Brittany M. Boquet v. Nicole L. Boquet

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 18-105

BRITTANY M. BOQUET

VERSUS

NICOLE L. BOQUET

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF VERMILION, NO. 103106
HONORABLE DAVID BLANCHET, DISTRICT JUDGE

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SYLVIA R. COOKS

JUDGE

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Court composed of Sylvia R. Cooks, Elizabeth A. Pickett and Billy H. Ezell,
Judges.

APPEAL DISMISSED.

Ann Dore Latour
Attorney at Law
405 W. Main St.
Lafayette, LA 70501
(337) 235-3878
COUNSEL FOR DEFENDANT/APPELLEE:
Sawyer Rayne Boquet

Henry Adams, III
Adams & Associates, LLC
905 The Boulevard
Rayne, LA 70578
(337) 334-8600
COUNSEL FOR DEFENDANT/APPELLEE:
Nicole L. Boquet

Bhyllie J. Mouton
Shane M. Mouton
Mouton & Mouton Law Firm, LLC
905 The Boulevard
Rayne, LA 70578
(337) 334-8600
COUNSEL FOR DEFENDANT/APPELLEE:
Nicole L. Boquet

Danielle N. Thompson
The Thompson Law Office, LLC
2901 Johnston St., Ste 301
Lafayette, LA 70503
(337) 534-8761
COUNSEL FOR PLAINTIFF/APPELLANT:
Brittany M. Boquet

COOKS, Judge.

Appellant, Brittany M. Boquet, filed an appeal from the trial court’s ruling of

September 8, 2017, which granted the exception of prescription filed by Appellee,

Nicole L. Boquet and from the order denying her motion for new trial. The trial court

signed an order on November 8, 2017, designating these judgments as final and

appealable. Upon the lodging of the record, this court, on its own motion, issued the

instant rule for Brittany to show cause, by brief only, why her appeal should not be

dismissed “because this ‘judgment is sufficiently unclear so as to render this matter

improperly before us on review,’” citing State v. White, 05-718, p. 2 (La.App. 3 Cir.

2/1/06), 921 So.2d 1144, 1146. For the reasons assigned, we dismiss this appeal

without prejudice.

Brittany and Nicole entered into a same-sex marriage on December 18, 2014.

On February 5, 2016, Nicole gave birth to Sawyer Rayne Boquet. On March 10, 2017,

Brittany and Nicole separated.

The instant action was initiated with the filing of Brittany’s Petition for Divorce

and Termination of the Matrimonial Regime. Subsequently, on April 28, 2017,

Brittany filed her Petition for Declaratory Judgment and Disavowal. In this latter

pleading, Brittany sought a judicial declaration that she “is not the legal or biological

father of the minor child.”1

In response to this petition, Nicole filed the Peremptory Exception of

Prescription. 2 A contradictory hearing was conducted by the trial court, and on

September 8, 2017, the trial court signed a written judgment which states in pertinent

part:

1
An attorney is representing the interests of the minor child.
2
Nicole also filed the Peremptory Exception of No Right of Action and the Peremptory
Exception of No Cause of Action, both of which the trial court denied in the same judgment sought
to be appealed herein. The minor child’s counsel has filed her Answer to Petition for Declaratory
Judgment and Disavowal.

IT IS FURTHER ORDERED that this Court grants Nicole L.
Boquet’s Peremptory Exception of Prescription and assesses costs for the
Exception to Brittany M. Boquet.
....
IT IS FURTHER ORDERED that this court assesses costs
associated with the filing of the Petition for Declaratory Judgment and
Disavowal filed by Brittany M. Boquet and the costs associated with the
Court appointment of Ann D. Latour for the interests of the minor child
to Brittany M. Boquet.

Brittany filed a motion for new trial which was opposed by Nicole. The trial

court signed a judgment denying the motion for new trial on October 9, 2017.

Brittany then filed her Motion and Order to Designate the Judgments as Final,

Appealable Judgments. Paragraph 7 of this pleading reads, “The judgments dismiss

the Petition for Declaratory Judgment and Disavowal Action in its entirety and there

are no unresolved issues in the Petition for Declaratory Judgment and Disavowal to be

litigated.” The pleading acknowledged that a divorce had not yet been granted such

that Brittany was having to continue to pay child support, thereby allegedly causing

Brittany irreparable injury. The motion concludes, “WHEREFORE, Plaintiff,

BRITTANY M. BOQUET, moves this Honorable Court to designate the judgment

rendered on August 9, 2017 and signed on September 8, 2017, and the judgment

Denying Motion for New Trial signed on October 9, 2017 final and appealable

judgments.”

