Trey Johnson, Sr. v. Dwlishia Lanae Rutledge

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

22-408

TREY JOHNSON, SR.

VERSUS

DWLISHIA LANAE RUTLEDGE

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NUMBER 267,641
HONORABLE PATRICIA EVANS KOCH, DISTRICT JUDGE

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SHARON DARVILLE WILSON
JUDGE

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Court composed of Sylvia R. Cooks, Chief Judge, Billy H. Ezell, and Sharon
Darville Wilson, Judges.

AFFIRMED.

Clifton John Spears, Jr.
Assistant District Attorney
720 Murray Street
Alexandria, LA 71301
(318) 704-6126
COUNSEL FOR DEFENDANT/APPELLANT:
Dwlishia Lanae Rutledge

David Cleveland Hesser
Leo J. “Trey” Flynn, III
Hesser & Flynn
Alexandria, LA 71301
(337) 542-4102
COUNSEL FOR PLAINTIFF/APPELLEE:
Trey Johnson, Sr.

WILSON, Judge.

This case arises from a custody dispute in which joint custody was

established and the father, Trey Johnson Sr., was named domiciliary parent. The

mother, Dwlishia Lanae Rutledge, filed a petition to nullify the custody judgment

and Mr. Johnson filed an exception of no cause of action. After a hearing, the trial

court granted Mr. Johnson’s exception and dismissed Ms. Rutledge’s petition. Ms.

Rutledge appeals. For the reasons expressed below, we affirm the judgment of the

trial court.

I.

ISSUES

In this appeal we must decide:

(1) whether the trial court erred in designating
Dwlishia Rutledge as an absentee defendant and
appointing a curator to represent her;

(2) whether the trial court erred in accepting the
curator’s search as diligent; and

(3) whether the trial court erred in granting Trey
Johnson’s exception of no cause of action.

II.

FACTS AND PROCEDURAL HISTORY

Trey Johnson, Sr., and Dwlishia Lanae Rutledge are the parents of three

minor children together. Following the dissolution of their relationship, the State of

Louisiana filed a child support action on behalf of Ms. Rutledge, and against Mr.

Johnson, on January 8, 2020. The child support case was continued after a March 3,

2020 court date so that a child custody matter could be filed. Mr. Johnson filed for

child custody on March 4, 2020. Also on March 4th, Ms. Rutledge moved to

Houston, Texas with the children. The petition requested that service be made on

Ms. Rutledge at her last known address at 700 Veterans Dr. Apt 811, Alexandria,

Louisiana 71301.

After service could not be made on Ms. Rutledge, Mr. Johnson filed a

motion to appoint a curator. The motion included Ms. Rutledge’s last known address

along with her phone number and email address. Susan Fiser was appointed as the

curator for Ms. Rutledge. Ms. Fiser filed a curator’s answer which alleged the

following: on June 25, 2020, curator sent a certified letter regarding the petition to

the listed last known address, the letter has not been returned, and the USPS website

shows that the letter was forwarded to another address; on June 25, 2020 curator sent

a letter regarding the petition to “dwlishia0228@gmail.com”; On June 25, 2020,

curator sent a message through Facebook Messenger regarding the petition and

requesting contact information to a profile claiming to be Dwlishia Lanae Rutledge.

A trial on the custody issue was held on August 5, 2020. Ms. Rutledge

did not appear at the trial. The trial court granted joint custody of the minor children

to Mr. Johnson and named him domiciliary parent. On March 22, 2021, Ms.

Rutledge filed a “Motion for Annulment of Judgment” requesting that the court

annul its previous judgment on the grounds of lack of service on the defendant

pursuant to La.Code Civ.P. art. 2002(A)(2) and that the judgment was based on fraud

and ill practices under La.Code Civ.P. art. 2004(A). On July 29, 2021, Mr. Johnson

filed an exception of no right of action along with a motion to produce Ms.

Rutledge’s case file from the Louisiana Department of Child and Family Services

for in camera inspection.

After several continuances, the motions were heard by the trial court on

December 6, 2021. The trial court granted Mr. Johnson’s exception. A judgment

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was signed February 23, 2022, and Ms. Rutledge appealed. On July 5, 2022, this

court determined that the judgment lacked proper decretal language in that it did not

specify the relief awarded and the matter was remanded to the trial court to amend

the judgment. The judgment was amended on July 19, 2022, granting the exception

of no right of action, and dismissing the petition to nullify. The appeal is now before

this court.

III.

STANDARD OF REVIEW

The determination of whether a defendant is an absentee is a legal

determination that hinges on factual determinations of the defendant’s whereabouts.

