Cleartrac, LLC v. Lanrick Contractors, LLC ( 2020 )

NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
NUMBER 2020 CA 0175
CLEARTRAC, LLC
VERSUS
LANRICK CONTRACTORS, LLC
Judgment Rendered: NOV 0 6 2020
Appealed from the
Twenty -First Judicial District Court
In and for the Parish of Tangipahoa
State of Louisiana
Docket Number 2017- 0002180
Honorable Jeffrey Johnson, Judge Presiding
7i 7C 7C ih 1t 7Y? C 7C'" IC' IC X Y
Brett M. Bollinger Counsel for Plaintiff/Appellant,
Jeffrey E. McDonald Cleartrac, LLC
L. Peter Englande
Covington, LA
Frank J. DiVittorio Counsel for Defendants/Appellees,
Patrick K. Reso Lanrick Contractors, LLC, Lanrick
Hammond, LA Real Estate, LLC, Southeast Dirt
LLC, Hudson Holdings, LLC,
Hudson Holdings Equipment, LLC,
Thomas P. McKellar, Lisa C.
McKellar a/ k/a Lisa Cooley
BEFORE: WHIPPLE, C.J., WELCH, AND CHUTZ, JJ.
WHIPPLE, C.J.
This matter is before us on appeal by plaintiff, Cleartrac, LLC, from a
judgment of the trial court maintaining a peremptory exception raising the
objection of no right of action in favor of Lanrick Contractors, LLC. For the
reasons that follow, we dismiss this appeal.
FACTS AND PROCEDURAL HISTORY
On August 26, 2010, a judgment was rendered in favor of Cleartrac, LLC
and against Lanrick Contractors Corporation in Brazos County, Texas (" the Texas
judgment").' In 2011, the Texas judgment was made executory in the Twenty -
Second Judicial District Court for St. Tammany Parish and in the Twenty -First
Judicial District Court for Tangipahoa Parish.
On August 3, 2017, Cleartrac, LLC (" Cleartrac") filed a petition to enforce
the Texas judgment against Lanrick Contractors, LLC (" Lanrick Contractors") in
the Twenty -First Judicial District Court for Tangipahoa Parish, praying for a writ
of seizure and sale directing the Sheriff to seize and sell property of Lanrick
Contractors to satisfy the Texas judgment. Cleartrac subsequently amended its
petition to name Lanrick Real Estate, LLC, Southeast Dirt, LLC, Hudson
Holdings, LLC, Hudson Holdings Equipment, LLC, Thomas P. McKellar,2 and
Lisa C. McKellar a/ k/ a Lisa Cooley as additional defendants. Lanrick Contractors
and Southeast Dirt, LLC answered the petition and filed reconventional demands
against Cleartrac.3
Following entry of the Texas judgment, Lanrick Contractors Corporation converted its
corporate form to Lanrick Contractors, LLC, a Louisiana limited liability company having its
principal place of business in Tangipahoa Parish.
2Thomas P. McKellar was named as the sole member and registered agent for Lanrick
Contractors.
3A motion to quash subpoena and subpoena duces tecum and motion for protective order
by McKellar, Lanrick Contractors, Southeast Dirt, LLC, Lanrick Real Estate, LLC, Empire
Dirtworks, LLC, Hudson Holdings, LLC, and Hudson Holdings Equipment, LLC, a motion for
summary judgment and for sanctions by Lisa Cooley, and a motion for contempt and dilatory
exception raising the objection of vagueness ( as to the reconventional demand filed by Lanrick
2
Various preliminary motions and exceptions were filed by the parties,
including: a motion for partial summary judgment, a motion to compel discovery,
and a motion to quash and for protective order filed by Cleartrac; a declinatory
exception raising the objection of prematurity/ motion to continue motion for
partial summary judgment, objections to evidence, and opposition to motion for
summary judgment by Lanrick Contractors and Mr. McKellar; and a peremptory
exception raising the objection of no right of action by Lanrick Contractors. These
matters were set for hearing on August 5, 2019, with Lanrick Contractors' s
peremptory exception raising the objection of no right of action seeking dismissal
of Cleartrac' s claims with prejudice considered first.'