The trial court signed the order attached to this pleading which reads:

CONSIDERING the Plaintiff’s, BRITTANY M. BOQUET,
MOTION AND ORDER TO DESIGNATE THE JUDGMENTS AS
FINAL, APPEALABLE JUDGMENTS,
IT IS HEREBY ORDERED that this Court designate [sic] the
judgment rendered on August 9, 2017 and signed by Honorable Judge
David A. Blanchet on September 8, 2017 which granted the defendant’s
exception of prescription a final, appealable judgment.
IT IS HEREBY ORDERED that this Court designate [sic] the
judgment denying Motion for New Trial signed on October 9, 2017 by
Honorable Judge David A. Blanchet a final, appealable judgment.
THUS DONE AND SIGNED in Lafayette, Lafayette Parish,
Louisiana, this 8th day of Nov [sic], 2017.

2

As stated above, upon the lodging of the appellate record, this court issued a

rule for Brittany to show cause why the appeal should not be dismissed. Brittany’s

response to this court’s rule was filed on February 21, 2018.

In the response, Brittany points out that paragraph 7 of the motion seeking

designation of the judgment granting the exception of prescription as immediately

appealable states that the granting of the exception resulted in the dismissal of her

Petition for Declaratory Judgment and Disavowal in its entirety. Therefore,

considering this statement, the fact that the original judgment assessed all costs

associated with that claim against Brittany, and the fact that the trial court designated

the judgment final and appealable, Brittany contends that the judgment is now

sufficiently clear enough to permit appellate review.

In Thomas v. Lafayette Parish School System, 13-91, p. 2 (La.App. 3 Cir.

3/6/13), 128 So.3d 1055, 1056 (emphasis added), citing Vanderbrook v. Coachmen

Industries, Inc., 01-899 (La.App. 1 Cir. 5/10/02), 818 So.2d 906, this court stated that

“a judgment cannot require reference to extrinsic documents or pleadings in order to

discern the court’s ruling.” Louisiana Code of Civil Procedure Article 852 states, in

pertinent part, “The pleadings allowed in civil actions, whether in a principal or

incidental action, . . . shall consist of petitions, exceptions, written motions, and

answers.” Brittany argues that because her motion for the designation of the

judgment indicated in paragraph 7 that the disavowal action was being dismissed in its

entirety, the judgment is now sufficiently clear enough to permit appellate review of

the judgment because this court can consider the statements made in the motion to

understand the trial court’s ruling.

A judgment is not included in the list of documents that the Louisiana Code of

Civil Procedure considers to be pleadings, but a motion is. Therefore, Brittany’s

argument that this court should consider the statements made in her motion in

construing the meaning to be assigned to the trial court’s judgment violates the rule

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that courts are not to consider “extrinsic . . . pleadings in order to discern the court’s

ruling.” Thomas, 128 So.3d at 1056. Accordingly, we find no merit to this argument.

Additionally, we find no merit to the assertion that a designation of the

judgment as final pursuant to La.Code Civ.P. art. 1915(B) suffices to render the

judgment sufficiently clear enough for appellate review. To the contrary, we find that

the judgment must first contain proper decretal language in order to be capable of

designation as final and appealable under Article 1915(B). As the judgment does not

provide appropriate decretal language, we hold that the judgment as currently worded

is not capable of being designated final and appealable.

Finally, we observe that an order denying a motion for new trial is interlocutory

and is incapable of being appealed, even if the trial court attempts to designate the

ruling as final and appealable. See Shelton v. Pavon, 16-758 (La.App. 4 Cir. 2/15/17),

212 So.3d 603, affirmed, 17-482 (La. 10/18/17), ___ So.3d ___. The denial of a

motion for new trial is reviewable in on appeal as an assignment of error in the

unrestricted appeal of the final, appealable judgment to which it relates. See Bailey v.

Robert V. Neuhoff Ltd. P’ship, 95-616 (La.App. 1 Cir. 11/9/95), 665 So.2d 16, writ

denied, 95-2962 (La. 2/9/96), 667 So.2d 534. Thus, we decline to exercise this court’s

supervisory jurisdiction to review the denial of the motion for new trial finding that

once a final judgment with proper decretal language has been rendered by the trial

court, review of the denial of the motion for new trial can be obtained by assigning

this issue as error in the appeal of the final judgment to which it relates.

Therefore, for the above reasons, we dismiss the appeal without prejudice. This

matter is remanded to the trial court for further proceedings in accordance with this

court’s ruling.

APPEAL DISMISSED.

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