Jamie LaBranche v. Louisiana Department of Justice AG Jeff Landry

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2022 CA 0461

JAMIE LABRANCHE

VERSUS

LOUISIANA DEPARTMENT OF JUSTICE

A. G. JEFF LANDRY

JHDGMENT RENDF-R D: DEC 1 5 2021

Appealed from the Nineteenth Judicial District Court

Parish of East Baton Rouge • State of Louisiana

Docket Number 0710950 • Division O • Section 25

The Honorable Wilson E. Fields, Presiding Judge

Jamie LaBranche PROSE ApFLa A AN`r

Laplace, Louisiana PLAIN`rwF In forma pauperis

Alicia Edmond Wheeler CouNsi. i, Mt APPELLEE

Assistant Attorney General DE•'

FENDAN' r Attorney General Jeff

Baton Rouge, Louisiana Landry, in his Capacity as Custodian

of Records for the Louisiana

Department of Justice

BEFORE: WELCH, PENZATO, AND LANIER, JJ.

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WELCH, J.

In this matter involving a public records request, the plaintiff sought a writ of

mandamus directing the Louisiana Attorney General to produce certain records

requested by the plaintiff pursuant to the Louisiana Public Records Act (" PRA"),

La. R.S. 44: 33, et seq. The Attorney General filed a peremptory exception raising

the objections of no right of action and no cause of action, which the trial court

sustained, dismissing the plaintiff' s petition with prejudice. The plaintiff now

appeals and raises a statutory constitutional challenge. Based on the following

reasons, we affirm and remand.

FACTS AND PROCEDURAL HISTORY

The plaintiff, Jamie LaBranche, filed a petition for writ of mandamus pursuant

to La. R.S. 44: 35( A).' Mr. LaBranche sought production of "public records in state

possession, accounting for every dollar of 67 million plus dollars received from [ the]

federal government for 2012 mortgage settlement" and copies " of all transactions

related to this 67 million and any money you may be keeping in escrow... [ d] own to

the nearest dollar[, and] [ e] verybody and everything that was paid." 2 The record

shows that Mr. LaBranche submitted two public records requests to the Attorney

General— one on January 4, 2019, and another on February 24, 2021. The Attorney

General timely acknowledged receipt of both requests.

Despite the ambiguous description of the requested records, Mr. LaBranche

attached several news articles to his petition, which provide context for the requested

records. According to one of these articles, the federal government and forty-nine

state attorneys general reached a $ 25 billion agreement with the country' s five

I Louisiana Revised Statutes 44: 35( A) provides, in pertinent part, that "[ a] ny person who has been

denied the right to inspect, copy, reproduce, or obtain a copy or reproduction of a record... may

institute proceedings for the issuance of a writ of mandamus...."

z While Mr. LaBranche' s petition is written entirely in capital letters, we place citations to his

quotations in lower case letters for ease of readability.

2

largest mortgage servicers " to address mortgage loan servicing and foreclosure

abuses" ( the " settlement"). Reportedly, the settlement " provides substantial

financial relief to homeowners and establishes significant new homeowner

protections for the future" and requires mortgage servicers " to commit more than

20 billion towards financial relief for consumers." The news article states the terms

of the settlement required $ 20 billion in financial relief for borrowers, and also

required the servicers to pay $ 5 billion in cash to the federal and state governments,

1. 5 billion of which was to be used to establish a borrower payment fund to provide

cash payments to borrowers whose homes were sold or taken in foreclosure between

January 1, 2008, and December 31, 2011. 3

Based on Mr. LaBranche' s petition and the attached exhibits, it appears he

sought a writ of mandamus compelling the defendant, Attorney General Jeff Landry

in his capacity as Custodian of Records for the Louisiana Department of Justice),

to produce documents reflecting an accounting of Louisiana' s portion of the

settlement, which Mr. LaBranche contended amounted to more than $ 67 million

dollars, indicating where the funds were directed and where the funds are currently

held. While Mr. LaBranche argued that the settlement proceeds were " designed to

help people like me," he did not specifically allege entitlement to the settlement

funds in his petition.

