Jodi Carter Hoffmann and Eric Hoffmann v. Michael Scurria ( 2020 )


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  •                              STATE OF LOUISIANA
    COURT OF APPEAL
    FIRST CIRCUIT
    2019 CA 1047
    JODI CARTER HOFFMANN AND ERIC HOFFMANN
    VERSUS
    MICHAEL SCURRIA
    Judgment Rendered:      FEB 2 1 mn
    On Appeal from the
    Twenty -First Judicial District Court
    In and for the Parish of Livingston
    State of Louisiana
    Trial Court No. 159854
    The Honorable Brenda Bedsole Ricks, Judge Presiding
    Rodney N. Erdey                              Attorney for Defendant/ Appellant,
    Denham Springs, Louisiana                    Michael Scurria
    J. Andrew Murrell                            Attorney for Plaintiffs/Appellees,
    Baton Rouge, Louisiana                       Jodi Carter Hoffmann and
    Eric Hoffmann
    Richard E. Farmer                            Attorney for Intervenor/Appellee,
    Denham Springs, Louisiana                    Paula Carbo
    BEFORE:     HIGGINBOTHAM, PENZATO, AND LANIER, JJ.
    PENZATO, J.
    Appellant,    Michael   Scurria,   appeals   a   trial   court judgment   granting
    Appellees, Jodi Carter Hoffmann and Eric Hoffmann,             summary judgment with
    regard to the partition of certain immovable property. For the reasons that follow,
    we dismiss this appeal.
    FACTS AND PROCEDURAL HISTORY
    Jodi Carter Hoffmann and Eric Hoffmann instituted this proceeding to
    partition immovable property co -owned with Michael Scurria. The Hoffmanns and
    Scurria purchased property located at 10069 Serene Road, Denham                 Springs,
    Louisiana ( the Property), on December 19, 2017.       It is undisputed that in order to
    purchase the Property, Scurria secured a $ 160, 000. 00 mortgage, in which the
    Hoffmanns intervened and acknowledged that the Property was being mortgaged.
    Both the Hoffmanns and Scurria incurred expenses to prepare the Property to be
    resold.   The Property was reconstructed, remodeled, and upgraded before being
    sold to Michelle Southern Plumlee and Daniel E. Plumlee on May 24, 2018, for
    248, 000. 00.   The Hoffmanns allege that Jodi Carter Hoffmann, a licensed broker
    and real estate agent, listed and sold the Property, entitling her to a commission as
    evidenced by a listing agreement.
    Scurria filed a reconventional demand against the Hoffmanns alleging that a
    verbal partnership was created between himself, the Hoffmanns, and Paula Carbo,
    in which the parties would purchase immovable property, remodel it, and sell it for
    a profit, with the proceeds being divided equally among the four partners.           He
    alleged that the proceeds of the sale were to be used to pay off the mortgage, pay
    6, 000.00 in closing costs, reimburse each partner for their own expenses in
    upgrading the Property, and then be divided in four equal shares.          Scurria also
    asserted that Jodi Carter Hoffmann was not entitled to a listing fee, as he did not
    sign the listing agreement.
    Paula Carbo intervened in the lawsuit in proper person, alleging that she
    entered into a verbal partnership with the Hoffmanns and Scurria to purchase the
    Property, upgrade it, and sell it for a profit.   She also alleged that the proceeds of
    the sale were to be used to pay off the mortgage, pay $ 6, 000. 00 in closing costs,
    reimburse each partner for their own expenses in upgrading the Property, and then
    be divided in four equal shares. Carbo alleged that she was entitled to 25% of the
    net profit generated from the sale of the Property. Although it appears that service
    of the intervention was held on the Hoffmanns and Scurria, the Hoffmanns
    answered the intervention.
    The Hoffmanns filed a motion for summary judgment, alleging that there
    were no genuine issues of material fact.    Scurria opposed the motion for summary
    judgment.    He submitted an affidavit denying that he entered into the listing
    agreement and claiming that his initials were forged on the Louisiana Residential
    Agreement to Buy and Sell. While not specifically referring to the relevant statute,
    La. R.S. 37: 1431( 16) explicitly states, "[ a] listing agreement shall only be valid if
    signed by all owners or their authorized attorney in fact." (       Emphasis added).
    Scurria also asserted that he had expended $ 9, 218. 07 of his own funds on the
    Property and claimed reimbursement thereof.
    The trial court held a hearing on the motion for summary judgment on
    January 22, 2019. At the hearing, Rodney Erdey, an attorney, appeared on behalf
    of Scurria. Carbo also appeared and objected that she had never received notice of
    the motion for summary judgment.          She explained that she had intervened in
