Opinion
2023 CA 0013
06-02-2023
STATE OF LOUISIANA THROUGH LOUISIANA BOARD OF ETHICS v. WALTER C. DUMAS AND WALTER C. DUMAS & ASSOCIATES, INC.
Jeff Landry Attorney General Amy D. Richard Assistant Attorney General Baton Rouge, Louisiana Travis J. Turner Gonzales, Louisiana Counsel for Plaintiff/Appellee State of Louisiana through Louisiana Board of Ethics Counsel for Defendants/Appellants Walter C. Dumas and Walter C. Dumas & Associates, Inc.
Appealed from the 19th Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Case No. C713886 The Honorable Richard "Chip" Moore, Judge Presiding
Jeff Landry Attorney General Amy D. Richard Assistant Attorney General Baton Rouge, Louisiana
Travis J. Turner Gonzales, Louisiana
Counsel for Plaintiff/Appellee State of Louisiana through Louisiana Board of Ethics
Counsel for Defendants/Appellants Walter C. Dumas and Walter C. Dumas & Associates, Inc.
BEFORE: WELCH, PENZATO, AND LANIER, JJ.
LANIER, J.
In this case, defendants, Walter C. Dumas and Walter C. Dumas & Associates, Inc. (collectively referred to as "Dumas"), challenge the August 15, 2022 judgment of the trial court ordering Dumas to pay the State of Louisiana through Louisiana Board of Ethics ("Board") $138,000.00, representing the civil penalty assessed by the Board against Dumas as recovery of the improper economic advantage gained from using a university football stadium suite without payment for three years while Mr. Dumas was a member of the university's board of supervisors. For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
In a prior opinion of this court, we affirmed the Board's July 12, 2016 finding that Dumas violated La. R.S. 42:1113 and 42:1115 of the Louisiana Code of Governmental Ethics ("Ethics Code"), as well as the $138,000.00 civil penalty assessed against Dumas. See Louisiana Bd. of Ethics , 2017-0313 (La.App. 1 Cir. 11/16/17), 236 So.3d 593, 595, writ denied, 2018-0132 (La. 3/9/18), 238 So.3d 457. In February 2020, after having not received payment from Dumas, the Board sent a demand letter to Mr. Dumas, noting that the penalty set forth in the Board's July 12, 2016 order was final and collectible and that failure to pay may result in further legal proceedings.
When Dumas persisted in not paying, the Board initiated this summary proceeding on December 7, 2021, by filing a Petition for Rule to Show Cause, pursuant to La. R.S. 42:1135, requesting that Dumas show cause why the Board's July 12, 2016 order should not be converted into an order of the trial court. By order signed December 20, 2021, Dumas was ordered to appear and show cause on March 21, 2022, why the trial court should not issue a judgment ordering Dumas to pay the Board the amount owed. According to the record, this hearing was continued without date due to lack of service on Dumas.
Thereafter, on April 6, 2022, the Board filed a "Motion and Order to Reset for Hearing and Reissue Request for Service of Citation and Petition," requesting service on Dumas. The new hearing date was set for August 8, 2022. Although the Board incorrectly listed "Wilson Doomes, Jr." as the defendant in the body of its motion to reset the rule to show cause, the caption of the motion correctly listed the defendants as "Walter C. Dumas and Walter C. Dumas and Associates, Inc." Moreover, the record reflects that service was issued in the name of "Walter C. Dumas" and "Walter C. Dumas & Associates, Inc." at 19221 S. Lakeway Ave., Baton Rouge, LA 70810. Mr. Dumas was personally served on April 28, 2022.
In response to the petition, Mr. Dumas filed exceptions raising the objections of vagueness and res judicata. Mr. Dumas argued that La. R.S. 42:1135 does not authorize the filing of a petition by the Board to enforce its decisions or orders. Mr. Dumas further noted that along with service of the Board's petition, he was advised that he had 21 days to file an answer to the petition and was served with the motion and order to reset for hearing ordering "Wilson Doomes, Jr." to appear on August 8, 2020. Mr. Dumas maintained that because of the vagueness of the Board's petition, he did not "know whether to answer the petition and do nothing in reference to the show cause order since it is directed to Wilson Doomes, Jr." Concerning his claims of res judicata, Mr. Dumas asserted that the violations and penalties set forth in the Board's petition arose out of the same transaction or occurrence that was the subject matter that is now final.
