PARISH OF ASCENSION v. SIMONEAUX (2025)

Plaintiff-in-reconvention, Wesley J. Simoneaux, appeals a judgment of the district court, which sustained a peremptory exception of no cause of action filed by defendants-in-reconvention, Parish of Ascension, Derrin Duplessis, in his capacity as an employee for Ascension Parish, and Clint Cointment, in his capacity as President of Ascension Parish, and dismissed the reconventional demand in its entirety. For the following reasons, we reverse.

FACTS AND PROCEDURAL HISTORY

On December 5, 2022, the Parish of Ascension filed a petition for preliminary and permanent injunctions against Wesley J. Simoneaux, seeking to enjoin Mr. Simoneaux from violating multiple Ascension Parish ordinances by constructing a “large scale commercial operation” in a residential zoning district, without obtaining the proper permits.¹

Mr. Simoneaux answered the petition and filed a reconventional demand naming as defendants, Ascension Parish; Derrin Duplessis, in his capacity as an employee for Ascension Parish; and Clint Cointment, in his capacity as President of Ascension Parish (collectively “defendants-in-reconvention”). In his reconventional demand, Mr. Simoneaux made several allegations, including: unlawful entry, unlawful searches, malicious prosecution, due process violations under the Fourteenth Amendment to the United States Constitution and Article 1, § 2 of the Louisiana Constitution, violations under the Takings Clause of the United States Constitution and Article 1, §§ 2 and 4 of the Louisiana Constitution, equal protection violations of the Fourteenth Amendment to United States Constitution and Article 1, § 3 of the Louisiana Constitution, and civil rights violations under 42 U.S.C. § 1983. Defendants-in-reconvention responded to the reconventional demand by filing a peremptory exception raising the objection of no cause of action. Therein, they contend that Ascension Parish is a political subdivision, Mr. Duplessis acted in his capacity as a parish employee, and that Mr. Cointment acted in his capacity as the President of Ascension Parish such that they are entitled to discretionary immunity pursuant to La. R.S. 9:2798.1, because their actions were within the course and scope of their lawful powers and duties.

Defendants-in-reconvention's exception of no cause of action came before the district court on April 4, 2023, and, after hearing the arguments of the parties, the district court took the matter under advisement. Thereafter, the district court issued extensive “Reasons for Judgment” finding that defendants-in-reconvention were insulated from liability under discretionary immunity. On July 14, 2023, the district court signed a judgment in conformity with its written reasons, sustaining the peremptory exception of no cause of action by defendants-in-reconvention and dismissing Mr. Simoneaux's reconventional demand.

It is from this judgment that Mr. Simoneaux appeals, contending that the district court erred in granting the exception of no cause of action by considering assertions of fact referred to by counsel in their briefs that were not pled in the reconventional demand as evidence for the purpose of ruling on the exception of no cause of action; determining defendants-in-reconvention were insulated from liability under the doctrine of discretionary immunity; failing to determine the reconventional demand provided allegations of personal involvement or acts outside of official duties to overcome immunity; determining that the reconventional demand did not provide allegations of acts or omissions which constitute criminal, fraudulent, malicious, intentional, willful, outrageous, reckless, or flagrant misconduct to overcome immunity; finding the reconventional demand failed to state facts to establish defendants-in-reconvention deprived him of his constitutional rights to state a cause of action under 42 U.S.C. § 1983; and dismissing his reconventional demand without providing him with the opportunity to amend his pleadings to cure the deficiency as required by La. C.C.P. art. 934.²

LAW AND ANALYSIS

The peremptory exception of no cause of action tests the legal sufficiency of a pleading by determining whether the law affords a remedy on the facts alleged. Allstate Vehicle and Property Insurance Company v. Andrus Restoration, LLC, 2019-1279 (La. App. 1st Cir. 9/21/20), 314 So. 3d 51, 55. In the context of the peremptory exception, a “cause of action” is defined as the operative facts that give rise to the plaintiffs right to judicially assert the action against the defendants. Paulsell v. State, Department of Transportation & Development, 2012-0396 (La. App. 1st Cir. 12/28/12), 112 So. 3d 856, 864, writ denied, 2013-0274 (La. 3/15/13), 109 So. 3d 386.

