Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Cole v. Cole

Court of Appeals of Louisiana, First Circuit

September 21, 2018

RUSSELL COLE AND KIM COLE
v.
ALLISON COLE

          Appealed from the 22nd Judicial District Court In and for the Parish of St. Tammany, State of Louisiana Trial Court No. 2016-14587 Honorable Mary C. Devereux, Judge

          ANGELA COX WILLIAMS JESMIN BASANTI FINLEY SLIDELL, LA ATTORNEYS FOR PLAINTIFFS -APPELLEES RUSSELL COLE AND KIM COLE

          RICHARD DUCOTE COVINGTON, LA ATTORNEYS FOR DEFENDANT -APPELLANT ALLISON COLE

          BEFORE: PETTIGREW, WELCH, AND CHUTZ, JJ.

          PETTIGREW, J.

         At the center of this dispute is a purported stipulated judgment ("the stipulated judgment") between Allison Cole, the widowed mother of two young daughters, and Russell and Kim Cole, her deceased husband's parents, allowing for grandparent visitation. Ms. Cole challenges the trial court's judgment sustaining the grandparents' exception raising the objection of no cause of action and dismissing, with prejudice, Ms. Cole's petition to annul the stipulated judgment. For the reasons that follow, we affirm.

         FACTS AND PROCEDURAL HISTORY

         After the death of their son John Cole, Russell and Kim Cole filed a petition for visitation, alleging that Ms. Cole had refused to allow them to visit with their granddaughters. In response, Ms. Cole filed exceptions raising the objections of nonconformity, vagueness, and no cause of action. On the date the exceptions were set for hearing, Ms. Cole and the grandparents were all present and represented by counsel. After a conference in chambers, counsel for the grandparents advised the trial court that there was a "stipulation on all matters" that would "render the exceptions filed by [Ms.] Cole moot." At that time, the stipulation was read into the record by the grandparents' counsel, and all parties indicated their full understanding of the stipulation. However, when the trial court inquired as to the parties' understanding of the stipulation's binding effect on them, there is no indication that Ms. Cole expressed her acquiescence thereto. Rather, only the grandparents answered in the affirmative when the trial court asked, "Does everybody understand that?"

         On March 14, 2017, the trial court signed the stipulated judgment, granting the grandparents specific periods of weekend, summer, and holiday visitation. The stipulated judgment further provided that Ms. Cole was precluded from scheduling any activities for the children during the grandparents' visitation. Moreover, while the stipulated judgment afforded the grandparents the option to call and/or text the children, it prohibited Ms. Cole from calling her children during the grandparents' visitation, absent an emergency.

         Thereafter, Ms. Cole filed a petition to annul the stipulated judgment, alleging, among other things, that she never consented to the stipulated judgment and that her counsel intentionally and fraudulently misrepresented the nature of the proceedings to cover up her own negligence.[1] Ms. Cole acknowledged that she "very reluctantly accepted" the terms of the stipulated judgment, but that her agreement was not based on any valid consent. Rather, Ms. Cole asserted her consent was vitiated by error, fraud, and duress within the purview of La. Code Civ. P. arts. 2001 et seq. Ms. Cole further alleged that when the terms of the stipulated judgment were read into the record, she was told by her counsel that she had to say that she agreed.

         In response thereto, the grandparents filed an exception raising the objection of no cause of action and a motion to strike, which were set for hearing. The grandparents argued there was no evidence of ill practice or fraud by Ms. Cole's counsel at the February 22, 2017 hearing[2] and that Ms. Cole's allegations of coercion were ludicrous and insufficient to rise to the level required to vitiate her consent based on duress, ill practices, or fraud. They maintained that Ms. Cole's petition contained no argument that gave rise to a cause of action to annul the March 14, 2017 stipulated judgment. Moreover, the grandparents alleged that Ms. Cole's statements in the petition concerning their deceased son were inflammatory, insulting, and untrue and should be stricken from the record. On November 15, 2017, the trial court issued detailed written reasons for judgment and signed a judgment sustaining the no cause of action exception and granting the motion to strike with respect to the allegations contained in Paragraph 5 of Ms. Cole's petition to annul. Ms. Cole's appeal of this judgment followed.

         RULE TO SHOW CAUSE (Assignments of Error A & C)

         After Ms. Cole appealed, this court issued a rule to show cause order indicating the November 15, 2017 judgment appeared to lack appropriate decretal language. Ms. Cole responded by filing a motion to stay her appeal pending the remand of the matter to the trial court for the entry of an amended judgment. On May 29, 2018, this court denied the motion to stay appeal, indicating that it had already issued an interim order to the trial court. In said interim order issued on May 29, 2018, the matter was remanded to the trial court for the entry of an amended judgment, containing precise, definite, and certain language regarding the relief granted.

         However, prior to this order being issued, the trial court signed an amended judgment on May 16, 2018, clarifying the court's rulings on the no cause of action exception and the motion to strike, and dismissing Ms. Cole's petition to annul for failure to state a cause of action. The appellate record herein was supplemented with the May 16, 2018 amended judgment on May 30, 2018. The November 15, 2017 judgment, as amended by the May 16, 2018 judgment, contains the appropriate decretal language to be a valid final judgment, i.e., it names the party in favor of whom the ruling is ordered, the party ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.