In Re: C.W.B. and D.A.L.B. Applying for the Adoption of R.M.G.B.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

15-1107

IN RE: C.W.B. AND D.A.L.B.
APPLYING FOR THE ADOPTION OF R.M.G.B.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 7129
HONORABLE GUY E. BRADBERRY, DISTRICT JUDGE

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PHYLLIS M. KEATY
JUDGE

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Court composed of Marc T. Amy, Phyllis M. Keaty, and John E. Conery, Judges.

Amy, J. concurs and assigns reasons.

PEREMPTORY EXCEPTIONS GRANTED;
DECLINATORY EXCEPTION GRANTED.

Harold D. Register, Jr.
A Professional Law Corporation
Post Office Box 80214
Lafayette, Louisiana 70598-0214
(337) 981-6644
Counsel for Intervenor/Appellant:
B.B.

Nicholas Pizzolatto, Jr.
State of Louisiana,
Department of Children and Family Services
1919 Kirkman Street
Lake Charles, Louisiana 70601
(337) 491-2066
Counsel for Appellee:
State of Louisiana, Department of Children and Family Services

C.W.B. and D.A.L.B.
In Proper Person
220 Heather Street
Lake Charles, Louisiana 70605
Plaintiffs/Appellees

KEATY, Judge.

Intervenor/Appellant, B.B., appeals the trial court’s two judgments granting

an adoption in favor of C.W.B. and D.A.L.B. and denying B.B.’s Motion for a

New Trial. In response, Appellee, the Louisiana Department of Children and

Family Services (DCFS), challenges B.B.’s standing and asserts multiple

jurisdictional exceptions. For the following reasons, DCFS’s exceptions are

granted, divesting this court of its authority to hear B.B.’s appeals.

FACTS & PROCEDURAL HISTORY

This juvenile adoption matter deals with a paternal uncle’s rights regarding

his niece who was legally adopted by another couple. The niece, R.M.G.B., was

taken into custody by DCFS on August 31, 2012, directly from the hospital where

she was born on August 15, 2012. On September 5, 2012, DCFS placed R.M.G.B.

with C.W.B. and D.A.L.B., foster parents, where she has lived continuously

through the present day. The parental rights of R.M.G.B.’s biological parents were

terminated in open court on May 5, 2014, and the Judgment of Termination of

Parental Rights and Certificate for Adoption was signed on May 9, 2014, in the

matter entitled State in the Interest of R.M.G.B., Docket Number 12-72, in the

Fifteenth Judicial District Court, Vermilion Parish. On August 21, 2014, C.W.B.

and D.A.L.B. filed a Petition for Agency Adoption in Docket Number 7129, in the

Fourteenth Judicial District Court, Calcasieu Parish. The trial court granted the

adoption in closed court at 9:23 a.m. on October 3, 2014, pursuant to its Final

Decree of Adoption which was signed and filed that same day.

On that same morning, B.B. attempted to intervene in the adoption

proceeding through his attorney who appeared in the courtroom before the hearing

began. There were two adoption proceedings on the docket with R.M.G.B.’s

scheduled to go second. B.B.’s counsel was advised that he would not be allowed

to stay in the courtroom during the adoption proceeding due to the confidentiality

of juvenile proceedings. B.B. contends that his counsel was supposed to be called

into the courtroom when R.M.G.B.’s proceeding began. His attorney was never

called into the courtroom, and, after the trial court rendered judgment, B.B.’s

counsel explained to the trial court the following: B.B.’s concern regarding the

adoption, B.B.’s intention to intervene, and that he was present in the courthouse

but not allowed into the courtroom during the proceeding. His counsel further

proffered B.B.’s Motion to Intervene and for Injunctive Relief (Motion to

Intervene) in open court and subsequently fax-filed it in the adoption proceeding at

10:07 a.m. that same day. He filed a Motion for New Trial on October 7, 2014,

which the trial court orally denied in open court after a hearing on October 30,

2014. B.B. appealed this October 30, 2014 judgment on December 17, 2014.

Thereafter, on January 5, 2015, he appealed the October 3, 2014 judgment granting

the adoption.

On appeal, B.B. asserts the following four assignments of error:

I. The trial court erred when it denied B.B.’s Motion for New
Trial.

II. The Judgment rendered in the trial court was an absolute nullity.

III. The trial court erred when it denied B.B. a meaningful
opportunity to be heard during the adoption proceedings of
R.M.G.B.

IV. The trial court erred when it denied visitation to B.B.

In response, DCFS asserts a peremptory exception of no cause of action and

no right of action with respect to the adoption proceeding and the trial court’s

denial of B.B.’s Motion for New Trial. It further asserts a declinatory exception of

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lack of subject matter jurisdiction and a peremptory exception of prescription.

Finally, DCFS contends that should we deny its exceptions, the trial court did not

commit reversible error when granting the adoption and denying B.B.’s Motion for

New Trial. We agree with DCFS and grant its exceptions, thereby pretermitting

any discussion of B.B.’s assignments of error.