In support of its exception of no right of action, Lanrick Contractors argued
that on .lune 25, 2014, Cleartrac filed a Certificate of Termination of a Domestic
Entity with the Texas Secretary of State, and that pursuant to Texas law, Cleartrac
had three years following its dissolution, or by . lune 25, 2017, to prosecute or
collect on the underlying Texas judgment. Lanrick Contractors contended that
because Cleartrac no longer exists as a corporate entity, and its petition to enforce
was not filed until August 3, 2017, Cleartrac has no right to bring this suit.
Cleartrac opposed the exception, contending that Texas law permitted it to
prosecute to conclusion proceedings initiated while it was still authorized to do so
under Texas law, until all judgments, orders, and decrees have been fully executed.
Alternatively, Cleartrac sought to cure the defect by amending its petition to
substitute Kent Moore as the sole member of Cleartrac.
Contractors) by Cleartrac were set for hearing on October 29, 2018, Although the minute entry
indicates that these " matters were taken up and heard," and the trial "[ c] ourt' s ruling was dictated
to the court reporter," the record before us does not indicate the disposition of these matters.
Although not mentioned in the August 19, 2019 judgment, the minute entry indicates
that declinatory exception raising the objection of insufficiency of citation and service of process
filed by Mr. McKellar, Hudson Holdings, LLC, Hudson Holdings Equipment, LLC, and Lanrick
Real Estate, LLC) were also set for hearing on August 5, 2019.
C
At the conclusion of the hearing, the trial court maintained Lanrick
Contractor' s exception, but left the matter " open" to allow Cleartrac ten days to
amend its petition, and further granted Lanrick Contactors ten days to respond to
any such amendment. The trial court declined to hear the remaining matters until it
issued a ruling on the exception of no right of action. In conformity with its ruling,
on August 19, 2019, the trial court signed a written judgment, which ordered that
all remaining matters set to be heard were continued to November 4, 2019.
Cleartrac subsequently filed a motion for new trial, contending that the trial
court' s judgment maintaining the exception of no right of action was based on an
erroneous interpretation of Texas law. Following a hearing, the trial court denied
Cleartrac' s motion for new trial. Cleartrac then filed the instant suspensive appeal
of the August 19, 2019 judgment. Lanrick Contractors answered the appeal,
seeking damages, attorney' s fees, and costs for a frivolous appeal.
DISCUSSION
At the outset, we note that appellate courts have the duty to examine subject
matter jurisdiction sua sponte, even when the parties do not raise the issue.
Advanced Leveling & Concrete Solutions v. Lathan Company, Inc., 2017- 1250
La. App. 1St Cir. 12/ 20/ 18), 268 So. 3d 1044, 1046. This court' s jurisdiction
extends to final judgments and interlocutory judgments expressly provided by law.
LSA- C. C. P. art. 2083. A final judgment determines the merits in whole or in part.
An interlocutory judgment does not determine the merits, but only preliminary
matters in the course of an action. LSA- C. C. P. art. 1841.
A judgment that maintains a peremptory exception and allows a period of
time for amendment of the petition is not a final judgment, nor an interlocutory
judgment expressly appealable. See LSA-C. C. P. art. 2083; Barfield v. Tammany
4- 5 ( La. 11t Cir. 6/ 2/ 17), 2017 WL
Holding Company, 2016- 1420, pp. App.
M
2399020, at * I ( unpublished). Accordingly, we must first consider and determine
whether this matter is properly before us on appeal.
The judgment appealed herein provides:
IT IS HEREBY ORDERED, ADJUDGED AND DECREED
that the Peremptory Exception of No Right of Action filed by Lanrick
Contracts, LLC is granted and maintained[.] Cleartrac, LLC was
given ten days to amend its Petition in order to attempt to cure the
basis upon which the Peremptory Exception of No Right of Action is
maintained, and Lanrick Contractors, LLC was given ten days from
any amendment to reply to same. Lanrick Contractors, LLC is hereby
authorized to conduct discovery including, but not limited to, the
deposition of Russell Moore being the 1442 representative of
Cleartrac, LLC on the limited issue of any distribution of the alleged
judgment and/ or claim by Cleartrac, LLC. The Peremptory Exception
of No Right of Action is then hereby continued and reset to November
4, 2019 at 9: 00 a. m.151
IT IS HEREBY FURTHER ORDERED, ADJUDGED AND
DECREED that all remaining matters set to be heard are continued to
November 4, 2019 at 9: 00 a.m. with the status conference to be held
upon the resolution of the pending motions if needed.
