NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
13-1049
IN RE:
ANGELA MARIE COSTANZA AND
CHASITY SHANELLE BREWER
**********
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. 20133539 HONORABLE EDWARD B. BROUSSARD, DISTRICT JUDGE
JOHN D. SAUNDERS JUDGE
Court composed of Sylvia R. Cooks, John D. Saunders, Jimmie C. Peters, Elizabeth A. Pickett, and James T. Genovese, Judges.
AFFIRMED, IN PART. REVERSED, INPART, AND REMANDED.
Peters, J., concurs in part, dissents in part, and assigns written reasons.
Pickett, J., concurs in part and dissents in part for the reasons assigned by Judge Peters. Hon. James David Caldwell Attorney General P. O. Box 94005 Baton Rouge, LA 70804-9005 (225) 326-6200 COUNSEL FOR APPELLEE: Louisiana Attorney Generals Office
Paul R. Baier Attorney at Law 4222 Hyacinth Ave. Baton Rouge, LA 70808 (225) 364-4647 COUNSEL FOR APPELLANT: Angela Marie Costanza Chasity Shanelle Brewer
Stuart Kyle Duncan Special Asst. Atty. General 1629 K Street NW, #300 Washington, DC 20006 (202) 508-1473 COUNSEL FOR APPELLEE: Louisiana Attorney Generals Office
Joshua S. Guillory Attorney at Law 317 E. University Ave. Lafayette, LA 70503 (337) 233-1303 COUNSEL FOR APPELLANT: Angela Marie Costanza Chasity Shanelle Brewer
Jessica MP Thornhill Asst. Attorney General P. O. Box 94005 Baton Rouge, LA 70804-9005 (225) 326-6060 COUNSEL FOR APPELLEE: Louisiana Attorney Generals Office SAUNDERS, Judge.
This is a case dealing with whether the trial court erred as a matter of law in
dismissing an action on its own motion under La.Code Civ.P. art. 927(B) based on
the failure of the petition filed to disclose a cause of action upon which relief could
be granted. We find that the petition can be amended to state a cause of action.
Thus, under La.Code Civ.P. art. 934, the trial court erred as a matter of law.
However, we find that the trial court was correct to dismiss the Lafayette Parish
Clerk of Court from the matter. Accordingly, we affirm in part, reverse in part,
and remand the case with instructions for the trial court to allow amendment of the
petition.
FACTS AND PROCEDURAL HISTORY:
On July 12, 2013, Angela Costanza and Chasity Brewer (the appellants)
filed a petition to make a foreign decree executory and for declaratory relief. In
that petition, the appellants prayed that their certificate of marriage issued to them
in the State of California be given full faith and credit, be made final and
enforceable, and be made executory. Additionally, they prayed for an order
declaring any Louisiana law denying the recognition and full faith and credit of a
valid marriage between persons of the same sex to be invalid, unenforceable, and
unconstitutional. Finally, they prayed for an order that the appropriate state
agencies, including the Clerk of Court for Lafayette Parish, to facilitate the
recognition of the marriage between them.
On July 26, 2013, under La.Code of Civ.P. art. 927(B), the trial court, on its
own motion based, signed a judgment of dismissal for the failure of the appellants’
petition to disclose a cause of action upon which relief could be granted. The
appellants appealed to this court. DISCUSSION OF THE MERITS:
Appellants assert that the trial court erred in dismissing their petition for
failure to disclose a cause of action without allowing them leave to amend their
petition to state a basis for their claims. We agree and disagree, in part.
The peremptory exception of no cause of action is designed to test the legal sufficiency of a petition by determining whether a party is afforded a remedy in law based on the facts alleged in the pleading. La. C.C.P. arts. 681 and 927; Everything on Wheels Subaru, Inc. v. Subaru South, Inc., et al., 616 So.2d 1234, 1235 (La.1993). All well- pleaded allegations of fact are accepted as true and correct, and all doubts are resolved in favor of sufficiency of the petition so as to afford litigants their day in court. La. C.C.P. art. 865; Kuebler v. Martin, 578 So.2d 113, 114 (La.1991). The burden of demonstrating that a petition fails to state a cause of action is upon the mover. Ramey v. DeCaire, 09-299, p. 7 (La.3/19/04), 869 So.2d 114, 119.
