Hood Partners, L.L.C. v. David D. Davidge, Jr. and Sherry Anita Davidge Burke ( 2020 )

STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
NO. 2019 CA 1150
HOOD PARTNERS, L.L. C.
L
VERSUS
DAVID D. DAVIDGE, JR. AND
SHERRY ANITA DAVIDGE BLJRKE
Judgment Rendered: MAY 1 1 2020
On Appeal from the
21 st Judicial District Court
In and for the Parish of Tangipahoa
State of Louisiana
Trial Court No. 2018- 0000794
Honorable Jeffrey S. Johnson, Judge Presiding
Frank J. DiVittorio Attorneys for Plaintiff A
- ppellant,
Hammond, LA Hood Partners, L.L.C.
J. Mark Rolling Attorney for Defendants -Appellees,
Hammond, LA David D. Davidge, Jr., and
Sherry Anita Davidge Burke
BEFORE: HIGGINBOTHAM, PENZATO, AND LANIER, JJ.
1
j,
HIGGINBOTHAM, J.
This is an appeal from the denial of a petition for declaratory judgment.
BACKGROUND
In 2017, Hood Partners, L.L.C. (" Hood") purchased a parcel of land in
Hammond, Louisiana, from Northlake Partnership (" Northlake"). When Northlake
acquired the property from Rumsie M. Davidge (now deceased), David D. Davidge,
Jr., and Sherry Anita Davidge Burke (" the Davidges") in 1983, the conveyance deed
contained a provision that restricted Northlake and its " heirs, successors or assigns"
from constructing multi -family dwellings on the property. On March 9, 2018, Hood
filed a petition for declaratory judgment against the Davidges, seeking to obtain a
judicial declaration that the restriction: ( 1) is unenforceable as to Hood and any
successor owners; ( 2) is against public policy; and ( 3) is prescribed. The Davidges
filed an answer to the petition in the form of a general denial. Hood and the Davidges
filed a joint motion to set a trial on the merits with oral argument, waiving their right
to present testimony of any witnesses. The parties agreed to submit the matter based
upon the evidence and stipulations as set forth in the pretrial order. While Hood
argued that the restriction was unenforceable, the Davidges maintained that the
restriction created a real right, intended to run with the land and be enforceable
against successive owners.
On May 1, 2019, the trial court issued written reasons for judgment finding in
favor of the Davidges and ruling that the restriction was in the nature of a predial
servitude. The trial court signed a judgment on June 11, 2019, stating in pertinent
part:
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED
that the Petition for Declaratory Judgment filed by [ Hood] against [ the
Davidges] is hereby denied.
Hood now appeals.
2
LAW AND ANALYSIS
It is the duty of an appellate court to examine its subject matter jurisdiction
sua sponte, even when the parties do not raise the issue. Monterrey Center, LLC
v. Ed. ucation Partners, Inc., 2008- 0734 (La. App. 1 st Cir. 12/ 23/ 08), 5 So. 3d 225,
228- 29. Our review of the June 11, 2019 judgment denying Hood' s petition for
declaratory judgment without dismissing the lawsuit or designating the judgment as
final, reveals that it is neither a final judgment nor a partial final judgment. La. Code
Civ. P. arts. 1841, 1911, and 1915. No relief was granted to any party and the suit
was not dismissed as to any party. There is no dispositive language in the decree.
Therefore, it is an interlocutory judgment. La. Code Civ. P. art. 1841. An
interlocutory judgment is appealable only when expressly provided by law. La.
Code Civ. P. art. 2083( C). There is no law that would allow an appeal of this
particular interlocutory judgment. See Walker v State, 2009- 0973 ( La. App. 4th
Cir. 10/ 21/ 09), 26 So. 3d 782, 784.
We also decline to exercise our supervisory jurisdiction in this matter, because
we find that in the posture presented by the petition for declaratory judgment there
is no justiciable controversy. The filing of a petition for declaratory judgment does
not automatically entitle the petitioner to relief. Goodwin v. City of Mandeville,
2018- 1118 ( La. App. 1st Cir. 5/ 31/ 19), 277 So. 3d 822, 828, writ denied, 2019- 01083
La. 10/ 8/ 19), So. 3d Jurisprudence has limited the availability of
declaratory judgments by holding that courts will only act in cases of a present,
justiciable controversy and will not render merely advisory opinions. Church Point
Wholesale Beverage Co., Inc. v. Tarver, 614 So. 2d 697, 701 ( La. 1993). In the
context of a declaratory judgment, a justiciable controversy must involve uncertain
or disputed rights in an immediate and genuine situation, and must be a substantial
and actual dispute as to the legal relations of parties having real, adverse interests.
Steiner v. Reed, 2010- 1465 ( La. App. 1st Cir. 2/ 11/ 11), 57 So. 3d 1188, 1192. Such
k
a justiciable controversy must be distinguished from one that is merely hypothetical
or abstract, or one presenting an issue that is academic, theoretical, or based on a
contingency that may or may not arise. Id.There is actually nothing in the petition or the evidence submitted at trial
suggesting that Hood or any other party has or ever will seek to construct multi-
family dwellings on the parcel of land at issue. Accepting the existing facts as
framed by the parties, the dispute over whether the restriction as to the construction
of multi -family dwellings is based upon an uncertain contingency that is neither
immediate nor actual. These parties do not have real, adverse interests ripe for
judicial determination, and any judgment or decree rendered would not have a
conclusive effect upon Hood' s rights. As such, any judgment or decree upon the
issue would amount to a mere advisory opinion. Because there is no justiciable
controversy presented under the facts as alleged and shown at trial, Hood has failed
to state a cause of action; and thus, the trial court lacked subject matter jurisdiction.
Because our subject matter jurisdiction is derivative of that of the trial court, we also
lack supervisory jurisdiction to determine the merits of Hood' s petition for
declaratory judgment. See Steiner, 57 So. 3d at 1193. See also In Matter of Jelks,
2016- 0730 ( La. App. 1 st Cir. 12/ 22/ 16), 209 So. 3d 854, 859.
CONCLUSION
This appeal must be dismissed for want of subject matter jurisdiction, because
the June 11, 2019 judgment is not an appealable judgment and no justiciable
controversy exists. All costs of this appeal are assessed to the plaintiff-appellant,
Hood Partners, L.L.C.
APPEAL DISMISSED.
rd