PAMELA MCLELLAN AND WOODROW NO. 19-CA-169 MULKEY FIFTH CIRCUIT VERSUS COURT OF APPEAL MICHAEL YENNI, ET AL STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 784-067, DIVISION "L" HONORABLE DONALD A. ROWAN, JR., JUDGE PRESIDING
September 18, 2019
MARC E. JOHNSON JUDGE
Panel composed of Judges Marc E. Johnson, Robert A. Chaisson, and Hans J. Liljeberg
APPEAL DISMISSED; REMANDED MEJ RAC HJL COUNSEL FOR PLAINTIFF/APPELLANT, PAMELA MCLELLAN AND WOODROW MULKEY Nicholas A. Holton
COUNSEL FOR DEFENDANT/APPELLEE, MICHAEL YENNI, INDIVIDUALLY AND AS TEMPORARY REPRESENTATIVE OF THE PARISH OF JEFFERSON, KENNETH KROBERT, AIMEE VALLOT, CATHERINE TOPPEL, BRIAN KENNEDY, EDGAR LANGE, AND JASON MANNING Guice A. Giambrone, III Jacob K. Best JOHNSON, J.
Appellants appeal from a judgment of the trial court that sustained
Defendants’ exception of prescription as to Plaintiff, Pamela McLellan’s, claims
and sustained Defendants’ exception of no cause of action as to all Defendants,
except Defendant Edgar Lange.1 We find the judgment at issue is not a valid and
final judgment; therefore, we lack appellate jurisdiction to consider the merits of
this appeal.
FACTS & PROCEDURAL HISTORY
On May 22, 2018, Plaintiffs, Pamela McLellan and Woodrow Mulkey, filed
a Petition for Damages for Malicious Prosecution, Civil Conspiracy and Abuse of
Rights against multiple defendants – Michael Yenni, individually and as Jefferson
Parish President; Kenneth Krobert, an attorney for Jefferson Parish; Aimee Vallot,
Director of Code Enforcement for Jefferson Parish; Catherine Toppel, Director of
Property Maintenance and Quality of Life for Jefferson Parish; Brian Kennedy,
Assistant Director of Property Maintenance and Quality of Life for Jefferson
Parish; Edgar Lange, a Jefferson Parish Code Enforcement Officer; and Jason
Manning, also a Jefferson Parish Code Enforcement Officer.
In their petition, Plaintiffs alleged that Ms. McLellan had made an
anonymous complaint to the Jefferson Parish Department of Code Enforcement
against Plaintiffs’ neighbor, Thomas Centanni, for performing heavy industrial
work in his backyard at night. Ms. McLellan complained that Mr. Centanni was a
nuisance and was improperly using his residential property for commercial
purposes. Ms. McLellan asserted that after her anonymous complaint, Defendant
1 Defendant Edgar Lange is also referred to as Edgar Lane in the record. For purposes of consistency, we will refer to him as Mr. Lange, which is the name that appears in the case caption.
19-CA-169 1 Brian Kennedy maliciously prosecuted her by wrongfully naming her as a
defendant in the subsequent citation issued by the Parish in connection with her
complaint. Ms. McLellan alleged that as a result of being identified, Mr. Centanni
began to harass her.2 She further averred Mr. Kennedy had no probable cause to
charge her, acted with malice for the purpose of harassing her, and abused the
process by naming her as a defendant in the citation.
The petition also asserted that Defendants conspired to take harmful actions
against Plaintiffs, including conducting a “selective inspection” of Mr. Centanni’s
home in order to show no code violations, having Parish employees clean Mr.
Centanni’s yard to prevent him from being cited for violations, and targeting Mr.
Mulkey’s residence for possible violations. It further alleged Mr. Mulkey’s right
to privacy was invaded when Defendant Jason Manning knocked on Mr. Mulkey’s
door and asked if he could enter the home to inspect it for possible code violations.
The petition additionally recounted an incident between Mr. Mulkey and
Defendant Edgar Lange, which resulted in Mr. Mulkey being cited with a criminal
misdemeanor – interfering with a code enforcement officer. The charge was
ultimately dropped. Mr. Mulkey alleged that Defendant Lange abused the process
by knowingly filing a false police report and maliciously prosecuted him to inhibit
him from complaining about Mr. Centanni.
Defendants responded to the petition by filing exceptions of prescription and
no cause of action. Defendants maintained Plaintiffs’ claims were prescribed
because the petition was filed more than one year after Plaintiffs had knowledge
that Ms. McLellan was identified as a defendant in the code enforcement case
relating to Mr. Centanni. Specifically, Defendants claimed Ms. McLellan was
aware by May 16, 2017 that she was named in the citation at issue and Mr. Mulkey
was aware by May 18, 2017, but Plaintiffs did not file their petition until May 22,
2 Mr. Centanni is not a defendant in this lawsuit.
19-CA-169 2 2018. Defendants also asserted there was no cause of action against them because
of the statutory immunity provided by La. R.S. 9:2798.1.