Hemavathy v. Shivashankara, 34,440 (La.App. 2 Cir. 2/28/01), 782 So.2d 115, writ

denied, 01-1318 (La. 6/22/01), 794 So.2d 790. An appellate court may not set aside

a trial court’s findings of fact in absence of manifest error or unless it is clearly

wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). However, questions of law are

reviewed by this court de novo. Domingue v. Bodin, 08-62 (La.App. 3 Cir. 11/5/08),

996 So.2d 654. Under the de novo standard of review, this court assigns “no special

weight to the trial court and, instead, conducts a de novo review of questions of law

and renders judgment on the record.” Id. at 657. The exception of no cause of action

is also subject to de novo review accepting the well pleaded facts as true. Deal v.

Haney, 14-1232 (La.App. 3 Cir. 11/25/14), 158 So.3d 35.

IV.

LAW AND DISCUSSION

ABSENTEE

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In her first assignment of error, Ms. Rutledge asserts that the trial court

erred in designating her as an absentee defendant and appointing a curator to

represent her. After reviewing the record, we find that this assignment lacks merit.

Louisiana Code of Civil Procedure Article 5251 (1) defines an absentee

as:

“Absentee” means a person who is either a nonresident of
this state, or a person who is domiciled in but has departed
from this state, and who has not appointed an agent for the
service of process in this state in the manner directed by
law; or a person whose whereabouts are unknown, or who
cannot be found and served after a diligent effort, though
he may be domiciled or actually present in the state; or a
person who may be dead, though the fact of his death is
not known, and if dead his heirs are unknown.

Ms. Rutledge argues that Mr. Johnson failed to show that she was an

absentee defendant because he could not show that she was more than temporarily

absent from the state and no efforts were made to ascertain her whereabouts before

a curator was appointed. Ms. Rutledge appears to misunderstand the requirements

for an absentee determination. Louisiana Code of Civil Procedure Article 5251 (1)

sets forth four different categories for classifying a defendant as absentee. The third

category of persons are those whose whereabouts are unknown and requires a

diligent search effort before this determination is made. However, Mr. Johnson did

not assert that Ms. Rutledge was an absentee under this category.

In his motion to appoint curator, Mr. Johnson alleged that “[u]pon

information and belief, the defendant resides in Texas.” He then cites La.Code Civ.P.

art. 5251 (1) stating, “an ‘absentee’ is a person who is either a nonresident of this

state, or a person who is domiciled in this state, and who had not appointed an agent

for the service of process in this state in the manner directed by law.” Thus, it was

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Mr. Johnson’s contention that Ms. Rutledge was an absentee either because she was

a nonresident of Louisiana, or because she was a Louisiana domiciliary who was

absent from the state but had not appointed a proper agent for service. Neither of

these categories required Mr. Johnson to make a diligent search for Ms. Rutledge’s

whereabouts before the appointment of a curator.

At the time that the petition for custody was filed, it was known by Mr.

Johnson that Ms. Rutledge had moved to Texas with the children. Ms. Rutledge

admits that she had relocated to Houston, Texas in her petition to annul and makes

no allegation that she appointed an agent for service of process. In the children’s

school records, which she attached to her petition, she also states that her move to

Houston was not temporary. This evidence would suggest that Ms. Rutledge was a

nonresident of the state as she was now residing in Texas with the intention to remain

permanently. At the very least, Ms. Rutledge had clearly departed the state, and she

did so without appointing an agent for service of process. As such, Ms. Rutledge

was properly classified as an absentee defendant, and the trial court did not err in

appointing a curator to represent her.

DILIGENT EFFORT

In her second assignment of error, Ms. Rutledge asserts that the trial

court erred in accepting the curator’s search as diligent. Louisiana Code of Civil

Procedure Article 5094 provides:

When an attorney at law is appointed by the court to
represent a defendant who is a nonresident or an absentee,
the attorney shall use reasonable diligence to communicate
with the defendant and inform him of the pendency and
nature of the action or proceeding, and of the time
available for the filing of an answer or the assertion of a
defense otherwise.

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Whether a curator’s efforts constituted reasonable diligence is a

question of fact, and the trial court’s determination will not be overturned unless

manifestly erroneous. First Nat. Bank of Jefferson Par. v. Samuels, 618 So.2d 444

(La. Ct. App.1993), writ denied, 623 So.2d 1336 (La.1993). Ms. Fiser was appointed

by the trial court to represent Ms. Rutledge in the child custody proceedings because

she was an absentee defendant. Ms. Fiser filed a curator’s answer where she alleged:

she sent a certified letter containing the petition to the last known address of Ms.