The sufficiency of a petition subject of an exception of no cause of action is a question of law. Fink v. Bryant, 01-0987, p. 4 (La.11/28/01), 801 So.2d 346, 349. [A] de novo standard is applied to the review of legal questions, wherein [the reviewing] Court renders a judgment based on the record without deference to the legal conclusions of the lower courts. Cleco Evangeline, LLC v. Louisiana Tax Commission, 01-2162, p. 3 (La.4/3/02), 813 So.2d 351, 353.
Foti v. Holliday, 09-93, pp. 5-6 (La. 10/30/09), 27 So.3d 813, 817.
The trial court dismissed the appellants action based on La.Code Civ.P. art.
927(B) which states:
The court may not supply the objection of prescription, which shall be specially pleaded. The nonjoinder of a party, peremption, res judicata, the failure to disclose a cause of action or a right or interest in the plaintiff to institute the suit, or discharge in bankruptcy, may be noticed by either the trial or appellate court on its own motion.
The appellants invoke La.Code of Civ.P. art. 934 for their position that the
trial court erred as a matter of law by failing to allow them leave to amend their
petition to correct its insufficiencies. Louisiana Code of Civil Procedure Article
934 states:
When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the 2 judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection raised through the exception cannot be so removed, or if the plaintiff fails to comply with the order to amend, the action, claim, demand, issue, or theory shall be dismissed.
In the case before us, the appellants filed a petition and attached a certificate
of marriage issued to them by the State of California. In their petition, appellants
state that the certificate of marriage was valid and lawfully rendered at issuance
and continues to be valid. Thereafter, they request a declaratory judgment stating
that their certificate of marriage be given full faith and credit by the State of
Louisiana. Further, they ask that the court issue a judgment that any law in the
State of Louisiana that denies full faith and credit to their certificate of marriage be
declared unconstitutional. Next, they ask the court for an order declaring any law
in the State of Louisiana that denies recognition and/or full faith and credit of a
valid marriage between persons of the same sex to be unconstitutional. Finally,
they ask the court to order state agencies, including the Clerk of Court of Lafayette,
to recognize the marriage between them.
We affirm the trial court’s grant of the peremptory exception as to the Clerk
of Court for Lafayette Parish. Article V Section 28(A) lists the powers and duties
of Clerks of Court. It states that a Clerk of Court is the “ex officio notary public
and parish recorder of conveyances, mortgages, and other acts and shall have other
duties and powers provided by law.” Although part of the judicial branch of
government in Louisiana, a Clerk of Court is merely the recorder of an act of
marriage and does not have the power under Louisiana law “to facilitate the
recognition” of any marriage of any kind as requested in the Appellant’s petition.
Therefore, “the grounds of the objection raised through the exception cannot be so
removed” under La.Code Civ. P. art. 934, and to remand this case on this issue
3 would be useless and vain. Thompson v. Harrington, 99-571 (La.App. 3 Cir.
10/13/99), 746 So.2d 652.
Notwithstanding the preceding concerning the Clerk of Court of Lafayette
Parish and the fact that the petition fails to state why their certificate of marriage is
in need of such declarations, the reason is clear. The appellants’ petition, via its
requests, challenges the constitutionality of Louisiana law pertaining to same sex
marriage.
The standard for granting an exception of no cause of action is not the likelihood that the plaintiff will prevail at trial. Rather, it is whether, on the face of the petition, accepting as true all its allegations, and with every doubt resolved in the plaintiffs’ behalf, the petition states any valid cause of action for relief.
Doe v. Smith, 05-653, p. 2 (La.App. 4 Cir. 7/13/05), 913 So.2d 140, 141 (citing
Copeland v. Treasure Chest Casino, 2001-1122, p. 3 (La.App. 1 Cir. 6/21/02), 822
So.2d 68, 70.)