The Board's petition, as well as Mr. Dumas' exceptions, all proceeded to hearing before the trial court on August 8, 2022. Counsel for Mr. Dumas made no arguments regarding the exceptions and presented no evidence. The exceptions were submitted for consideration and overruled. Thereafter, the Board's rule to show cause was considered, along with the exhibits that were offered into evidence. The trial court ordered that the Board's July 12, 2016 order be made executory. The trial court signed a judgment in accordance with this finding on August 15, 2022. An order overruling Mr. Dumas' exceptions was signed by the trial court on September 7, 2022. Dumas has appealed the August 15, 2022 judgment, seeking review of the trial court's denial of the exception raising the objection of vagueness.
A judgment overruling an exception is generally considered an interlocutory judgment and is not appealable. See La. Code Civ. P. arts. 1841 and 2083; Ascension School Employees Credit Union v. Provost Salter Harper & Alford, L.L.C., 2006-0992 (La.App. 1 Cir. 3/23/07), 960 So.2d 939, 939-940. However, when an unrestricted appeal is taken from a final judgment, the appellant is entitled to seek review of all adverse interlocutory rulings prejudicial to him, in addition to the review of the final judgment. Bourg v. Safeway Insurance Company of Louisiana, 2019-0270 (La.App. 1 Cir. 3/5/20), 300 So.3d 881, 887.
LAW AND ANALYSIS
Louisiana Code of Civil Procedure article 891(A) requires that a petition "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." The sufficiency of a petition to clearly articulate the facts underlying the claims asserted therein is tested by a dilatory exception raising the objection of vagueness or ambiguity, pursuant to La. Code Civ. P. art. 926 A(5).
The purpose of the objection of vagueness is to place the defendant on notice of the nature of the facts sought to be proved so as to enable him to identify the cause of action, thus preventing its future relitigation after a judgment is obtained in the present suit. Vanderbrook v. Jean, 2006-1975 (La.App. 1 Cir. 2/14/07), 959 So.2d 965, 968. However, the objection of vagueness does not entitle the defendant to demand exactitude and detail of pleading beyond what is necessary to fulfill the aims outlined above. If the plaintiffs petition fairly informs the defendant of the nature of the cause of action and includes sufficient substantial particulars to enable the defendant to prepare its defense, then the exception of vagueness will be denied. Id. We review a trial court's denial of an exception raising the objection of vagueness under a manifest error standard as this judgment is based on factual determinations. Heirs of John Beckwith LLC v. Sims, 2020-0476 (La.App. 4 Cir. 3/10/21), 315 So.3d306, 313.
In this appeal, Dumas argues that La. R.S. 42:1135 only allows the Board to enforce valid regulations, final decisions, or final orders of the Board by mandamus or injunction, not by the filing of a petition for an ordinary proceeding. Dumas further asserts that the trial court legally erred in denying its exception raising the objection of vagueness. While acknowledging personal service of the petition, Dumas points to the various legal pleadings it received along with the citation, which ordered Dumas to file an answer to the petition within 21 days of service. The first pleading Dumas notes is the original "Order" signed by the trial court on December 20, 2021, ordering Dumas to appear on March 21, 2022, and show cause as to why an order and judgment of the trial court should not be issued ordering him to pay the Board $138,000.00, representing the civil penalty assessed by the Board. The second pleading is the "Motion and Order to Reset for Hearing and Reissue Request for Service of Citation and Petition," which requested service on Dumas but ordered "Wilson Doomes, Jr." to show cause on August 8, 2022, as to why an order and judgment of the trial court should not be issued ordering him to pay the Board $138,000.00, representing the civil penalty assessed by the Board. Citing Thomas v. Sonic, 2006-0041 (La.App. 1 Cir. 11/30/06), 950 So.2d 822, Dumas maintains that the Board's petition and order failed to allege sufficient particulars to enable preparation of a proper defense.
The Board argues that it properly commenced a summary proceeding in this matter by filing a petition for rule to show cause pursuant to La. R.S. 42:1135. The Board further alleges that Dumas has failed to show how the issuance of a citation by the clerk of court along with the show cause order created any vagueness or ambiguity such that Dumas was unable to prepare a defense to the Board's request to make its final order executory. The Board asserts that its petition contains particular factual allegations regarding the charges brought against Dumas by the Board, as well as the history of the administrative process demonstrating the finality of the Board's order. Thus, the Board maintains, its petition provided Dumas with sufficient information to identify the nature of the action and prepare a defense. We agree.