After conducting a search for Mr. LaBranche' s requested records, the

Attorney General informed Mr. LaBranche that no documents were found that were

3 Mr. LaBranche appeared to access this particular article from an official website of the United

States Government. See Office of Public Affairs, " Federal Government and State Attorneys

General Reach $25 Billion Agreement with Five Largest Mortgage Servicers to Address Mortgage

Loan Servicing and Foreclosure Abuses," The Department of Justice ( February 9, 2012). This

court may take judicial notice of governmental websites. Mendoza v. Mendoza, 2017- 0070 ( La.

App. 4`h Cir. 616118), 249 So. 3d 67, 71, writ denied, 2018- 1138 ( La. 8131/ 18), 251 So. 3d 1083.

Furthermore, the law affords pro se litigants some leeway and patience in the form of liberally

construed pleadings. See Price v. Kids World, 2008- 1815 ( La. App. 1St Cir. 3127109), 9 S0. 3d

992, 996, writ not considered, 2009- 1340 ( La. 9/ 25109), 18 So. 3d 94; Williams v. Harrison,

54, 891 ( La. App. 2nd Cir. 815122), 346 So. 3d 370, 378, writ denied, 2022- 01207 ( La. 8/ 9/ 22), 343

So. 3d 703.

3

responsive to his requests. See La. R.S. 44: 34.4 In response to Mr. LaBranche' s

January 4, 2019 request, the Attorney General stated: " I' ve reached out to our

Consumer Protection Section with your question and have been unable to identify

any responsive records. There are no records to indicate that outside counsel was

retained for the case. However, I was able to locate [ a] website with information

regarding the settlement."' In response to Mr. LaBranche' s February 24, 2021

request, the Attorney General stated: " Our office is unable to find responsive records

to your request as written. Our Consumer Protection Section does provide a website

with information regarding national mortgage settlements for you to research."'

In further attempts to resolve Mr. LaBranche' s public records requests, the

Attorney General held discussions with him in order to receive more detailed

information to conduct a records search. The Attorney General again conducted a

search, but found no records responsive to Mr. LaBranche' s request. The Attorney

General' s search did, however, generate some nonresponsive records, which were

provided to Mr. LaBranche. A July 23, 2021 email from the Attorney General stated:

T] he records that we do have show that the AG' s office

did not receive $ 67, 647, 781. We received ... a third of that

amount. My guess is that the AG at the time stated that

Louisiana homeowners who can recover from the

settlement amount to about $ 67 million. But it was not on

the state to hand out amounts, it was on the homeowners

to go about recovering from the banks.

The National. Mortgage Settlement was an agreement with

the nation' s five largest mortgage servicers to address

4 See La. R.S. 44. 34, which provides, in pertinent part:

If any public record applied for by any authorized person is not in the custody or

control of the person to whom the application is made, such person shall promptly

certify this in writing to the applicant, and shall in the certificate state in detail to

the best of his knowledge and belief, the reason for the absence of the record from

his custody or control, its location, what person then has custody of the record and

the manner and method in which, and the exact time at which it was taken from his

custody or control.

5 The Attorney General provided a link to http:// www.nationalmortgatesettlement. com/.

6 Again, the Attorney General provided a Iink to http:// www,nationalmortgatesettlement.com/.

4

mortgage loan servicing and foreclosure abuses. The total

payout was $ 25 billion dollars.

Of the $ 25 billion dollars, Oklahoma entered into a

separate settlement of $ 18. 6 million. The federal

government received $ 912 million, the National

Association of Attorneys General received $ 15 million,

CSBS received $ 65 million, attorneys' fees were $ 10

million, and the AGs of the other 49 states received $ 2. 5

billion.

This left over $ 21 billion dollars to be collected by

homeowners. Any money that a homeowner would

receive would be from this part of the settlement, NOT the

amount given to the state AG.

The $ 21 billion dollars were handled through third parties

for homeowners to claim any remedies if they qualified.

The website we directed you to for both of your requests

answers if a person is qualified to receive payment, and

any action they had to complete. ... If you are seeking

reimbursement from this settlement, it is through them and

not us. This is also why we have no records pertaining to

this part of the settlement.

Now, when it comes to the amount the Louisiana AG

the office, like the other 48 states entering into

received, ...

the agreement,stipulated how they would spend the

amounts they received. And this is where we have some

records. Louisiana received $ 21, 741, 560 to be used..." for

investigation of mortgage and foreclosure matters,

consumer protection law enforcement and education,

litigation funds, public protection, reimbursement of costs

and fees associated with the investigation of this matter,

ensuring compliance under the terms of this agreement,

federal, and state regulations, or for any other purpose, at

the direction of the Attorney General, as permitted by state

law." The documents I sent earlier this week and the

documents attached to this email highlight the uses and

compliance with the provision.

