April Markiewicz, wife of/and Mark Markiewicz v. Sun Construction, LLC, Penn Mill Lakes, LLC, and Cooper Engineering, Inc, A Professional Engineering Corporation ( 2020 )

STATE OF LOUISIANA
COURT OF APPEAL
A) - Jb ti/ " FIRST CIRCUIT
2019 CA 0869
U V)
APRIL MARKIEWICZ, WIFE OF/ AND MARK MARKIEWICZ
VERSUS
SUN CONSTRUCTION, LLC, PENN MILL LAKES, LLC, AND COOPER
ENGINEERING, INC., A PROFESSIONAL ENGINEERING CORPORATION
C/ W 2019 CA 0870
JANET SHEA, WIFE OF/ AND ALPHONSE SHEA
VERSUS
SUN CONSTRUCTION, LLC, SUNRISE CONSTRUCTION AND
DEVELOPMENT, LLC, PENN MILL LAKES, LLC, AND COOPER
ENGINEERING, INC., A PROFESSIONAL ENGINEERING CORPORATION
C/ W 2019 CA 0871
PATRICIA GRANT, RICHARD GRANT, MARGUERITE GUARINO,
WILLIAM GUARINO, SHERON SPRAWLS, VERNON SPRAWLS, DIANNE
WHITE, JOHNNY WHITE, JO ANN YOUNGBLOOD, WILLIAM
YOUNGBLOOD, LYNELL ROWAN, ALVIN ROWAN, GAYLE AYO, JAMES
AYO, DEBORAH LASCARI AND DANIEL LASCARI AND ON BEHALF OF
PERSONS SIMILARLY SITUATED
VERSUS
SUN CONSTRUCTION, LLC, PENN MILL LAKES, LLC, SUNRISE
CONSTRUCTION, AND COOPER ENGINEERING, INC., A PROFESSIONAL
ENGINEERING CORPORATION
Judgment Rendered: MAY 2 8 2020
On Appeal from the Twenty -Second Judicial District Court
In and for the Parish of St. Tammany
State of Louisiana
Docket No. 2006- 16084 c/ w 2008- 10737 c/ w 2008- 11536
Honorable Reginald T. Badeaux, III, Judge Presiding
Adam S. Lambert Plaintiffs/ Appellants, Patricia Grant,
New Orleans, Louisiana Individually and as Independent
Maurice Le Gardeur Executrix of the Estate of Richard L.
Covington, Louisiana Grant, Marguerite Guarino,
William Guarino, Sheron Sprawls,
Vernon Sprawls, Dianne White,
Johnny White, Jo Ann Youngblood,
William Youngblood, Lynell Rowan,
Alvin Rowan, Gayle Ayo, James Ayo,
Deborah Lascari and Daniel Lascari
and on Behalf of Persons Similarly
Situated
Thomas P. Anzelmo, T.A. Defendants/ Appellees, St. Tammany
Lynda A. Tafaro Parish Government, James " Red"
New Orleans, Louisiana Thompson, Jean M. Thibodeaux, P. E.
Glen E. Mercer Defendant/ Appellee, Clarendon
Kourtney French Twenhafel America Insurance Company
New Orleans, Louisiana
Robert I. Siegel Defendant/ Appellee, Insurance
New Orleans, Louisiana Company of the State of
Pennsylvania
John S. Lawrence, Jr. Defendants/ Appellees,
Jeffrey Scott Loeb Sun Construction, LLC
Jonas Peyton Baker Lawrence A. Kornman,
Carl T. Conrad Penn Mill Lakes, LLC
Charles T. Williams
Aldric C. Poirier, Jr.
Mandeville, Louisiana
Louis R. Koerner, Jr. Defendant/ Appellee,
New Orleans, Louisiana Louis E. Koerner, Jr.
Adrian G. Nadeau Defend a nts/ Ap pel les,
Brad M. Barback John E. Bonneau,
Baton Rouge, Louisiana John E. Bonneau and Associates, Inc.
David M. Moragas Defendant/ Appellee,
New Orleans, Louisiana Zurich American Insurance Company
BEFORE: WHIPPLE, C. J., GUIDRY, AND BURRIS, 1 JJ.
1
Judge William J. Burris, retired, serving pro tempore by special appointment of the
Louisiana Supreme Court.
rj
BURRIS, J.
The plaintiffs appeal from a February 14, 2019 judgment granting the
defendants' motion for summary judgment and cross- motion for summary
judgment and denying the plaintiffs' motion for partial summary judgment. For
the reasons set forth below, the appeal is dismissed.
FACTS AND PROCEDURAL HISTORY
This consolidated appeal arises out of a dispute concerning, among other
things, the ownership and maintenance of drainage retention ponds located in
Penn Mill Lakes Subdivision in St. Tammany Parish. The plaintiffs, residents of the
subdivision, assert that the ponds were statutorily dedicated to the St. Tammany
Parish Council at the time the subdivision plats were approved and recorded by
the Parish, pursuant to St. Tammany Parish Ordinance 499, thus making St.
