A.M.C. v. James D. Caldwell

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 17-628

A.M.C., ET AL.

VERSUS

JAMES D. CALDWELL, ET AL.

**********

APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. A-20130052
HONORABLE EDWARD D. RUBIN, DISTRICT JUDGE

**********

BILLY HOWARD EZELL
JUDGE

**********

Court composed of Billy Howard Ezell, Van H. Kyzar, and Candyce G. Perret,
Judges.

JULY 10, 2015 JUDGMENT VACATED AND SET ASIDE; JULY 25, 2016
JUDGMENT VACATED AND SET ASIDE; EXCEPTION OF RES
JUDICATA SUSTAINED; EXCEPTION OF NO CAUSE OF ACTION
SUSTAINED.

Patricia Hill Wilton
Assistant Attorney General
Jessica Thornhill
Assistant Attorney General
P. O. Box 94005
Baton Rouge, LA 70804-9005
(225) 326-6300
COUNSEL FOR DEFENDANTS/APPELLANTS:
Devin George, Registrar of Vital Records
Tim Barfield, Sec of State, Dept of Revenue
James D. “Buddy” Caldwell, former La. Atty General

Stuart Kyle Duncan
Special Assistant Attorney General
1629 K Street NW, #300
Washington, DC 20006
(202) 508-1473
COUNSEL FOR DEFENDANTS/APPELLANTS:
Tim Barfield, Secretary of State, Department of Revenue
Devin George, Registrar of Vital Records
James D. “Buddy” Caldwell, former Louisiana Attorney General

Jeffrey K. Coreil
Jennie P. Pellegrin
Carolyn C. Cole
NeunerPate
P. O. Drawer 52828
Lafayette, LA 70505
(337) 237-7000
COUNSEL FOR DEFENDANTS/APPELLANTS:
Tim Barfield, Secretary of State, Department of Revenue
Devin George, Registrar of Vital Records
James D. “Buddy” Caldwell, former Louisiana Attorney General

Paul R. Baier
4222 Hyacinth Ave.
Baton Rouge, LA 70808
(225) 364-4647
COUNSEL FOR PLAINTIFFS/APPELLEES:
C.S.B.
A.M.C.

Joshua S. Guillory
317 E. University Ave.
Lafayette, LA 70503
(337) 233-1303
COUNSEL FOR PLAINTIFFS/APPELLEES:
A.M.C.
C.S.B.

EZELL, Judge.

The essential issue in this same-sex marriage, intrafamily adoption case is

whether attorney fees and costs were properly awarded following remand of the

case to the district court from the supreme court. The Defendants filed an appeal

from a judgment of the district court denying their motions to annul judgments

rendered on July 10, 2015, and July 25, 2016. They ask for a reversal of the award

of attorney fees and costs granted to the Plaintiffs, or in the alternative, an

adjustment of the amounts awarded. Lastly, the Defendants claim that the district

court erred in failing to grant the Attorney General’s exception of no cause of

action.

FACTS

C.S.B. gave birth to a son, N.B., on August 1, 2004.1 A.M.C. and C.S.B., a

same-sex couple, were lawfully married in Los Angeles, California on August 8,

2008. On July 12, 2013, the Plaintiffs filed a petition for intrafamily adoption

asking that the child’s stepmother, A.M.C., be allowed to adopt N.B. The

Plaintiffs filed an amending petition asking that the Louisiana Attorney General be

served with the amending petition so that they can have due process and their

marriage be afforded full faith and credit. This was based on the fact that the

Attorney General issued an advisory opinion that Louisiana was not required to

recognize an adoption by a same-sex couple who were married in a state that

recognizes same-sex marriage.