The Louisiana Supreme Court, in Istre v. Meche, 00-1316, p. 4 (La.
10/17/00), 770 So.2d 776, 779 (parenthetical in original), discussed the proper way
to raise a constitutional challenge to Louisiana law by stating:
While there is no single procedure for assailing the constitutionality of a statute, it has long been held that the unconstitutionality of a statute must be specially pleaded and the grounds for the claim particularized. Reeder v. North, 97-0239, p. 14 (La.10/21/97), 701 So.2d 1291, 1299; Williams v. State, Dept. of Health & Hospitals, 95-0713, p. 4 (La.1/26/96), 671 So.2d 899, 901; Vallo v. Gayle Oil Co., Inc., 94- 1238, p. 8 (La.11/30/94), 646 So.2d 859, 864-65. This court has articulated this burden as composed of three tiers: “First of all, the plea of unconstitutionality must first be made in the trial court. Next, the plea of unconstitutionality must be specially pleaded. Finally, the grounds outlining the basis of unconstitutionality must be particularized.” Williams, 95-0713 at pp. 4-5, 671 So.2d at 902 (internal citations omitted). These procedural rules exist to afford interested parties sufficient time to brief and prepare arguments defending the constitutionality of the challenged statute. Vallo, 94- 1238 at p. 9, 646 So.2d at 865. This opportunity to fully brief and argue the issue provides the trial court with thoughtful and complete arguments relative to the issue of constitutionality and furnishes 4 reviewing courts with an adequate record upon which to adjudge the constitutionality of the statute.
Given our supreme court’s outline in Istre, we find that the appellants can
amend their petition to disclose a cause of action. They can specify what
Louisiana law they wish to challenge, the basis for that challenge, and request
service on interested parties so that a complete record with thoughtful and
complete arguments can be produced. 1 As such, allowance of the appellants to
amend their petition is not vain, useless, or futile. However, history has shown that
it is a vain, useless, and futile act to disallow our citizens access to the courts via
procedural devices so as to delay adjudication of controversial issues. Accordingly,
we reverse the dismissal of the appellants’ action and remand the matter to the trial
court with instructions to allow the appellants leave to amend their petition to
correct any insufficiencies.
We note two other relevant factors to consider in adjudicating this case are
potential res judicata ramifications and judicial efficiency. The trial court’s
dismissal occurred prior to reaching the merits of the case and was silent on
prejudice, thus, it was without prejudice. State ex re. Dept. of Soc. Serv. v. A.P.,
02-2372 (La.App. 1 Cir. 6/20/03), 858 So.2d 498 (citing Simmons v. Dixon, 306
So.2d 67 (La.App. 1 Cir.1974). However, with the ever broadening expanse of res
judicata, we find that reversal of the trial court’s judgment and remand of the case
to allow the appellants to amend their petition was in greater furtherance of the
ever present judicial goal of granting the people access to our courts. Moreover,
we find it more judicially efficient to reverse and remand the case rather than to
1 In brief, the appellants contend that they intend to serve the Attorney General. We note that compliance with La.R.S. 49:257(B) and La.R.S. 13:4448 is necessary on remand even though the Attorney General, while not a named party, filed briefs in the instant matter. 5 uphold the trial court’s dismissal simply to force the appellants to file a more
sufficient petition in their subsequent action.
CONCLUSION:
The action of Angela Costanza and Chasity Brewer was dismissed by the
trial court on its own motion for failure to disclose a cause of action. Their request
for leave to amend their petition was denied by the trial court.
Costanza and Brewer appeal and request reversal of the trial court’s
dismissal and remand of the case so that they can amend their petition. Under
La.Code. Civ.P. art. 934, we affirm the trial court’s judgment dismissal of the
Clerk of Court of Lafayette Parish, as the grounds for the objection cannot be
removed. However, we reverse the remainder of the trial court’s judgment and
find that it erred as a matter of law in disallowing Costanza and Brewer leave to
amend their petition in the remaining respects. We remand the case with
instructions to the trial court to grant Costanza and Brewer leave to amend their
petition for it to disclose a cause of action.