    proper person, but that the Hoffmanns served the motion for summary judgment on
    Erdey, who was the attorney for Scurria, but not her attorney.
    3
    Although      the   Hoffmanns       argued that      Carbo     opposed     the   motion     for
    summary judgment, no such opposition is contained in the record before us.                         The
    only opposition to the motion for summary judgment was filed by Scurria.                           The
    trial court permitted the motion for summary judgment hearing to proceed.                           On
    February 12, 2019, the trial court issued written reasons for judgment, and a
    judgment was signed in accordance therewith on March 6, 2019.                          Carbo filed a
    motion for new trial, alleging that neither the motion for summary judgment nor
    the March 6, 2019 judgment was served upon her.'                      The trial court denied the
    motion for new trial.       Erdey filed a notice of appeal on behalf of Scurria as to the
    March 6, 2019 judgment2 and to the March 27, 2019 denial of Carbo' s motion for
    new trial.'    On May 29, 2019, Richard E. Farmer enrolled as counsel of record on
    behalf of Carbo.       While Farmer filed a notice of appeal on behalf of Carbo, there
    does not appear to be an order attached thereto for signature by the trial court.
    On August 12, 2019, this court, ex proprio motu, issued a rule to show cause
    as the March 6, 2019 judgment was not a final, appealable judgment since it did
    not describe the immovable property in question with sufficient particularity
    pursuant to La. C. C. P. art. 1919 and the judgment referenced outside documents
    not attached to the judgment. The rule to show cause was referred to this panel. In
    response to this court' s rule to show cause, Scurria attached a new judgment signed
    by the trial court on September 9, 2019, to his second amended appellant brief.
    The September 9, 2019 judgment attempts to correct the issues of the rule to show
    We note there is nothing in the record as to service of process of the motion for summary
    judgment being made on Carbo. Although Louisiana civil procedure clearly provides that
    service of pleadings on a party' s attorney is acceptable, see La. C. C. P. arts. 1235 and 1314, it has
    been held that an attorney can only accept service on behalf of a client after the attorney has
    enrolled as counsel of record. See Foster v. Foster, 2010- 0353 ( La. App. 1st Cir. 6/ 11/ 10), 
    2010 WL 2342769
    , at * 4 ( Guidry, J. concurring).
    2 Although Scurria references the March 2, 2019 judgment, this court notes that the judgment
    was actually signed on March 6, 2019.
    3 Based upon our opinion herein, we do not discuss whether Scurria had standing to appeal the
    motion for new trial filed by Carbo.
    4
    cause and states that summary judgment is rendered in favor of the Hoffmanns and
    against Scurria and Carbo.           It then describes the Property to be partitioned; orders
    specific reimbursement expenses for Scurria, Eric Hoffmann, and Jodi Carter
    Hoffmann; orders Jodi Carter Hoffmann to be paid a real estate commission in the
    amount of $    14, 880. 00; and orders the remaining proceeds to be divided 1/ 3 each to
    Jodi Carter Hoffmann, Eric Hoffmann, and Scurria.                  Scurria did not file a motion
    to supplement the record with the September 9, 2019 judgment.                       Therefore, that
    judgment is not before this court.'
    APPELLATE JURISDICTION
    Appellate courts have a duty to examine subject matter jurisdiction sua
    sponte, even when the parties do not raise the issue.             Texas Gas Exploration Corp.
    v. Lafourche Realty Co., Inc., 2011- 0520 ( La. App. 1st Cir. 11/ 9/ 11),                
    79 So. 3d 10545
     1059, writ denied, 2012- 0360 ( La. 4/ 9/ 12), 
    85 So. 3d 698
    . A valid judgment
    must be precise, definite, and certain.          Laird v. St. Tammany Parish Safe Harbor,
    2002- 0045 ( La. App.      1st Cir. 12/ 20/ 02), 
    836 So. 2d 3641
     365. 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. See Carter v. Williamson Eye Center, 2001- 2016
    La. App. 1st Cir. 11/ 27/ 02), 
    837 So. 2d 43
    , 44.          These determinations should be
    4
    We note that even if the record had been supplemented to include the September 9, 2019
    judgment, the trial court was without authority to act. See Marrero v. I. Manheim Auctions, Inc.,
    2019- 0365 ( La. App. 1st Cir. 11/ 19/ 19),       So. 3d ,         
    2019 WL 6167832
    , * 2. The
    jurisdiction of the district court over the matters reviewable under the appeal was divested upon
    the granting of the order for suspensive appeal. La. C. C. P. art. 2088( A); Marrero, So. 3d at
    