The district court entered a judgment on January 27, 2014, granting the

adoption. The Attorney General filed a suspensive appeal to this court. This court

found that the district court erred in holding a hearing on the matter without

1
Pursuant to Uniform Rules—Courts of Appeal, Rules 5–1 and 5–2, the initials of the
parties will be used to protect and maintain the privacy of the minor child involved in this
proceeding.

notifying the Attorney General, since the Attorney General made an appearance in

the case and requested notice. In re Adoption of N.B., 14-314 (La.App. 3 Cir.

6/11/14), 140 So.3d 1263. This court vacated the judgment of adoption and

remanded the case to the district court for a hearing on all issues raised by the

parties.

Following remand, the Plaintiffs added the Attorney General, the Governor,

the Secretary of the State of Louisiana Department of Revenue, and the Louisiana

State Registrar as defendants in supplemental and amending petitions. In their

second supplemental and amending petition, the Plaintiffs added a claim that the

Defendants violated their civil rights pursuant to 42 U.S.C. § 1983.

The Attorney General and the Governor filed an exception of no cause of

action. The parties also filed cross motions for summary judgment. A hearing on

these matters was held on September 15, 2014. The district court granted the

Governor’s exception of no cause of action but denied the Attorney General’s

exception of no cause of action. The district court also denied the Defendants’

motion for summary judgment. In granting the Plaintiffs’ motion for summary

judgment, the district court declared Louisiana Constitution Article XII, § 15, the

Defense of Marriage Act, and La.Civ.Code arts. 86, 89, and 3520(B)

unconstitutional, finding these laws violated the Due Process and Equal Protection

Clauses of U.S. Const. amend. XIV and the Full Faith and Credit provision found

in U.S. Const. art. IV, § 1. The district court further ruled that Louisiana’s

Revenue Bulletin No. 13-024 (9/13/13) was unconstitutional and ordered the

Secretary of the Department of Revenue to allow the Plaintiffs to file their state tax

returns as a couple whose marriage is valid and recognized in Louisiana.

Additionally, Louisiana was ordered to recognize the Plaintiffs’ marriage, validly

2

contracted in California, as lawful in this state. Judgment was signed on

September 24, 2014.

Another judgment was also signed on September 24, 2014, reaffirming its

previous judgment of intrafamily adoption. The district court ordered the Registrar

of Vital Records to issue a new birth certificate listing A.M.C. as N.B.’s mother.

The Defendants, except for the Governor who was dismissed on the exception of

no cause of action, filed a suspensive appeal of both judgments to the supreme

court.

After the appeal, the United States Supreme Court issued its opinion in

Obergefell v. Hodges, ___ U.S. ___, 135 S.Ct. 2584 (2015), which held that same-

sex couples may not be deprived of the fundamental right to marry under the Due

Process and Equal Protection Clauses of the United States Constitution. U.S.

Const. amend. XIV. The Supreme Court further held that states must recognize

lawful same-sex marriages performed in other states.

Subsequently, the federal district court in Robicheaux v. Caldwell, 791 F.3d

616 (5th Cir. 2015), held that La.Const. art. XII, § 15 and La.Civ.Code arts. 89 and

3520(B) were in violation of U.S. Const. amend XIV, and enjoined the State of

Louisiana and its officials from enforcing those provisions as well as Louisiana’s

Revenue Information Bulletin No. 13-024.

Following these rulings, the supreme court ruled that the Plaintiffs in the

present case had received all the relief they requested in their motion for summary

judgment and dismissed the Defendants’ appeal as moot. A.M.C. v. Caldwell, 14-

2090 (La. 7/7/15), 167 So.3d 619. The case was remanded to the district court for

further proceedings.

After remand, the Plaintiffs presented a judgment to the district court which

reaffirmed the September 2014 judgment of the district court and once again
3

reiterated the provisions from the two previous judgments. However, this

judgment also awarded costs, expenses, and reasonable attorney fees pursuant to

42 U.S.C. § 1988, as prayed for by the Plaintiffs in their second supplemental and

amending petition and requested in their motion for summary judgment. A hearing

on the amount of attorney fees to be awarded was set for August 3, 2015. The

Defendants objected to this judgment, which was signed on July 10, 2015. The

Defendants then filed a motion to annul and vacate the July 10, 2015 judgment or,

in the alternative, for a new trial. The Plaintiffs filed a motion for attorney fees

and costs on July 22, 2015, attaching affidavits from their two attorneys regarding

their time spent on the case.