In his petition, Mr. LaBranche claimed that he was also denied these same

records in 2014 by the former Attorney General for Louisiana, James D. ` Buddy"

Caldwell. Mr. LaBranche alleged that former Attorney General representatives

colluded and/ or used evidence and information obtained from that office against him

in order to defeat his claims to the funds and/ or against him in his foreclosure case.

Mr. LaBranche contended that he needed the requested records to close his " civil

case," which is a foreclosure suit he has allegedly been litigating in the Fortieth

5

Judicial District Court for the last fourteen years. 7 Mr. LaBranche further argued that

the public' s " right of access to public records is a fundamental right guaranteed by

the constitution," and the Attorney General' s failure to produce the records will

violate his " civil rights," i.e., " life, liberty and... property lost." In addition to

issuance of the writ of mandamus, Mr. LaBranche sought monetary damages,

sanctions, and costs for the Attorney General' s alleged violation of the PRA.

After Mr. LaBranche filed his petition for writ of mandamus on August 24,

2021, the trial court set the matter for hearing on October 6, 2021. At that hearing,

the trial court discovered that the Attorney General was not served with a copy of

the petition and reset the matter for hearing on November 16, 2021. Prior to the

hearing, the trial court granted an unopposed motion filed by the Attorney General

to continue the hearing to December 14, 2021.

On December 7, 2021, the Attorney General filed an opposition to Mr.

LaBranche' s petition for a writ of mandamus. Then on December 13, 2021, the

Attorney General filed a peremptory exception urging the objections of no right of

action and no cause of action as to Mr. LaBranche' s petition for writ of mandamus.

At the December 14, 2021 hearing on the merits of Mr. LaBranche' s petition

for writ of mandamus, the trial court granted a one -day continuance at Mr.

LaBranche' s request to allow him time to respond to the peremptory exception filed

by the Attorney General. At the continued hearing held on December 15, 2021, the

trial court first took up the Attorney General' s peremptory exception.8 The trial court

sustained the Attorney General' s peremptory exception raising the objections of no

See Nestor I, LLC v. LaBranche, Docket No, C- 54, 549, Div. A, 401h JDC, Parish of St. John

the Baptist.

s A peremptory exception filed before the answer is required to be tried and decided prior to the

trial. La. C. C. P. art. 929( A). In spite of the mandatory language of Article 929( A), referring the

peremptory exception to the merits has been upheld as being within the trial court' s discretion.

However, where it is clearly in the interest of judicial time and economy to dispose of the

peremptory exception, the trial court has been required to decide the exception prior to trial.

Lambert v. Riverboat Gaming Enft Div., Off. of State Police, Dep' t of Pub. Safety, State of

La., 95- 0872 ( La. App. I" Cir. 12/ 15195), 665 So. 2d 180, 181.

6

cause of action and no right of action and dismissed Mr. LaBranche' s petition for a

writ of mandamus, with prejudice. The trial court signed a written judgment in

conformity with its oral ruling on February 4, 2022.

Prior to rendition of the February 4, 2022 written judgment, Mr. LaBranche

filed a " notice" in the trial court challenging the constitutionality of La. C. C. P. arts.

927( 5), 927( 6), and 2593 in accordance with La. R.S. 13: 4448.9 Mr. LaBranche

argued that the Attorney General filed the peremptory exception as a dilatory tactic,

serving the peremptory exception on him and the trial court "[ five] minutes before

the] hearing." Mr. LaBranche further argued that the trial court' s refusal to allow

him to submit evidence in opposition to the objection of no right of action triggered

violations of his right to due process and a fair hearing under the Fourteenth

Amendment to the United States Constitution.' °

Mr. LaBranche now appeals the February 4, 2022 judgment, " with [ an] active

1

constitutionality of statute at issue before [ the] court."'

9 Louisiana Revised Statutes 13: 4448 provides:

Prior to adjudicating the constitutionality of a statute of the state of Louisiana, the

courts of appeal and the Supreme Court of Louisiana shall notify the attorney

general of the proceeding and afford him an opportunity to be heard. The notice

shall be made by certified mail. No judgment shall be rendered without compliance

with the provisions of this Section; provided where the attorney general was not

notified of the proceeding, the court shall hold adjudication of the case open

pending notification of the attorney general as required herein.

