness to the parties, an appellate court in its discretion may review an interlocutory judgment pursuant to its supervisory jurisdiction, and the thirty day period in no way affects an appellate court's ability to utilize its supervisory jurisdiction in such instances.
Since the motion for appeal was filed within thirty days of the notice of judgment, and since this court may for the sake of judicial efficiency and fairness exercise its supervisory jurisdiction in its own discretion, we elect to convert the instant appeal to an application for supervisory writs of review. See Stelluto v. Stelluto, 2005-0074 (La. 6/29/05), 914 So.2d 34, 39; Elee v. White, 2019-1633 (La.App. 1 Cir. 7/24/20), 2020 WL 4251974, *2 (unpublished opinion), writ denied, 2020-01048 (La. 11/10/20), 303 So.3d 1038.
The burden of demonstrating that the petition states no cause of action is upon the mover. Peremptory exceptions raising the objection of no cause of action present legal questions, which are reviewed using the de novo standard of review. The court reviews the petition and accepts well-pleaded allegations of fact as true. Didier v. Simmons, 2019-1100 (La.App. 1 Cir. 5/11/20), 312 So.3d 279, 281-82, writ denied, 2020-00700 (La. 9/29/20), 301 So.3d 1162.
Louisiana Civil Code article 136 states, in pertinent part:
B. In addition to the parents... the following persons may be granted visitation if the parents of the child are not married or cohabitating with a person in the manner of married persons or if the parents of the child have filed a petition for divorce:
(1) A grandparent if the court finds that it is in the best interest of the child.
In the petition for grandparent visitation, Mr. Berthelot alleged that Ms. Berthelot "is not acting in the best interest of the child as [her] sporadic decisions whether to allow the visitation results in the minor child's detriment as he is missing the genuine love, care, and guidance of his maternal grandfather."
The function of an exception 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). A cause of action is "an act by a defendant which gives a plaintiff a right to invoke judicial interference on his behalf." Id., at 1238, quoting Trahan v. Liberty Mutual Insurance Company, 314 So.2d 350, 353 (La. 1975). We find that Mr. Berthelot's assertion that Ms. Berthelot's cessation of the child's visitation with him is not in the child's best interest is contemplated by La. C.C. art. 136(B)(1), and therefore is a valid cause of action.
DECREE
For the above reasons, we convert the appeal to an application for supervisory writs, grant the writ, and affirm the judgment of the Eighteenth Judicial District Court, which denied the peremptory exception raising the objection of no cause of action filed by the appellant, Jaylyn Marie Berthelot. All costs of this appeal are assessed to the appellant.
APPEAL CONVERTED TO WRIT; WRIT GRANTED; JUDGMENT AFFIRMED.