Travis W. Bond v. Louisiana Purchase Equestrian Estates, LLC. ( 2020 )

STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
NO. 2019 CA 0957
TRAVIS W. BOND
VERSUS
LOUISIANA PURCHASE EQUESTRIAN ESTATES, LLC
Judgment Rendered.
FEB 2 12020
Appealed from the 21" District Court
In and for the Parish of Livingston
State of Louisiana
Docket No. 147879
The Honorable Charlotte H. Foster, Judge Presiding
A.M. " Tony" Clayton Counsel for Plaintiff/Appellant
Michael P. Fruge Travis Bond
Michael C. Hendry
Port Allen, Louisiana
R. Gary Higgins
Covington, Louisiana
Brian K. Abels Counsel for Defendant/Appellee
Rhonda S. Smith Louisiana Purchase Equestrian
Diana L. Tonagel Estates, LLC, Gordon " Paco"
Denham Springs, Louisiana Swain, Jr., Individually,
Gary Perkins, Individually, and
Paco Swain Realty, LLC
Michael P. Bienvenu Counsel for Defendant /Appellee in
Baton Rouge, Louisiana Main Demand/ Paco Swain Realty,
LLC
Will Montz Counsel for Defendant/Appellee
Michael J. Pantaleo Continental Casualty Company
Lafayette, Louisiana
BEFORE: HIGGINBOTHAM, PENZATO, AND LANIER, JJ.
Lanier, J.
In the instant appeal, plaintiff, Travis W. Bond, challenges the judgment of
the district court sustaining an exception raising the objection of res judicata filed
by defendants, Louisiana Purchase Equestrian Estates, LLC (" LPEE"), Paco Swain
Realty, LLC, Gordon " Paco" Swain, Jr., and Gary W. Perkins. For the reasons that
follow, we dismiss the appeal.
FACTS AND PROCEDURAL HISTORY
According to the record, this litigation stems from a dispute concerning a
tract of land located in Walker, Louisiana, in a residential subdivision called
Louisiana Purchase Equestrian Estates. The subdivision was developed by LPEE,
a Louisiana business entity that subdivided and sold lots within the subdivision.
In 2014, plaintiff, Travis W. Bond, purchased Lot 36 in the subdivision.
Plaintiff alleges that after he began clearing the lot in preparation to build his
home, he discovered two drainage canals that traversed his lot. According to
plaintiff, LPEE, through its two members, Gordon " Paco" Swain, Jr. and Gary W.
Perkins, agreed to pay costs associated with backfilling the canals to make Lot 36
suitable for plaintiffs home. However, plaintiff asserts that LPEE refused to pay
the bill he submitted for the remediation work. Plaintiff filed the instant suit
against LPEE seeking damages related to the drainage canals and the remediation
work.
In response, LPEE filed a motion for summary judgment, which was granted
in open court in August 2016. In a written judgment signed on February 1, 2017,
the district court granted, in part, LPEE' s motion for summary judgment,
dismissing " all claims in plaintiffs original petition except plaintiffs detrimental
reliance claim for reimbursement of the remediation costs after he purchased the
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lot from defendant."' Plaintiff subsequently discovered that Lot 36 was situated in
an area classified as wetlands. Plaintiff filed a supplemental and amending
petition, adding Mr. Swain and Paco Swain Realty, LLC, as defendants, and
asserting claims against all defendants for, among other things, redhibition, breach
of warranty, and negligent misrepresentation; he subsequently filed second and
third supplemental and amending petitions to add newly discovered insurance
carriers.
Thereafter, on January 14, 2019, plaintiff filed his fourth supplemental and
amending petition for damages, adding Mr. Perkins as a defendant and asserting
claims against him individually, based on new evidence plaintiff alleged was
obtained through discovery. In response, the defendants ( LPEE, Mr. Swain, Mr.
Perkins, and Paco Swain Realty, LLC) filed various exceptions, including an
exception raising the objection of res judicata, asserting that the claims in
plaintiffs fourth supplemental and amending petition were barred by res judicata
due to the prior judgment on LPEE' s motion for summary judgment.
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According to the record, the defendants fled what they allege was an " unopposed" motion to
modify the February 1, 2017 judgment seeking to have final decretal language added to the
judgment. The district court signed a new judgment on the summary judgment on October 17,
2019, and, on December 12, 2019, the defendants filed an ex parte motion and order with the
district court to supplement the appeal record with the October 17, 2019 modified judgment.
