Hill International, Inc. v. JTS Realty Corporation, Perkins Rowe Associates, L.L.C. and Perkins Rowe Associates II, L.L.C. ( 2021 )

STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2021 CA 0157
HILL INTERNATIONAL, INC.
VERSUS
JTS REALTY CORPORATION, PERKINS ROWE ASSOCIATES,
LLC, AND PERKINS ROWE ASSOCIATES II, LLC
JUDGMENT RENDERED: DEC 3 0 4QF1
Appealed from
The Nineteenth Judicial District Court
Parish of East Baton Rouge • State of Louisiana
Docket Number 591, 590 • Section 27
The Honorable Trudy White, Presiding Judge
Justin M. O' Brien COUNSEL FOR APPELLANT 1
Brad M. Barback DEFENDANT— Lawrence R.
Baton Rouge, Louisiana " Randy" Spinosa, Trustee of the
Spinosa Class Trust
James Moore COUNSEL FOR APPELLANTS 2
Brian L. McCullough DEFENDANTS— JTS Realty
Baton Rouge, Louisiana Corporation; JTS Realty Services,
LLC; JTS Management Company,
LLC; Perkins Rowe Associates,
LLC; Perkins Rowe Associates II,
LLC; and Joseph T. " Tommy"
Spinosa
David M. Moragas COUNSEL FOR APPELLEE
Mandeville, Louisiana PLAINTIFF— Hill International,
and Inc.
John Lynd, pro hac vice
Houston, Texas
BEFORE: MCCLENDON, WELCH, AND THERIOT, JJ.
PAL d w
WELCH, J.
In this construction contract dispute, the defendants appeal a judgment
rendered after a one -day bench trial that awarded the plaintiff damages and
reasonable attorney' s fees to be decided at a later date. The defendants also appeal
a judgment rendered following a hearing that awarded the plaintiff attorney' s fees.
We remand.
FACTS AND PROCEDURAL HISTORY
This lawsuit arises out of conflicts concerning the construction of the
Perkins Rowe mixed-use development in Baton Rouge, Louisiana. On May 31,
2006, Perkins Rowe Associates, LLC (" PRA") contracted with EMJ Corporation
EMJ") to perform work on the Perkins Rowe project.' For certain reasons,
including alleged irregularities with costs associated with the work performed by
EMJ, the contract between PRA and EMJ was terminated. Subsequently, EMJ
sued PRA and Perkins Rowe Associates II, LLC (" PRAII") ( collectively, the " PRA
entities").
To defend the EMJ lawsuit, Joseph T. " Tommy" Spinosa— the manager, a
member, and an owner of the PRA entities— approached Hill International, Inc.
Hill") around September 2008 to conduct an in- depth audit of the costs as
recorded and billed by EMJ. On October 6, 2008, Hill executed its " Standard
Form Agreement for Claims and Consulting Services" ( the " contract"). The
contract identified JTS Realty Corporation as the " Client." Hill sent the contract to
Tommy Spinosa, who is also the corporate representative and manager of JTS
Realty Corporation, for execution. Prior to execution, PRA and PRAII were typed
above Tommy Spinosa' s signature line, with both identified as " Client"; however,
the " Client" designation was not correspondingly adjusted in the body of the
contract. Tommy Spinosa signed the contract, which was returned to Hill on
1 EMJ contracted with PRA to perform general contractor site work on the Perkins Rowe project
to complete Block G, the Cinemark Movie Theater.
2
October 22, 2008.
Between November 2008 and October 2009, Hill provided professional
services pursuant to the contract and incurred reimbursable fees and expenses. Hill
billed " JTS Realty" on a monthly basis. Hill was paid $ 199, 480. 06 for its services
provided under the contract, leaving a total of $408, 587. 35 in unpaid invoices. Hill
suspended its services and made amicable demand for payment in the amount of
402, 839. 80. After receiving Hill' s demand, Tommy Spinosa allegedly
acknowledged the debt was due and owing; however, the amounts remained
unpaid.
Hill filed suit against the PRA entities and JTS Realty Corporation, seeking
damages under Louisiana' s Open Account Statute, La. R.S. 9: 2781, for its expert
consulting services in the amount of $408, 587. 35, plus attorney' s fees, costs, and
interest.