Rutledge in Alexandria, the certified letter was marked as forwarded to another

address by the USPS, she sent an email of the petition to “dwlishia0228@gmail.com,”

and she sent a message through Facebook Messenger to “Dwlishia Rutledge.” After

reviewing this answer, the trial court was satisfied that Ms. Fiser made a diligent

effort to notify Ms. Rutledge of the pending child custody proceedings. Ms.

Rutledge contends that the curator’s search was not diligent because the certified

letter was sent to her old address in Alexandria. However, the Alexandria address

is the only known address for Ms. Rutledge, therefore, it made sense for the curator

to send notice to that address. This is particularly useful given the fact that the USPS

allows residents to provide a forwarding address in the event of a move to ensure

that mail delivered to the old address is received. Although the record does not

contain evidence that Ms. Rutledge ever received the certified letter, the USPS noted

that the letter had been forwarded. Under these circumstances, sending notice to Ms.

Rutledge’s last known address was reasonable. Additionally, Ms. Fiser sent notice

to Ms. Rutledge via email and Facebook Messenger. Although the record does not

contain evidence that Ms. Rutledge ever read the messages, the documents attached

to Ms. Rutledge’s petition confirm that the email used by Ms. Fiser is the current

email address of Ms. Rutledge. Ms. Rutledge argues that the curator failed to use

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traditional means such as local directories, newspaper publication, or internet data

bases. While the curator certainly could have been more vigorous in her endeavors

to locate Ms. Rutledge, we do not find that the trial court was manifestly erroneous

in finding that Ms. Fiser conducted a reasonably diligent search.

NO CAUSE OF ACTION

In her final assignment of error, Ms. Rutledge contends that the trial

court erred in granting Mr. Johnson’s exception of no cause of action. The exception

of no cause of action “is designed to test the legal sufficiency of the petition to

determine whether the plaintiff is afforded a remedy in law based on the facts alleged

in the petition.” Ebey v. Avoyelles Par. Sch. Bd., 2003-765, p. 4 (La.App. 3 Cir.

12/17/03); 861 So.2d 910, 912, writ denied, 2004-0196 (La. 3/26/04); 871 So.2d 349.

“[T]he exception is tried on the face of the petition, with supporting documentation,”

and “the well-pleaded facts in the petition must be accepted as true.” Id.

In the motion for annulment, Ms. Rutledge seeks an annulment of the

judgment due to lack of proper service and that the judgment was obtained based on

fraud and ill practices. After reviewing the petition, we find that Ms. Rutledge failed

to state a cause of action, and the trial court did not err in granting the exception.

Ms. Rutledge first submits that the judgment should be annulled due to

lack of proper service. “Citation and service thereof are essential in all civil actions

except summary and executory proceedings, . . . . Without them all proceedings are

absolutely null.” La.Code Civ.P. art. 1201(A). In this case, service was made on a

curator and Ms. Rutledge was not personally served in this matter due to her

designation as an absentee defendant. Ms. Rutledge averred that she was not an

absentee because Mr. Johnson knew of her whereabouts; however, nowhere in the

petition or supporting documentation does she allege that Mr. Johnson was given or

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knew her new address in Texas. The pleadings only suggest that Mr. Johnson knew

Ms. Rutledge was going to Houston, but her exact whereabouts were unknown.

Moreover, as discussed above, Ms. Rutledge was properly designated an absentee

on the basis that she was either a nonresident or absent from the state without an

appointed agent.

Louisiana Code of Civil Procedure Article 5091 provides in pertinent

part:

The court shall appoint an attorney at law to represent the
defendant, on the petition or ex parte written motion of the
plaintiff, when:
(1) It has jurisdiction over the person or property of
the defendant, or over the status involved, and the
defendant is:
(a) A nonresident or absentee who has not been
served with process, either personally or through an agent
for the service of process, and who has not waived
objection to jurisdiction.
On the face of the petition, Ms. Rutledge pleads that she moved to Houston, Texas

and does not allege that she appointed an agent for service of process. Under

La.Code Civ. P. Art. 5251 that makes Ms. Rutledge an absentee defendant. As an

absentee, service was properly made on the curator, and Ms. Rutledges’s contention

that there was a lack of proper service lacks merit.

Ms. Rutledge also requests annulment because the judgment was based

on fraud or ill practices. Louisiana Code of Civil Procedure Article 2004 (A)

provides, “[a] final judgment obtained by fraud or ill practices may be annulled.”