10 Mr. LaBranche' s " notice" did not contain a prayer for relief, nor a proposed order setting the

notice" for hearing. See La. Dist. Court Rules, Rule 9. 8 (" All... motions... shall be accompanied

by a proposed order requesting that the ... motion be set for hearing.").

11 The Attorney General argues that Mr. LaBranche' s appellant brief failed to include any

assignments of errors and was never served on the Attorney General in accordance with Uniform

Rules, Courts of Appeal, Rules 2- 12. 4 and 2- 14. 1. Although Rule 2- 12. 4 requires an appellant' s

brief to contain " assignments of alleged errors," La. C. C. P. art. 2129 sets forth that "[ a] n

assignment of errors is not necessary in any appeal." See Rodrigue v. Rodrigue, 591 So. 2d 1171,

1171 ( La. 1992) (" local rules of court cannot conflict with legislation"). Rule 2- 14. 1 requires that

all papers filed in a Court of Appeal by any party shall be served ... to opposing counsel of

record...." Mr. LaBranche' s appellant brief contains the required certificate indicating that a copy

of his appellant brief was sent via certified mail to the Attorney General. Further, the Attorney

General stated he obtained a copy of Mr. LaBranche' s appellant brief from this court. We find no

merit in the Attorney General' s argument on these issues.

7

PEREMPTORY EXCEPTIONS— OBJECTIONS OF

NO CAUSE OF ACTION AND NO RIGHT OF ACTION

At issue in the judgment on appeal is a peremptory exception raising the

objections of no right of action and no cause of action. Although these two objections

are often confused, the objections of no right of action and no cause of action are

separate and distinct. La. C. C. P. art. 927( A)(5) and ( 6); State, by & through

Caldwell v. Astra Zeneca AB, 2016- 1073 ( La. App. 1' Cir. 4/ 11/ 18), 249 So. 3d 38,

42 ( en banc), writs denied, 2015- 0758, 2018- 00766, ( La. 9121118), 252. So. 3d 899,

904 ( citing Badeaux v. Sw. Computer Bureau, Inc., 2005- 0612, 2005- 719 ( La.

3117106), 929 So. 2d 1211, 1216).

No Cause of Action

The peremptory exception raising the objection of no cause of action tests " the

legal sufficiency of the petition by determining whether the law affords a remedy on

the facts alleged in the pleading." Everything on Wheels Subaru, Inc. v. Subaru

South, Inc., 616 So. 2d 1234, 1235 ( La. 1993). No evidence may be introduced to

support or controvert the objection that the petition fails to state a cause of action.

La. C. C. P. art. 931. Therefore, the court reviews the petition and accepts well -

pleaded allegations of fact as true. The issue is whether, on the face of the petition,

the plaintiff is legally entitled to the relief sought. Everything on Wheels Subaru,

Inc., 616 So. 2d at 1235. Conclusions of law asserted as facts are not considered well -

pled allegations of fact and the correctness of those conclusions are not conceded.

Hooks v. Treasurer, 2006- 0541 ( La. App. I s' Cir. 514107), 961 So. 2d 425, 429, writ

denied, 2007- 1758 ( La. 1119107), 967 So. 2d 507. An objection of no cause of action

should be granted only when it appears beyond doubt that the plaintiff can prove no

set of facts in support of any claim that would entitle him to relief. Every reasonable

interpretation must be accorded the language used in the petition in favor of

maintaining its sufficiency and affording the plaintiff the opportunity of presenting

8

evidence at trial. Expert Riser Sols., LLC v. Techcrane Int' l, LLC, 2018- 0612

La. App. 1St Cir. 12/ 28/ 18), 270 So. 3d 655, 663. If a petition can be amended to

state a cause of action, the party opposing the exception must be given a fair

opportunity to amend. See La. C. C. P. art. 934. At trial, the burden of proof is on the

exceptor. On appeal, the review is de novo, as the well pled facts are accepted as

true, and only a question of law remains. Hoofs, 961 So. 2d at 429.

It is well settled that the public' s right of access to public records is a

fundamental right guaranteed by both the Louisiana Constitution and the PRA. La.

