Cole v. Cole
Cole v. Cole
Opinion of the Court
At the center of this dispute is a purported stipulated judgment ("the stipulated judgment") between Allison Cole, the widowed mother of two young daughters, and Russell and Kim Cole, her deceased husband's parents, allowing for grandparent visitation. Ms. Cole challenges the trial court's judgment sustaining the grandparents' exception raising the objection of no cause of action and dismissing, with prejudice, Ms. Cole's petition to annul the stipulated judgment. For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
After the death of their son John Cole, Russell and Kim Cole filed a petition for visitation, alleging that Ms. Cole had refused to allow them to visit with their granddaughters. In response, Ms. Cole filed exceptions raising the objections of non-conformity, vagueness, and no cause of action. On the date the exceptions were set for hearing, Ms. Cole and the grandparents were all present and represented by counsel. After a conference in chambers, counsel for the grandparents advised the trial court that there was a "stipulation on all matters" that would "render the exceptions filed by [Ms.] Cole moot." At that time, the stipulation was read into the record by the grandparents' counsel, and all parties indicated their full understanding of the stipulation. However, when the trial court inquired as to the parties' understanding of the stipulation's binding effect on them, there is no indication that Ms. Cole expressed her acquiescence thereto. Rather, only the grandparents answered in the affirmative when the trial court asked, "Does everybody understand that?"
On March 14, 2017, the trial court signed the stipulated judgment, granting the grandparents specific periods of weekend, summer, and holiday visitation. The stipulated judgment further provided that Ms. Cole was precluded from scheduling any activities for the children during the grandparents' visitation. Moreover, while the stipulated judgment afforded the grandparents the option to call and/or text the children, it prohibited Ms. Cole from *541calling her children during the grandparents' visitation, absent an emergency.
Thereafter, Ms. Cole filed a petition to annul the stipulated judgment, alleging, among other things, that she never consented to the stipulated judgment and that her counsel intentionally and fraudulently misrepresented the nature of the proceedings to cover up her own negligence.
In response thereto, the grandparents filed an exception raising the objection of no cause of action and a motion to strike, which were set for hearing. The grandparents argued there was no evidence of ill practice or fraud by Ms. Cole's counsel at the February 22, 2017 hearing
RULE TO SHOW CAUSE
(Assignments of Error A & C)
After Ms. Cole appealed, this court issued a rule to show cause order indicating the November 15, 2017 judgment appeared to lack appropriate decretal language. Ms. Cole responded by filing a motion to stay her appeal pending the remand of the matter to the trial court for the entry of an amended judgment. On May 29, 2018, this court denied the motion to stay appeal, indicating that it had already issued an interim order to the trial court. In said interim order issued on May 29, 2018, the matter was remanded to the trial court for the entry of an amended judgment, containing precise, definite, and certain language regarding the relief granted.
However, prior to this order being issued, the trial court signed an amended judgment on May 16, 2018, clarifying the court's rulings on the no cause of action exception and the motion to strike, and dismissing Ms. Cole's petition to annul for failure to state a cause of action. The appellate record herein was supplemented with the May 16, 2018 amended judgment on May 30, 2018. The November 15, 2017 judgment, as amended by the May 16, 2018 judgment, contains the appropriate decretal language to be a valid final judgment, i.e., it names the party in favor of *542whom the ruling is ordered, the party against whom the ruling is ordered, and the relief that is granted. See Jenkins v. Recovery Technology Investors, 2002-1788 (La. App. 1 Cir. 6/27/03),
Because the November 15, 2017 judgment lacked decretal language actually dismissing Ms. Cole's petition for nullity, it was an interlocutory judgment. See State in Interest of J.C., 2016-0138 (La. App. 1 Cir. 6/3/16),
NO CAUSE OF ACTION
(Assignments of Error B & D)
Ms. Cole assigns error to the trial court's judgment maintaining the grandparents' no cause of action exception. Ms. Cole argues further that the trial court erred in failing to allow her an opportunity to amend her petition to annul to attempt to state a cause of action pursuant to La. Code Civ. P. art. 934.
The function of an exception raising the objection of no cause of action is to test the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the pleading. Everything on Wheels Subaru, Inc. v. Subaru South, Inc.,
The only documentary evidence that may be considered on an exception raising the objection of no cause of action is that which has been annexed to the petition, unless the evidence is admitted without objection to enlarge the petition.
