RANDY ALLEN GORDON AND DANA NO. 23-CA-366 GORDON FIFTH CIRCUIT VERSUS COURT OF APPEAL STATE OF LOUISIANA, DIVISION OF ADMINISTRATION, OFFICE OF STATE OF LOUISIANA COMMUNITY DEVELOPMENT - DISASTER RECOVERY UNIT
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 834-918, DIVISION "A" HONORABLE RAYMOND S. STEIB, JR., JUDGE PRESIDING
March 27, 2024
SUSAN M. CHEHARDY CHIEF JUDGE
Panel composed of Judges Susan M. Chehardy, John J. Molaison, Jr., and Timothy S. Marcel
JUDGMENT REVERSED; REMANDED WITH INSTRUCTIONS SMC JJM TSM COUNSEL FOR PLAINTIFF/APPELLANT, RANDY GORDON AND DANA GORDON Shermin S. Khan
COUNSEL FOR DEFENDANT/APPELLEE, STATE OF LOUISIANA, DIVISION OF ADMINISTRATION, OFFICE OF COMMUNITY DEVELOPMENT - DISASTER RECOVERY UNIT ("OCD - DRU") Mary C. Cali John C. Walsh William J. Wilson John C. Conine, Jr. Drew D. Lyons Hunter Farrar CHEHARDY, C.J.
Plaintiffs-appellants, Randy and Dana Gordon, seek review of the trial
court’s judgment that sustained an exception of no cause of action asserted by the
defendant, the State of Louisiana, Division of Administration, Office of
Community Development – Disaster Recovery Unity (OCD), and dismissed the
Gordons’ lawsuit without giving them an opportunity to amend their petition. For
the reasons that follow, we reverse the judgment sustaining the exception of no
cause of action and remand to the trial court to permit the plaintiffs an opportunity
to amend their petition within 30 days of the date of this opinion.
Background and Procedural History
On November 10, 2022, plaintiffs-appellants, Randy Allen Gordon and
Dana Gordon, filed a Petition to Vacate and Set Aside Judgment, namely, a
February 16, 2022 judgment entered in a separate lawsuit that awarded OCD
$40,247.14 against the Gordons.1 The Gordons’ petition alleges that OCD obtained
the 2022 judgment against them through fraud and ill practices pursuant to La.
C.C.P. art. 2004.2 Among numerous other allegations, the petition alleges: “The
affidavits of Jeff Haley, the Chief Operating Officer of OCD – DRU and that of
Mary Catherine Kali, the counsel of OCD – DRU, contain false information
regarding the Grant File and compliance.” Further, the petition states: “Because the
Gordons sold the subject property on February 20, 2014 by an act of cash sale filed
into the conveyance record at the Jefferson Parish Clerk of Court …, and OCD
filed suit on September 16, 2019, more than five years after, this matter is
1 The February 16, 2022 judgment, which was attached to plaintiffs’ petition in the present case, ordered the Gordons to pay OCD $30,000 plus legal interest from the date of judicial demand, $5,000 in attorney’s fees, and court costs. The lawsuit in which that judgment was obtained, State v. Gordon, also has an appeal pending in this Court in 23-CA-348. 2 La. C.C.P. art 2004 provides: A. A final judgment obtained by fraud or ill practices may be annulled. B. An action to annul a judgment on these grounds must be brought within one year of the discovery by the plaintiff in the nullity action of the fraud or ill practices. C. The court may award reasonable attorneys fees incurred by the prevailing party in an action to annul a judgment on these grounds.
23-CA-366 1 perempted pursuant to Louisiana Revised Statute 9:2772.” The Gordons’ petition
also “reserve[s] their rights under collection practices in violation of under [sic]
Unfair Debt Collection Practices Act (FDCPA).” Finally, the petition seeks
damages for mental anguish and inconvenience, costs of all experts and inspection
fees, attorney fees pursuant to La. C.C.P. art. 2004, loss of $40,247.14, and other
damages to which they are entitled, such as penalties, attorney’s fees, court costs,
and interest.