R. S. 44: 1, et seq.; Carolina Biological Supply Co. v. East Baton Rouge Parish

School Bd., 2015- 1080 ( La. App. 1St Cir. 8131116), 202 So. 3d 1121, 1125. Article

12, Section 3 of the Louisiana Constitution mandates that "[ n] o person shall be

denied the right to... examine public documents, except in cases established by law."

The custodian of the record shall present it to any person of the age of majority

who so requests. La. R.S. 44: 32( A). While the record generally must be made

available immediately, the PRA recognizes that some reasonable delay may be

necessary to compile, review, and, when necessary, redact or withhold certain

records that are not subject to production. See La. R.S. 44: 33; Stevens v. St.

Tammany Parish Government, 2017- 0959 ( La. App. I" Cir. 7118118), 264 So. 3d

456, 462, writ denied, 2018- 2062 ( La. 2118119), 265 So. 3d 773. In such a case,

within five business days of the request, the custodian must provide a written

estimate of the time reasonably necessary for collection, segregation, redaction,

examination, or review of a records request." La. R.S. 44: 35( A); Stevens, 264 So. 3d

at 462.

The PRA sets forth that any person who has been denied access to a public

record may institute proceedings for the issuance of a writ of mandamus. See La.

R.S. 44: 35( A); Zillow, Inc. v. Gardner, 2021- 1172 ( La. App. 1st Cir. 4! 8122), 341

So. 3d 765, 770. The six requirements for invoking the mandamus remedy under the

01

PRA are: ( 1) a request must be made, La. R.S. 44: 32( A); (2) the requester must be a

person," La. R. S. 44: 31; ( 3) the request must be made to a " custodian," La. R.S.

44: 1( A)( 3); ( 4) the document requested must be a " public record," La. R.S.

44: 1( A)(2); ( 5) the document requested must exist, La. R.S. 44: 35; and ( 6) there

must be a failure by the custodian to respond to the request, La. R.S. 44: 35( A).

4doms v. Cammon, 2021- 0828 ( La. App, I" Cir. 3/ 3/ 22), 2022 WL 620773, at * 4

unpublished), writ denied, 2022- 00560 ( La. 5/ 24/ 22), 338 So. 3d 1186 ( citing Lewis

v. Morrell, 2016- 1055 ( La. App. 4th Cir. 4/ 5/ 17), 215 So. 3d 737, 742- 44).

According to the allegations of his petition, Mr. LaBranche claimed his public

records " request was denied" by the Attorney General four times " due to a cover-up

and conflict of interest among top brass...." He further alleged that the Attorney

General was " withholding these records" and " had suppressed case files...." The

documents attached to Mr. LaBranche' s petition— which form part of his

show that Assistant Attorneys General Luke Donovan ( Public Records

petition12—

Coordinator) and Les Theriot assisted in preparing responses to Mr. LaBranche' s

public record requests. The correspondence reveals that searches were conducted on

all public records related to Mr. LaBranche' s requests; however, the Assistant

Attorneys General could not identify any documents that were responsive to the

requests.

The alleged facts and documents attached to the petition show that the

requested documents do not exist. Thus, on de novo review, we conclude that Mr.

LaBranche has not stated a cause of action under the PRA for mandamus on the basis

of the Attorney General' s failure to produce records responsive to his public records

request. We further find that the trial court did not err in dismissing Mr. LaBranche' s

t2 Louisiana Code of Civil Procedure article 853 provides, in pertinent part, that "[ a] copy of any

written instrument that is an exhibit to a pleading is a part thereof."

10

petition without allowing him the opportunity to amend his petition to state a cause

of action. See La. C. C. P. art. 934.'

No Right of Action

The peremptory exception raising the objection of no right of action tests

whether the plaintiff has any real and actual interest in judicially enforcing the right

asserted. See La. C. C. P. arts. 681 and 927( A)( 6). Simply stated, the objection of no

right of action tests whether this particular plaintiff, as a matter of law, has an interest

in the claim sued on. Louisiana State Bar Ass' n v. Carr and Associates, Inc.,

2008- 2114 (La. App. 1st Cir. 518109), 15 So. 3d 158, 165, writ denied, 2009- 1627 ( La.

10/ 30/ 09), 21 So. 3d 292. The objection does not raise the question of the plaintiffs

ability to prevail on the merits, nor the question of whether the defendant may have

a valid defense. Falcon v. Town of Berwick, 2003- 1861 ( La. App. Pt Cir. 6/ 25/ 04),

885 So. 2d 1222, 1224.

The party raising the no right of action objection bears the burden of proof.

