Opinion
NUMBER 2021 CA 0407
04-05-2022
WHITNEY BANK v. Henry RAYFORD
Henry Rayford, Bogalusa, LA, Counsel for Plaintiff/Appellant, In Proper Person, David Jefferson Dye, New Orleans, LA, Counsel for Defendants/Appellees, George Brent Nobles and George Stanley Nobles
Henry Rayford, Bogalusa, LA, Counsel for Plaintiff/Appellant, In Proper Person,
David Jefferson Dye, New Orleans, LA, Counsel for Defendants/Appellees, George Brent Nobles and George Stanley Nobles
BEFORE: GUIDRY, LANIER, WOLFE, JJ.
GUIDRY, J.
Henry Rayford appeals a judgment dismissing the third-party demands he asserted against George Brent Nobles and George Stanley Nobles. For the reasons that follow, we affirm as amended. FACTS AND PROCEDURAL HISTORY
This suit has a long history and has been before this court on previous occasions. Of relevance here, Mr. Rayford hired Nobles Construction, LLC (the LLC) to build three houses; the LLC completed construction in 2008. In 2015, Whitney Bank sued Mr. Rayford after he defaulted on the construction loans related to the houses. In 2016, Mr. Rayford filed a third-party demand against the LLC, alleging the LLC failed to secure required building permits and inspections for the houses built eight years earlier, and also alleging faulty construction. Mr. Rayford claimed the LLC's actions and failures were fraudulent. Thereafter, the LLC filed peremptory exceptions of peremption and prescription, which were granted by the trial court, before being reversed by this court on appeal.
In August 2016, the LLC filed an answer, affirmative defenses, a reconventional demand, and exceptions.
For reference, see our opinion in Whitney Bank v. Rayford, 17-1244 (La. App. 1st Cir. 3/29/18), 247 So. 3d 733 (Whitney Bank I ), where this court reversed the trial court's grant of peremptory exceptions of peremption and prescription filed by the LLC.
Thereafter, in September 2018, Mr. Rayford sought to add third-party demands individually against LLC managers George Brent Nobles and George Stanley Nobles (the Nobles), by filing a "Motion and Order For Rule to Show Cause Requesting Leave of Court to Amend and Supplement Third-Party Demand" (motion for leave). The trial court signed an order setting the motion for leave hearing on November 12, 2018. However, while the November 12, 2018 hearing was pending, the Nobles were served with an "amended and supplemental petition," purportedly joining them as third-party defendants. In response, the Nobles, separately, filed exceptions, an answer, and affirmative defenses. The Nobles later filed a joint "motion to dismiss third party demands for peremptory exceptions," adopting and incorporating the LLC's previous motion to dismiss for peremptory exceptions and memorandum in support of the motion to dismiss.
On March 13, 2019, the trial court held a hearing on, among other matters, the Nobles' joint motion to dismiss the third-party demand, which was granted in open court in favor of the Nobles. A judgment to that effect was signed on May 6, 2019, dismissing Mr. Rayford's third-party demands against the Nobles with prejudice. Mr. Rayford then in proper person filed a "notice of devolutive appeal" seeking review of "the dismissal of the individual capacity claims decision entered on March 13, 2019 and May 14, 2019 by the trial court ...." The trial court signed an order setting the "notice of appeal" for hearing. The trial court deputy clerk mailed notice to the parties that an appeal had been granted from the "judgment of the 13th day of March 2019 and May 14, 2019." The Nobles jointly answered the appeal.
Specifically, the May 6, 2019 judgment ordered that the Nobles' joint motion to dismiss third-party demands be granted for the peremptory exceptions of peremption and prescription and that Henry Rayford's third-party demands against George Brent Nobles and George Stanley Nobles be dismissed with prejudice. The judgment also closed the matter with respect to the individual claims against George Brent Nobles and George Stanley Nobles.
RULE TO SHOW CAUSE
This court issued a rule to show cause order noting that it is unclear: 1) whether Mr. Rayford is pro se or represented by counsel; 2) whether the appeal is premature due to a lack of a signed order of appeal; and 3) whether Mr. Rayford is seeking to appeal the "March 13 and May 14, 2019 judgments of the trial court or the May 6, 2019 judgment." The rule to show cause was referred to this panel to which the appeal is assigned.
We first note that, although Mr. Rayford was represented by at least four attorneys during the course of these proceedings, he is proceeding in proper person on appeal; such does not affect the validity of the appeal.