Initially, we note that La. R.S. 42:1135 provides as follows with regard to the enforcement of an order of the Board:
The Board of Ethics shall have the right to enforce any valid regulation, final decision, or final order of the Board of Ethics or the Ethics Adjudicatory Board in any court of competent jurisdiction in this state by a mandamus or injunction suit brought for that purpose. Any court of competent jurisdiction in this state shall have authority to convert a valid final decision or final order into a court order, upon receipt from the Board of Ethics of a rule to show cause for that purpose, [Emphasis added.]
Thus, although La. R.S. 42:1135 does authorize the Board to enforce its regulations, final decisions, and final orders by mandamus or injunction, the statute also allows for the conversion of a valid final decision or order into a court order by the Board petitioning the court for a rule to show cause. In State Bd. of Ethics v. Ambeau, 2014-0474 (La.App. 1 Cir. 3/6/15) 2015 WL 998681 (unpublished opinion), writ denied, 2015-0644 (La. 5/22/15), 171 So.3d 253, the Board filed a petition requesting that defendant be made to appear and show cause why the Late Fee Assessment Order previously issued against him by the Board should not be made executory. Following a hearing on the matter, a judgment was signed by the trial court converting the Board's order into a final judgment. Affirming the judgment below, this court concluded that after all applicable time delays to request a waiver, appeal the assessment, or appeal the final Late Fee Assessment Order had expired, "the Late Fee Assessment Order became the final order of the Board," and "the Board properly filed a rule to show cause to have the final order of the Board converted into a judgment of the trial court." Ambeau , 2015 WL 998681 at *3; see also Louisiana State Bd. of Ethics v. Aidoo, 2006-1243 (La.App. 1 Cir. 5/4/07), 961 So.2d 401 (affirming judgment of trial court that converted the Board's order into an order of the trial court after Board filed a petition for rule to show cause in accordance with La. R.S. 42:1135); La. Code Civ. P. art. 2593. Thus, the Board's petition for rule to show cause in this matter complies with the requirements of La. R.S. 42:1135, and any argument to the contrary is without merit.
Concerning the trial court's ruling on the exception raising the objection of vagueness, Dumas argues that the factual allegations in the Board's petition and order fail to allege sufficient particulars to enable the preparation of a proper defense. Based on our review of the record, we find there is a reasonable factual basis to support the trial court's ruling.
As previously noted, the Board requested service of citation and petition in its April 6, 2022 motion to reset the hearing in this matter. However, citation is not required in a summary proceeding such as this. See La. Code Civ. P. arts. 1201 and 2594. Moreover, although the citation ordered Mr. Dumas to answer the petition within 21 days, we note that pursuant to La. Code Civ. P. art 2593, an answer is not required in summary proceedings. Nonetheless, any implication by Dumas that the Board's request for service of citation and petition to be reissued in this matter resulted in vagueness or ambiguity is meritless.
Louisiana Code of Civil Procedure article 1201(A) provides, in pertinent part, that “[c]itation and service thereof are essential in all civil actions except summary and executory proceedings, divorce actions under Civil Code Article 102, and proceedings under the Children's Code,"
Louisiana Code of Civil Procedure article 2594 provides:
Citation and service thereof are not necessary in a summary proceeding. A copy of the contradictory motion, rule to show cause, or other pleading filed by the plaintiff in the proceeding, and of any order of court assigning the date and hour of the trial thereof, shall be served upon the defendant.
Included along with the citation that was served on Mr. Dumas was the original petition requesting a rule nisi directed at Dumas to show cause why the civil penalty assessed by the Board should not be made executory, the December 20, 2021 order setting the hearing for March 21, 2022, and the April 11, 2022 order re-setting the hearing for August 8, 2022. Based on our review of the record, we conclude that the Board's petition expressly set out the factual allegations against Dumas, including the specifics of the violations previously adjudicated by the Board that led to the $138,000.00 civil penalty assessed against Dumas. The claims were set forth with sufficient particularities to inform Dumas of the nature of those claims to allow preparation of a defense. Thus, the trial court did not err in overruling the exception raising the objection of vagueness.
DECREE
For the above and foregoing reasons, we affirm the trial court's order overruling the exception raising the objection of vagueness. Further, we affirm the trial court's August 15, 2022 judgment, converting the prior order issued by the State of Louisiana through Louisiana Board of Ethics into an executory order of the trial court and ordering Walter C. Dumas and Walter C. Dumas & Associates, Inc. to pay the $138,000.00 civil penalty, legal interest, attorney fees, and court costs previously assessed against them. All costs associated with this appeal are assessed against Walter C. Dumas and Walter C. Dumas & Associates, Inc.
AFFIRMED.