Jerry L. Robinett v. Ford of Slidell, LLC ( 2019 )

STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2018 CA 0726
JERRY L. ROBINETT
VERSUS
FORD OF SLIDELL, L.L.C.
A.K.A. SUPREME FORD OF SLIDELL)
DATE OF JUDGMENT. ' AUG 0 7 20lq
ON APPLICATION FOR REHEARING
FROM THE CITY COURT OF SLIDELL
NUMBER 2016- 4382, PARISH OF ST. TAMMANY
STATE OF LOUISIANA
HONORABLE JAMES LAMZ, JUDGE
Jerry L. Robinett Appellant
New Orleans, Louisiana Plaintiff —Pro Se
David C. Loeb Counsel for Defendant -Appellee
Slidell, Louisiana Ford of Slidell, L.L.C. ( a.k.a. Supreme
Ford of Slidell)
BEFORE: WELCH, CHUTZ, AND LANIER, JJ.
Disposition: APPLICATION FOR REHEARING GRANTED; APPELLATE JUDGMENT
VACATED; DISTRICT COURT JUDGMENT REVERSED; AND REMANDED.
ON REHEARING
CHUTZ, J.
Plaintiff-appellant, Jerry L. Robinett, has applied for a rehearing in this
matter, requesting that this court maintain his appeal. For the following reasons, we
grant a rehearing and vacate our earlier judgment in this matter.
In our earlier appeal, we recognized that the order of appeal signed by the
city court granted to Mr. Robinett a devolutive appeal from the " judgment entered
in the above cause," but failed to reference the date of the appealed judgment.
Based on the city court clerk' s notice of appeal, which stated that " an order of
appeal was entered on April 18, 2018, granting an appeal from the ORDER of
May 17, 2017," we concluded that Mr. Robinett forfeited his rights to an appeal.
See Robinett v. Ford of Slidell, L.L.C., 2018- 0726 ( La. App. 1st Cir. 12/ 21/ 18),
2018 WL 6717008, at * 4.
Upon further review of the record, it is evident that the city court' s order of
appeal, granting Mr. Robinett a devolutive appeal from the " judgment entered in
the above cause," was, in fact, a reference to the March 28, 2018 oral ruling that
granted Mr. Robinett' s motion to dismiss his claims against Ford with an express
reservation of his appeal rights on the costs assessment issue and/or the city court' s
March 28, 2018 written order. Because the oral ruling rendered had never been
reduced to writing and the written order lacked the requisite decretal language
indicating that the motion had been granted, on September 5, 2018, this court
issued an interim order directing the city court to supplement the record.'
The city court signed the September 17, 2018 written order, which granted
Mr. Robinett' s motion to dismiss his claims against Ford while expressly reserving
his right to challenge the assessment of costs against him. Therefore, any defects
See Carter v. Williamson Eye Or., 2001- 2016 ( La. App. 1st Cir. 11/ 27/ 02), 837 So. 2d 43, 44
for language to be decretal, it must state the relief granted or denied). See also La. C. C. P. art.
1911 ( requiring a final judgment and a partial final judgment be reduced to writing).
2
with the March 28, 2018 judgment were cured. See Overmier v. Traylor, 475
So. 2d 1094, 1094- 95 ( La. 1985) ( per curiam); City ofDenham Springs v. Perkins,
2008- 1937 ( La. App. 1st Cir. 3/ 27/ 09), 10 So. 3d 311, 317 n. 5, writ denied, 2009-
0871 ( La. 5/ 13/ 09), 8 So. 3d 568 ( once a final judgment has been signed, any
previously existing defect has been cured, and there is no useful purpose in
dismissing the otherwise valid appeal). 2 Mindful that appeals are favored and
should be maintained unless a legal ground for dismissal is clearly shown, see
Edgefteld v Audubon Nature Inst., Inc., 2018- 1782 ( La. 1/ 18/ 19), 261 So. 3d 776per curiam), we conclude that Mr. Robinett' s appeal is valid.
DISCUSSION
When an unrestricted appeal is taken from a final judgment, the appellant is
entitled to seek review of all adverse interlocutory judgments prejudicial to him in
addition to the review of the final judgment dismissing all of his claims with
prejudice.