Second, under La. C.C.P. art. 2121, an appeal requires a petition or motion for appeal, an order of appeal, and a notice of appeal. See Belser v. St. Paul Fire and Marine Insurance Company, 542 So. 2d 163, 165 (La. App. 1st Cir. 1989). As appeals are favored, appellate courts should not be "overly technical" in the interpretation of the requirements. See Saulny v. New Orleans Police Department, 19-01366 (La. 11/12/19), 282 So. 3d 210 (per curiam ). Further, an appeal should not be dismissed unless the law clearly requires a dismissal, and an appeal is not to be dismissed for a mere technicality. Donley v. Acadian Ambulance Service, 11-1289 (La. App. 1st Cir. 3/23/12), 2012 WL 992110 *2.
In the instant matter, we decline to dismiss the appeal. While Mr. Rayford's motion for appeal states that he is appealing the "judgment of the dismissal of the individual capacity claims decision entered on March 13, 2019 and May 14, 2019[,]" we interpret Mr. Rayford's appeal to be from the May 6, 2019 written judgment, which followed the March 13, 2019 hearing on the Nobles' joint motion to dismiss third-party demands for peremptory exceptions. See In re Abrams, 20-0077 (La. App. 1st Cir. 3/29/21), 2021 WL 1170048 *2, n.8, writ denied, 21-00591 (La. 6/22/21), 318 So. 3d 711 (construing a pro se appellant's filings liberally, and interpreting the appeal as from the written judgment, despite the appellant's reference to the trial court's ruling in open court); see also Lewis v. La. State Judicial Review Board, 18-0204, pp. 3-5 (La. App. 1st Cir. 11/2/18), 264 So. 3d 1208, 1211-1212, writ denied, 18-1856 (La. 1/28/19), 263 So. 3d 427 (maintaining the appeal where the pro se appellant's motion for appeal referenced the trial court's reasons for judgment rather than the judgment itself).
Further, the record contains Mr. Rayford's motion for appeal and the trial court's notice of appeal. Although the order of appeal appears to set Mr. Rayford's motion for a hearing rather than granting the appeal, the trial court nonetheless noticed the appeal, and the record was ultimately lodged with this court. See generally Lifecare Hospitals, Inc. v. B&W Quality Growers, Inc., 39,065, p. 2 (La. App. 2d Cir. 7/8/04), 875 So. 2d 135, 137 (maintaining an appeal when the appellant filed a timely motion for appeal without an accompanying order of appeal). Therefore, given the facts and law before us, we decline to dismiss this appeal. DISCUSSION
Relevant documents in the instant appeal are included in the 2021 CA 0406 appeal record, which is Whitney Bank v. Rayford, 21-0406 (La. App. 1st Cir. 12/9/21), 332 So.3d 1243 (Whitney Bank II ). Under Uniform Rules of Louisiana Courts of Appeal, Rule 2-1.14, any record lodged in this court may, with leave of court, be used, without necessity of duplication, in any other case on appeal or on writ. Thus, we have reviewed those appropriate portions of the 2021 CA 0406 appellate record that are necessary to adequately review the issues raised in this appeal. Accord Browne v. State ex rel. Department of Transportation and Development, 15-0068 (La. App. 1st Cir. 2/4/16), 2016 WL 483228 *1, n.2, writ denied, 16-0442 (La. 4/22/16), 191 So. 3d 1044.
We also note that Mr. Rayford's appellate brief in this appeal, 2021 CA 0407, appears to contain his arguments for the 2021 CA 0406 appeal, and vice versa. Given Mr. Rayford's pro se status, we will render our judgment based on the record before us. See La. C.C.P. art. 2164 (providing that an appellate court "shall render any judgment which is just, legal, and proper upon the record on appeal").
On appeal, Mr. Rayford contends the trial court erred in dismissing his third-party demands against the Nobles in their individual capacities. Mr. Rayford claims the trial court erred in dismissing the individual claims when no hearing was held to address his motion for leave. He also appears to argue that the trial court denied him the opportunity to present evidence at the March 13, 2019 hearing to establish the Nobles' individual liability for fraud and the alleged faulty construction of the houses built by the LLC in 2008. In opposition, the Nobles contend, among other things, that there is no error in the trial court's judgment to dismiss Mr. Rayford's third-party demands against them, because Mr. Rayford failed to obtain leave of court to file the third-party demands. This contention has merit.
We note that after Whitney Bank I, the LLC re-urged its exceptions of peremption and prescription, again seeking the dismissal of Mr. Rayford's claims against the LLC. After a December 13, 2018 hearing, the trial court signed a judgment on January 10, 2019, granting the exceptions and dismissing Mr. Rayford's demand against the LLC with prejudice. The judgment also ordered that Mr. Rayford's motion for leave was moot. Mr. Rayford sought appellate review of the January 10, 2019 judgment, which was vacated by this court. See Whitney Bank II, 332 So. 3d. at 1251.