The petition must set forth material facts upon which the cause of action is based. La. C.C.P. art. 891(A). When a petition states a cause of action as to any ground or portion of a demand, the exception should be overruled. Bayou Liberty Association, Inc. v. St. Tammany Parish Council, 2005-1228 (La. App. 1st Cir. 6/9/06), 938 So. 2d 724. The correctness of conclusions of law is not conceded for the purposes of a ruling on an exception of no cause of action. CamSoft Data Systems, Inc. v. Southern Electronics Supply, Inc., 2015-1260 (La. App. 1st Cir. 9/23/15), 182 So. 3d 1009, 1016, citing Lambert v. Riverboat Gaming Enforcement Division, 96-1856 (La. App. 1st Cir. 12/29/97), 706 So. 2d 172, 175, writ denied, 98-0297 (La. 3/20/98), 715 So. 2d 1221. Stated differently, we must accept the facts alleged but not the legal conclusions derived from those facts. See CamSoft Data Systems, Inc., 182 So. 3d at 1016.

No evidence may be introduced at any time to support or controvert the objection that the petition fails to state a cause of action. La. C.C.P. art. 931. Rather, the exception is triable solely on the face of the petition and any attached documents. Melancon v. Commonwealth Land Title Insurance Company, 2020-0196 (La. App. 1st Cir. 12/30/20), 318 So. 3d 171, 174.

For purposes of determining the issues raised by the exception of no cause of action, all well-pleaded facts in the petition must be accepted as true. CamSoft Data Systems, Inc., 182 So. 3d at 1015. However, mere conclusions unsupported by facts are not sufficient to set forth a cause of action. Ramey v. DeCaire, 2003-1299 (La. 3/19/04), 869 So. 2d 114, 118. The issue at the trial of the exception is whether, on the face of the petition, the plaintiff is legally entitled to the relief sought. Melancon, 318 So. 3d at 174. The pertinent question is whether, in the light most favorable to the plaintiff and with every doubt resolved in the plaintiff's behalf, the petition states any valid cause of action for relief. Melancon, 318 So. 3d at 174. Because the exception of no cause of action raises a question of law and the trial court's decision is based solely on the sufficiency of the petition, appellate review of the trial court's ruling on an exception of no cause of action is de novo, with no deference to the trial court's legal conclusions. Scheffler v. Adams & Reese, LLP, 2006-1774 (La. 2/22/07), 950 So. 2d 641, 647; Damond v. Marullo, 2019-0675 (La. App. 1st Cir. 6/22/20), 307 So. 3d 234, 240, writ denied, 2020-01243 (La. 3/23/21), 312 So. 3d 1104, cert. denied, ––– U.S. ––––, 142 S. Ct. 567, 211 L.Ed.2d 354 (2021).

An affirmative defense may not form the basis of a peremptory exception when the asserted defense goes to the merits of the case. See Harrell v. State Through Department of Transportation and Development, 2022-0126 (La. App. 1st Cir. 9/16/22), 2022 WL 4286558, *7, n.4 (unpublished), citing White v. New Orleans Center for Creative Arts, 2019-0213, 2019-0214 (La. App. 4th Cir. 9/25/19), 281 So. 3d 813, 822, writ denied, 2019-01725 (La. 12/20/19), 286 So. 3d 428 (where defendants filed a peremptory exception of no cause of action, the court noted that “[r]ather, as an affirmative defense, the issue should be referred to the merits, and a motion for summary judgment is, therefore, the proper procedure for addressing it prior to trial”). When an exception of no cause of action is based on an affirmative defense, like immunity, the exception must be overruled unless the allegations of the petition exclude every reasonable hypothesis other than the premise upon which the defense is based. Lambert, 706 So. 2d at 175, citing Owens v. Martin, 449 So. 2d 448, 452 (La. 1984) and Kyle v. Civil Service Commission, 588 So. 2d 1154, 1159 (La. App. 1st Cir. 1991), writ denied, 595 So. 2d 654 (La. 1992).

Although questions underlying claims of immunity are often better suited to motions for summary judgment, which allow for the presentation of evidence, the legal issue of whether immunity is applicable may be raised and reviewed through an exception of no cause of action. Vincent v. Milligan, 2004-1207 (La. App. 1st Cir. 6/10/05), 916 So. 2d 238, 241.

Louisiana Revised Statute 9:2798.1 provides:

A. As used in this Section, “public entity” means and includes the state and any of its branches, departments, offices, agencies, boards, commissions, instrumentalities, officers, officials, employees, and political subdivisions and the departments, offices, agencies, boards, commissions, instrumentalities, officers, officials, and employees of such political subdivisions.

B. Liability shall not be imposed on public entities or their officers or employees based upon the exercise or performance or the failure to exercise or perform their policymaking or discretionary acts when such acts are within the course and scope of their lawful powers and duties.

C. The provisions of Subsection B of this Section are not applicable:

(1) To acts or omissions which are not reasonably related to the legitimate governmental objective for which the policymaking or discretionary power exists; or

(2) To acts or omissions which constitute criminal, fraudulent, malicious, intentional, willful, outrageous, reckless, or flagrant misconduct.

