Robert C. Lehman v. Tommy Benasco and Benasco Construction LLC ( 2020 )

NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2019 CA 0779
ROBERT C. LEHMAN
VERSUS
TOMMY BENASCO AND BENASCO CONSTRUCTION, LLC
Judgment Rendered FEB 2 6 2020
APPEALED FROM THE TWENTY-SECOND JUDICIAL DISTRICT COURT,
IN AND FOR THE PARISH OF ST. TAMMANY
STATE OF LOUISIANA
DOCKET NUMBER 2011- 13533, DIVISION " C"
HONORABLE RICHARD SWARTZ, JUDGE
Robert C. Lehman Plaintiff/Appellant
Mandeville, Louisiana Pro -Se
Julie M. Knight Attorney for Defendant/Appellee
Covington, Louisiana Tommy Benasco
BEFORE: McDONALD, THERIOT, and CHUTZ, JJ.
McDonald, J.
This is an appeal from a trial court judgment denying a motion to award
additional attorney fees, and finding exceptions of prescription and improper use of
summary proceedings moot in light of its ruling on the motion. After review, we
dismiss the appeal, and remand the matter for a final judgment.
FACTS AND PROCEDURAL HISTORY
Tommy Benasco hired attorney Robert C. Lehman to provide legal services
in connection with claims Mr. Benasco made against his homeowner' s insurer for
storm damage. The case settled. Afterward, Mr. Lehman maintained that he never
received full payment from Mr. Benasco for his legal services pursuant to the
parties' contingency fee contract.
Mr. Benasco eventually provided Mr. Lehman with a promissory note for
30, 035. 00, which provided for monthly payments of $ 1, 776. 24. Mr. Benasco
paid the first monthly installment, but the second installment check was returned
for insufficient funds and no further payments were made.
Mr. Lehman then filed suit against Mr. Benasco for payment of the
outstanding balance owed on the promissory note.' The trial court ultimately
signed a judgment in favor of Mr. Lehman on October 26, 2011, awarding him
30, 035. 00, less a payment of $1, 776.24, plus interest, costs, and attorney fees in
the amount of 25 percent of the amount owed.
On October 14, 2015, Mr. Lehman filed a motion for an award of additional
attorney fees.' In his motion, Mr. Lehman averred that after the judgment was
rendered, Mr. Benasco and his wife, Joanne Benasco, filed for Chapter 7
bankruptcy protection and sought to have the debt discharged in bankruptcy. Mr.
Benasco Construction, LLC was also named as a defendant but was later dismissed from the suit.
2 While Mr. Lehman captioned his pleading as a " motion," it was more in the nature of a rule to show
cause, as authorized by La. R.S. 9: 2781( F).
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Lehman avers that he was required to spend an extensive amount of time on the
bankruptcy litigation and engage the services of an attorney specializing in
bankruptcy, and that he incurred substantial attorney fees.
In response, Mr. Benasco opposed Mr. Lehman' s motion seeking additional
attorney fees, and filed exceptions raising objections of prescription and improper
use of summary proceedings. After a hearing, the trial court determined that there
was no statute authorizing Mr. Lehman to seek postjudgment attorney fees and
costs incurred in enforcing the judgment. The trial court signed a judgment on
October 11, 2018, denying the motion for additional attorney fees, and ruling that
the exceptions of prescription and improper use of summary proceedings were
moot in light of the denial of the motion for additional attorney fees. Mr. Lehman
has appealed that judgment.
This court issued a show cause order on July 22, 2019, noting that the
judgment does not appear to be a final, appealable ruling. A final judgment must
be precise, definite, and certain. Advanced Leveling & Concrete Solutions v.
Lathan Company, Inc., 2017- 1250 ( La. App. 1 Cir. 12/ 20/ 18), 268 So. 3d 1044,
1046 ( en banc). 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.
Id.A judgment that does not contain decretal language cannot be considered as
a final judgment for the purpose of an immediate appeal, and this court lacks
jurisdiction to review such a judgment. Johnson v. Mount Pilgrim Baptist
Church, 2005- 0337 ( La. App. 1 Cir. 3/ 24/ 06), 934 So. 2d 66, 67.
The October 11, 2018 judgment denies a motion for additional attorney fees
filed by Mr. Lehman, and it pretermits consideration of the exceptions of
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prescription and improper use of summary proceedings filed by Mr. Benasco as
moot. However, the judgment does not indicate that it dismisses all of Mr.
Lehman' s claims or whether a La. C. C. P. art. 1915( B) designation was necessary.
While Mr. Lehman' s contention may be correct that the judgment was final and
disposed of all of the claims in this case, the judgment at issue does not provide as
such, rather, one must consider extrinsic sources in order to make that
determination. The specific relief granted should be determinable from the
judgment without reference to an extrinsic source such as pleadings or reasons for
judgment. State by and through Caldwell v. Teva Pharmaceuticals Industries,
Ltd., 2017- 0448 ( La. App. 1 Cir. 2/ 8/ 18), 242 So. 3d 597, 602. Therefore, in the
absence of either appropriate decretal language dismissing the appellant' s claims in
their entirety or a La. C. C. P. art. 1915( B) designation, the October 11, 2018
judgment is defective and cannot be considered a final judgment for purposes of
appeal. Thus, this court lacks appellate jurisdiction to review this matter, and we
must dismiss this appeal .3 See Thompson v. Cenac Towing Co., L.L.C., 2018-
1282 ( La. App. 1 Cir. 4/ 12/ 19), 2019 WL 1578170, * 2 ( unpublished).
DECREE
For the foregoing reasons, the appeal is dismissed. The matter is remanded
to the trial court for a final judgment. The costs of this appeal are assessed against
Robert C. Lehman.
APPEAL DISMISSED; REMANDED.
3 The motion for appeal was not filed within the thirty -day delay for seeking a writ application. See
Uniform Rules -Courts of Appeal, Rule 4. 3. The notice of judgment was mailed on October 16, 2018.
The motion for appeal was not filed until December 11, 2018. ( R.p. 147) As such, this court will not
convert the appeal to a writ application. See Matter of Succession of Porche, 2016- 0538 ( La. App. 1
Cir. 2/ 17/ 17), 213 So. 3d 401, 406, n. 2.
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