See Robertson v. Doug Ashy Bldg. Materials, Inc., 2010- 1552 ( La.
App. 1st Cir. 10/ 4/ 11), 77 So. 3d 339, 345 n. 11, writs denied, 2011- 2468, 2011-
2430 ( La. 1/ 13/ 12), 77 So. 3d 972 and 973. Thus, Mr. Robinett' s appellate
complaint, directed at the propriety of the city court' s interlocutory ruling rendered
on May 17, 2017, is properly before us.3
Pointing to La. R.S. 13: 5209( C), Mr. Robinett contends that, after his claim
had been transferred from the city court' s small claims division to its ordinary
2 Since the appealed judgment is one that grants a motion to dismiss, we note that ordinarily an
appeal cannot be taken by a party who confessed judgment in the proceedings in the tribunal
hearing the matter. See La. C. C. P. art. 2085. But because the ruling expressly reserved Mr.
Robinett' s right to appeal the issue of the propriety of the city court' s assessment of costs, the
appealed judgment was conditional and, as such, appealable. See Deville v. Federal Say. Bank
of Evangeline Parish, 607 So. 2d 848, 850 ( La. App. 3d Cir. 1992), writ denied, 610 So. 2d 901La. 1993).
3 Mr. Robinett could have avoided the expense of paying costs subsequent to the city court' s
interlocutory ruling by filing an application for a supervisory writ challenging the city court' s
May 17, 2017 ruling. See Alex v. Rayne Concrete Srvc., 2005- 1457 ( La. 1/ 26/ 07), 951 So. 2d
138, 144.
3
docket, it was error to assess him with costs for the pleadings he filed in the
ordinary docket.
Title 13, addressing the courts and judicial procedure, sets forth the
following pertinent provisions of the " Small Claims Procedures" law in Part
XVIII:
La. R.S. 13: 5205, addressing fees, states in pertinent part:
A. ... No other prejudgment costs, except those required by
R. S. 13: 10. 3 [ addressing the judicial expense fund], shall be required
of the plaintiff so long as the action remains in a small claims
division....
C. The filing fee of thirty-five dollars shall be paid to the judge
of the court as a fee in lieu of all other fees in each such case;
however, all costs and expenses incurred shall be paid from the filing
fee, except as otherwise provided herein.
La. R.S. 13: 5206 provides:
A. If a defendant in a small claims action shall have a claim
against the plaintiff in such action for an amount over the jurisdiction
of the small claims division as set forth in R.S. 13: 5202( A), but of a
nature which may be asserted by a reconventional demand as
authorized by Article 1061 of the Louisiana Code of Civil Procedure,
the defendant may assert his claim in the manner provided by this
Section, in order to secure consolidation for trial of the small claims
action with his own claim.
B. At any time prior to trial in the small claims action, the
defendant therein may commence an action against the plaintiff in a
court of competent jurisdiction to assert a claim of the nature set forth
by R.S. 13: 5206( A), and file an affidavit that the reconventional
demand is in excess of three thousand dollarsM with the judge of the
small claims division in which the plaintiff has commenced the small
claims action.
C. The defendant shall attach to the affidavit a true copy of his
petition or reconventional demand so filed and shall pay the clerk of
the small claims division a transmittal fee of ten dollars, in addition to
the prescribed court costs for filing the reconventional demand,
furnishing a copy of the affidavit and pleading to the plaintiff.
D. The judge of the small claims division shall order that the
small claims division action be transferred to the ordinary docket of
the court....
4 Although La. Acts 2012, No. 209 amended the amount of the jurisdiction of the small claims
division of a city court from three thousand to five thousand dollars, the legislature has not
modified Section 5206.
2
E. The plaintiff in the small claims action shall not be required
to pay to the clerk of the court to which the action is so transferred
any transmittal, appearance, or filing fee; although, upon adverse
judgment, he may be taxed with costs as in the case of any other
defendant. [ Emphasis added.]
And La. R.S. 13: 5209, upon which Mr. Robinett relies, sets forth the
following:
A. A plaintiff who files a complaint in a small claims division
shall be deemed to have waived his right to appeal unless the
complaint is removed as provided in Subsection B or is transferred as
provided in R.S. 13: 5206 above.