A hearing on the exceptions was held on December 10, 2018. The hearing
consisted solely of the argument of counsel. No evidence was offered by either
party. At the conclusion of the hearing, the trial court sustained the exception of
prescription as to Ms. McLellan and denied the exception of no cause of action.
However, the trial court then went on to state, “what I will do . . . I don’t believe
there’s been any evidence to suggest anything about Mr. Yenni or the other parties.
I’ll dismiss them from the lawsuit. . . . But as for Mr. Lane [sic], he will remain.”
Thereafter, on December 19, 2018, the trial court signed a written judgment,
expressly sustaining Defendants’ exception of prescription as to Ms. McLellan’s
claims and sustaining Defendants’ exception of no cause of action “as to all
Defendants except Edgar Lane [sic].”3 Plaintiffs appeal from this judgment.
JURISDICTION
Before considering the merits of any appeal, appellate courts have the duty
to determine sua sponte whether subject matter jurisdiction exists, even when the
parties do not raise the issue. Input/Output Marine Sys. V. Wilson Greatbatch
Techs., Inc., 10-477 (La. App. 5 Cir. 10/29/10); 52 So.3d 909, 915. We cannot
reach the merits of an appeal unless our appellate jurisdiction has been properly
invoked by a valid and final judgment. Dieudonne Enterprises, Inc. v. Slade, 18-
375 (La. App. 5 Cir. 12/27/18); 263 So.3d 1214, 1217.
A final judgment determines the merits of a case in whole or in part. La.
C.C.P. art. 1841. “The Code provisions on the form of a judgment are sketchy.”
Moulton v. Stewart Enterprises, Inc., 17-243 (La. App. 4 Cir. 8/3/17); 226 So.3d
569, 572, quoting 1 Frank L. Maraist, La. Civ. L. Treatise, Civil Procedure § 12:2
3 When there are any discrepancies between the oral ruling of the trial court and the written judgment, the written judgment prevails. Cryer v. Cryer, 96-2741 (La. App. 1 Cir. 12/29/97); 706 So.2d 167, 169 n1, citing Hebert v. Hebert, 351 So.2d 1199, 1200 (La. 1977).
19-CA-169 3 (2d ed. 2016). “In Louisiana, the form and wording of judgments is not
sacramental.” Moulton, quoting Revision Comment (a) to La. C.C.P. art. 1918.
However, in order for a judgment to be valid it must be precise, definite and
certain. Input/Output, supra. Additionally, a valid final judgment must contain
decretal language – it must name the party in favor of whom the ruling is ordered,
the party against whom the ruling is ordered, and the relief that is granted or
denied. The specific relief granted should be determinable from the judgment
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PAMELA MCLELLAN AND WOODROW NO. 19-CA-169 MULKEY FIFTH CIRCUIT VERSUS COURT OF APPEAL MICHAEL YENNI, ET AL STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 784-067, DIVISION "L" HONORABLE DONALD A. ROWAN, JR., JUDGE PRESIDING
September 18, 2019
MARC E. JOHNSON JUDGE
Panel composed of Judges Marc E. Johnson, Robert A. Chaisson, and Hans J. Liljeberg
APPEAL DISMISSED; REMANDED MEJ RAC HJL COUNSEL FOR PLAINTIFF/APPELLANT, PAMELA MCLELLAN AND WOODROW MULKEY Nicholas A. Holton
COUNSEL FOR DEFENDANT/APPELLEE, MICHAEL YENNI, INDIVIDUALLY AND AS TEMPORARY REPRESENTATIVE OF THE PARISH OF JEFFERSON, KENNETH KROBERT, AIMEE VALLOT, CATHERINE TOPPEL, BRIAN KENNEDY, EDGAR LANGE, AND JASON MANNING Guice A. Giambrone, III Jacob K. Best JOHNSON, J.
Appellants appeal from a judgment of the trial court that sustained
Defendants’ exception of prescription as to Plaintiff, Pamela McLellan’s, claims
and sustained Defendants’ exception of no cause of action as to all Defendants,
except Defendant Edgar Lange.1 We find the judgment at issue is not a valid and
final judgment; therefore, we lack appellate jurisdiction to consider the merits of
this appeal.