After an answer has been served, La. C.C.P. art. 1151 requires that a plaintiff obtain leave of court, or written consent of the adverse party, to file an amended petition. Gaspard v. Safeway Insurance Company, 15-1197, p. 5 (La. App. 1st Cir. 8/31/16), 202 So. 3d 1128, 1131. An amended petition filed without leave of court, when such permission is required, may not be considered, is totally without effect, and is deemed to not have been filed at all. Aymond v. Citizens Progressive Bank, 52,623, p. 13 (La. App. 2d Cir. 6/26/19), 277 So. 3d 477, 487, writ denied, 19-1200 (La. 10/15/19), 280 So. 3d 602.
Although captioned as an "amended and supplemental petition," Mr. Rayford's attempt to add the Nobles as third-party defendants was an amended third-party demand. An "amended pleading" differs from a "supplemental pleading" in that the former involves matters that occurred before the original petition was filed, which were either overlooked by the pleader or were unknown to him at the time, while the latter covers issues or causes of action that have arisen since the filing of the original petition, and which relate to the issues or causes of action contained in the original petition. Lafferty v. Vaughn, 21-0084, p. 6 (La. App. 1st Cir. 7/20/21), 330 So. 3d 644, 649, writ denied, 22-00018 (La. 2/22/22), 333 So. 3d 449.
The record shows the LLC answered Mr. Rayford's original third-party demand against it in 2016, well before Mr. Rayford filed his motion for leave, in 2018, attempting to add the Nobles as third-party defendants. In addition, before the trial court and on appeal, the Nobles have called attention to Mr. Rayford's failure to obtain leave of court to file the pleading. After being served with the amended petition, the Nobles contend that they were "forced to answer the lawsuit." At the March 13, 2019 hearing, counsel for the Nobles explained that the reason he filed the motion to dismiss Mr. Rayford's third-party demands against the Nobles was to "clean up the record" and to establish that the Nobles were "clearly out of this case[.]" In response, Mr. Rayford's then counsel admitted that he could not explain why Mr. Rayford's former counsel attempted service on the Nobles without first obtaining leave of court. After hearing the arguments, the trial court granted the Nobles’ motion to dismiss Mr. Rayford's third-party demands against them, because "Mr. Rayford never received leave to amend his pleadings in the first place." The trial court also granted the Nobles’ motion to dismiss Mr. Rayford's third-party demands because it had previously dismissed Mr. Rayford's demands against the LLC.
Because Mr. Rayford did not obtain a court order or written consent to allow the filing of his amended third-party demand, that pleading is deemed to be not filed at all. And even though Mr. Rayford served the Nobles with the third-party demand, the pleading is totally without effect. Accordingly, we affirm the trial court's judgment dismissing Mr. Rayford's third-party demands against the Nobles. We are careful to note, however, that because Mr. Rayford's third-party demand was without effect, the pleading was not subject to consideration by the trial court in rendering judgment on any of the peremptory exceptions filed by the Nobles. See Gaspard, 15-1197 at p. 5, 202 So. 3d at 1131.
Finally, the Nobles filed an answer to the appeal requesting that this court award damages for frivolous appeal as authorized by La. C.C.P. art. 2164. Under Article 2164, appeals are favored, and we will not award frivolous appeal damages unless they are clearly due. Dukes v. Sherwood Acres Apartments, 04-0405, p. 3 (La. App. 1st Cir. 12/30/04), 898 So. 2d 416, 418. Damages for a frivolous appeal are only allowed when it is obvious that the appeal was taken solely for delay, or that counsel is not sincere in the view of the law he advocates. Canik v. Su Casa Builder, LLC, 20-0677, p. 8 (La. App. 1st Cir. 12/30/20), 317 So. 3d 690, 695. The slightest justification for an appeal precludes damages for frivolous appeal. Dukes, 04-0405 at p. 4, 898 So. 2d at 418.
In the instant matter, we decline to assess damages for a frivolous appeal. We have found a justification for the appeal herein. We also find a sincere view in the law advocated by the appellant.
CONCLUSION
For the above and foregoing reasons, we affirm the trial court's judgment dated May 6, 2019, in that it grants the joint motion to dismiss third-party demands and dismisses Henry Rayford's third-party demands against George Brent Nobles and George Stanley Nobles. However, we set aside that part of the judgment which states, "for the Peremptory Exceptions of Peremption and Prescription" and "This matter is hereby CLOSED with respect to individual claims against George Brent Nobles and George Stanley Nobles." Furthermore, we amend that portion of the judgment dismissing the suit "with prejudice" to provide that it be "without prejudice." We affirm as amended. We deny the answer to the appeal filed by George Brent Nobles and George Stanley Nobles. All costs of this appeal are assessed to the plaintiff/appellant, Henry Rayford.
Louisiana Code of Civil Procedure articles 1673 and 1841 state that a dismissal with prejudice has the effect of a final judgment on the merits.
APPEAL MAINTAINED; JUDGMENT AMENDED AND AFFIRMED AS AMENDED; ANSWER TO APPEAL DENIED .