Opinion
NO. 21-CA-504
02-09-2022
131 BEVERLY KNOLL, LLC v. CLIPPER CONSTRUCTION, LLC and Joseph S. Tufaro
COUNSEL FOR PLAINTIFF/APPELLANT, 131 BEVERLY KNOLL, LLC, Clarence F. Favret, III, James C. Cronvich, Jordan T. Leblanc COUNSEL FOR DEFENDANT/APPELLEE, JOSEPH S. TUFARO, E. John Litchfield, Michael J. Marsiglia, New Orleans
COUNSEL FOR PLAINTIFF/APPELLANT, 131 BEVERLY KNOLL, LLC, Clarence F. Favret, III, James C. Cronvich, Jordan T. Leblanc
COUNSEL FOR DEFENDANT/APPELLEE, JOSEPH S. TUFARO, E. John Litchfield, Michael J. Marsiglia, New Orleans
Panel composed of Judges Susan M. Chehardy, Stephen J. Windhorst, and John J. Molaison, Jr.
WINDHORST, J.
Appellant/plaintiff, 131 Beverly Knoll, LLC, appeals the trial court's April 26, 2021 judgment denying its Motion for Charging Order. For the following reasons, we find the trial court's April 26, 2021 judgment is not a final appealable judgment and dismiss plaintiff's appeal due to lack of appellate jurisdiction.
PROCEDURAL HISTORY and FACTS
On May 22, 2017, the trial court in the 24th Judicial District Court rendered a default judgment in favor of appellant and against Clipper Construction, LLC and appellee, Joseph S. Tufaro. On appeal, that judgment was affirmed by this court on May 15, 2019. Appellant filed a petition to make the judgment executory in St. John the Baptist Parish, which was granted on September 13, 2019. An unresolved action for nullity remains pending since April 30, 2018 in the 24th Judicial District Court, which denied a stay of the judgment's execution.
Appellant subsequently filed its Motion for Charging Order pursuant to La. R.S. 12:1331 seeking to enforce the executory judgment against Gold Star Films, LLC, a Louisiana limited liability company, which appellee is a member. Appellee opposed the motion and raised an exception of lis pendens as grounds for denying the motion. After an evidentiary hearing, the trial court denied appellant's Motion for Charging Order with reasons. This appeal followed.
DISCUSSION
Before considering the merits in any appeal, appellate courts have a duty to determine sua sponte whether subject matter jurisdiction exists, even when the parties do not raise the issue. Dieudonne Enterprises, Inc. v. Slade, 18-375 (La. App. 5 Cir. 12/27/18), 263 So.3d 1214, 1217 ; Lynch-Ballard v. Lammico Ins. Agency, Inc., 13-475 (La. App. 5 Cir. 11/19/13), 131 So.3d 908, 910 ; Input/Output Marine Sys. v. Wilson Greatbatch Techs., Inc., 10-477 (La. App. 5 Cir. 10/29/10), 52 So.3d 909, 910. This court cannot determine the merits of an appeal unless our appellate jurisdiction is properly invoked by a valid final judgment. La. C.C.P. art. 2083 ; Powell v. Gramercy Ins. Co., 12-564 (La. App. 5 Cir. 3/13/13), 113 So.3d 343, 345 ; Input/Output Marine Sys., 52 So.3d at 915.
Only final judgments, and interlocutory judgments when expressly provided by law, are appealable. La. C.C.P. art. 2083. A judgment that determines the merits in whole or in part is a final judgment. La. C.C.P. art. 1841. A judgment that does not determine the merits but only preliminary matters in the course of the action is an interlocutory judgment. Id.; Bank of New York v. Holden, 15-466 (La. App. 5 Cir. 12/23/15), 182 So.3d 1206, 1208.
The remedy sought in the case is provided in La. R.S. 12:1331 :
§ 1331. Rights of judgment creditor
On application to a court of competent jurisdiction by any judgment creditor of a member, the court may charge the membership interest of the member with payment of the unsatisfied amount of judgment with interest. To the extent so charged, the judgment creditor shall have only the rights of an assignee of the membership interest. This Chapter shall not deprive any member of the benefit of any exemption laws applicable to his membership interest. [Emphasis added.]
Exercising the discretion afforded by this statute, the trial court denied the relief sought by appellant as premature, and chose to wait for resolution of appellee's nullity action pending in the 24th Judicial District Court against appellant, the judgment creditor.
It is clear that the trial court has not given a final judgment granting or denying the relief for which appellant prays. Because the judgment did not determine the merits of the case in whole or in part, it is not a final appealable judgment under La. C.C.P. art. 2083. Further, the judgment does not fall under any of the specific instances provided in La. C.C.P. art. 1915 A, which would automatically make it a final appealable judgment. Lastly, the judgment does not qualify as a partial final judgment under La. C.C.P. art. 1915 B(1) because the issue in dispute is not yet fully resolved. It therefore cannot be designated by the trial court as a final judgment after an express determination that there is no just reason for delay. For these reasons, this court lacks appellate jurisdiction over this matter.
We also note that the April 26, 2021 judgment lacks the requisite decretal language to be a valid final judgment. Dieudonne Enterprises, Inc. v. Slade, 18-375 (La. App. 5 Cir. 12/27/18), 263 So.3d 1214, 1217 ; Input/Output Marine Sys., supra . However, considering the reasons above, we find no reason to remand the judgment to the trial court to amend because La. C.C.P. art. 1918 A is inapplicable to this judgment.
In so ruling, we make no pronouncement or inference regarding the trial court's ruling.
DECREE
Accordingly, we find that the trial court's April 26, 2021 judgment is not a final appealable judgment, and we dismiss plaintiff's appeal without prejudice due to lack of appellate jurisdiction. This case is remanded to the trial court for further proceedings.