B. A defendant shall be deemed to have waived his right to
appeal unless, within the time allowed for filing an answer to the
complaint, he files a written motion seeking removal of the action
to the ordinary civil docket of the court in which the complaint is
filed, which motion shall be granted forthwith.
C. Upon removal as provided in Subsection B of this
Section, a plaintiff shall not be required to pay for additional costs
beyond those due under this Part; any such additional costs as
may be lawfully assessed shall be paid by the defendant mover;
the plaintiff, if judgment is rendered against him, shall not be cast
in such additional costs. [ Emphasis added.]
Thus, under the statutory scheme, a defendant in a small claims division of a city
court can have a matter transferred under two circumstances. A defendant with a
reconventional demand may attest that his claim is in excess of the small claims
jurisdictional amount and have the matter removed to the ordinary docket under
Section 5206. Or the defendant may timely demand that the claim be removed
from the small claims division to the ordinary docket subject to the provisions
stated in Section 5209.
When a law is clear and unambiguous and its application does not lead to
absurd consequences, the law shall be applied as written and no further
interpretation may be made in search of the intent of the Legislature. La. C. C. art.
9. Pumphrey v. City of New Orleans, 2005- 0979 ( La. 4/ 4/ 06), 925 So. 2d 1202,
1209.
By the express terms of Section 5209, a plaintiff is entitled to the benefits of
Subsection C if the defendant transfers a small claims procedure suit to the
ordinary docket under the provisions of Subsection B of Part XVIII. See
Mihalogiannakis v Jones, 563 So.2d 306, 310 ( La. App. 4th Cir. 1990). Because
Ford, as defendant mover, transferred the matter under Subsection B of Section
5209, it is required under the clear and unambiguous language of Subsection C to
pay any additional costs that may be lawfully assessed.
However, in reaching its conclusion that Mr. Robinett was required to pay
costs for all pleadings he filed after Ford transferred the matter to the ordinary
docket, the city court reasoned as follows:
First, La. R. S. 13: 5205 provides for a filing fee in the small
claims division, and provides that no other prejudgment costs " shall
be required of the plaintiff so long as the action remains in the small
claims division." ( Emphasis added.) This statute contemplates that
additional prejudgment costs may be required if the action is
removed to the ordinary civil docket.
The plaintiff cited La. R.S. 13: 5209, which provides that if a
matter is removed to the ordinary civil docket of the court in which
the complaint is filed, " a plaintiff shall not be required to pay for
additional costs beyond those due under this Part; any additional costs
as may be lawfully assessed shall be paid by the defendant mover." ...
Emphasis added). Both La. R.S. 13: 5205 and 13: 5209 are located in
Title 13, Chapter 32, Part XVIII of the Louisiana Revised Statutes, or
the same " Part."
In addition, the language providing that additional costs, " as
may be assessed shall be paid by the defendant mover," contemplates
additional costs for removal to the ordinary civil docket only. The
filing fee for an action in small claims is considerably less than the
filing fee for an action on the ordinary civil docket. This statute
provides that the plaintiff will not have to pay any additional costs for
the initial filing of the action once the matter is removed to the
ordinary civil docket. In other words, the plaintiff does not have to
pay the original filing fee for an action filed in the ordinary civil
docket. The " defendant mover" would be required to pay any
additional costs for the motion to remove the action. However, the
defendant would not be the " mover," or party that filed the motion, in
every filing in the action after removal. Therefore, the Court finds that
the defendant would not be responsible to pay all costs associated
with the action in perpetuity. If a plaintiff files motions or pleadings
after the matter is removed to the ordinary civil docket, he is required
to pay the applicable civil filing fees.
9
When the language of the law is susceptible of different meanings, it must
be interpreted as having the meaning that best conforms to the purpose of the law,
and the words of law must be given their generally prevailing meaning. La. C. C.
arts. 10 and 11. When the words of a law are ambiguous, their meaning must be
sought by examining the context in which they occur and the text of the law as a
whole, and laws on the same subject matter must be interpreted in reference to
each other. La. R.S. 1: 3; La. C. C. arts. 12 and 13; Pumphrey, 925 So. 2d at 1209 -
HW
The meaning and intent of a law is determined by considering the law in its
entirety and all other laws on the same subject matter and placing a construction on
the provision in question that is consistent with the express terms of the law and
with the obvious intent of the Legislature in enacting it. The statute must,
therefore, be applied and interpreted in a manner, which is consistent with logic
and the presumed fair purpose and intention of the Legislature in passing it. This is
because the rules of statutory construction require that the general intent and
purpose of the Legislature in enacting the law must, if possible, be given effect. It
is likewise presumed that the intention of the legislative branch is to achieve a
consistent body of law. Pumphrey, 925 So. 2d at 1210.