DISCUSSION

I. No Cause of Action and No Right of Action

DCFS asserts a peremptory exception of no cause of action with respect to

B.B.’s attempted intervention into the adoption proceeding on October 3, 2014,

and no right of action with respect to B.B.’s Motion for New Trial, which was

denied by the the trial court on October 30, 2014. The function of the peremptory

exception of no cause of action was discussed in Fink v. Bryant, 01-987, pp. 3-4

(La. 11/28/01), 801 So.2d 346, 348-49 (citations omitted), as follows:

The function of the peremptory exception of no cause of action
is to question whether the law extends a remedy to anyone under the
factual allegations of the petition. The peremptory exception of no
cause of action is designed to test the legal sufficiency of the petition
by determining whether plaintiff is afforded a remedy in law based on
the facts alleged in the pleading. No evidence may be introduced to
support or controvert the objection that the petition fails to state a
cause of action. The exception is triable on the face of the papers and
for the purposes of determining the issues raised by the exception, the
well-pleaded facts in the petition must be accepted as true. . . . Simply
stated, a petition should not be dismissed for failure to state a cause of
action unless it appears beyond doubt that the plaintiff can prove no
set of facts in support of any claim which would entitle him to relief.

We begin our analysis by determining whether B.B.’s attempted intervention

complied with the applicable law, including La.Ch.Code art. 1208, which provides,

in pertinent part:

A. The court shall sign the order setting the time and place for
the hearing of the petition for agency adoption . . . .

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B. At this hearing the court shall consider:

(1) Any motion to intervene which has been filed.

Interventions in agency adoptions “shall not be allowed except on motion to

the court and a showing of good cause[,]” and “shall be limited to persons having a

substantial caretaking relationship with the child for one year or longer, or any

other person that the court finds to be a party in interest.” La.Ch.Code art. 1209(A)

and (B).

In reviewing the transcript from the October 30, 2014 hearing on B.B.’s

Motion for New Trial, we find that the trial court indicated that there were no

pending pleadings, including B.B.’s Motion to Intervene, filed prior to or at the

time of the October 3, 2014 adoption proceeding. The trial court specifically stated:

“There’s nothing in this record to suggest that there are any pleadings pending with

this court prior to the request and the execution of the adoption request.” The trial

court also indicated that at the time of the adoption proceeding hearing, B.B.’s

Motion to Intervene “was not in the record nor was it . . . filed into the registry of

the court.” Since B.B.’s Motion to Intervene and for Injunctive Relief was not

filed until 10:07 a.m. on October 3, 2014, after the conclusion of the adoption

proceeding which ended at 9:23 that morning, the requirements of La.Ch.Code arts.

1208 and 1209 were not met. Additionally, the “legal sufficiency” of his motion to

intervene could not be tested since it was not pending at the time of the adoption

proceeding. Fink, 801 So.2d at 348. Accordingly, DCFS’s peremptory exception

of no cause of action is granted in this regard.

With respect to DCFS’s peremptory exception of no right of action

regarding B.B.’s Motion for New Trial, we look to Mississippi Land Co. v. S & A

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Properties II, Inc., 01-1623, p. 2 (La.App. 3 Cir. 5/8/02), 817 So.2d 1200, 1202-03

(citations omitted) wherein we stated:

Under La.Code Civ.P. art 927, a defendant may raise the
peremptory exception of no right of action. An exception of no right
of action has the function of determining whether the plaintiff has any
interest in the judicially enforced right asserted. The function of this
exception is to terminate the suit brought by one who has no judicial
right to enforce the right asserted in the lawsuit.

Keeping the foregoing in mind, we look to La.Ch.Code art. 332(C) regarding

new trials which provides in pertinent part: “After judgment is signed, a party may

make a written request for a motion for new trial on any ground provided by law.

The delay for applying for a new trial is three days, exclusive of holidays, and shall

commence to run from the mailing of notice of judgment.”

In this case, B.B. was not a party to the adoption proceeding because his

Motion to Intervene was not filed at the time of the October 3, 2014 hearing. Since

he was not a party to this original trial, B.B. had no standing to make a written

request for a new trial. We, therefore, grant DCFS’s peremptory exception of no

right of action in this regard.

II. Subject Matter Jurisdiction and Prescription

DCFS asserts a declinatory exception of lack of subject matter jurisdiction

and a peremptory exception of prescription regarding B.B.’s appeals. The

declinatory exception of lack of subject matter jurisdiction was discussed by the

supreme court in Canal/Claiborne, Ltd. v. Stonehedge Development, LLC, 14-664,

pp. 4-5 (La. 12/9/14), 156 So.3d 627, 632 (citations omitted), as follows:

Louisiana courts have recognized that such an exception may be
raised at any stage of the proceedings, including at the appellate level.
The jurisdiction of a court over the subject matter of an action or
proceeding cannot be conferred by consent of the parties. Thus, a
judgment rendered by a court with no jurisdiction over the subject
matter of the action or proceeding is void.