A hearing on these matters was held on May 9, 2016 before a pro tem judge.

Following the hearing, the pro tem judge entered a written “Minute Entry” into the

record. He signed the minute entry on May 19, 2016, which was served on all

counsel of record. The pro tem judge denied Plaintiffs’ request for attorney fees

and costs. The pro tem judge affirmed the remainder of the July 10, 2015

judgment.

On May 25, 2016, the district judge originally assigned to the case signed a

judgment dismissing Plaintiffs’ claims in their motion for summary judgment as

moot following the dictates of the supreme court. He also reinstated the previous

order of September 24, 2014, granting the intrafamily adoption. The district judge

then ordered that the parties file contradictory motions regarding costs, expenses,

and attorney fees.

The Plaintiffs filed a motion to amend this judgment on June 7, 2016. The

district court then entered judgment on July 25, 2016, denying Plaintiffs’ request

for attorney fees and costs pursuant to the minute entry of the pro tem judge and

vacated the judgment rendered on May 25, 2016. On July 26, 2016, Plaintiffs filed
4

a motion for new trial. Defendants filed a petition to annul and vacate the July 25,

2016 judgment or, in the alternative, for a new trial.

On March 20, 2017, the district court held a hearing on both of Defendants’

motions to annul and vacate or for a new trial of the July 10, 2015 and July 25,

2016 judgments. The court also considered Plaintiffs’ motion for attorney fees and

costs. The district court denied both of Defendants’ motions and granted

Plaintiffs’ motion. Defendants were ordered to pay attorney fees to Paul Baier in

the amount of $51,790.30 and to Joshua Guillory in the amount of $61,357.61.

Defendants were also cast with all court costs. It is from this judgment that

Defendants filed the present appeal.

JURISDICTION

Defendants claim that the district court lacked jurisdiction to rule on

Plaintiffs’ claims for declaratory and injunctive relief and for a violation of 42

U.S.C. § 1983, including an action for attorney fees and costs pursuant to 42 U.S.C.

§ 1988. Defendants claim that the district court had jurisdiction over the adoption

proceeding only and any judgment over any other non-juvenile matter was null and

void and should be vacated.

Pursuant to La.Const. art. V, § 16(A), original jurisdiction of all civil and

criminal matters is vested in district courts. As noted by the supreme court in

footnote 9 in Pope v. State, 99-2559, p. 6 (La. 6/29/01), 792 So.2d 713, 717,

“district courts have either exclusive or concurrent original jurisdiction in any civil

or criminal matter, except when the Constitution itself vests jurisdiction in another

tribunal.” There is constitutional authority for the legislature to divest the district

courts of original jurisdiction and provide for jurisdiction in juvenile and family

courts. La.Const. art. V, § 18; Pope, 792 So.2d 713; McCann v. McCann, 11-2434

(La. 5/8/12), 93 So.3d 544.
5

In the present case, the legislature has not acted to vest original jurisdiction

in a juvenile court in Lafayette Parish. Pursuant to La.Ch.Code art. 302(2), the

district court in Lafayette Parish still has original juvenile jurisdiction and the

authority to hear adoption proceedings pursuant to La.Ch.Code art. 303(A)(7).

Defendants argue that specialized juvenile courts, as courts of limited

jurisdiction, lack authority to decide other claims for relief such as the claims

asserted by Plaintiffs for attorney fees and costs pursuant to their 42 U.S.C. § 1983

action. They claim that La.Dist.Ct.R. 40.2 and existing jurisprudence limit a

district court’s jurisdiction to concurrently decide anything other than Plaintiffs’

adoption request. However, what Defendants fail to appreciate is that the district

court is not a court of limited jurisdiction but a court with “broad jurisdiction in all

matters.” Welborn v. 19th Judicial Dist. Court, 07-1087, 07-1202, p. 11 (La.