    2019 WL 6167832
     at * 2. An appellate court has the sole authority to determine whether an
    appeal is properly before it once the district court' s jurisdiction has been divested. Marrero,
    So. 3d at ,   
    2019 WL 6167832
     at * 2. 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. Marrero,          So. 3d at ,     
    2019 WL 6167832
     at * 2. The district
    court has no authority to correct a judgment after it is divested of jurisdiction other than correct
    any misstatements, irregularities or informalities, or omissions of the district court record. See
    La. C. C. P. art. 2132; Marrero,        So. 3d at ,       
    2019 WL 6167832
     at * 2.    Therefore, even
    when an appellate court ultimately determines that it lacks appellate jurisdiction, the district
    court is divested of jurisdiction over the issues and the parties upon the signing of the order of
    appeal. Marrero,       So. 3d at ,      
    2019 WL 6167832
     at * 2.
    5
    evident from the language of a judgment without reference to other documents in
    the record. Laird, 836 So. 2d at 366.
    This court' s appellate jurisdiction extends only to final judgments and
    judgments expressly made appealable by law.              La. C. C. P.   art.   2083.   A final
    judgment is one that determines the merits in whole or in part.                La. C. C. P. art.
    1841.
    The summary judgment filed by the Hoffmanns requested relief against
    defendants."     Carbo is an intervenor in this matter, not a defendant. Despite the
    incorrect designation, the motion for summary judgment clearly requested relief
    against Scurria and Carbo, as is evidenced by both the motion and the argument
    contained in the memorandum in support thereof. The March 6, 2019 judgment
    states that the motion for summary judgment is rendered in favor of the Hoffmanns
    and against Scurria and Carbo,         and purports to grant the relief requested by
    partitioning the proceeds of the sale between the Hoffmanns and Scurria.
    However, the March 6, 2019 judgment did not dismiss the intervention of Carbo.
    On reviewing the record in this matter, we find we cannot address the merits
    of the appeal because we lack jurisdiction.        Specifically, the judgment on appeal is
    a partial summary judgment that is not a final judgment as defined in La. C. C. P.
    art. 1915.    That article provides in pertinent part:
    A. A final judgment may be rendered and signed by the court, even
    though it may not grant the successful party or parties all of the relief
    prayed for, or may not adjudicate all of the issues in the case, when
    the court:
    1)   Dismisses the suit as to less than all of the parties, defendants,
    third party plaintiffs, third party defendants, or intervenors.
    3)    Grants a motion for summary judgment, as provided by Articles
    966 through 969,     but not including a summary judgment granted
    pursuant to Article 966( E).
    11
    B. ( 1)   When a court renders a partial judgment or partial summary
    judgment ...,    as to one or more but less than all of the claims,
    demands,     issues,   or   theories,   whether   in    an   original   demand,
    reconventional     demand,       cross- claim,    third      party   claim,   or
    intervention, the judgment shall not constitute a final judgment unless
    it is designated as a final judgment by the court after an express
    determination that there is nojust reason for delay.
    2) In the absence of such a determination and designation, any such
    order or decision shall not constitute a final judgment for the purpose
    of an immediate appeal and may be revised at any time prior to
    rendition of the judgment adjudicating all the claims and the rights
    and liabilities ofall the parties. [ Emphasis added.]
    The March 6, 2019 judgment does not indicate that it dismisses the claims of the
    intervenor, Carbo. See Welch v. E. Baton Rouge Par. Metro. Council, 2010- 
    1531 La. App. 1
     Cir. 3/ 25/ 11),      
    64 So. 3d 244
    , 248- 49.        Further, the trial court did not
    designate the judgment as a final judgment and did not make the requisite express
    determination, pursuant to La. C. C. P. art. 1915( B)( 2), that there is no just reason
    for delay. See Thompson v. Cenac Towing Co., L.L. C., 2018- 1282 ( La. App. 1st
    Cir. 4/ 12/ 19), 
    2019 WL 1578170
    , * 2.            Therefore, the judgment is an interlocutory
    judgment, subject to being revised at any time prior to rendition of the judgment
    adjudicating all the claims and the rights and liabilities of all the parties. It is not
    subject to immediate appeal and we have no jurisdiction over this matter. Greff v.
    Milam, 2008- 726 ( La. App. 5th Cir. 2/ 10/ 09), 
    8 So. 3d 693
    , 697; see also Matter of
    Succession ofPellette, 2018- 0728 ( La. App. 1st Cir. 4/ 16/ 19), 
    2019 WL 1614718
    ,
    at * 5;
    Furthermore, the March 6, 2019 judgment refers to extrinsic documents and,
    thus, the specific relief granted is not determinable from the judgment. See Laird,
    836 So. 2d at 366. Therefore, the March 6, 2019 judgment is defective and cannot
    be considered a final judgment for purposes of appeal. s
    As the March         6,   2019 judgment is not a final judgment, we                    find it
    unnecessary to address the March 27, 2019 denial of the motion for new trial.
    Thus, this court lacks appellate jurisdiction to review this matter and we must
    dismiss the appeal.
    CONCLUSION
    For the above and foregoing reasons, the appeal of the March 6, 2019
    judgment is dismissed with prejudice. The appeal of the March 27, 2019 judgment
    is deemed moot.         All costs of this appeal are assessed to appellant, Michael
    Scurria.
    APPEAL DISMISSED.
    5 We recognize that the August 12, 2019 rule to show cause issued by this court referenced La.
    C. C. P. art. 1919 as one reason that the March 6, 2019 judgment was not a final, appealable
    judgment.   Louisiana Code of Civil Procedure article 1919 provides that "[ a] ll final judgments
    which affect title to immovable property shall describe the immovable property affected with
    particularity." The March 6, 2019 judgment does not " affect title to immovable property" as the
    petition requested to partition the proceeds of the sale.   Therefore, we do not find La. C. C. P. art.
    1919 applicable to the present case.
    

Document Info

Docket Number: 2019CA1047

Filed Date: 2/21/2020

Precedential Status: Precedential

Modified Date: 10/22/2024