Attached to their petition were numerous documents, including a copy of the
February 16, 2022 judgment; copies of the Elevation Incentive Agreement and
Final Award Acknowledgement Form that were signed by Randy and Dana
Gordon on December 10, 2008; a copy of the Act of Cash Sale showing that the
Gordons sold the property on February 20, 2014; copies of the April 2021
affidavits that were attached to OCD’s motion for summary judgment, which the
Gordons contend included false information; and a copy of an August 2, 2022
letter from counsel for OCD to Crescent Title, requesting a certified check in the
amount of $40,247.14.
OCD filed peremptory and dilatory exceptions to the Gordons’ petition,
arguing that the February 16, 2022 judgment cannot be annulled because it has
been satisfied, and the mortgage against the Gordons was released. OCD further
contended that the only cause of action that the Gordons raised in their petition was
for an annulment of the judgment under La. C.C.P. art. 2004, and that a nullity
action cannot be used to assert defenses that should have been asserted in
opposition to the motion for summary judgment or on appeal of that judgment, but
the Gordons did not appeal that judgment. OCD asserts that La. C.C.P. art. 2004 is
not a substitute for an appeal. Finally, OCD argued that the Gordons have not
asserted any factual allegations that would entitle them to the “damages” they
request.
23-CA-366 2 LAW AND ANALYSIS
When an exception of no cause of action is granted, we review the trial
court’s judgment under a de novo standard of review because the exception raises a
question of law, and the lower court’s decision is based only on the sufficiency of
the petition. Gaudet v. Jefferson Parish, 12-707 (La. App. 5 Cir. 3/27/13), 116
So.3d 691, 693 (citing Cleco Corp. v. Johnson, 01-175 (La. 9/18/01), 795 So.2d
302, 304). The purpose of the peremptory exception 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. Veroline v. Priority One EMS, 09-1040 (La. 10/9/09),
18 So.3d 1273, 1275. The exception is triable on the face of the petition and any
attached documents and, for purposes of resolving the issues raised by the
exception, the well-pleaded facts in the petition must be accepted as true. I E C I,
LLC v. South Central Planning & Dev. Comm’n, Inc., 21-382 (La. App. 5 Cir.
2/23/22), 336 So.3d 601, 611.
No evidence may be introduced to support or controvert an exception of no
cause of action. La. C.C.P. art. 931. The pertinent inquiry is whether, in the light
most favorable to the plaintiff, and with every doubt resolved in the plaintiff’s
favor, the petition states any valid cause of action for relief. I E C I, LLC v. South
Central Planning & Dev. Comm’n, Inc., 21-382 (La. App. 5 Cir. 2/23/22), 336
So.3d 601, 611. Consequently, the court reviews the petition and accepts the well-
pleaded allegations of fact as true. Gaudet, 116 So.3d at 693 (citing Ramey v.
DeCaire, 03-1299 (La.3/19/04), 869 So.2d 114, 118).
While we make no findings whether the Gordons ultimately may succeed in
their nullity action, or in any other cause of action that they may assert against
OCD, upon considering the allegations in the light most favorable to plaintiffs, we
find the trial court erred in granting the exception of no cause of action. The
petition alleges that the evidence attached to OCD’s motion for summary judgment
23-CA-366 3 contained false information. That OCD may have one or more defenses to these
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RANDY ALLEN GORDON AND DANA NO. 23-CA-366 GORDON FIFTH CIRCUIT VERSUS COURT OF APPEAL STATE OF LOUISIANA, DIVISION OF ADMINISTRATION, OFFICE OF STATE OF LOUISIANA COMMUNITY DEVELOPMENT - DISASTER RECOVERY UNIT
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 834-918, DIVISION "A" HONORABLE RAYMOND S. STEIB, JR., JUDGE PRESIDING
March 27, 2024
SUSAN M. CHEHARDY CHIEF JUDGE
Panel composed of Judges Susan M. Chehardy, John J. Molaison, Jr., and Timothy S. Marcel
JUDGMENT REVERSED; REMANDED WITH INSTRUCTIONS SMC JJM TSM COUNSEL FOR PLAINTIFF/APPELLANT, RANDY GORDON AND DANA GORDON Shermin S. Khan
COUNSEL FOR DEFENDANT/APPELLEE, STATE OF LOUISIANA, DIVISION OF ADMINISTRATION, OFFICE OF COMMUNITY DEVELOPMENT - DISASTER RECOVERY UNIT ("OCD - DRU") Mary C. Cali John C. Walsh William J. Wilson John C. Conine, Jr. Drew D. Lyons Hunter Farrar CHEHARDY, C.J.