1/16/08), 974 So.2d 1, 8.

We recognize that Pierre v. Pierre, 04-1496 (La.App. 1 Cir. 12/30/04), 898

So.2d 419, held that a district court sitting as a district court cannot entertain

jurisdiction of cases cognizable only in the juvenile court, even though there is no

separate juvenile court. However, that case relied on State v. Laborde, 233 La. 556,

97 So.2d 393 (1957), cited by the Defendants, which relied on La.R.S. 13:1561-

13:1592, which was repealed by Acts 1978, No. 172, effective January 1, 1979,

when the Code of Juvenile Procedure was adopted. Prior law provided:

By Act 82 of 1950 the Legislature substituted a new Chapter 6
of Title 13 of the Revised Statutes (R.S. 13:1561—1592) reenacting a
general law governing all juvenile courts in the State. That law
provides that, when the district judge is serving as judge of the
Juvenile Court for any parish in his district, he shall be known as the
judge of the Juvenile Court of such parish and all official acts
performed by him shall be acts of the Juvenile Court of such parish
(see R.S. 13:1562); that said juvenile courts shall be in continuous
session and “All sessions of said courts shall be held separate and
apart from the sessions of all other courts * * *” (see R.S. 13:1584);
that the court shall make and keep records of all cases brought before
6

it (see R.S. 13:1586) and that the judge of the court may employ such
stenographic, secretarial and other personnel as may be deemed
necessary to make the functions of the court effective and provide
adequate services (see R.S. 13:1587).

Thus it is seen that, although the judge of the district court is
ex-officio judge of the juvenile court, the court itself is distinct and
functions separately and apart from the district court. Accordingly,
when he is sitting as a district judge in sessions of the district court,
the judge cannot entertain jurisdiction of cases cognizable in the
juvenile court. State v. Kiffe, 210 La. 863, 28 So.2d 459. See State v.
Hilaire, 216 La. 972, 45 So.2d 360 and compare State v. Tanner, 224
La. 374, 69 So.2d 505.

Laborde, 97 So.2d at 395-96 (alteration in original). No similar provision was

adopted in the Code of Juvenile Procedure. Therefore, Pierre, 898 So.2d 419,

relies on law that was outdated.

A district court has juvenile jurisdiction unless the legislature divests it of

such. By creating specialized juvenile and family courts in some parishes, the

legislature has not limited the jurisdiction of district courts in other parishes where

there are no specialized juvenile and family courts. Furthermore, there is no statute

which limits jurisdiction of district courts to decide other matters between the

parties before it when acting as a juvenile court. We find that the district court had

jurisdiction to decide both the adoption matter and the constitutionality claims.

JULY 25, 2016 JUDGMENT

Defendants argue that it was procedurally improper for the district court to

enter the July 25, 2016 judgment, which vacated the May 25, 2016 judgment, and

therefore, it should be annulled or vacated. Defendants claim that the Plaintiffs did

not file a petition for nullity, a motion for new trial, or an appeal challenging the

judgment, but simply filed a motion to amend the judgment. On the other hand,

Plaintiffs claim that even though their petition was styled as a motion to amend, it

should be treated as a motion for new trial because the substance of the motion

itself was to ask for a new trial.
7

The May 25, 2016 judgment contained the following language:

Plaintiffs’ motion to amend asked the court to amend the judgment for the

specific and limited purposes of:

(1) clarifying the following excerpt found on page 4 of the judgment
in order to resolve the parties’ uncertainty about which provision(s) of
the judgment to which the word “MOOT” applies and the meaning
and/or effect thereof; and (2) recognizing that the Petitioners’ Motion
for Attorneys’ Fees and Costs on Remand from the Louisiana
Supreme Court No. 20154-CA-2009 (July 7, 2015) was heard by
Judge Cox on May 9, 2016 but the disposition of which remains to be
received[.]