Tammany Parish Government responsible for operating and maintaining the
ponds. Conversely, St. Tammany Parish Government asserts that the Penn Mill
Lakes Homeowners' Association owns the ponds and is responsible for all
maintenance.
Related motions and partial motions for summary judgment were considered
by the trial court on November 13, 2018. The trial court granted a motion for
summary judgment in favor of defendants, St. Tammany Parish Government,
Parish Councilperson James A. ""Red" Thompson, and Jean M. Thibodeaux, P. E.,
dismissing those defendants with prejudice, granted a cross- motion for summary
judgment in favor of St. Tammany Parish Government, and denied plaintiffs'
motion for partial summary judgment against St. Tammany Parish Government.
A judgment was signed on February 14, 2019, and this appeal, filed by the
plaintiffs, followed.
On July 11, 2019, this court, ex proprio mote, issued a rule to show cause
order to the parties, directing them to show cause why the appeal should not be
3
dismissed due to the lack of decretal language in the February 14, 2019 judgment.2
The judgment provides, in part,
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that St. Tammany
Parish Government's cross- motion for summary judgment is GRANTED.
Thus, it is not evident from the face of the judgment what exact relief was
sought and what exact relief was granted. In response to this court's show cause
order, the parties concede the judgment lacks appropriate decretal language.'
JURISDICTION
Appellate courts have a duty to examine subject matter jurisdiction sua
sponte, even when the parties do not raise the issue. Advanced Leveling &
Concrete Sols. v. Lathan Co., Inc., 2017- 1250 ( La. App. 1st Cir. 12/ 20/ 18), 268
So. 3d 1044, 1046 ( en banc). This court's appellate jurisdiction only extends to
final judgments." Kelley v. Estate of Kelley, 2019- 1044 ( La. App. 1st Cir.
2/ 21/ 20), 2020 WL 862598, * 1 ( unpublished). A final judgment determines the
merits in whole or in part and is appealable. La. Code Civ. P. arts. 1841 and
2083( A).
A valid judgment must be " precise, definite, and certain." Advanced
Leveling, 268 So. 3d at 1046. Moreover, 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. These determinations must be evident from the language of the
2
The rule to show cause order was referred to this panel to consider in conjunction with the
assigned appeal.
3
We recognize this court has discretion to convert an appeal of a non -appealable judgment to
an application for supervisory writs. See Stelluto v. Stelluto, 2005- 0074 ( La. 6/ 29/ 05), 914
So. 2d 34, 39. However, when the jurisdictional defect lies in the non -finality of a judgment, an
appellate court will generally refrain from the exercise of its supervisory jurisdiction when an
adequate remedy exists by appeal, particularly when an adequate remedy by appeal will exist
upon the entry of the requisite precise, definite, and certain decretal language necessary for
appellate review. Accordingly, we decline to exercise our discretion to convert this appeal of a
judgment that is not final for lack of decretal language to an application for supervisory writs.
Kelley v. Estate of Kelley, 2019- 1044 ( La. App. 1st Cir. 2/ 21/ 20), 2020 WL 862598, * 2, n. 1
unpublished).
2
judgment without reference to other documents in the record. Id. This court has
held that, where a judgment merely grants a motion for summary judgment, but
fails to contain proper decretal language, the judgment is defective and cannot be
considered a final judgment. Pugh v. St. John Fathers' Club, 2017- 1400 ( La.
App. 1st Cir. 4/ 6/ 18), 2018 WL 1663144, * 1 ( unpublished). In the absence of a
final judgment, this court lacks appellate jurisdiction. Id.Although the February 14, 2019 judgment indicates that the cross- motion
for summary judgment filed by St. Tammany Parish Government was granted, the
judgment does not indicate against whom the ruling was rendered and which
claims, if any, were dismissed. One must consider extrinsic sources to make that
determination; however, the specific relief granted should be determinable from
the judgment itself without reference to extrinsic sources, such as a pleading or
reasons for judgment. Kelley, 2020 WL 862598, * 2.
Because the February 14, 2019 judgment lacks appropriate decretal
language, it cannot be considered a final judgment for purposes of appeal.
Consequently, this court lacks appellate jurisdiction to review this matter and must
dismiss this appeal. 4
CONCLUSION
For the foregoing reasons, we dismiss the appeal. We decline to assess
costs pending the rendition of a final judgment.
APPEAL DISMISSED.
4
Although the portion of the judgment that grants the motion for summary judgment filed by
St. Tammany Parish Government, James A. " Red" Thompson, and Jean M. Thibodeaux, P. E.,
contains appropriate decretal language, this court has definitively held that where a portion of a
judgment is uncertain and indefinite, the entire judgment is non -appealable. See Advanced
Leveling, 268 So. 3d at 1047.
5