D. The legislature finds and states that the purpose of this Section is not to reestablish any immunity based on the status of sovereignty but rather to clarify the substantive content and parameters of application of such legislatively created codal articles and laws and also to assist in the implementation of Article II of the Constitution of Louisiana.

Thus, officers, officials, and employees of any of Louisiana's public entities are, under certain circumstances, statutorily entitled to immunity from liability based upon the exercise or performance or the failure to exercise or perform their policymaking or discretionary acts when such acts are within the course and scope of their lawful powers and duties. La. R.S. 9:2798.1(A) and (B). The immunity does not apply if the acts or omissions are not reasonably related to the legitimate governmental objective for which the discretionary power exists or if the acts or omissions constitute criminal, fraudulent, malicious, intentional, willful, outrageous, reckless, or flagrant misconduct. La. R.S. 9:2798.1(C). So, while defendants argue immunity applies because they acted within the course and scope of their lawful powers and duties, Mr. Simoneaux alleges facts to assert they did not.

We have thoroughly reviewed the allegations set forth in Mr. Simoneaux's reconventional demand. Mr. Simoneaux specifically alleged that defendants-inreconvention illegally entered his property on six occasions, conducted illegal searches of his property, and attempted to maliciously prosecute him by requesting that two Ascension Parish Sheriff Deputies issue him a misdemeanor citation for violating the Property Maintenance Code, which was subsequently rescinded by the deputies due to their lack of authority to enforce the code. Mr. Simoneaux supported these allegations by setting forth facts outlining the circumstances under which the alleged illegal entries and searches occurred. These allegations, accepted as true, are sufficient to preclude application of any immunity that may be provided by La. R.S. 9:2798.1, and are thus sufficient to establish a cause of action.

Moreover, whether the defendants-in-reconventions’ actions are insulated by statutory immunity requires a fact-intensive determination, which goes to the merits of the case. Thus, the defendants-in-reconventions’ claim of immunity is not appropriate for determination on an exception of no cause of action, which is resolved on the allegations of the petition without the introduction of evidence. Instead, as an affirmative defense, the issue should be referred to the merits, and a motion for summary judgment, in which the parties may introduce evidence for the trial court's consideration, is, therefore, the proper procedure for addressing it prior to trial. See Jackson v. Jefferson Parish School Board, 21-260 (La. App. 5th Cir. 2/2/22), 336 So. 3d 561, 566-567.

As the jurisprudence makes clear that only one cause of action need be established in order to overrule an exception of no cause of action, we find that Mr. Simoneaux has sufficiently set forth a cause of action and the district court erred in maintaining the exception of no cause of action filed by defendants-inreconvention.³ See Bayou Liberty Association, Inc., 938 So. 2d at 728; CamSoft Data Systems, Inc., 182 So. 3d at 1016. Because we find, on our de novo review, that a cause of action has been adequately pled and that resolution of affirmative defenses are more properly resolved through the summary judgment procedure or a trial on the merits,⁴ we find the district court erred in sustaining the exception of no cause of action by the defendants-in-reconvention and reverse the judgment of the district court.⁵ See Johnson v. Orleans Parish School Board, 2006-1223 (La. App. 4th Cir. 1/3/08), 975 So. 2d 698, 710, writ denied, 2008-0671 (La. 6/27/08), 983 So. 2d 1289, cert. denied, 555 U.S. 1085, 129 S.Ct. 768, 172 L.Ed.2d 756 (2008), citing Lambert, 706 So. 2d at 178 (“[t]he application of [the discretionary immunity] defense is ‘a question of fact to be determined through a trial.’ ”)

CONCLUSION

Based on the foregoing reasons, the July 14, 2023 judgment is reversed. All costs of this appeal in the amount of $1,386.50 are assessed against the defendants-in-reconvention, Parish of Ascension, Derrin Duplessis, in his capacity as an employee for Ascension Parish, and Clint Cointment, in his capacity as President of Ascension Parish.

REVERSED.

I would have affirmed the trial court's finding that Mr. Simoneaux failed to sufficiently allege a cause of action in this matter. As recognized by the trial court, liability shall not be imposed on public entities or their officers or employees based upon the exercise or performance or the failure to exercise or perform their policymaking or discretionary acts when such acts are within the course and scope of their lawful powers and duties. LSA-R.S. 9:2798.1(B). In his reconventional demand, Mr. Simoneaux did not allege specific acts or omissions of the defendants-in-reconvention that were not reasonably related to a legitimate governmental objective. Further, he failed to allege any acts of criminal, fraudulent, malicious, intentional, willful, outrageous, reckless, or flagrant misconduct. See LSA-R.S. 9:2798.1(C). Therefore, I respectfully disagree with the majority's finding that Mr. Simoneaux has adequately stated a cause of action.

