Olivia Lyn Bean and Treshawn Daraie Davis v. Emily Pounds and Reid Pounds

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

y
NO. 2020 CU 1336

li OLIVIA LYN BEAN AND TRESHAWN DARAIE DAVIS

VERSUS

EMILY POUNDS AND REID POUNDS

Judgment Rendered: APR 1 6 2021

Appealed from the 22" d Judicial District Court
In and for the Parish of Washington
State of Louisiana
Suit No. 114862

The Honorable Mary C. Devereux, Judge Presiding

Patrick G. Murray Counsel for Plaintiffs/ Appellants
Bogalusa, Louisiana Olivia Lyn Bean and Treshawn
Daraie Davis

Mark James Counsel for Defendants/ Appellees
Franklinton, Louisiana Emily Pounds and Reid Pounds

BEFORE: GUIDRY, McCLENDON, AND LANIER, JJ.

LANIER, J.

Plaintiffs, Olivia Lyn Bean and Treshawn Daraie Davis, appeal a judgment

granting an exception of peremption filed by defendants, Emily and Reid Pounds.

For reasons that follow, we dismiss the appeal and issue this memorandum opinion

in compliance with Uniform Rules— Courts of Appeal, Rule 2- 16. 1B.

Plaintiffs are the biological parents of the minor child A.G.B., born on April

30, 2020. 1 According to the record, A.G.B. had been in the custody of defendants
since her birth. Plaintiffs had each executed a voluntary act of surrender for the

adoption of A.G.B. In July 2020, plaintiffs filed a petition seeking custody of

A.G.B. Adoption proceedings had not yet been initiated. On October 1, 2020,

defendants filed for an order of protection against Olivia. A temporary restraining

order was signed on October 8, 2020, ordering Olivia not to have any contact with

defendants or A.G.B. or to interfere in defendants' continued custody of A.G.B.

The order was effective through December 1, 2020.

Following a conference on October 6, 2020, a hearing officer recommended

that custody of A.G. B. be returned to plaintiffs as they indicated they no longer

agreed with the surrender or the adoption. Defendants filed an objection to the

hearing officer report, noting that A.G.B. would be in danger if placed in the

custody of her biological parents and that the application for adoption would be

filed.

Thereafter, defendants filed an application for court approval of adoptive

placement, which was set for hearing. This prompted a pleading by plaintiffs

entitled, " Natural Parents' Opposition to Adoption and Motion to Dissolve Acts of

Surrender." In response, defendants filed an exception raising the objection of

prescription, arguing that pursuant to La. Ch. Code art. 1148, no action to annul a

1 The initials of the minor child are used to protect and maintain the privacy of the minor child
involved in this proceeding. See Uniform Rules— Courts of Appeal, Rule 5- 1 and Rule 5- 2.

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surrender can be brought for any reason after ninety days from its execution.

Following a hearing on November 12, 2020, the district court rendered judgment

on December 2, 2020, as follows:

JUDGMENT OF THE COURT

The above captioned matter was before this Honorable Court ...
because of an exception of [ peremption] filed by the defendants,
Emily and Reid Pounds in response to the Plaintiffs Petition for
Custody filed on or about July 13, 2020. After both parties filed
motions with incorporated memorandum and opposition to the

exception filed by the Plaintiffs, arguments through counsel, this

Honorable Court orders the following:

IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the exception filed by the defendants as to
peremption] pursuant to Louisiana Civil Code of Procedure Article
927, Louisiana [ Civil Code] Article 3458 and Louisiana Children' s
Code [ A]rticle 1148, is granted.Any and all recommendations as to
the custody petition by the Plaintiffs shall have no effect as to the
Petitioners filing on or about July 13, 2020 especially the hearing
officer recommendation from October 16, 2020.

IT IS HEREBY ORDERED, ADJUDGED AND DECREED
that the minor child, [ A.G.B.] shall remain in the sole custody of
Emily and Reid Pounds until further order of this court or any court
with subject matter jurisdiction and venue.

ORDER

IT IS HEREBY ORDERED that the peremptory exception of
prescription be set for contradictory hearing on October 27, 2020 or
any other date set by this Honorable Court prior to any ruling of
custody, Petition to annul surrender of parental rights, or the adoption
in the above captioned matter.

IT IS HEREBY ORDERED that all matters in the above
captioned matter be reset until this peremptory exception of

prescription can be heard on the 14 day of January, 2021 @ 9: 30 AM.
Until the exception is heard, the minor child shall remain in the
custody and care of Reid and Emily Pounds who have cared for her
from birth until present, the only parents she knows.