The judgment on appeal herein permits Cleartrac ten days to amend its
petition " to attempt to cure the basis" for maintaining the exception and thereafter
allows Lanrick Contractors an additional ten days to respond to any such
amendment by Cleartrac. The judgment further authorizes Lanrick Contractors to
conduct discovery, including the taking of depositions, and then purports to
continue and reset the hearing of the exception to November 4, 2019.
Thus, on review, we find that the judgment is not a final judgment nor an
interlocutory judgment over which this court has appellate jurisdiction to review.
See Atchafalaya Basinkeoer v. Bayou Bridge Pipeline, LLC, 2018- 0417 ( La. App.
I" Cir. 2/ 22/ 19), 272 So. 3d 567, 570. See also B. G. Mart, Inc. v. Jacobsen
Specialty Services, Inc., 16- 675 ( La. App. 5``' Cir. 2/ 8/ 17), 213 So. 3d 1238, 1239
To the extent that " Lanrick Contractors, LLC" is referred to as " Lanrick Contracts,
LLC," in one instance in the judgment, we note that the misspelling of a party' s name in a
judgment is an error of phraseology, which can be corrected by amendment pursuant to LSA-
C. C. P. art. 1951, particularly where the name is consistently correctly spelled multiple times
throughout the judgment. See LSA- C. C. P. art. 1951; Wagenvoord Broadcasting Co. v.
Blanchard, 261 So. 2d 257, 259 ( La. App. 4t1' Cir.), writ refused, 263 So. 2d 48 ( La. 1972).
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A ruling maintaining an exception of no cause of action and granting time to
amend the petition is not a final judgment or an appealable interlocutory
judgment."). Such an order does not constitute a final judgment, because it merely
permits an amendment within the delay allowed by the trial court as provided in
LSA- C. C. P. art. 934. Bumiac v. Costner, 2018- 1709 ( La. App. 15`` Cir. 5/ 31/ 19),
277 So. 3d 1204, 1208- 1209, citing Schroeder v. Board of Supervisors of
Louisiana State University, 540 So. 2d 380, 382 ( La. App. I" Cir. 1989). The
order before us is merely an interlocutory judgment, not made expressly appealable
by law, and which dismisses no claims and no parties. The lack of finality is
evident in that if Cleartrac fails to, amend its petition, Lanrick Contractors may then
move for a dismissal, making the exception raising the objection of no right of
action final. See Schroeder v. Board of Supervisors of Louisiana State Unversity,
540 So. 2d at 382; Burniac v. Costner, 277 So. 3d at 1209. A final appealable
judgment would result only when a judgment is entered expressly dismissing
Cleartrac' s claims against Lanrick Contractors. See B. G. Mart Inc. v. Jacobsen
Specialty Services, Inc., 213 So. 3d at 1239.
Accordingly, because the August 19, 2019 judgment is not a final judgment
over which this court has appellate jurisdiction, we must dismiss this appeal. See
Hernandez v. Excel Contractors, Inc., 2017- 0762, p. 8 ( La. App. I" Cir. 12/ 21/ 17),
2017 WL 6524030 at * 4 ( unpublished). Moreover, because the answer to appeal is
based on the same interlocutory, non -appealable ruling of the trial court, we
likewise lack jurisdiction over the answer to appeal. See Nicaud_v. Nicaud, 2016-
Thus, the answer to appeal
1531 ( La. App. I`` Cir. 9/ 15/ 1. 7), 227 So. 3d 329, 330.
must also be dismissed.
Cl
CONCLUSION
For the above and foregoing reasons, the appeal and answer to appeal are
dismissed. Costs of this appeal are assessed to the plaintiff/appellant, Cleartrac,
LLC.
APPEAL DISMISSED; ANSWER TO APPEAL DISMISSED.
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