Falcon, 885 So. 2d at 1224. To prevail on a peremptory exception pleading the

objection of no right of action, the defendant must show that the plaintiff does not

have an interest in the subject matter of the suit or legal capacity to proceed with the

suit. Falcon, 885 So.2d at 1224. Evidence supporting or controverting an objection

of no right of action is admissible for the purpose of showing that the plaintiff does

not possess the right he claims, or that the right does not exist. Robertson v. Sun

Life Financial, 2009- 2275 ( La. App, 1st Cir. 6/ 11/ 10), 40 So. 3d 507, 511; Thomas

v. Ardenwood Properties, 2010- 0026 ( La. App. 1" Cir. 6/ 11/ 10), 43 So. 3d 213,

218, writ denied, 2010- 1629 ( La. 10/ 8/ 10), 46 So. 3d 1271.

13 Louisiana Code of Civil Procedure article 934 provides, in pertinent part, "[ wlhen 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 delay

allowed by the court."

The Attorney General argued that only a person who made a public records

request; who was "

denied the right to inspect, copy, reproduce, or obtain a copy or

reproduction of a record under the provisions of the PRA— either by a

determination of the custodian or by the passage of five days from the date of his

request—

and who did not receive a determination in writing by the custodian, has

the right to institute proceedings for a writ of mandamus under the PRA. See La.

R.S. 44:35( A). The Attorney General further argued that the documents attached to

Mr. LaBranche' s petition showed that " based on the information provided in the

request, and despite [ the] request for additional information, the [ Attorney General]

notified [Mr. LaBranche] in writing that documents responsive to his request could

not be located."

Because records responsive to his public records requests do not exist, Mr.

LaBranche was not " denied the right to inspect, copy, reproduce, or obtain a copy or

reproduction of a record under the provisions of the PRA. Therefore, he does not

belong to the statutorily prescribed category of persons who has a right of action for

mandamus under La. R.S. 44: 35( A). We further find that the trial court did not err

in dismissing Mr. LaBranche' s petition without allowing him the opportunity to

amend. See La. C. C. P. art. 934.

CONSTITUTIONAL CHALLENGE

Mr. LaBranche challenges the constitutionality of La. C. C. P. arts. 927( 5),

927( 6), and 2593. Our Code of Civil Procedure does not require a single procedure

or type of proceeding for challenging or assailing the constitutionality of a statute.

However, our Supreme Court has held that the challenging party has a three-part

burden: the constitutional challenge must first be made in the trial court; the

unconstitutionality must be specially pleaded; and the grounds outlining the basis of

unconstitutionality must be particularized. Istre v. Meche, 2000- 131.6 ( La.

10117100), 770 So. 2d 776, 779; Vallo v. Gayle Oil Co., 94- 1238 ( La. 11130194), 646

12

So. 2d 859, 864- 65. The rationale behind these " rules" is that interested parties need

sufficient time to brief and prepare arguments defending the constitutionality of the

challenged statute. Vallo, 646 So. 2d at 865. In addition, 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 reviewing courts

with an adequate record upon which to adjudge the constitutionality of the statute.

Istre, 770 So. 2d at 779.

In this case, Mr. LaBranche did not plead the unconstitutionality of La. C. C. P.

arts. 927( 5), 927( 6), and 2593 in apetition, exception, motion, or answer, but instead

filed a " notice" challenging the constitutionality of those statutes. 14 Mr. LaBranche

filed his " notice" in the trial court on January 4, 2022— after the trial court' s

December 15, 2021 oral ruling sustaining the Attorney General' s exceptions, but

prior to the rendition of the February 4, 2022 written judgment. We note that the

Rule 9. 5 Certificate at the bottom of the February 4, 2022 judgment indicates, that

after circulating the proposed judgment to Mr. LaBranche, the Attorney General

received the " following opposition... La. CCP arts. 927( 5) and 2593 are

unconstitutional." Mr. LaBranche certified that he served the Attorney General with

a copy of his " notice" via certified mail. The record shows, however, there was no

contradictory hearing held on the issue of constitutionality in the trial court; the

Attorney General did not make an appearance; no evidence was submitted; and the

trial court did not rule on the issue of constitutionality.