Hill amended its original petition, alleging that the PRA entities and JTS
Realty Corporation were engaged in a single business enterprise or were alter egos
of each other.
Hill further pled breach of contract, quantum meruit, promissory
estoppel, requested attorney' s fees, and sought declaratory judgment.
Hill filed a second amended petition, additionally naming JTS Realty
Services, LLC; JTS Management Company, LLC; and JTS Interests, LLC as
defendants. Hill alleged these companies were also engaged in a single business
enterprise/ alter ego along with the PRA entities and JTS Realty Corporation.
Thereafter, Hill filed a third amended petition, removing JTS Interests, LLC
as a defendant and naming Tommy Spinosa and the Spinosa Class Trust—
represented by trustee Lawrence R. " Randy" Spinosa— as defendants. Hill alleged
that Tommy Spinosa and the Trust were also engaged in a single business
enterprise/ alter ego along with the PRA entities and what we refer to collectively
as the " JTS entities"— JTS Realty Corporation, JTS Realty Services, and JTS
3
Management Company.
Ultimately, the trial court held a one -day bench trial on September 3, 2019.
Thereafter, the trial court rendered judgment on October 13, 2019, awarding Hill
1, 063, 265. 68 in actual damages against the defendants, plus prejudgment
contractual interest that continues to accrue on Hill' s unpaid invoices in the
amount of $ 5, 742. 83 per month from September 1, 2019 until entry of this
judgment; declaring that all defendants were solidarily liable under the single
business enterprise/ alter ego theory; awarding Hill postjudgment interest as
allowed by law; and awarding Hill reasonable attorney' s fees " in an amount to be
hereafter determined." Following a hearing on Hill' s motion to set the amount of
the attorney' s fees, the trial court rendered judgment on August 17, 2020, awarding
Hill $390, 000. 00 in attorney' s fees and costs against all defendants.
The defendants now appeal. Lawrence Spinosa, in his capacity as trustee of
the Spinosa Class Trust, filed a motion with this court to substitute the successor
trustee, Glen R. Jarrell, in his place as appellant in the instant appeal.2 The PRA
entities, JTS entities, and Tommy Spinosa have also filed an answer to the appeal.
APPELLATE JURISDICTION
Appellate courts have a duty to examine subject matter jurisdiction sua
sponte, even when the parties do not raise the issue. Texas Gas Exploration
Corp. v. Lafourche Realty Co., Inc., 2011- 0520, 2011- 0521, 2011- 0522, 2011-
0523 ( La. App. 1St Cir. 11/ 9/ 11), 79 So. 3d 1054, 1059, writ denied, 2012- 0360 ( La.
4/ 9/ 12), 85 So. 3d 698. Our appellate jurisdiction extends to final judgments. See
La. C. C. P. arts. 1841, 2081, and 2083( A); Quality Envtl. Processes, Inc. v.
Energy Dev. Corp., 2016- 0171, 2016- 0172 ( La. App. 1St Cir. 4/ 12/ 17), 218 So. 3d
1045, 1053. A valid final judgment must be precise, definite, and certain. Laird
v. St. Tammany Par. Safe Harbor, 2002- 0045 ( La. App. 1st Cir. 12/ 20/ 02), 836
Z This court referred the motion to the panel to which the appeal is assigned. Hill International,
Inc. v. JTS Realty Corporation, 2021- 0157 ( La. App. 1St Cir. 4/ 22/ 21) ( unpublished action).
19
So. 2d 364, 365. The specific nature and amount of damages must be determinable
from a judgment so that a third person is able to determine from a judgment the
amount owed without reference to other documents. Advanced Leveling &
Concrete Solutions v. Lathan Company, Inc., 2017- 1250 ( La. App. 1St Cir.
12/ 20/ 18), 268 So. 3d 1044, 1046 ( en Banc). A judgment that awards " reasonable
attorney' s fees" but does not specify the amount is not a final judgment because
the exact amount of attorney' s fees cannot be determined from the judgment.
Advanced Leveling, 268 So. 3d at 1046. An indefinite award of attorney' s fees
renders the entire judgment non -appealable. See, f.g., D' Luca v. Kirkland, 2020-
0713, 2020- 0714 ( La. App. 111 Cir. 2/ 19/ 21), 321 So. 3d 411, 414; Baker v. Perret,
2018- 0812 ( La. App. lst Cir. 12/ 28/ 18), 304 So. 3d 860, 861; Gurney v. McCoy,
2020- 1129 ( La. App. 1st Cir. 2/ 18/ 21), 2021 WL 640115, at * 1( unpublished).