Plaintiffs-appellants, Randy and Dana Gordon, seek review of the trial
court’s judgment that sustained an exception of no cause of action asserted by the
defendant, the State of Louisiana, Division of Administration, Office of
Community Development – Disaster Recovery Unity (OCD), and dismissed the
Gordons’ lawsuit without giving them an opportunity to amend their petition. For
the reasons that follow, we reverse the judgment sustaining the exception of no
cause of action and remand to the trial court to permit the plaintiffs an opportunity
to amend their petition within 30 days of the date of this opinion.
Background and Procedural History
On November 10, 2022, plaintiffs-appellants, Randy Allen Gordon and
Dana Gordon, filed a Petition to Vacate and Set Aside Judgment, namely, a
February 16, 2022 judgment entered in a separate lawsuit that awarded OCD
$40,247.14 against the Gordons.1 The Gordons’ petition alleges that OCD obtained
the 2022 judgment against them through fraud and ill practices pursuant to La.
C.C.P. art. 2004.2 Among numerous other allegations, the petition alleges: “The
affidavits of Jeff Haley, the Chief Operating Officer of OCD – DRU and that of
Mary Catherine Kali, the counsel of OCD – DRU, contain false information
regarding the Grant File and compliance.” Further, the petition states: “Because the
Gordons sold the subject property on February 20, 2014 by an act of cash sale filed
into the conveyance record at the Jefferson Parish Clerk of Court …, and OCD
filed suit on September 16, 2019, more than five years after, this matter is
1 The February 16, 2022 judgment, which was attached to plaintiffs’ petition in the present case, ordered the Gordons to pay OCD $30,000 plus legal interest from the date of judicial demand, $5,000 in attorney’s fees, and court costs. The lawsuit in which that judgment was obtained, State v. Gordon, also has an appeal pending in this Court in 23-CA-348. 2 La. C.C.P. art 2004 provides: A. A final judgment obtained by fraud or ill practices may be annulled. B. An action to annul a judgment on these grounds must be brought within one year of the discovery by the plaintiff in the nullity action of the fraud or ill practices. C. The court may award reasonable attorneys fees incurred by the prevailing party in an action to annul a judgment on these grounds.
23-CA-366 1 perempted pursuant to Louisiana Revised Statute 9:2772.” The Gordons’ petition
also “reserve[s] their rights under collection practices in violation of under [sic]
Unfair Debt Collection Practices Act (FDCPA).” Finally, the petition seeks
damages for mental anguish and inconvenience, costs of all experts and inspection
fees, attorney fees pursuant to La. C.C.P. art. 2004, loss of $40,247.14, and other
damages to which they are entitled, such as penalties, attorney’s fees, court costs,
and interest.
Attached to their petition were numerous documents, including a copy of the
February 16, 2022 judgment; copies of the Elevation Incentive Agreement and
Final Award Acknowledgement Form that were signed by Randy and Dana
Gordon on December 10, 2008; a copy of the Act of Cash Sale showing that the
Gordons sold the property on February 20, 2014; copies of the April 2021
affidavits that were attached to OCD’s motion for summary judgment, which the
Gordons contend included false information; and a copy of an August 2, 2022
letter from counsel for OCD to Crescent Title, requesting a certified check in the
amount of $40,247.14.