The hearing on the motion to amend indicates that Defendants were

presented with the July 25, 2016 judgment at the hearing. The proposed judgment

was not circulated prior to the hearing. The district court then signed the July 25,

2016 judgment, which provided:

8

“Substantive amendments to judgments can be made only by consent of the

parties or after a party has successfully litigated a timely application for new trial,

an action for nullity, or a timely appeal.” Greene v. Succession of Alvarado, 15-

1960, p. 29 (La.App. 1 Cir. 12/27/16), 210 So.3d 321, 339. “Otherwise, a trial

court lacks authority to make any modifications of substance to a final judgment.”

Id. “When the substance of a judgment has been improperly amended, the

amending judgment is annulled and set aside, and the original judgment is

reinstated.” Id.

“[T]he characterization of a pleading by the litigant is not controlling.” Id.

“Courts should look through the caption of pleadings in order to ascertain their

substance and to do substantial justice to the parties.” Id.; La.Code Civ.P. art. 865.

“A pleading is considered a motion for new trial if it requests a substantive

modification of the judgment and is filed within the delays applicable to a motion

for new trial.” Greene, 210 So.3d at 339.

9

In Denton v. State Farm Mutual Automobile Insurance Co., 08-483, p. 7 (La.

12/12/08), 998 So.2d 48, 53, the supreme court observed that “there is no specific

grant of statutory authority for a trial court to clarify substantive provisions of a

final judgment.” The supreme court then went on to state that a motion for new

trial would be an appropriate motion to ask for clarification of judgment.

We find that the substance of Plaintiffs’ motion was a motion for new trial.

Defendants argue that if the motion is considered a motion for new trial, the

procedural requirements were not met. Specifically, Defendants claim that there

was no hearing on a motion for new trial as the judgment was signed in the

absence of any contradictory hearing.

“When a new trial is granted, it shall be assigned for hearing in accordance

with the rules and practice of the court.” La.Code Civ.P. art. 1977; Eagle Pacific

Ins. Co. v. Sunbelt Innovative Plastics, Inc., 05-270 (La.App. 5 Cir. 11/29/05), 917

So.2d 1178.

At the hearing on the motion to amend the judgment, the district court was

presented with a judgment signed by the Plaintiffs. Defendants objected, having

never received notice of the judgment. No hearing regarding Plaintiffs’ motion

was held.

We find no hearing was held on the new trial itself. The district court erred

in signing the July 25, 2016 judgment without argument. Therefore, we vacate and

set aside the July 25, 2016 judgment.

JULY 10, 2015 JUDGMENT

Defendants claim that the July 10, 2015 judgment should be annulled

because it was unnecessary for Plaintiffs to submit another judgment on remand.

They received the relief they requested when the supreme court dismissed

Defendants’ appeal as moot. Defendants further argue that any judgment rendered
10

subsequent to the supreme court’s ruling should not have included an award for

attorney fees and costs because the September 24, 2014 judgment granting

Plaintiffs’ motion for summary judgment awarded no such relief.

Plaintiffs’ second supplemental and amending petition added a claim for

violation of 42 U.S.C. § 1983 and requested attorney fees and costs pursuant to 42

U.S.C. § 1988. Plaintiffs’ motion filed on August 4, 2015, requested summary

judgment on all issues in addition to specifically requesting attorney fees and costs.