As the Supreme Court explained in Vallo, 646 So. 2d at 865, the requirement

that the unconstitutionality of a statute be specifically plead " implies that this notable

issue will receive a contradictory hearing, wherein all parties will be afforded the

opportunity to brief and argue the issue. ... The record of the proceeding could then

14 This document is entitled, " Notice of Constitutional Challenge ` La Rev Stat & 13: 4448'

Constitutionality of Statute at Issue Cease and Desist All Judgments Until Opinion Issues

According to Above Stat."

13

be reviewed to determine whether the parry attacking the statute sustained his or her

burden of proof, and whether the trial court attempted to construe the statute so as to

preserve its constitutionality."

Because this issue has not been properly raised and decided in the trial court,

the constitutionality of these statutes is not properly before this court. However, the

law takes a liberal approach toward allowing amended pleadings in order to promote

the interests of justice. Reeder v. North, 97- 0239 ( La. 10121197), 701 So. 2d 1291,

1299. Accordingly, we pretermit further discussion of the constitutional challenge

and remand this matter to the trial court to allow Mr. LaBranche the opportunity to

specially plead the unconstitutionality of La. C. C. P. arts. 927( 5), 927( 6), and 2593,

and to give notice to the Attorney General. See La. C. C. P. art. 934; Reeder, 701

So. 2d at 1299; In re Med. Rev. Panel of Harris, 97- 1970 (La. App. 1" Cir. 9125198),

725 So. 2d 7, 9.

ATTORNEY GENERAL' S PEREMPTORY

EXCEPTION FILED ON APPEAL

The Attorney General filed a peremptory exception raising the objection of no

cause of action in this court. Louisiana Code of Civil Procedure article 2163 allows

an appellate court to consider a peremptory exception filed for the first time in that

court " if proof of the ground of the exception appears of record." However, appellate

review is limited to the record. La. C. C. P. art. 2164. This court cannot consider

evidence submitted in connection with a peremptory exception filed for the first time

in this court. Vanguard Vacuum Trucks, L.L.C. v. Mid -Am. Res. Corp., 2017-

0434 ( La. App. 15t Cir. 1 U1/ 17), 233 So. 3d 87, 89. The only evidence in the record

that could relate to the objection of no cause of action is the petition filed by Mr.

LaBranche.

The Attorney General argues that Mr. LaBranche has no cause of action under

La. R. S. 13: 4448, which " does not create a vehicle by which [ Mr. LaBranche] can

14

challenge the constitutionality of a statute." The Attorney General further argues that

Mr. LaBranche does not have a cause of action because he failed to challenge the

constitutionality of La. C. G. P. arts. 927( 5), 927( 6), and 2593 in the trial court.

While we appreciate the Attorney General' s arguments, because we are

remanding this matter to the trial court to allow Mr. LaBranche the opportunity to

specially plead the unconstitutionality of the challenged statutes and give notice to

the Attorney General, we find that the peremptory exception filed by the Attorney

General in this court is moot. 15

DECREE

We affirm the trial court' s February 4, 2022 judgment sustaining the

peremptory exception raising the objections of no cause and no right of action filed

by the Attorney General, and dismissing Mr. LaBranche' s petition for writ of

mandamus, with prejudice. We remand this matter to allow Mr. LaBranche to

specially plead the unconstitutionality of La. C. C. P. arts. 927( 5), 927( 6), and 2593,

and to give notice to the Attorney General. The peremptory exception raising the

objection of no cause of action filed by the Attorney General in this court is moot.

The motion to strike, suspend briefing delays, and for oral argument filed by Mr.

LaBranche is moot. We decline to assess appellate costs in this pauper suit. 16

APPELLEE' S PEREMPTORY EXCEPTION MOOTED; APPELLANT' S

MOTION TO STRIKE PEREMPTORY EXCEPTON, SUSPEND BRIEFING

DELAYS, AND FOR ORAL ARGUMENT MOOTED; JUDGMENT

AFFIRMED; REMANDED.

Because we find the exception filed on appeal moot, we likewise find Mr. LaBranche' s motion

to strike the exception, suspend briefing delays, and for oral argument moot.

16 See, e. g., Harrison v. Louisiana Dep' t of Pub. Safety & Corr., 2015- 1724 ( La. App. 1st Cir.

613116), 196 So -3d 724, 726, writ denied, 2016- 1319 ( La. 119118), 231 So. 3d 647.

15