Appeal from the 19th Judicial District Court In and for the
Parish of East Baton Rouge State of Louisiana Trial Court No.
647, 294 Honorable Wilson Fields, Judge Presiding
Arthur Smith, III Baton Rouge, LA Attorney for
Plaintiff-Appellant, Kingdom Builders Community Development
Ellen Hunt Willa LeBlanc R. Christopher Fruge' Baton
Rouge, LA Attorneys for Defendant-Appellee, Louisiana
Department of Education.
BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
appeal challenges whether the trial court properly denied
plaintiffs motion for new trial seeking annulment of a
judgment in favor of one defendant that sustained a
peremptory exception of no cause of action because plaintiff
claims it was not properly served with the hearing date.
AND PROCEDURAL HISTORY
Kingdom Builders Community Development Corporation (Kingdom
Builders) applied for a charter for operation of a charter
school in Lafayette Parish. On March 3, 2016, the Louisiana
Board of Elementary and Secondary Education (BESE) denied
Kingdom Builder's charter school application. On April 4,
2016, pursuant to La. R.S. 49:964 et seq.,
Kingdom Builders filed a petition for judicial review in the
19th Judicial District Court seeking judicial review of
BESE's decision. The Louisiana Department of Education
(LDE) and BESE were named as defendants.
response, LDE filed a peremptory exception raising the
objection of no cause of action. In its exception, LDE
contended that Kingdom Builders failed to state a cause of
action because under La. R.S. 17:3981 and La. R.S. 17:3983
the decision whether to grant or deny Kingdom Builder's
application for a charter is a decision made by BESE, not
LDE. Additionally, LDE contended that Kingdom Builders failed
to state a cause of action for judicial review because
BESE's decision under La. R.S. 17:3981 and La. R.S.
17:3983 was not an "adjudication" that resulted in
a "decision" or "order" as defined by the
Louisiana Administrative Procedure Act.
certified that a copy of its exception was mailed and faxed
to Kingdom Builder's attorney of record at the address
and fax number provided in Kingdom Builder's petition.
LDE's exception was accompanied by a proposed order
requesting that the exception be set for hearing.
September 19, 2016, LDE's exception was heard by the
trial court. Kingdom Builders was not present at the hearing.
The copy of the exception that LDE mailed to Kingdom
Builders' attorney of record, who had apparently moved
offices and had not updated his address, was returned to
sender around September 26, 2016, stating "not at this
address." On October 3, 2016, Kingdom Builders filed a
motion to substitute counsel, which was granted. On November
10, 2016, the trial court signed a judgment sustaining
LDE's peremptory exception of no cause of action and
dismissing Kingdom Builder's claims against LDE with
Kingdom Builders filed a motion for new trial on LDE's
exception of no cause of action contending that it was not
served with LDE's exception nor was its previous counsel
of record served by means of a legally correct method;
therefore, Kingdom Builders argued that the November 10, 2016
judgment was an absolute nullity and should be vacated. After
a hearing, the trial court denied Kingdom Builders'
motion for new trial in a judgment signed on March 7, 2017.
It is from the March 7, 2017 judgment denying its motion for
new trial that Kingdom Builders appeals.
Builders contends that the trial court erred in sustaining
LDE's peremptory exception of no cause of action because
neither Kingdom Builders nor its former counsel received
notice of the exception of no cause of action filed by LDE as
required by La. Code Civ. P. articles 1313 and 1314.
Louisiana Code of Civil Procedure article 1313(A) allows
service of most post-petition pleadings by regular
mail or by electronic means, "[e]xcept as otherwise
provided by law, " subject to an express exception in
La. Code ...