FACTS & PROCEDURAL HISTORY
On May 22, 2018, Plaintiffs, Pamela McLellan and Woodrow Mulkey, filed
a Petition for Damages for Malicious Prosecution, Civil Conspiracy and Abuse of
Rights against multiple defendants – Michael Yenni, individually and as Jefferson
Parish President; Kenneth Krobert, an attorney for Jefferson Parish; Aimee Vallot,
Director of Code Enforcement for Jefferson Parish; Catherine Toppel, Director of
Property Maintenance and Quality of Life for Jefferson Parish; Brian Kennedy,
Assistant Director of Property Maintenance and Quality of Life for Jefferson
Parish; Edgar Lange, a Jefferson Parish Code Enforcement Officer; and Jason
Manning, also a Jefferson Parish Code Enforcement Officer.
In their petition, Plaintiffs alleged that Ms. McLellan had made an
anonymous complaint to the Jefferson Parish Department of Code Enforcement
against Plaintiffs’ neighbor, Thomas Centanni, for performing heavy industrial
work in his backyard at night. Ms. McLellan complained that Mr. Centanni was a
nuisance and was improperly using his residential property for commercial
purposes. Ms. McLellan asserted that after her anonymous complaint, Defendant
1 Defendant Edgar Lange is also referred to as Edgar Lane in the record. For purposes of consistency, we will refer to him as Mr. Lange, which is the name that appears in the case caption.
19-CA-169 1 Brian Kennedy maliciously prosecuted her by wrongfully naming her as a
defendant in the subsequent citation issued by the Parish in connection with her
complaint. Ms. McLellan alleged that as a result of being identified, Mr. Centanni
began to harass her.2 She further averred Mr. Kennedy had no probable cause to
charge her, acted with malice for the purpose of harassing her, and abused the
process by naming her as a defendant in the citation.
The petition also asserted that Defendants conspired to take harmful actions
against Plaintiffs, including conducting a “selective inspection” of Mr. Centanni’s
home in order to show no code violations, having Parish employees clean Mr.
Centanni’s yard to prevent him from being cited for violations, and targeting Mr.
Mulkey’s residence for possible violations. It further alleged Mr. Mulkey’s right
to privacy was invaded when Defendant Jason Manning knocked on Mr. Mulkey’s
door and asked if he could enter the home to inspect it for possible code violations.
The petition additionally recounted an incident between Mr. Mulkey and
Defendant Edgar Lange, which resulted in Mr. Mulkey being cited with a criminal
misdemeanor – interfering with a code enforcement officer. The charge was
ultimately dropped. Mr. Mulkey alleged that Defendant Lange abused the process
by knowingly filing a false police report and maliciously prosecuted him to inhibit
him from complaining about Mr. Centanni.
Defendants responded to the petition by filing exceptions of prescription and
no cause of action. Defendants maintained Plaintiffs’ claims were prescribed
because the petition was filed more than one year after Plaintiffs had knowledge
that Ms. McLellan was identified as a defendant in the code enforcement case
relating to Mr. Centanni. Specifically, Defendants claimed Ms. McLellan was
aware by May 16, 2017 that she was named in the citation at issue and Mr. Mulkey
was aware by May 18, 2017, but Plaintiffs did not file their petition until May 22,
2 Mr. Centanni is not a defendant in this lawsuit.
19-CA-169 2 2018. Defendants also asserted there was no cause of action against them because
of the statutory immunity provided by La. R.S. 9:2798.1.
A hearing on the exceptions was held on December 10, 2018. The hearing
consisted solely of the argument of counsel. No evidence was offered by either
party. At the conclusion of the hearing, the trial court sustained the exception of
prescription as to Ms. McLellan and denied the exception of no cause of action.
However, the trial court then went on to state, “what I will do . . . I don’t believe
there’s been any evidence to suggest anything about Mr. Yenni or the other parties.
I’ll dismiss them from the lawsuit. . . . But as for Mr. Lane [sic], he will remain.”
Thereafter, on December 19, 2018, the trial court signed a written judgment,
expressly sustaining Defendants’ exception of prescription as to Ms. McLellan’s
claims and sustaining Defendants’ exception of no cause of action “as to all
Defendants except Edgar Lane [sic].”3 Plaintiffs appeal from this judgment.
JURISDICTION
Before considering the merits of any appeal, appellate courts have the duty
to determine sua sponte whether subject matter jurisdiction exists, even when the
parties do not raise the issue. Input/Output Marine Sys. V. Wilson Greatbatch
Techs., Inc., 10-477 (La. App. 5 Cir. 10/29/10); 52 So.3d 909, 915. We cannot
reach the merits of an appeal unless our appellate jurisdiction has been properly
invoked by a valid and final judgment. Dieudonne Enterprises, Inc. v. Slade, 18-
375 (La. App. 5 Cir. 12/27/18); 263 So.3d 1214, 1217.
A final judgment determines the merits of a case in whole or in part. La.
C.C.P. art. 1841. “The Code provisions on the form of a judgment are sketchy.”