Plaintiffs’ memorandum in support of their motion for summary judgment claimed

that Defendants were in violation of 42 U.S.C. § 1983 and that they were entitled

to attorney fees and costs pursuant to 42 U.S.C. § 1988. The Secretary of the

Department of Revenue and the Louisiana State Registrar also sought summary

judgment, upholding the constitutionality of Louisiana’s laws. A judgment was

signed by the district court on September 24, 2014, granting Plaintiffs’ motion for

summary judgment and denying Defendants’ motion for summary judgment. The

district court specifically declared La.Const. art. XII, § 15 and La.Civ.Code arts. 86,

89, and 3520(B) unconstitutional. The judgment further enjoined the State of

Louisiana from enforcing these laws insofar as they prohibited a person from

marrying a person of the same sex. The judgment also declared Louisiana’s

Revenue Bulletin No. 13-024 unconstitutional and ordered the Secretary of the

Department of Revenue to allow Plaintiffs to file their state tax returns as a couple

whose marriage is valid and recognized in the State of Louisiana. The judgment

further ordered the State of Louisiana to recognize that Plaintiffs’ marriage was

validly contracted in California and entitled to full faith and credit. No mention of

attorney fees was made at the hearing, and the judgment made no mention of

attorney fees.

11

In Ken Lawler Builders, Inc. v. Delaney, 36,865 (La.App. 2 Cir. 3/5/03), 840

So.2d 672, the second circuit was presented with a case concerning very similar

circumstances. A property owner filed suit against lessees to recover rents, costs,

interest, and attorney fees due to repudiation of a lease. The property owner

moved for summary judgment, which was granted by the trial court. Although the

property owners sought attorney fees in its petition, the judgment did not award or

mention attorney fees. While an appeal on the grant of summary judgment was

pending, the property owner filed a motion for attorney fees. Defendants filed a

motion to dismiss, claiming that the appeal divested the trial court of jurisdiction.

The trial court denied the motion and awarded attorney fees.

The second circuit recognized that “[s]ummary judgment is a definitive

judgment and will support plea of res judicata.” Id. at 674. “When a court renders

a judgment that decides the merits of the case in whole or in part, the judgment is a

final judgment.” Id. The second circuit concluded that there was no reservation of

the attorney fees for future adjudication and applied “the principle that a demand

not granted or reserved in the judgment must be considered as rejected.” Id. at 675.

The court then held that “[t]he legal effect of the silence of a judgment on any part

of a demand that might have been allowed under the pleadings is a rejection of

such part of the demand, which tacit rejection has the force and effect of res

judicata against subsequent suit for such part of the demand.” Id.

Following Ken Lawler, this court held that silence in two judgments after a

hearing constituted a denial of a claim for penalties and attorney fees. Lowery v.

Jena Nursing & Rehab. Ctr., 14-1106 (La.App. 3 Cir. 12/23/14), 156 So.3d 216.

In Siemens Water Technologies Corp. v Revo Water Systems, LLC, 13-631

(La.App. 3 Cir. 1/8/14), 130 So.3d 473, this court concluded that exceptional

circumstances justified relief from the res judicata effect of prior judgment to
12

allow an award of attorney fees after remand. The fact that the trial court

addressed and granted the claim for attorney fees at a hearing and reserved the

issue in its judgment created the exceptional circumstances.

In the present case, exceptional circumstances do not exist. Although

Plaintiffs raised the issue of attorney fees and costs in both their motion for

summary judgment and memorandum, the issue was neither raised at the hearing

nor reserved in the judgment. Plaintiffs did not even raise the issue when an

appeal was filed by Defendants to the supreme court.

We find that the July 10, 2015 judgment was an attempt by the Plaintiffs to

get attorney fees and costs. It was not necessary for the district court to enter a

new judgment on July 10, 2015. Once the supreme court dismissed the appeal as

moot, the September 24, 2014 judgment was effective and final. “Once a final

judgment acquires the authority of the thing adjudged, no court has jurisdiction to

change the judgment.” Ken Lawler Builders, Inc., 840 So.2d at 674. Therefore,

the district court had no jurisdiction to render the July 10, 2015 judgment, which

awarded attorney fees and costs. Accordingly, we vacate and set aside the July 10,

2015 judgment.