AFFIRMED, IN PART. REVERSED, IN PART, AND REMANDED.
This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform Rules-Courts of Appeal, Rule 2-16.3.
6 STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
PETERS, J., concurs in part and dissents in part.
The majority reaches the correct conclusion in affirming the trial court’s
grant of the peremptory exception of no cause of action. However, I respectfully
disagree with the remand to allow Ms. Costanza and Ms. Brewer the opportunity to
attempt to amend their filing to state a cause of action. I find that the filing is so
defective that it cannot be amended and that the litigants should be required to start
over and comply with the very basic requirements of the Louisiana Code of Civil
Procedure.
In the majority opinion, this court states that Ms. Costanza and Ms. Brewer
“filed a petition to make a foreign decree executory and for declaratory relief”
(emphasis added) and that they prayed for full faith and credit recognition of a
California decree of marriage; for an order declaring any Louisiana law denying
the recognition and full faith and credit of a valid marriage between persons of the
same sex to be invalid, unenforceable, and unconstitutional; and for an order that
the appropriate state agencies, including the Clerk of Court for Lafayette Parish,
take all measures necessary to facilitate the recognition of the marriage between
them. Nothing in this filing qualifies it as a “petition.”
Louisiana Code of Civil Procedure Article 421 provides that “[a] civil action
is a demand for the enforcement of a legal right” and that “[i]t is commenced by
the filing of a pleading presenting the demand to a court of competent jurisdiction.” The legal right addressed by the filing of Ms. Costanza and Ms.
Brewer purports to be a personal action which seeks to enforce an obligation
against an obligor. La.Code Civ.P. art. 422. The pleading which purports to make
the demand for the enforcement of a personal legal right, must be in the form of a
petition which meets the criteria of La.Code Civ.P. art. 891(A) (emphasis added),
which states:
The petition shall comply with Articles 853, 854, and 863, and, whenever applicable, with Articles 855 through 861. It shall set forth the name, surname, and domicile of the parties; shall contain a short, clear, and concise statement of all causes of action arising out of, and of the material facts of, the transaction or occurrence that is the subject matter of the litigation; shall designate an address, not a post office box, for receipt of service of all items involving the litigation; and shall conclude with a prayer for judgment for the relief sought. Relief may be prayed for in the alternative.
One of the requirements set forth in La.Code Civ.P. art. 853 is that the
caption of the petition “state the name of the first party on each side with an
appropriate indication of other parties.” Additionally, La.Code Civ.P. art. 854
provides, in pertinent part, that “[a]ll allegations of fact of the petition . . . shall be
simple, concise, and direct, and shall be set forth in numbered paragraphs[]” and
that “[a]s far as practicable, the contents of each paragraph shall be limited to a
single set of circumstances.” Finally, La.Code Civ.P. art. 863(A) requires the party
or attorney for the party to sign the petition. By doing so, the party or attorney
whose signature is affixed makes specific certifications concerning the content of
the petition as found in La.Code Civ.P. art. 863(B). Failure to sign the pleading
shall cause it to be stricken. La.Code Civ.P. art. 863(C). A certification in
violation of this article may subject the litigant and his or her attorney to sanctions
imposed by the court. La.Code Civ.P. art. 863(D)-(G).
2 The filing of Ms. Costanza and Ms. Brewer constitutes five numbered
paragraphs and a prayer for relief. The original caption is the same as the one
before us on appeal. It does not set forth the name of the first party on either side
of the litigation. In fact, it does not set forth the name of any defendant. In the
first two numbered paragraphs, while the filing does set forth some particulars of
the relationship between Ms. Costanza and Ms. Brewer, it does not set forth any
specific incident where they claim to have been denied rights based on their
relationship by any party. In fact, nowhere in the filing do Ms. Costanza and Ms.
Brewer name any entity as a party defendant in the litigation.
