Opinion
2016 CA 1420
06-02-2017
TIM BARFIELD, SECRETARY, DEPARTMENT OF REVENUE, STATE OF LOUISIANA v. TAMMANY HOLDING COMPANY (formerly TAMMANY HOLDING CORPORATION)
Wayne A. Collier Slidell, Louisiana Attorney for Appellant, Tammany Holding Company, LLC Brent M. Maggio Metairie, Louisiana Attorney for Appellee, Grillot Construction, LLC Cloyd F. Van Hook New Orleans, Louisiana Attorney for Appellee, Bertucci Contracting Company, LLC
NOT DESIGNATED FOR PUBLICATION
APPEALED FROM THE TWENTY-SECOND JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF ST. TAMMANY STATE OF LOUISIANA
DOCKET NUMBER 2013-15990 HONORABLE AUGUST J. HAND, JUDGE Wayne A. Collier
Slidell, Louisiana Attorney for Appellant, Tammany
Holding Company, LLC Brent M. Maggio
Metairie, Louisiana Attorney for Appellee, Grillot
Construction, LLC Cloyd F. Van Hook
New Orleans, Louisiana Attorney for Appellee, Bertucci
Contracting Company, LLC BEFORE: PETTIGREW, McDONALD, and PENZATO, JJ. McDONALD, J.
The Louisiana Department of Revenue filed a tax collection suit against Tammany Holding Company, LLC (THC), a seller of fill material. THC in turn filed third party demands against multiple entities to whom it sold the fill material, including Bertucci Contracting, LLC (Bertucci), and Grillot Construction, LLC (Grillot). Bertucci and Grillot each filed multiple exceptions to THC's third party demands. Grillot also filed a motion for summary judgment.
On May 6, 2016, the trial court signed a judgment: (1) stating that, if THC was adjudged to owe additional taxes arising from the sales of fill material to Bertucci and Grillot, then the court granted Bertucci's and Grillot's exceptions of no cause of action as to THC's statutory claims for state sales tax reimbursement; (2) granting Bertucci's and Grillot's exceptions of vagueness as to THC's claims of fraud and misrepresentation, but granting THC 30 days within which to file amended third party demands to allege such claims against Bertucci and Grillot; (3) granting Grillot's motion for summary judgment on THC's contractual claim against Grillot; (4) denying Bertucci's and Grillot's exceptions of prescription as moot; and (5) dismissing all of THC's third party claims against Grillot in their entirety and dismissing Grillot from the suit.
THC appealed from the adverse judgment. After the appeal was lodged, this court issued a rule to the parties to show cause why the appeal should not be dismissed because the May 6, 2016 judgment appeared to be conditional, not final, and not appealable. The parties responded to the rule, and the matter was referred to this panel for decision. For the following reasons, we dismiss the appeal.
DISCUSSION
This court's appellate jurisdiction extends to final judgments identified as such by appropriate language and to interlocutory judgments when expressly provided by law. LSA-C.C.P. arts. 1918 and 2083. The language of a final judgment must be precise, definite, and certain. LSA-C.C.P. art. 1918 - Official Revision Comments - 1960, comment (a); Standard Insurance Co. v. Spottsville, 16-0020 (La. App. 1 Cir. 9/16/16), 204 So.3d 253, 256. A judgment that is contingent on the occurrence of a future event is indeterminate and not a valid, final, appealable judgment. Drury v. Drury, 01-0877 (La. App. 1 Cir. 8/21/02), 835 So.2d 533, 538; Sibley v. Sibley, 14-0045 (La. App. 1 Cir. 9/19/14), 2014 WL 4667577 *1 (unpublished) (finding the phrase "in the event" in the language of a judgment was not precise, definite, nor certain); State v. Fumar, 05-2459 (La. App. 1 Cir. 11/3/06), 2006 WL 3108327 (unpublished) (finding a judgment ordering a father to pay child support effective "at the time the [mother] moves out of home owned by [father]" was not a valid, final judgment because it was based on a contingency).
Further, a judgment that grants an exception of no cause of action and allows a period of time for amendment of the petition is not an appealable judgment, because it is not a final judgment nor an interlocutory judgment expressly appealable by law. LSA-C.C.P. art. 2083. See Schroeder v. Bd. of Supervisors of LSU, 540 So.2d 380, 382 (La. App. 1 Cir. 1989); also see B.G. Mart, Inc. v. Jacobsen Specialty Svces., Inc., 16-675 (La. App. 5 Cir. 2/8/17), ___ So.3d ___, 2017 WL 510996, and Hughes v. Energy & Marine Underwriters, Inc., 07-490 (La. App. 5 Cir. 3/11/08), 978 So.2d 566, 567-68, writ denied, 08-0957 (La. 8/29/08), 989 So.2d 100.
