Opinion
NUMBER 2012 CA 1486
2013-09-10
IN RE: THE MINOR CHILD HALEY JONES
Vincent J. Booth New Orleans, LA Counsel for Appellant Shannon Jones Michelle Mayne Davis Mark G. Duncan Mandeville, LA Counsel for Appellee Jennifer Brunelle
NOT DESIGNATED FOR PUBLICATION
On Appeal from the
Twenty-Second Judicial District Court
In and for the Parish of St. Tammany
State of Louisiana
Docket No. 2009-30388
Honorable Peter J. Garcia, Judge
Vincent J. Booth
New Orleans, LA
Counsel for
Appellant
Shannon Jones
Michelle Mayne Davis
Mark G. Duncan
Mandeville, LA
Counsel for
Appellee
Jennifer Brunelle
BEFORE: GUIDRY, GRAIN, AND THERIOT, JJ.
GUIDRY, J.
This is an appeal by a father of a judgment awarding the mother reimbursement of attorney fees incurred for the establishment of tutorship proceedings and a special needs trust in St. Tammany Parish for the benefit of their daughter.
The general facts and procedural history of this case can be found in the companion appeal to this matter, In re Haley Jones, 12-1598 (La. App. 1st Cir. 9/-_/13)(unpublished opinion), also handed down this date, and thus will not be recited herein.
Ms. Brunelle filed a motion for reimbursement of attorney fees in the Twenty-Second Judicial District Court in and for the Parish of St. Tammany, the parish in which tutorship over Haley was established. The motion was a claim by a tutor for reimbursement of attorney's fees and expenses paid and incurred for the minor child and represented the money paid to her counsel for tasks performed for Haley relative to the tutorship proceedings and formation of a special needs trust. The trial court signed a written judgment on February 7, 2011, awarding approximately $143,000 to Ms. Brunelle as reimbursement of her legal costs. Shannon Jones, the natural father, and at that time, Haley's co-tutor, appealed the judgment.
Prior to filing this appeal, Mr. Jones sought reversal of the trial court's February 7, 2011 judgment in a writ application for the same reasons asserted in this appeal. On supervisory review, this court found the judgment to be a final appealable judgment and remanded the case to the trial court to grant Mr. Jones an appeal under In re Howard, 541 So. 2d 195 (La. 1989). See In re Haley Jones, 11-1396 (La. App. 1st Cir. 12/19/11) (unpublished writ action).
On May 2, 2012, the trial court removed Mr. Jones as co-tutor of Haley. The appellate record in this matter was lodged on September 13, 2012. On October 9, 2012, Ms. Brunelle filed a "Peremptory Exception of No Right of Action and Motion to Dismiss Appeal." In the exception, Ms. Brunelle argues that as a result of Mr. Jones being removed as Haley's co-tutor by the judgment rendered on May 2, 2012 (which judgment we this day have affirmed in the companion appeal previously referred to), he no longer has authority to prosecute the subject appeal, and it therefore should be dismissed.
An action can be brought only by a person having a real and actual interest, which he asserts. La. C.C.P. art. 681. The objection of no right of action is designed to test whether the plaintiff has a real and actual interest in the action. La. C.C.P. art. 927(A)(6); Vincent v. Vincent, 98-1346, p. 3 (La. App. 1st Cir. 6/25/99), 739 So. 2d 920, 922. The function of the peremptory exception raising the objection of no right of action is to determine whether the plaintiff belongs to a class of persons to whom the law grants the cause of action asserted in the suit. Blanchard v. Blanchard, 12-0106, p. 7 (La. App. 1st Cir. 12/31/12), 112 So. 3d 243, 249, writ denied, 13-0488 (La. 4/12/13), 111 So. 3d 1013.
Appeals are favored in the law, and La. C.C.P. art. 2086 grants third persons the right to appeal if the person could have intervened in the matter in the trial court. The right of a party to intervene in a case is determined by La. C.C.P. art. 1091, which article provides:
A third person having an interest therein may intervene in a pending action to enforce a right related to or connected with the object of the pending action against one or more of the parties thereto by:
(1) Joining with plaintiff in demanding the same or similar relief against the defendant;
(2) Uniting with defendant in resisting the plaintiff's demand; or
(3) Opposing both plaintiff and defendant.
In determining whether a party has an interest, and thus a right to intervene in an action, it has been held that "the requirement for intervention is two-fold: the intervenor must have a justiciable interest in, and a connexity to, the principal action." Clark v. State, Department of Revenue, 02-0703, p. 8 (La. App. 1st Cir. 5/9/03), 849 So. 2d 700, 705, writs denied, 03-1600, 03-1619 (La. 10/3/03), 855 So. 2d 320, 321. A "justiciable interest" is defined as "the right of a party to seek redress or a remedy against either [the] plaintiff or defendant in the original action or both, and where those parties have a real interest in opposing it." Mike M. Marcello. Inc. v. Louisiana Gaming Control Board, 04-0488, p. 5 (La. App. 1st Cir. 5/6/05), 903 So. 2d 545, 548. The right, if it exists, must be so related or connected to the facts or object of the principal action that a judgment on the principal action will have a direct impact on the intervener's rights. Mike M. Marcello, Inc., 04-0488 at p. 5, 903 So. 2d at 548.
Typically, divorced parents of a minor child to whom the court has awarded joint custody of the child are entitled to co-tutorship of the child "with equal authority, privileges, and responsibilities, unless modified by order of the court." La. C.C. art. 250. A tutor established under such circumstances is considered a natural tutor. See La. C.C. art. 250. While natural tutorship takes place by right, a natural tutor must nonetheless qualify as provided by law; thus, making the right of natural tutorship an inchoate right. See In re Tutorship of Cardenas, 09-2020, p. 5 (La. App. 1st Cir. 6/11/10), 38 So. 3d 1284, 1287. However, in order to perform any official duties, a natural tutor must be appointed by a judicial tribunal, as provided in the Code of Civil Procedure. See In re Tutorship of Watts, 96-0073, p. 4 (La. App. 1st Cir. 9/27/96), 681 So. 2d 74, 76. The tutor is the proper plaintiff to sue to enforce a right of an unemancipated minor when the parents are divorced. La. C.C.P. art. 683(B). In the performance of his duties, the tutor may exercise all procedural rights available to a litigant. La. C.C.P. art. 4264.
In this case, pursuant to the May 2, 2012 judgment of the trial court, Mr. Jones's right to co-tutorship of Haley was removed. As such, La. C.C.P. art. 4235 provides that a tutor who has been removed "shall have no further authority as such." While a parent may understandably be concerned that his or her child is properly cared for and that the child's rights and property are duly preserved, the interest that is protected is that of the child, not of the parent. Mr. Jones has no independent, justiciable right or interest, but rather it is only the interests of his child that are to be protected in this matter. As a result of the May 2, 2012 judgment, Mr. Jones no longer has the procedural right to protect his child's interests in this proceeding. Instead, that right, by law, is vested in Haley's appointed tutor, Ms. Brunelle, and her appointed undertutor, Judge Greene. See La. C.C.P. arts. 683(B), 4235, and 4264.
Thus, we find merit in the objection of no right of action raised by Ms. Brunelle in the peremptory exception filed with this court. In so finding, we shall sustain the exception to dismiss the pending appeal and assess any related costs to be borne equally by Jennifer Brunelle and Shannon Jones.
PEREMPTORY EXCEPTION SUSTAINED; APPEAL DISMISSED.