Still, Ms. Costanza and Ms. Brewer do caption their filing as a Petition to
Make Foreign Decree Executory and Declaratory Relief. In doing so, they
requested that the trial court order a nonparty, the Clerk of Court of the Fifteenth
Judicial District Court, to make their California certificate of marriage “executory
in this Parish and State.” At oral argument before the five-judge panel, counsel for
Ms. Costanza and Ms. Brewer acknowledged the they have no cause of action
against the clerk of court and abandoned any argument objecting to the grant of the
peremptory exception of no cause of action dismissing the request that the
marriage license be made executory in this state. They were correct in abandoning
that argument.
The argument itself is in the form of a mandamus action. Louisiana Code of
Civil Procedure Article 3863 (emphasis added) provides in pertinent part that “[a]
writ of mandamus may be directed to a public official to compel the performance
of a ministerial duty required by law[.]” There exists no ministerial duty under
Louisiana law for a clerk of court to record and make executory a marriage license
of another state. The marriage license scheme in Louisiana merely requires that
3 the local clerk of court file (not record) the marriage licenses it issues in its office
after they are executed and returned. La.R.S. 9:252(A), (B). The local clerk of
court then provides the Bureau of Vital Statistics in New Orleans, Louisiana (the
actual state depository for a marriage license) with the license. La.R.S. 9:252(C);
La.R.S. 40:33(D); La.R.S. 40:36. Even with regard to the Bureau of Vital
Statistics record keeping, the stated reason for the preservation of issued marriage
licenses, along with records of birth, death, fetal death, divorce, dissolution of
marriage, or annulment, is for the provision of “reports containing analysis and
tabulation data derived from certificates and reports required under this Chapter, as
determined necessary for health planning and program activities.” La.R.S.
40:32(18); La.R.S. 40:36(C).
With the mandamus request no longer an issue in the filing, we are left with
a request for declaratory relief. Specifically, Ms. Costanza and Ms. Brewer
requested that the trial court “issue an order declaring any statute, administrative
rule, jurisprudence, or any other source of law in and for the State of Louisiana that
denies the recognition and/or full faith and credit of a valid marriage between
persons of the same sex be invalid, unenforceable and unconstitutional.” Again,
they do so without naming any defendant against whom they intend to proceed
although the obvious party at interest is the State of Louisiana.
While there are certainly laws in Louisiana which can be made subject to
constitutional attack based on the issues presented by Ms. Costanza and Ms.
Brewer, the appropriate state agency/official must be named to defend those laws.
Additionally, the correct procedural vehicle must be used. “The function of the
declaratory judgment is simply to establish the rights of parties or to express the
opinion of the court on [a] question of law without ordering anything to be done.”
4 Mull & Mull v. Kozak, 03-668, p. 5 (La.App. 1 Cir. 6/25/04), 878 So.2d 843, 846,
writ denied, 04-2332 (La. 12/17/04), 888 So.2d 866. Pursuant to La.Code Civ.P.
art. 1876, “[t]he court may refuse to render a declaratory judgment or decree where
such judgment or decree, if rendered, would not terminate the uncertainty or
controversy giving rise to the proceeding.” Because a declaratory judgment would
not have terminated the controversy raised by Ms. Costanza and Ms. Brewer, the
trial court was well within its discretion in refusing to move forward with the filing
before it.
I do recognize that La.Code Civ.P. art. 934 (emphasis added) provides that
“[w]hen the grounds of the objection pleaded by the peremptory exception may be
removed by amendment of the petition, the judgment sustaining the exception shall
order such amendment[.]” However, the filing before us cannot be characterized
as a petition by any stretch of the imagination. To even start to state a cause of
action, Ms. Costanza and Ms. Brewer would have to change the caption completely,
delete any reference to the claims against the clerk of court and, after making these
basic changes, would have to add multiple paragraphs adding multiple defendants.
In other words, I would find no error in the trial court refusal to allow Ms.
Costanza and Ms. Brewer to amend their filing. I would affirm.