Finally, a final judgment that only partially determines the merits of an action is immediately appealable only if authorized under LSA-C.C.P. art. 1915. When a court renders a partial summary judgment under LSA-C.C.P. art. 966(E), the judgment shall not constitute a final judgment unless the trial court designates it as such after an express determination that there is no just reason for delay. LSA-C.C.P. art. 1915(B)(1). If a partial judgment is of the type described in LSA-C.C.P. art. 1915(B)(1), and the trial court does not make the required determination and designation, then the partial judgment shall not constitute a final judgment for the purpose of an immediate appeal. LSA-C.C.P. art. 1915(B)(2). Absent the required determination and designation, the trial court may revise the non-final partial judgment at any time before it renders a judgment adjudicating all claims and the rights and liabilities of all the parties. Id.
Louisiana Code of Civil Procedure article 1915(A)(3) allows an immediate appeal from a partial summary judgment, without the need for a determination and designation of finality, unless the summary judgment was granted under LSA-C.C.P. art. 966(E). Summary judgments granted under LSA-C.C.P. art. 966(E) are those "dispositive of a particular issue, theory of recovery, cause of action, or defense, in favor of one or more parties, even though the granting of the summary judgment does not dispose of the entire case as to that party or parties." A summary judgment granted under LSA-C.C.P. art. 966(E) must be determined and designated as final to be appealable. LSA-C.C.P. art. 1915(B)(1).
Applying these legal precepts, we determine that we do not have appellate jurisdiction over this appeal because the May 6, 2016 judgment is not a final, appealable judgment. We separately discuss each of the judgment's rulings.
First Ruling
The May 6, 2016 judgment's first ruling grants Bertucci's and Grillot's exceptions of no cause of action as to THC's statutory claims, but the ruling is contingent. The first ruling states:
IT IS ORDERED that if it is adjudged that THC owes additional taxes or charges to the plaintiff arising from the transactions of sale between THC and Grillot and between THC and Bertucci subject of this lawsuit, THC has no statutory claims regarding the reimbursement of state sales tax against Grillot or Bertucci and as such the Peremptory Exceptions of No Cause of Action are hereby granted as to both defendants with prejudice regarding statutory claims. (Emphasis added.)
This ruling does not constitute a final judgment because it is indeterminate and based on a contingency - the exceptions on no cause of action are only granted if THC is adjudged liable for additional taxes or charges on sales THC made to Bertucci and Grillot. THC has not yet been adjudged so liable on the Department of Revenue's main demand, and as such, this ruling is not certain and is not a valid, final, appealable judgment over which this court has jurisdiction. Drury, 835 So.2d at 538.
Second Ruling
The May 6, 2016 judgment's second ruling grants Bertucci's and Grillot's exceptions of vagueness as to THC's fraud and misrepresentation claims, as follows:
IT IS FURTHER ORDERED that THC has failed to sufficiently plead a cause of action against Grillot or Bertucci regarding claims of fraud and misrepresentation therefore the Dilatory Exceptions of Vagueness are hereby granted. As a result of the above, the third party demands of THC against Grillot and ... Bertucci are dismissed. THC has thirty days from the notice of signing of judgment to file amended third-party demands against Grillot or Bertucci asserting allegations arising from fraud and misrepresentation. (Emphasis added.)
This ruling grants Bertucci's and Grillot's exceptions of vagueness, but grants THC 30 days to amend its third party demands to assert valid fraud and misrepresentation claims. This ruling is not a final judgment nor an interlocutory judgment for which an appeal is expressly provided by law. LSA-C.C.P. art. 2083. Such an order merely permits an amendment within the delay allowed by the trial court as provided in LSA-C.C.P. art. 933(B). Thus, the May 6, 2016 judgment's second ruling, granting Bertucci's and Grillot's exceptions of vagueness, but allowing THC time to amend its third party demands, is not a final judgment over which this court has appellate jurisdiction. See Schroeder, 540 So.2d at 382.
In its show cause brief, THC claims that it filed an amended and supplemental third party demand on June 6, 2016. If this is correct, then the second ruling is certainly not final and appealable. In any event, the appellate record does not contain such a pleading. --------
Third Ruling
The May 6, 2016 judgment's third ruling grants Grillot's motion for summary judgment as to THC's claim that Grillot contractually bound itself to THC to either pay applicable state sales taxes or ensure that others would pay them. The ruling reads:
IT IS FURTHER ORDERED that the Motion for Summary Judgment filed by Grillot is hereby granted as there is no genuine issue of fact as to whether Grillot undertook a contractual obligation to pay state sales taxes or whether Grillot made a promise to ensure that taxes would be paid by others. Contractual claims made by THC are hereby dismissed with prejudice. This part of the judgment on the motion for summary judgment is a partial final summary judgment.