These determinations must be evident from the language of the judgment without
reference to other documents in the record. Laird, 836 So. 2d at 365.
In this matter, however, the October 13, 2019 judgment specifically reserved
the award of reasonable attorney' s fees to be determined at a later date. The award
of reasonable attorney' s fees in an indefinite amount did not divest the trial court
of jurisdiction to determine, after a hearing, the amount to be awarded as attorney' s
20883
fees. Louisiana Code of Civil Procedure article simply divests the trial court
of jurisdiction over matters that are reviewable on appeal. The issue of the amount
of attorney' s fees to be awarded to Hill was not the subject of the October 13, 2019
judgment. See Thibaut v. Thibaut, 607 So. 2d 587, 609- 10 ( La. App. 1st Cir.
1992), writs denied, 612 So. 2d 37, 38, 101 ( La. 1993). Thus, Advanced Leveling,
3 Although not at issue in this appeal, we note that 2021 La. Acts 259, § 2 ( eff. Aug. 1, 2021)
amended La. C. C. P. art. 2088. As discussed in Comments --2021( a) to La. C. C. P. art. 2088, the
amendment to Subparagraph ( A)( l0) clarified that the trial court retains jurisdiction for purposes
of setting attorney' s fees after an appeal has been taken from the initial judgment. Trial courts
award reasonable attorney' s fees in many judgments, but often these judgments are appealed
before the attorney' s fees are set. With this amendment, it is no longer necessary for an appellate
court to dismiss an appeal in order to allow the trial court to set the amount of the attorney' s fees,
because the trial court has jurisdiction to set attorney' s fees while the appeal is pending.
5
268 So. 3d at 1046, is distinguishable in this instance as it relates to the October 13,
2019 judgment.
A final, appealable judgment must contain decretal language, and it must
name the party in favor of whom the ruling is ordered, the party against whom the
ruling is ordered, and the relief that is granted or denied. Advanced Leveling, 268
So. 3d at 1046; Carter v. Williamson Eye Center, 2001- 2016 ( La. App. Pt Cir.
11/ 27/ 02), 837 So. 2d 43, 44. In cases with multiple plaintiffs or defendants, the
failure to name the plaintiff(s) or defendant( s) for or against whom the judgment is
rendered makes the judgment fatally defective because one cannot discern from its
face for or against whom it may be enforced. See Mizell v. Willis, 2019- 0141 ( La.
App. 1st Cir. 11/ 15/ 19), 290 So. 3d 247, 250. In the absence of proper decretal
language, a judgment is defective, and the appellate court lacks jurisdiction to
review the merits. Boyd Louisiana Racing, Inc. v. Bridges, 2015- 0393, 2015-
03941 2015- 0395 ( La. App. 1st Cir. 12/ 23/ 15), 2015 WL 9435285, at * 34
unpublished).
Furthermore, an appeal is taken by obtaining an order therefor, within the
delay allowed, from the court which rendered the judgment. La. C. C. P. art. 2121;
Noyel v. City of St. Gabriel, 2015- 1890 ( La. App. 1st Cir. 9/ 1/ 16), 202 So. 3d
1139, 1142, writ denied, 2016- 1745 ( La. 11/ 29/ 16), 213 So. 3d 392. Unless a party
litigant obtains a valid order of appeal duly granted by the trial court, there can be
no appeal. See Noyel, 202 So. 3d at 1142; Cheramie v. Archer, 360 So. 2d 537,
539 ( La. App. 1st Cir. 1978) ( citing Davis v. Funderburk, 274 So. 2d 781, 782 ( La.
App. 3rd Cir. 1973)). The order of appeal is jurisdictional; this lack of jurisdiction
can be noticed by the court on its own motion at any time. Noyel, 202 So. 3d at
1142.
Two separate motions for appeal were filed with the trial court in this matter.
On October 20, 2020, Lawrence R. Spinosa, Trustee of the Spinosa Class Trust,
PC
filed a motion for appeal seeking review of the October 13, 2019 and August 17,
2020 judgments. Likewise, on October 23, 2020, the PRA entities, JTS entities,
and Tommy Spinosa filed a motion for appeal also seeking review of the October
13, 2019 and August 17, 2020 judgments.