*543Woodland Ridge Ass'n v. Cangelosi, 94-2604 (La. App. 1 Cir. 10/6/95),
When a petition states a cause of action as to any ground or portion of the demand, an exception raising the objection of no cause of action must be overruled. Thus, if the petition sets forth a cause of action, none of the other causes of action may be dismissed based on an exception pleading the objection of no cause of action. Copeland,
When the grounds of the peremptory exception raising the objection of no cause of action 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 cannot be so removed, or if plaintiff fails to comply with the order to amend, the action shall be dismissed. La. Code Civ. P. art. 934. The decision to allow amendment is within the sound discretion of the trial court. LeBlanc v. Alfred, 2015- 0397 (La. App. 1 Cir. 12/17/15),
It is clear from a review of the transcript of the October 16, 2017 hearing that the parties were in agreement that the February 22, 2017 transcript was admitted without objection to enlarge the petition. See Woodland Ridge Ass'n,
Ms. Cole contends that in the light most favorable to her, the March 14, 2017 stipulated judgment, allegedly derived from the February 22, 2017 hearing, is invalid and unenforceable as not only did she fail to consent to the judgment on the record, but any consent allegedly given by her was vitiated by the fraud and ill practices of her attorney. Ms. Cole argues that this is a basis for nullity pursuant to La. Code Civ. P. art. 2004(A), which provides that "[a] final judgment obtained by fraud or ill practices may be annulled." However, it is well established in our jurisprudence that improper representation or misconduct of the movant's attorney is not a *544legally recognized basis for a nullity action. See Stroscher v. Stroscher, 2001-2769 (La. App. 1 Cir. 2/14/03),
MOTION TO STRIKE
(Assignment of Error E)
Louisiana Code of Civil Procedure Article 964 provides: "The court on motion of a party or on its own motion may at any time and after a hearing order stricken from any pleading any insufficient demand or defense or any redundant, immaterial, impertinent, or scandalous matter." The granting of a motion to strike pursuant to Article 964 rests in the sound discretion of the trial court and is reviewed under the abuse of discretion standard. Pitre v. Opelousas Gen. Hosp.,
Because the source of Article 964 is found in Rule 12(f) of the Federal Rules of Civil Procedure, we look to federal jurisprudence to assist us in analyzing Article 964.
Redundant matter consists of allegations that constitute a needless repetition of other averments in the pleading. Immaterial matter is that which has no essential or important relationship to the claim for relief or the defenses being pleaded. Immateriality is established by showing that the challenged allegations "can have no possible bearing upon the subject matter of the litigation." Impertinent matter consists of statements that do not pertain, and are not necessary, to the issues in question; while scandalous matter is that which improperly casts a *545derogatory light on someone, most typically on a party to the action. "The granting of a motion to strike scandalous matter is aimed, in part, at avoiding prejudice to a party by preventing a jury from seeing the offensive matter or giving the allegations any other unnecessary notoriety inasmuch as, once filed, pleadings generally are public documents and become generally available."
In this matter, the grandparents sought to have stricken from the record what they alleged was an inflammatory, insulting, and untrue character assassination of their deceased son John as well as comments made about them. The trial court granted the motion to strike the statements contained in Paragraph 5, subparagraphs A through I, finding that the statements were hearsay. On appeal, Ms. Cole argues that the "information characterized by the grandparents as 'inflammatory, insulting, and untrue statements regarding them and their relationship to their children' is clearly relevant to the best interests of the children" ... "as well as to Ms. Cole's ability to raise her children as would any other parent-unimpeded by problematic interlopers." We have reviewed the record before us and find no abuse of discretion in the trial court's ruling granting the grandparents' motion to strike the statements contained in Paragraph 5 of Ms. Cole's petition to annul.
DECREE
For the above and foregoing reasons, we affirm the trial court's May 16, 2018 judgment in all respects. We assess all costs associated with this appeal against appellant, Allison Cole.
APPEAL MAINTAINED; AFFIRMED.
Chutz, J. concurs.
According to the record, Ms. Cole is represented by new counsel on appeal.
We note that the judgment makes reference to a February 2, 2017 hearing. However, it is clear from the minute entry and the transcript that the hearing occurred on February 22, 2017.
Federal Rule of Civil Procedure 12(f) provides, in pertinent part: "The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter."
Case-law data current through December 31, 2025. Source: CourtListener bulk data.