Moulton v. Stewart Enterprises, Inc., 17-243 (La. App. 4 Cir. 8/3/17); 226 So.3d
569, 572, quoting 1 Frank L. Maraist, La. Civ. L. Treatise, Civil Procedure § 12:2
3 When there are any discrepancies between the oral ruling of the trial court and the written judgment, the written judgment prevails. Cryer v. Cryer, 96-2741 (La. App. 1 Cir. 12/29/97); 706 So.2d 167, 169 n1, citing Hebert v. Hebert, 351 So.2d 1199, 1200 (La. 1977).
19-CA-169 3 (2d ed. 2016). “In Louisiana, the form and wording of judgments is not
sacramental.” Moulton, quoting Revision Comment (a) to La. C.C.P. art. 1918.
However, in order for a judgment to be valid it must be precise, definite and
certain. Input/Output, supra. Additionally, a valid final judgment must contain
decretal language – it must name the party in favor of whom the ruling is ordered,
the party against whom the ruling is ordered, and the relief that is granted or
denied. The specific relief granted should be determinable from the judgment
without reference to an extrinsic source such as pleadings or reasons for judgment.
The decree alone indicates the decision and the result decreed must be spelled out
in lucid, unmistakable language. Id. at 916.
Applying these principles, we find that the trial court’s judgment fails to
satisfy the jurisprudential requirements for a valid final judgment. The judgment at
issue states:
IT IS HEREBY ORDERED, ADJUDGED AND DECREED, Defendants’ Peremptory Exception of Prescription is GRANTED as to the claims of Plaintiff Pamela McLellan.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED, Defendants’ Exception of No Cause of Action is GRANTED IN PART and DENIED IN PART. The Exception of No Cause of Action is GRANTED as to all Defendants except Edgar Lane [sic] and DENIED as to Defendant Edgar Lane.
Although the judgment states the no cause of action is granted in part and
denied in part, the judgment fails to state the relief granted and, thus lacks
the necessary definitive decretal language.
Under La. C.C.P. art. 934, when the grounds of the objection pleaded
by a peremptory exception can be removed by amending the petition, the
judgment “shall order such amendment.” Where the grounds of the
objection cannot be removed by amendment, the action or claim “shall be
dismissed.” A judgment maintaining an exception of no cause of action is
not final unless it unconditionally dismisses the suit. Oster v. Oster, 563
19-CA-169 4 So.2d 490, 491 (La. App. 4th Cir. 1990), writ denied, 568 So.2d 1059 (La.
1990).
In this case, the judgment fails to indicate that Plaintiffs’ claims were
dismissed or whether Plaintiffs were allowed to amend their petition.
Although the transcript of the December 10, 2018 hearing on the exceptions
suggests that the trial court intended to dismiss all Defendants, except for
Mr. Lange, from the lawsuit, such relief was not granted in the written
judgment. As stated above, any determination of the rights of the parties and
the merits of the case must be evident from the language of the judgment
without reference to other documents in the record. Input/Output, 52 So.3d
at 916.
Additionally, the judgment creates ambiguity in identifying which
claims of which Plaintiff fail to state a cause of action. In the petition, there
are two plaintiffs who purport to state several causes of actions – which are
individual to each of them based on different factual allegations. On one
hand, the judgment grants an exception of prescription as to Ms. McLellan’s
claims, but on the other hand it grants an exception of no cause of action as
to all Defendants except Mr. Lange. It is unclear whether the trial court
found Ms. McLellan stated any cause of action in the petition, what and
whose cause of action remains against Mr. Lange, and whether any claims or
parties were unconditionally dismissed.
DECREE
For these reasons, we do not find that the judgment before us is a valid and
final judgment; thus, we find we lack appellate jurisdiction to consider the merits
19-CA-169 5 of Appellants’ appeal. Accordingly, we dismiss this appeal without prejudice and
remand for further proceedings. Once a final appealable judgment is rendered, the
parties may file a new appeal with this Court.
APPEAL DISMISSED; REMANDED
19-CA-169 6 SUSAN M. CHEHARDY MARY E. LEGNON
CHIEF JUDGE INTERIM CLERK OF COURT
FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON SUSAN BUCHHOLZ STEPHEN J. WINDHORST FIRST DEPUTY CLERK HANS J. LILJEBERG JOHN J. MOLAISON, JR. FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX www.fifthcircuit.org
NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY SEPTEMBER 18, 2019 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
19-CA-169 E-NOTIFIED 24TH JUDICIAL DISTRICT COURT (CLERK) HONORABLE DONALD A. ROWAN, JR. (DISTRICT JUDGE) GUICE A. GIAMBRONE, III (APPELLEE) JACOB K. BEST (APPELLEE) NICHOLAS A. HOLTON (APPELLANT)
MAILED NO ATTORNEYS WERE MAILED