Our jurisprudence sets forth two criteria to determine
whether a judgment has been obtained by actionable fraud
or ill practices: (1) when the circumstances under which
the judgment was rendered show the deprivation of legal
rights of the litigant who seeks relief, and (2) when the
enforcement of the judgment would be unconscionable
and inequitable. . . . Thus, the article is not limited to cases
of actual fraud or intentional wrongdoing, but is

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sufficiently broad to encompass all situations wherein a
judgment is rendered through some improper practice or
procedure which operates, even innocently, to deprive the
party cast in judgment of some legal right, and where the
enforcement of the judgment would be unconscionable
and inequitable.

Kem Search, Inc. v. Sheffield, 434 So.2d 1067, 1070 (La.1983).

Whether an action constitutes actionable fraud or ill practices is a legal

conclusion.

Legal conclusions asserted as facts are not considered
well-pled factual allegations for purposes of an exception
of no cause of action. First Natchez Bank v. Malarcher-
Damare Co., 135 La. 295, 65 So. 270, 271 (1914), Kyle v.
Civil Service Comm’n., 588 So.2d 1154, 1159 (La. App.
1st Cir. 1991). A court may not consider legal conclusions
“clothed as fact.” Hooks v. Treasurer, 06-0541, p. 10 (La.
App. 1 Cir. 5/4/07), 961 So.2d 425, 431-32. Simply stated,
courts “are not compelled to accept a party’s legal
conclusions as facts.” Hooks, 06-0541 at p. 10, 961 So.2d
at 432. “If the pleader alleges [legal] conclusions and not
material facts (such as a petition in a negligence action
which alleges only that the defendant failed to use “due
care”), the pleader has failed to state a cause of action.” 1
Frank L. Maraist and Harry T. Lemmon, Louisiana Civil
Law Treatise: Civil Procedure § 6:7 (2d ed.2012) (citing
Johnson v. Edmonston, 383 So.2d 1277 (La. App. 1st Cir.
1980)); see Walton Const. Co. v. G.M. Horne & Co., 07-
0145, p. 6 (La. App. 1 Cir. 2/20/08), 984 So.2d 827, 832;
see also Charia v. Hulse, 619 So.2d 1099, 1102 (La. App.
4th Cir. 1993).

Henderson v. State Farm Mut. Auto. Ins. Co., 21-654, p. 5-6 (La.App. 4 Cir. 12/17/21,

5–6), 335 So.3d 349, 353-54.

In the motion for annulment, Ms. Rutledge alleges that the judgment

was based on fraud and ill practices but fails to plead facts which clearly indicate

what purported improper practice or procedure was at play in this matter. However,

in her “Memorandum in Support of Annulment,” Ms. Rutledge claims that Mr.

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Johnson knew she was residing in Houston, Texas, and failed to advise the court or

the curator. This withholding, she contends, constituted fraud or ill practices.

Ordinarily, under La.Code Civ.P. art. 931“no evidence may be

introduced at any time to support or controvert the exception that the petition fails

to state a cause of action.” However, our jurisprudence has recognized a limited

exception to this rule when the evidence is part of an official record of the trial court

before which the evidence is being offered. Atherton v. Rosteet Law Firm, 13-864

(La.App. 3 Cir. 4/16/14), 137 So.3d 1246, writ denied, 14-1019 (La. 9/12/14), 148

So.3d 930. Mr. Johnson’s motion to appoint curator clearly stated that he believed

Ms. Rutledge was residing in Texas. Taking judicial notice of the prior pleading, it

is evident that Mr. Johnson did not fail to advise the court of Ms. Rutledge’s move

to Texas.

Ms. Rutledge also seems to imply that the curator’s failure to conduct

a diligent search amounted to fraud or ill practices. Assuming for the sake of

argument that the curator failed to use proper diligence, this would still not entitle

Ms. Rutledge to the relief sought. Louisiana Code of Civil Procedure Article 5098

provides,

[t]he failure of an attorney appointed by the court to
represent an unrepresented party to perform any duty
imposed upon him by, or the violation by any person of,
the provisions of Articles 5092 through 5096 shall not
affect the validity of any proceeding, trial, order, judgment,
seizure, or judicial sale of any property in the action or
proceeding, or in connection therewith.
Ms. Rutledge failed to plead any other facts which would entitle her to the requested

relief. As such, the trial court did not err in granting Mr. Johnson’s exception of no

cause of action and dismissing Ms. Rutledge’s petition for annulment.

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V.

CONCLUSION

For the foregoing reasons, the judgment of the trial court granting the

exception of no cause of action and dismissing the petition for annulment of

judgment is affirmed. All costs of this appeal are assessed against the appellant,

Dwlishia Lanae Rutledge.

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION.
Uniform Rules— Courts of Appeal, Rule 2–16.3.

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