Appellate courts have a duty to examine subject matter jurisdiction sua

sponte, even when the parties do not raise the issue. Advanced Leveling &

Concrete Solutions v. Lathan Co., Inc., 2017- 1250 ( La. App. 1 Cir. 12/ 20/ 18),

268 So. 3d 1044, 1046. Appeal is the exercise of the right of a party to have a

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judgment of a district court revised, modified, set aside, or reversed by an appellate
court. La. Code Civ. P. art. 2082. Louisiana Code of Civil Procedure article

2083( A) provides that a final judgment is appealable. A final judgment is one that

determines the merits in whole or in part. La. Code Civ. P. art. 1841.

A valid judgment must be precise, definite, and certain. Advanced

Leveling, 268 So. 3d at 1046. Moreover, a final, appealable judgment must contain

decretal language, and it must name the party in favor of whom the ruling is

ordered, the party against whom the ruling is ordered, and the relief that is granted

or denied. Id. Additionally, a final appealable judgment must contain appropriate

decretal language disposing of or dismissing claims in the case. Pickett v. Lauren

Engineers & Construction, Inc., 2019- 1585 ( La. App. 1 Cir. 12/ 30/ 20),

So. 3d . These determinations should be evident from the language of the

judgment without reference to other documents in the record. Laird v. St.

Tammany Parish Safe Harbor, 2002- 0045 ( La. App. 1 Cir. 12/ 20/ 02), 836 So. 2d

364, 366.

In this case, we find the December 2, 2020 judgment to be ambiguous as to

the specific relief granted. Although it seems that the defendants' peremption

exception is granted in one paragraph of the judgment, language that appears later

in the judgment inexplicably references resetting all matters in the case until the

peremptory exception of prescription can be heard on January 14, 2021.

Moreover, the judgment refers to extrinsic documents and, thus, the specific relief

granted is not determinable from the judgment. See Laird, 836 So. 2d at 366. We

further find that the judgment is defective and not a final judgment for the purpose

of an appeal because it does not contain appropriate decretal language dismissing

plaintiffs' opposition to the adoption and motion to dissolve the acts of surrender.

2 Although defendants' exception was pled as prescription, at the beginning of arguments before
the district court, counsel for defendants acknowledged that the applicable statutes actually
provided peremptive periods rather than prescriptive periods.

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In fact, regarding this lack of decretal language, we are further confused by the

judgment referencing defendants' peremption exception as being filed in response

to plaintiffs' petition for custody, when the record clearly discloses that the

exception was filed in response to plaintiffs' opposition to the adoption and motion

to dissolve the acts of surrender.

Thus, because the judgment lacks sufficient decretal language, ascertainable

from the four corners of the judgment, the ruling on which this appeal is based is

not a final, appealable judgment. In the absence of appropriate decretal language,

the judgment is defective and cannot be considered a final judgment for purposes

of appeal. Therefore, we are constrained to find that this court lacks appellate

jurisdiction to review this matter, and the appeal must be dismissed.' See

Advanced Leveling, 268 So. 3d at 1046- 1047.

CONCLUSION

For the above and foregoing reasons, we dismiss the appeal of the December

2, 2020 judgment. We decline to assess costs pending the rendition of a final

judgment.

APPEAL DISMISSED.

3 We recognize that this court has discretion to convert an appeal of a non -appealable judgment
to an application for supervisory writs. See Stelluto v. Stelluto, 2005- 0074 ( La. 6/ 29/ 05), 914
So. 2d 34, 39. Generally, appellate courts have exercised that discretion when the motion for
appeal was 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 where reversal of
the trial court's decision would terminate the litigation, or where clear error in the trial court' s
judgment, if not corrected, will create a grave injustice. Simon v. Ferguson, 2018- 0826 ( La.

App. 1 Cir. 2/ 28/ 19), 274 So. 3d 10, 14. Nonetheless, we note that an appellate court will
generally refrain from the exercise of its supervisory jurisdiction when an adequate remedy
exists by appeal, particularly when an adequate remedy by appeal will exist upon the entry of the
requisite precise, definite, and certain decretal language necessary for appellate review.
Accordingly, we decline to exercise our discretion to convert this appeal of a judgment that is not
final for lack of decretal language to an application for supervisory writs. See Boyd Louisiana
Racing, Inc. v. Bridges, 2015- 0393 ( La. App. 1 Cir. 12/ 23/ 15), 2015 WL 9435285, * 4
unpublished).

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