In response to the two separate motions for appeal, the trial court signed an
order of appeal on October 20, 2020, granting Lawrence R. Spinosa, Trustee of the
Spinosa Class Trust, an appeal of both the October 13, 2019 and August 17, 2020
judgments. The notice of appeal issued by the Clerk of Court for the 19th Judicial
District Court (" Clerk") indicated that Lawrence R. Spinosa was appealing the
October 13, 2019 and August 17, 2020 judgments.
Then on October 26, 2020, the trial court signed a second order of appeal
granting the PRA entities, JTS entities, and Tommy Spinosa an appeal of only the
August 17, 2020 judgment. Notably, in the October 26, 2020 order of appeal, the
trial court struck through language that referenced the October 13, 2019 judgment.
In contravention of the trial court' s order of appeal, the notice of appeal issued by
the Clerk indicated that the PRA entities, JTS entities, and Tommy Spinosa were
appealing the October 13, 2019 and August 17, 2020 judgments.
Based on the trial court' s orders of appeal and the Clerk' s notices, it is
unclear what judgments are on appeal in the instant matter, and likewise, whether
the instant appeal is timely. Additionally, the October 13, 2019 judgment does not
dismiss any claims, demands, or parties. Similarly, the August 17, 2020 judgment
does not dismiss any claims, demands, or parties.
Based on the apparent defect in the respective appeals, this court, ex proprio
motu, issued an order on March 23, 2021, ordering the parties to show cause by
briefs why the appeal should not be dismissed. The parties timely filed their
respective show cause briefs, all agreeing that this matter should be remanded to
the trial court to correct the deficiencies in the orders of appeal and the non -final
7
judgments in the event that this court determined that the judgments contained
inadequate decretal language and/ or lacked finality.
DECREE
Accordingly, this matter is REMANDED FOR THE LIMITED
PURPOSE of instructing the trial court to sign an amended final judgment( s) that
is precise, definite, and certain and contains proper decretal language. See La.
C. C. P. arts. 1918( A),4 1951, 5 and 2088( A)( 12), 6 as amended by 2021 La. Acts 259,
2 ( ef£ Aug. 1, 2021).
This matter is further REMANDED FOR THE LIMITED PURPOSE of
instructing the trial court to sign an amended order( s) of appeal specifying which
party or parties appealed from which judgment( s), with the correct dates of the
final judgment( s) included therein. See Rose v. Twin River Dev., LLC, 2017-
0319 ( La. App. 1St Cir. 11/ 1/ 17), 233 So. 3d 679, 685.
The record herein shall be supplemented with the amended judgment( s) and
order( s) of appeal no later than forty- five days following issuance of this opinion.
REMANDED WITH INSTRUCTIONS.
4 Comments --2021( a) to La. C. C. P. art. 1918 indicate that a lack of proper decretal language in a
judgment that is otherwise a final judgment does not divest the appellate court of jurisdiction.
Instead, the final judgment shall be corrected to include proper decretal language by an
amendment in accordance with Article 1951.
5 Comments --2021 to La. C. C. P. art. 1951 indicate that the amendments to Article 1951 and
Article 2088 allow the trial court to retain jurisdiction to correct, on its own motion or after
remand from the appellate court, the lack of proper decretal language in a final judgment. This
Article does not allow the court to make a substantive change to a final judgment.
6 Comments --2021( c) to La. C. C. P. art. 2088 indicate that as of August 1, 2021, subparagraph
A)( 12) of Article 2088 allows a trial court to retain jurisdiction after an order of appeal is
granted to amend a final judgment to correct any deficiencies in the decretal language.
8
STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2021 CA 0157
HILL INTERNATIONAL, INC.
VERSUS
JTS REALTY CORPORATION, PERKINS ROWE ASSOCIATES, LLC, AND
PERKINS ROWE ASSOCIATES II, LLC
CJ
cClendon, J., concurs.
While I disagree with the majority's conclusion that the October 13, 2019 and
August 17, 2020 judgments lack appropriate decretal language, given the uncertainty of
which judgments are before us on appeal, I concur in the result reached by the
majority.