The district court signed the motion to supplement on December 15, 2019, and the appeal record
was supplemented accordingly. In response to said supplement, on January 6, 2020, plaintiff
filed a " Motion to Vacate Judgment and Strike Portion of Record and/ or to Remand to Trial
Court for Clarification and/ or to Consolidate Appeals and Stay Proceedings Pending Such
Consolidation" ( hereinafter " Motion to Vacate"). In the Motion to Vacate, plaintiff asserts that
the modification/ revision of the February 1, 2017 judgment on the partial motion for summary
judgment was not unopposed and, thus, should be vacated and not considered by this court in the
instant appeal and/ or remanded to the district court for clarification. Moreover, plaintiff notes
that out of an abundance of caution, on December 20, 2019, he filed a separate appeal of the
October 17, 2019 modified judgment on the motion for summary judgment. Because we
ultimately dismiss the instant appeal, we deny the Motion to Vacate as moot.
4
Following a hearing, the district court granted the exception raising the
objection of res judicata. On April 22, 2019, the district court signed a judgment
containing the following language:
The Court, having reviewed the pleadings and considering the
evidence and argument of counsel, the peremptory Exception of Res
Judicata is hereby GRANTED, dismissing plaintiffs Fourth
Supplemental and Amending Petition, with prejudice and at
plaintiff s cost. The remaining Exceptions to plaintiffs Fourth
Supplemental and Amending Petition are deemed MOOT.
Plaintiff then filed the instant appeal.
After the record was lodged in this court, we issued a rule, ex proprio motu,
ordering the parties to show cause by briefs why the instant appeal should not be
dismissed as having been taken from a non -final judgment, i.e., a judgment not
final for purposes of immediate appeal. Specifically, the April 22, 2019 judgment
at issue on appeal fails to specifically identify the party or parties in favor of and
against whom judgment is rendered.
DISCUSSION
As an appellate court, we have the duty to examine our subject matter
jurisdiction and to determine sua sponte whether such subject matter jurisdiction
exists, even when the issue is not raised by the litigants. Marrero v. I. Manheim
Auctions, Inc., 2019- 0365 ( La. App. 1 Cir. 11/ 19/ 19), So. 3d , 2019
WL 6167832, * 1; Advanced Leveling & Concrete Solutions v. Lathan
Company, Inc., 2017- 1250 ( La. App. 1 Cir. 12/ 20/ 18), 268 So. 3d 1044, 1046 ( en
banc). This court's appellate jurisdiction only extends to " final judgments." Rose
v. Twin River Development, LLC, 2017- 0319 ( La. App. 1 Cir. 11/ 1/ 17), 233 So.
3d 679, 683; see also La. Code Civ. P. art. 2083( A).
A valid judgment must be precise, definite, and certain. Laird v. St.
Tammany Parish Safe Harbor, 2002- 0045 ( La. App. 1 Cir. 12/ 20/ 02), 836 So.
2d. 364, 365. Moreover, a final appealable judgment must contain decretal
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language and 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. Matter
of Succession of Weber, 2018- 1337 ( La. App. 1 Cir. 4/ 29/ 19), 276 So. 3d 1021,
1026- 1027. These determinations should be evident from the language of the
judgment without reference to other documents in the record. Advanced Leveling
Concrete Solutions, 268 So. 3d at 1046. Thus, 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. See Johnson v. Mount Pilgrim Baptist Church, 2005- 0337 ( La. App.
1 Cir. 3/ 24/ 06), 934 So. 2d 66, 67.
In the instant appeal, we found the April 22, 2019 judgment to be ambiguous
as to the specific relief granted. This court was unable to determine the party or
parties in favor of who the ruling was ordered. Thus, by order dated August 5,
2019, prior to dismissing this appeal, we provided the parties an opportunity to be
heard and ordered the parties to show cause by briefs whether the appeal should be
dismissed for lack of a final appealable judgment.
Plaintiff filed a response to this court's order, arguing that while the April
22, 2019 judgment " did not readily identify the parties for which [ it] was rendered
for and against, the exceptions were filed ( and the relief requested) by all of the
named defendants against Appellant — there were no other parties." Plaintiff
added further that in the event that this court determines that the judgment lacks
the required specificity, he had filed a motion with the district court to modify the
April 22, 2019 judgment " to reform the judgment to more particularly reflect the
specific decretal language identified" in this court' s show cause order. Thereafter,
plaintiff sought to supplement the record on appeal with the subsequent amended
judgment, which was signed by the district court on September 9, 2019. Plaintiffs
motion to supplement the appeal record was referred to the merits by order of this
court dated October 28, 2019. The defendants filed a response, agreeing that the
April 22, 2019 judgment was not in proper form and that the appeal should be
dismissed.