Thus, to the extent that the provisions of Part XVIII of Title 13 may be
susceptible to the meaning found by the city court and, therefore, ambiguous, we
note that according to La. R.S. 13: 5200:
The purpose of this Part [ XVIII] is to improve the
administration of justice in small noncriminal cases, and make the
judicial system more available to and comprehensible by the
public; to simplify practice and procedure in the commencement,
handling, and trial of such cases in order that plaintiffs may bring
actions in their own behalf, and defendants may participate actively
in the proceedings rather than default; to provide an efficient and
inexpensive forum with the objective of dispensing justice in a
speedy manner; and generally to promote the confidence of the
7
public in the overall judicial system by providing a forum for
small claims. [ Emphasis added.]
In reaching its result, the city court did not explain how its interpretation
conformed to the express purpose of the Small Claims Procedures law. The city
court' s determination that Section 5209( C) applied only to the initial transfer fee to
which a plaintiff could be assessed permits a defendant to circumvent the purposes
of the Small Claims Procedures law by filing an answer to a plaintiff' s claim and
timely demanding the removal from the small claims division to the ordinary
docket without any explanation to the plaintiff or a judicially -passed -upon
determination ofjustifiable cause for the transfer by the city court.
We believe that to accomplish the objectives of Part XVIII, the defendant
who wishes under Subsection B of Section 5209 to avoid the abbreviated,
inexpensive procedure established under the Small Claims Procedures law does so
with the knowledge that removal includes the assumption of any additional costs
incurred by a plaintiff beyond those that would otherwise be due under the Small
Claims Procedures law. Specifically, under Subsection C, " any such additional
costs as may be lawfully assessed [ to the plaintiff] shall be paid by the defendant
mover."
This is in keeping with the provisions of Part XVIII of Title 13 because,
but for the defendant' s discretionary transfer of the matter from the small claims
division to the ordinary docket under Section 5209( B), the plaintiff is liable for no
more than the amounts set forth in Section 5205. In contrast, to the extent that a
defendant may have a reconventional demand, nothing would have precluded the
defendant from summoning the plaintiff to the city court' s ordinary docket except
that the plaintiff initiated his claim in the small claims division first. Thus, the
provisions of Section 5206( E) permits the assessment of costs to the plaintiff who
is unsuccessful in defending himself on the reconventional demand " as in the case
of any other defendant," which is the procedural posture of the plaintiff served
with a reconventional demand. Therefore, we conclude that requiring the defendant
mover, who removes a claim from the small claims division of the city court to its
ordinary docket, to pay " any such additional costs as may be lawfully assessed" is
in conformity with the meaning the legislature intended in enacting the provisions
of Section 5209( C).
Accordingly, we find the city court erred in assessing costs to Mr. Robinett
subsequent to Ford' s removal of his claim to the ordinary docket. Since the record
does not clearly establish the total amount of costs Mr. Robinett was required to
pay to litigate his claim after it had been removed from the small claims division of
the city court to its ordinary docket, the matter is remanded.
DECREE
For these reasons, Mr. Robinett' s application for rehearing is granted, and
the original appellate opinion of this court is vacated. The city court' s ruling,
assessing costs to Mr. Robinett after Ford transferred his claim from the small
claims division of the city court to the ordinary docket is reversed. The matter is
remanded for a determination of the costs of litigation following transfer of the
claim from the small claims division of city court to its ordinary docket. All costs
of appellate review are assessed against defendant -appellee, Ford of Slidell, LLC.
APPLICATION FOR REHEARING GRANTED; APPELLATE
JUDGMENT VACATED; DISTRICT COURT JUDGMENT REVERSED;
AND REMANDED.
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