However, LSA-C.C.P. art. 934 provides that when the grounds of the objection raised through a 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. I would have remanded the case to the trial court to allow Mr. Simoneaux the opportunity to amend.

I respectfully dissent. Ascension Parish, as a public entity, and Mr. Duplessis and Mr. Cointment, as parish employees, are entitled to discretionary immunity if their actions are discretionary acts within the course and scope of their lawful powers and duties pursuant to La. R.S. 9:2798.1. The decisions made by Defendants in this case, particularly issuing stop work orders, sending letters regarding violations of Ascension Parish Ordinances, examining the property, and filing for an injunction involved discretion and elements of judgment and were within the course and scope of their lawful powers and duties. Accordingly, to state a cause of action, the allegations in the reconventional demand had to set forth that the acts or omissions by Defendants were not reasonably related to the legitimate governmental objective for which the discretionary power exists or the acts or omissions of Defendants constitute criminal, fraudulent, malicious, intentional, willful, outrageous, reckless, or flagrant misconduct.

Even assuming all the allegations contained in the reconventional demand are true, the reconventional demand does not state and is devoid of any facts that show Defendants acted outside their authority or engaged in criminal, fraudulent, malicious, intentional, willful, outrageous, reckless, or flagrant misconduct which would require Defendants to forfeit their immunity. For these reasons, I respectfully dissent and would affirm the trial court judgment sustaining the exception of no cause of action.

FOOTNOTES

1.   Ascension Parish initially filed suit in the Ascension Parish Court. Mr. Simoneaux filed an exception of lack of subject matter jurisdiction and a motion to transfer to the district court. Mr. Simoneaux's exception was sustained, and his motion to transfer was granted by a judgment signed on January 31, 2023, transferring the matter to the Twenty-Third Judicial District Court.

2.   After Mr. Simoneaux filed his appeal, defendants-in-reconvention filed a peremptory exception raising the objection of lack of jurisdiction with this court. On February 26, 2024, defendants-in-reconvention filed an ex parte motion to withdraw their exception, which was granted by this court on February 29, 2024.

3.   While only one cause of action need be established in order to overrule an exception of no cause of action, we note that Mr. Simoneaux also asserted violations of his due process rights under the Fourteenth Amendment to the United States Constitution and Article 1, § 2 of the Louisiana Constitution, alleging he was denied notice of what actions he had allegedly performed that constitute violations, and that the determination that he violated ordinances was made without abiding by enforcement provisions of the Code of Ordinances for the Parish of Ascension, which require that the matter be heard by an administrative hearing officer or the district attorney. Mr. Simoneaux further alleged that the recordation of the $120,000.00 lien deprived him of a significant property interest violating his right to due process under the Fourteenth Amendment and the Takings Clause of the United States Constitution and Article 1, §§ 2 and 4 of the Louisiana Constitution. Mr. Simoneaux further alleged that specific code ordinances were not uniformly applied throughout the community to all privately and publicly owned land thereby depriving him of his right to equal protection under the law. Finally, Mr. Simoneaux alleged that he was deprived of rights, privileges, and immunities secured by the United States and Louisiana Constitutions in violation of his civil rights under 42 U.S.C. § 1983. While discretionary acts immunity afforded by La. R.S. 9:2798.1 applies to state law tort claims, such immunity does not preclude liability under 42 U.S.C. § 1983. Mills v. City of Shreveport, 58 F.Supp.3d 677, 683 (W.D. La. 2014), citing Pea v. City of Ponchatoula, No. 13-542, 2014 WL 1050783, *4 (E.D. La. 3/17/14).

4.   Because we have determined that a cause of action has been adequately pled, we pretermit discussion of Mr. Simoneaux's final assignment of error.

5.   In so finding, we recognize that this court has considered, in the procedural context of an exception of no cause of action, whether a petition sets forth sufficient material facts to survive an affirmative defense. See Kyle, 588 So. 2d at 1160. However, the overriding focus is on the sufficiency of the allegations set forth in the petition and the overruling of an exception of no cause of action is not a definitive ruling that the affirmative defense is inapplicable under the facts to be established in the case. See Lambert, 706 So. 2d at 176 n.2, citingBlanchard v. State, Parks and Recreation Commission, 96-0053 (La. 5/2 1/96), 673 So. 2d 1000, 1002.

MILLER, J.

McClendon, J., dissents and assigns reasons. Hester, J., dissents and assigns reasons. Penzato, J., concurs.