AWARD OF ATTORNEY FEES AND COSTS

The Defendants claim that the trial court erred in awarding attorney fees and

costs. We agree. Based on our above discussion, we find that Plaintiffs’ claims

for attorney fees and costs are barred by res judicata under La.R.S. 13:4231.

“After a final judgment, res judicata bars relitigation of any subject matter

arising from the same transaction or occurrence of a previous suit.” Ken Lawler

Builders, 840 So.2d at 674. “This promotes judicial efficiency and final resolution

of disputes . . . . [because] a party had the opportunity to raise a claim in the first

adjudication, but failed to do so.” Id.
13

The Plaintiffs raised the issue of attorney fees and costs in their motion for

summary judgment. No mention of this issue was raised at the hearing on the

matter. Furthermore, the judgment did not include a reservation of the right to

address the issue later. Finally, the Plaintiffs did not appeal the failure of the trial

court to address the issue when the case was appealed to the supreme court.

Therefore, pursuant to La.Code Civ.P. art. 927(B), we render judgment

sustaining the peremptory exception of res judicata, on our own motion. As such,

we reverse the trial court judgment awarding attorney fees to the Plaintiffs.

NO CAUSE OF ACTION

The Attorney General claims that the district court erred in failing to sustain

his exception of no cause of action. He argues that La.Code Civ.P. art. 1880

requires only that the Attorney General be served with a copy of the proceeding

and afforded an opportunity to be heard, and not that he be joined as an actual

party.

The function of the peremptory exception of no cause of action as authorized

by La.Code Civ.P. art. 927(A)(5) is to “test the legal sufficiency of the petition by

determining whether the law affords a remedy on the facts” that are alleged in the

petition. Everything on Wheels Subaru, Inc. v. Subaru S., Inc., 616 So.2d 1234,

1235 (La.1993). Because the peremptory exception of no cause of action “raises a

question of law and the lower court’s decision is necessarily based solely on the

sufficiency of the petition[,]” we review the grant of the exception under a de novo

standard. State, Div. of Admin., Office of Facility Planning & Control v. Infinity

Sur. Agency, L.L.C., 10–2264, p. 9 (La. 5/10/11), 63 So.3d 940, 946.

This court addressed this very issue in Stelly v. Ieyoub, 01-755, p. 4 (La.App.

3 Cir. 10/31/01), 799 So.2d 1206, 1209, stating:

14

It is clear, not only from the statute, but also from the
discussion in Vallo [v. Gayle Oil Co., Inc., 94-1238 (La. 11/30/94),
646 So.2d 859], that the attorney general has the discretion whether to
appear in a suit questioning the constitutionality of a statute. If a
plaintiff is permitted to name the office as a party, in what appears to
be at least partially a declaratory judgment action, the attorney general
would no longer have the discretion whether to appear, undermining
the statutory scheme. Accordingly, there was no error in the trial
court’s determination that no cause of action existed against the
attorney general.

The only reason the Attorney General is involved in this case is because the

constitutionality of several state laws was at issue. We find that the district court

erred in denying the Attorney General’s exception. Accordingly, we reverse the

district court judgment denying the Attorney General’s exception of no cause of

action.

For the reasons expressed in this opinion, we vacate and set aside the July 10,

2015 judgment and the July 25, 2016 judgment. We sustain the peremptory

exception of res judicata, properly noticed on our own motion, and reverse the trial

court’s award of attorney fees and costs. We also reverse the district court

judgment denying the Attorney General’s exception no cause of action. We

sustain the exception of no cause of action and dismiss the Plaintiffs’ demands

against the Attorney General. Costs of this appeal are assessed to the Plaintiffs.

JULY 10, 2015 JUDGMENT VACATED AND SET ASIDE; JULY 25,

2016 JUDGMENT VACATED AND SET ASIDE; EXCEPTION OF RES

JUDICATA SUSTAINED; EXCEPTION OF NO CAUSE OF ACTION

SUSTAINED.

15