Minor Children v. Roman Catholic Church of the Archdiocese of New Orleans

MINOR CHILDREN * NO. 2024-CA-0006

VERSUS *
COURT OF APPEAL
ROMAN CATHOLIC CHURCH *
OF THE ARCHDIOCESE OF FOURTH CIRCUIT
NEW ORLEANS *
STATE OF LOUISIANA
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APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2022-07280, DIVISION “A”
Honorable Ellen M Hazeur, Judge
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Judge Paula A. Brown
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(Court composed of Judge Roland L. Belsome, Judge Paula A. Brown, Judge
Karen K. Herman)

Christopher Edmunds
CHRIS EDMUNDS LAW OFFICE, LLC
4937 Hearst Street
Suite 2F
Metairie, LA 70001

COUNSEL FOR PLAINTIFF/APPELLANT

Michael L. DeShazo
Christine W. Adams
DESHAZO ADAMS, LLC
1250 Poydras Street
Suite 2450
New Orleans, LA 70113

COUNSEL FOR DEFENDANT/APPELLEE

REHEARING GRANTED FOR CLARIFICATION;
RELIEF DENIED;
ORIGINAL OPINION
OF JULY 30, 2024
MAINTAINED
AUGUST 21, 2022

PAB
RLB
KKH

Appellants, E.R. and B.R. (collectively, the “Plaintiffs”), have applied to this

Court for rehearing of our July 30, 2024 opinion, which dismissed Plaintiffs’

appeal under the legal theory of judicial estoppel. We grant the rehearing for the

limited purpose of clarifying this Court’s opinion. In all other respects, the

application for rehearing is denied and our original judgment is maintained.

This appeal is solely related to the granting of the exception of nonjoinder.

Plaintiffs are acerbic in their contentions that this Court’s July 30, 2024 opinion

relied on “glaring factual mistakes” that are “demonstrably incorrect” regarding

E.R. and B.R.’s participation in the October 23, 2023 preliminary injunction

hearing and the relief afforded to each following that hearing.1 As this Court

outlined in its original opinion, on October 5, 2023, the district court rendered

judgment granting the Archdiocese’s peremptory exception of nonjoinder, which

was granted as to both Plaintiffs—E.R. and B.R. On November 3, 2023,2 counsel,

on behalf of both Plaintiffs, filed an appeal from the October 5, 2023 judgment.

1 This Court would caution counsel to be mindful of the Code of Professionalism, formulated by

the Louisiana State Bar Association and approved by the Louisiana Supreme Court, namely to
conduct oneself with dignity, civility and courtesy, and to refrain from engaging in any
demeaning or derogatory commentary.
2 Our original opinion dated this filing as November 10, 2023.

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Further, we were clear that in its November 6, 2023 judgment, issued after

Plaintiffs filed their appeal, the district court denied the Archdiocese’s renewed

exception of nonjoinder and granted in part the exception as to B.R., but denied it

as to E.R. Accordingly, the fact that in our original opinion we later referred to the

party as “Plaintiffs” rather than “Plaintiff” in relation to the preliminary injunction

is of no moment.3 It has no bearing on our determination that the Plaintiffs’ appeal

presently before us is ripe for dismissal.

Plaintiffs next contend that this Court erred in raising the legal theory of

judicial estoppel, sua sponte, because judicial estoppel is an affirmative defense

that must be raised by the party asserting that defense. We concede that judicial

estoppel is an affirmative defense that was not raised by the Archdiocese.

Nonetheless, after revisiting the record, we find that there is still a basis for

dismissal. First, based upon the line of jurisprudence we reviewed in our original

opinion, we maintain that the October 5, 2023 judgment is not a final appealable

judgment. Next, when the district court granted the Archdiocese’s exception of

nonjoinder and allowed Plaintiffs fifteen days in which to amend the petition to

cure any defects, Plaintiffs were faced with three choices: (1) do nothing and have

all claims dismissed pursuant to La. C.C.P. art. 934;4 (2) amend their petition to

cure the defect of nonjoinder and proceed with the litigation; or (3) apply to this
3 Similarly, our original opinion stated that Plaintiffs had fifteen days to submit affidavits to

authenticate documents rebutting the Archdiocese’s exception of nonjoinder. We note that the
exception was filed two days before the hearing on the exception. However, this discrepancy is
not determinative of any of the issues before us.
4 Louisiana Code of Civil Procedure Article 934 provides:

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.

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Court for a supervisory writ, which would stay the proceeding pending resolution

of the district court ruling, granting the exception of nonjoinder. Plaintiffs opted to

amend their petition rather than applying to this Court for supervisory writs.

Plaintiffs’ counsel made his intentions explicit to narrow the scope of

Plaintiffs’ petition to include only eight named schools that are directly controlled

by the Archdiocese. As we presented in our original opinion, Plaintiffs’

amendment 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.” Further, in their

memorandum in support of their renewed motion for preliminary injunction,

Plaintiffs 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.” 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.” Plaintiffs confirmed this position

to the district court at the second hearing on the exception of nonjoinder.

Specifically, the following exchange occurred between Plaintiffs’ counsel and the

district 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?

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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.’”

We find that it is procedurally impermissible to first comply with a district court’s

order to cure the defect in an exception of nonjoinder, and later challenge the

underlying judgment that allowed the amendment. These procedural steps taken

by Plaintiffs have left this Court without any justiciable controversy upon which to

rule. Our Supreme Court has “defined a justiciable controversy as ‘an existing

actual and substantial dispute.’” In re Cooperative Endeavor Agreement Between

42nd Judicial District District Attorney's Office and 42nd Judicial District Public

Defender's Office, 18-1644, p. 1 (La. 4/15/19), 267 So.3d 581, 583. Once Plaintiffs

chose to amend their petition and limited their complaint to include only eight

schools, no actual and substantial dispute exists as to the nonjoinder of necessary

parties. This appeal has been rendered moot. For these reasons, we maintain our

conclusion in our original opinion that dismissal is proper.

REHEARING GRANTED FOR CLARIFICATION;
RELIEF DENIED;
ORIGINAL OPINION
OF JULY 30, 2024
MAINTAINED

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