OCD filed peremptory and dilatory exceptions to the Gordons’ petition,
arguing that the February 16, 2022 judgment cannot be annulled because it has
been satisfied, and the mortgage against the Gordons was released. OCD further
contended that the only cause of action that the Gordons raised in their petition was
for an annulment of the judgment under La. C.C.P. art. 2004, and that a nullity
action cannot be used to assert defenses that should have been asserted in
opposition to the motion for summary judgment or on appeal of that judgment, but
the Gordons did not appeal that judgment. OCD asserts that La. C.C.P. art. 2004 is
not a substitute for an appeal. Finally, OCD argued that the Gordons have not
asserted any factual allegations that would entitle them to the “damages” they
request.
23-CA-366 2 LAW AND ANALYSIS
When an exception of no cause of action is granted, we review the trial
court’s judgment under a de novo standard of review because the exception raises a
question of law, and the lower court’s decision is based only on the sufficiency of
the petition. Gaudet v. Jefferson Parish, 12-707 (La. App. 5 Cir. 3/27/13), 116
So.3d 691, 693 (citing Cleco Corp. v. Johnson, 01-175 (La. 9/18/01), 795 So.2d
302, 304). The purpose of the peremptory exception 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. Veroline v. Priority One EMS, 09-1040 (La. 10/9/09),
18 So.3d 1273, 1275. The exception is triable on the face of the petition and any
attached documents and, for purposes of resolving the issues raised by the
exception, the well-pleaded facts in the petition must be accepted as true. I E C I,
LLC v. South Central Planning & Dev. Comm’n, Inc., 21-382 (La. App. 5 Cir.
2/23/22), 336 So.3d 601, 611.
No evidence may be introduced to support or controvert an exception of no
cause of action. La. C.C.P. art. 931. The pertinent inquiry is whether, in the light
most favorable to the plaintiff, and with every doubt resolved in the plaintiff’s
favor, the petition states any valid cause of action for relief. I E C I, LLC v. South
Central Planning & Dev. Comm’n, Inc., 21-382 (La. App. 5 Cir. 2/23/22), 336
So.3d 601, 611. Consequently, the court reviews the petition and accepts the well-
pleaded allegations of fact as true. Gaudet, 116 So.3d at 693 (citing Ramey v.
DeCaire, 03-1299 (La.3/19/04), 869 So.2d 114, 118).
While we make no findings whether the Gordons ultimately may succeed in
their nullity action, or in any other cause of action that they may assert against
OCD, upon considering the allegations in the light most favorable to plaintiffs, we
find the trial court erred in granting the exception of no cause of action. The
petition alleges that the evidence attached to OCD’s motion for summary judgment
23-CA-366 3 contained false information. That OCD may have one or more defenses to these
assertions does not constitute a basis for sustaining the exception, where well pled
facts must be accepted as true for purposes of evaluating the exception.
Furthermore, upon sustaining OCD’s exception of no cause of action, the
trial court should have given the Gordons an opportunity to amend their petition to
enunciate sufficient relevant facts to support their allegations of fraud or ill
practices, and/or to include any additional causes of action. La. C.C.P. art. 934
states:
When 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 within the delays allowed by the court. If the grounds of the objection 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.
The trial court erred in concluding that there was no basis upon which the grounds
for OCD’s objection could be removed. Accordingly, we grant the Gordons 30 days
from the date of this opinion to amend their petition in the trial court.
DECREE
The judgment granting the exception of no cause of action is reversed, and
the matter is remanded to the trial court with instructions to allow plaintiffs an
opportunity to amend their petition within 30 days of the date of this opinion.
JUDGMENT REVERSED; REMANDED WITH INSTRUCTIONS
23-CA-366 4 SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
SUSAN S. BUCHHOLZ FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON STEPHEN J. WINDHORST LINDA M. WISEMAN JOHN J. MOLAISON, JR. FIRST DEPUTY CLERK SCOTT U. SCHLEGEL TIMOTHY S. MARCEL 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
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