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With respect to the peremptory exception of prescription, its “‘function . . .

is to have the plaintiff’s action declared legally nonexistent, or barred by effect of

law, and hence this exception tends to dismiss or defeat the action.’” Charles v.

Landry, 09-1161, p. 6 (La.App. 3 Cir. 3/10/10), 32 So.3d 1164, 1168 (quoting

La.Code Civ.P. art. 923).

Keeping in mind the foregoing, if B.B.’s appeals are prescribed, we are

divested of jurisdiction based upon our finding in State ex. rel. E.A., 02-996, p. 3

(La.App. 3 Cir. 10/2/2), 827 So.2d 594, 596, wherein we held that “the defect of

not taking an appeal timely is jurisdictional, and neither counsel, the trial court, nor

the appellant [sic] court has the authority to extend this delay.” We look to the

time limitation placed on appeals in juvenile adoption matters which is governed

by La.Ch.Code art. 1259 providing in pertinent part:

A. . . . any other party in interest shall have the right to appeal
a judgment granting or refusing to grant an interlocutory or final
decree regarding any type of adoption within thirty days after the
rendition of a judgment or decree.

B. If no appeal is perfected within thirty days after a judgment
is rendered, the judgment shall be final.

In this case, the adoption was rendered on October 3, 2014, and B.B. filed

his Notice of Intent to Seek Appeal of that judgment on January 5, 2015. His right

to appeal prescribed thirty days after the rendering of judgment. Thus, his appeal

was untimely.

As to the October 30, 2014 judgment denying his Motion for New Trial, B.B.

filed a Notice of Intent to Seek Appeal on December 17, 2014. Even though B.B.

lacked standing to file a Motion for New Trial, we find that his time for filing this

appeal also prescribed pursuant to La.Ch.Code art. 332, which provides in

pertinent part:

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A. Except as otherwise provided within a particular Title of
this Code, appeals shall be taken within fifteen days from the mailing
of notice of the judgment. However, if a timely application for a new
trial is made pursuant to Paragraph C, the delay for appeal commences
to run from the date of the mailing of notice of denial of the new trial
motion.

B. Notice of judgment, including notice of orders or judgments
taken under advisement, shall be as provided in Code of Civil
Procedure Article 1913.

In certain cases, a notice of judgment is unnecessary as explained in Doolan

v. Doolan, 349 So.2d 980, 982 (La.App. 3 Cir. 1977):

As to a motion for new trial which is not taken under
advisement, the jurisprudence is well settled that no notice of
judgment is required, even in cases where a formal judgment denying
the motion is later rendered. Simon v. Lumbermens Mutual Casualty
Company, 138 So.2d 465 (La.App. 3 Cir. 1962); Recatto v. Hartford
Accident & Indemnity Co., 259 So.2d 571 (La.App. 1 Cir. 1972);
Kleinpeter v. Kleinpeter, 246 So.2d 240 (La.App. 1 Cir. 1971).

“Where counsel for both parties are present in court when a motion for a new trial

is argued and a ruling thereon is rendered forthwith, no notice of the signing of the

judgment is required.” Kleinpeter, 246 So.2d at 241.

In this case, B.B. was present with his attorney in open court on October 30,

2014, when the trial court denied his Motion for New Trial. He, therefore, was not

entitled to notice of the signing of the judgment and “the delay began to run where

the application for a new trial was denied on” October 30, 2014. Thibodeaux v. W.

World Ins. Co., 387 So.2d 601, 602 (La.App. 3 Cir. 1980). Since his appeal

prescribed in mid-November, B.B.’s Notice of Intent to Seek Appeal on

December 17, 2014, was untimely. We, therefore, grant DCFS’s declinatory

exception of lack of subject matter jurisdiction and peremptory exception of

prescription in this regard.

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DECREE

DCFS’s peremptory exception of no cause of action and no right of action is

granted. DCFS’s declinatory exception of lack of subject matter jurisdiction and

peremptory exception of prescription is granted. We are without jurisdiction to

hear B.B.’s appeals. All costs associated with both appeals are assessed to B.B.

PEREMPTORY EXCEPTIONS GRANTED; DECLINATORY
EXCEPTION GRANTED.

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

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NUMBER 15-1107

COURT OF APPEAL, THIRD CIRCUIT
STATE OF LOUISIANA

IN RE: C.W.B. AND D.A.L.B.
APPLYING FOR THE ADOPTION OF R.M.G.B.

AMY, J., concurring.

I agree with the majority’s grant of the peremptory exception of lack of

subject matter jurisdiction. However, I find that the grant of that exception

resolves the case and pretermits further discussion of the remaining issues in this

matter. See State in the Interest of B.S., 12-81 (La.App. 3 Cir. 5/2/12), 94 So.3d

120.

For these reasons, I respectfully concur.