This ruling is the grant of a summary judgment under LSA-C.C.P. art. 966(E), because it is dispositive of a particular cause of action in favor of one or more parties, even though it does not dispose of the entire case as to that party - that is, the summary judgment disposes of THC's contractual claim against Grillot and dismisses this claim, even though it does not dispose of THC's entire case against Grillot. As such, under LSA-C.C.P. art. 1915(B), this partial summary judgment does not constitute a final judgment unless the trial court designates it as such after an express determination that there is no just reason for delay. See MAPP Const., LLC v. Amerisure Mut. Ins. Co., 13-1074 (La. App. 1 Cir. 3/24/14), 143 So.3d 520, 527.
Here, the trial court designated the third ruling as a partial final summary judgment but did not provide reasons to support this designation. When the propriety of the certification is not apparent, and the trial court has failed to give reasons for its certification, we review the case de novo to determine whether the certification was proper. Duvic v. McCuen, 11-0010 (La. App. 1 Cir. 6/10/11), 2011 WL 3423796 *3 (unpublished). The purpose of LSA-C.C.P. art. 1915 is to prevent multiple appeals and piecemeal litigation and to promote judicial efficiency and economy. R.J. Messinger, Inc. v. Rosenblum, 04-1664 (La. 3/2/05), 894 So.2d 1113, 1122. In considering whether a partial judgment should be certified as appealable, relevant factors include: (1) the relationship between the adjudicated and unadjudicated claims; (2) the possibility that the need for review might or might not be mooted by future developments in the case; (3) the possibility that the reviewing court might be obligated to consider the same issue a second time; and (4) delay, economic and solvency considerations, shortening the time of trial, frivolity of competing claims, expense, and the like. Id. The overriding inquiry, however, is whether there is no just reason for delay. Id., 894 So.2d at 1122-23.
In this case, we find there are just reasons to delay certification of the partial summary judgment as final and appealable. First, we note that THC has not yet been found liable on the main demand in this case. There has been no ruling that THC owes taxes to the Department of Revenue. If THC is ultimately found not liable, then its contractual claim against Grillot would be mooted. Further, a decision on THC's contractual claim against Grillot would not result in dismissal of THC's suit against Grillot. It appears that THC may still have the opportunity to amend its third party demand against Bertucci and Grillot to allege fraud/misrepresentation. In this event, THC's added allegations may also be relevant to its contract claim against Grillot, and the trial court might be obligated to reconsider the contractual claim a second time. We also note that, based on our decision here, Grillot's exception of prescription will no longer be moot and remains viable. Thus, we conclude to permit an appeal of the partial summary judgment on the contractual claim at this time would encourage multiple appeals and piecemeal litigation. We conclude an effective remedy is available to the parties once the trial court renders a final judgment on the main demand. Based on our de novo review, we find the trial court's designation of its third ruling as final was improper.
Fourth and Fifth Rulings
The May 6, 2016 judgment's fourth ruling denies Bertucci's and Grillot's exceptions of prescription as moot. The judgment's fifth ruling dismisses all of THC's third party demands against Grillot, and based on the conclusion that no other parties asserted claims against Grillot, the judgment then dismisses Grillot from the suit.
The validity of the judgment's fourth and fifth rulings hinges on the appealability of the first three rulings. We have determined that the first three rulings are not final, appealable judgments; thus, the fourth and fifth rulings cannot be given effect. THC's statutory claims against Grillot cannot be dismissed, because there has been no adjudication regarding THC's liability on the Department of Revenue's main demand against THC. THC's fraud/misrepresentation claims against Grillot cannot be dismissed, because the trial court gave THC leave to file an amended petition to cure vagueness. THC's contractual claim against Grillot cannot be dismissed, because the summary judgment in Grillot's favor was improperly designated as final. And, because THC's claims remain viable, the exceptions of prescription are no longer moot.
CONCLUSION
For the above reasons, we conclude all five rulings contained in the May 6, 2016 judgment are not final appealable judgments over which this court has appellate jurisdiction. Thus, we dismiss the appeal and remand this matter for further proceedings consistent with this opinion. Costs of the appeal are to be paid one-third each by Tammany Holding Company, LLC; Bertucci Contracting, LLC; and Grillot Construction, LLC.
APPEAL DISMISSED.