An appellate court not only has an independent duty to consider whether it
has subject matter jurisdiction over the matter, but also has the sole authority to
determine whether an appeal is properly before it once the trial court's jurisdiction
has been divested. Hernandez v. Excel Contractors, Inc., 2018- 1091 ( La. App. 1
Cir. 3/ 13/ 19), 275 So. 3d 278, 284. 2 Jurisdiction of the trial court over all matters
reviewable under the appeal is divested, and that of the appellate court attaches, on
the granting of the order for a devolutive appeal. La. Code Civ. P. art. 2088( A).
Any order or judgment rendered subsequent to the order granting an appeal is null
if that order or judgment purports to address a matter that is at the time reviewable
under the appeal. Hernandez, 275 So. 3d at 283; see also La. Code Civ. P. art.
1..
Although pursuant to La. Code Civ. P. art. 2132 the trial court may correct
any misstatements, irregularities or informalities, or omission of the trial record,
there is no authority for a trial court to correct a judgment after it is divested of
jurisdiction. Costanza v. Snap- On Tools, 2013- 0332 ( La. App. 1 Cir. 3/ 5/ 14),
2014 WL 886021, * 4( unpublished). Thus, even when an appellate court
ultimately determines that it lacks appellate jurisdiction, jurisdiction over the issues
and the parties is divested from the trial court upon the signing of the order of
appeal. Hernandez, 275 So. 3d at 283- 284.
As previously discussed, plaintiff attempted to cure the defect in the April
22, 2019 judgment by procuring an amended judgment from the district court after
2 Once the jurisdiction of the trial court is divested, " the appellate court alone may determine
whether an appeal is properly before it." This right in the appellate court " rests solely within the
power and jurisdiction of the appellate court by virtue of its supervisory jurisdiction over the
lower tribunal." Gros v. STMG Lapeyre, LLC, 2014- 0848 ( La. App. 1 Cir. 5/ 6/ 15), 2015 WL
2169680, * 3 ( citing Downey v. Bellue, 178 So. 2d 778, 781 ( La. App. 1 Cir. 1965).
Fi
the order of appeal was signed, when the district court was divested of jurisdiction.
However, we note that the instant matter was neither remanded by this court, nor
did we issue an interim order vesting limited jurisdiction in the district court to
amend the judgment and supplement the record on appeal. See Gros v. STMG
Lapeyre, LLC, 2014- 0848 ( La. App. 1 Cir. 5/ 6/ 15), 2015 WL 2169680, * 4
pursuant to this court' s show cause order, which instructed that the appeal record
be supplemented with an amended judgment, the trial court obtained limited
jurisdiction to amend the judgment). Thus, because there is no authority for the
district court to correct a judgment after it is divested ofjurisdiction, the September
9, 2019 amended judgment. is not properly before us. See Hernandez, 275 So. 3d
at 283.
Accordingly, because the parties have failed to establish that the April 22,
2019 judgment is a valid final judgment, and because the judgment lacks sufficient
decretal language, ascertainable from the four corners of the order or judgment, the
ruling on which this appeal is based is not a final appealable judgment. Therefore,
in the absence of appropriate decretal language, the 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.
Advanced Leveling & Concrete Solutions, 268 So. 3d at 1046- 1047. 3 Moreover,
in light of our ruling herein, we deny plaintiffs motion to supplement the appeal
record with the September 9, 2019 amended judgment, a judgment that was
rendered while the district court lacked jurisdiction.
3 We recognize that 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. Nonetheless, we note that 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. See Simon v. Ferguson, 2018-
0826 ( La. App. 1 Cir. 2/ 28/ 19), 274 So. 3d 10, 14. 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. See Boyd Louisiana Racing, Inc. v. Bridges, 2015- 0393 ( La.
App. 1 Cir. 12/ 23/ 15) 2015 WL 9435285, * 4 ( unpublished).
E.
CONCLUSION
For the above and foregoing reasons, plaintiffs appeal of the district court's
April 22, 2019 judgment is dismissed; plaintiffs Motion to Vacate is denied as
moot; and plaintiffs motion to supplement the appeal record is denied. We decline
to assess costs pending the rendition of a final judgment.
APPEAL DISMISSED; MOTION TO VACATE DENIED AS MOOT;
MOTION TO SUPPLEMENT DENIED.
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