Opinion
NUMBER 2018 CA 1709
05-31-2019
Donald C. BURNIAC, Linda A. Burniac, and Georgia Management Enterprises, Inc. v. Yettie COSTNER, et al.
Stephen H. Myers, Lafayette, LA, Counsel for Plaintiffs/Appellants, Donald C. Burniac, Linda A. Burniac, and Georgia Management Enterprises, Inc. Carey L. Menasco, A'Dair R. Flynt, New Orleans, LA, Counsel for Defendants/Appellees, Yettie and John Reis Margaret H. Kern, Covington, LA, Counsel for Defendant/Appellee, Henry Costner
Stephen H. Myers, Lafayette, LA, Counsel for Plaintiffs/Appellants, Donald C. Burniac, Linda A. Burniac, and Georgia Management Enterprises, Inc.
Carey L. Menasco, A'Dair R. Flynt, New Orleans, LA, Counsel for Defendants/Appellees, Yettie and John Reis
Margaret H. Kern, Covington, LA, Counsel for Defendant/Appellee, Henry Costner
BEFORE: GUIDRY, THERIOT, AND PENZATO, JJ.
GUIDRY, J.
This is an appeal of a judgment in an action seeking nullity and damages relative to proceedings and a judgment rendered by a court in Georgia. For the following reasons, we dismiss the appeal.
FACTS AND PROCEDURAL HISTORY
In 2008, Yettie S. Costner executed an asset purchase agreement wherein she sold a tax preparation and accounting business that she operated in Georgia to Georgia Management Enterprises, Inc. ("GME"). The business sold included the existing clients, goodwill, equipment, software license rights, and Mrs. Costner's agreement not to compete for a period of five years. The agreement provided for the purchase of the business by an initial payment of $ 1,000, plus 119 additional payments of $ 1,000 each, to be paid in monthly installments. Shortly after selling the business, Mrs. Costner and her then-husband, Henry Costner, moved to Louisiana.
Per the agreement, Mrs. Costner was also entitled to collect an annual contingent payment of ten percent of GME's gross sales, but only for gross sales in the range of $ 120,000 to $ 150,000 per fiscal year for a period of ten years.
In July 2009, Mrs. Costner filed suit in Georgia against GME, Donald Burniac (as the incorporator of GME), Linda A. Burniac (as the president of GME), and Kurt Hines (as an employee of GME), for breach of contract, tort damages, and injunctive relief. In the Georgia complaint, Mrs. Costner alleged that in addition to the aforementioned asset purchase agreement, there was an agreement wherein GME arranged to lease the real property in which Mrs. Costner formerly operated her business. She further alleged that she and Mr. Burniac entered into a verbal contract whereby Mrs. Costner agreed to perform tax and accounting work for GME as an independent contractor. Despite these agreements, Mrs. Costner claimed that she stopped receiving lease payments and payments for the purchase of the business in March 2009. She also alleged that GME, the Burniacs, and Mr. Hines were liable for misrepresentation and fraud for failing to perform services for which clients had paid and for failing to compensate her for work she performed. Hence, in addition to damages for breach of contract and tort, Mrs. Costner sought mandatory injunctive relief to regain access to the real property leased to GME and to the business assets sold, including her former clients' files, computer software, data, and equipment. She also requested to permission to perform tax and accounting services for her former clients as part of the injunctive relief requested.
On October 31, 2013, a final judgment was rendered in the Georgia lawsuit in favor of Mrs. Costner and against GME, the Burniacs, and Mr. Hines, awarding her $ 582,500.00, plus interest as provided by Georgia law. Mrs. Costner later filed an action to have the Georgia judgment enforced in Michigan; however, under Michigan law, enforcement of the Georgia judgment could not begin until 21 days after the date notice of the filing of the foreign judgment was mailed, which in the Michigan action was done on September 1, 2016. Prior to the Georgia judgment becoming enforceable in Michigan, the Burniacs executed a warranty deed on September 19, 2016, to transfer a piece of real property that they owned in Michigan to a Louisiana irrevocable trust. Nearly a year later, on September 14, 2017, Mrs. Costner filed an action in Michigan to void the warranty deed and recover the real property that the Burniacs had transferred to the Louisiana trust.
Thereafter, the Burniacs and GME (collectively, "the Burniacs") filed the instant action in St. Tammany Parish against Yettie Reis, John Reis, Mr. Costner, and Vickie Kendall, alleging claims of breach of contract, defamation, fraud, conversion, and nullity of the October 31, 2013 Georgia judgment. In response, the Reises filed exceptions raising the peremptory objections of res judicata, prescription, no cause of action, no right of action, and the dilatory objections of vagueness and ambiguity. Mr. Costner likewise responded to the petition by filing the same exceptions. The trial court held a hearing on the exceptions on June 21, 2018. After taking the matter under advisement, the trial court signed a judgment on August 15, 2018, decreeing:
Mrs. Costner (hereinafter "Mrs. Reis") divorced Henry Costner in 2012, and later married John Reis in June 2014.
Vickie Kendall is identified in the petition as Mrs. Reis's former secretary, and it is alleged that she conspired with Mrs. Reis to defraud GME and/or the Burniacs.
IT IS HEREBY ORDERED that the peremptory exception of prescription is GRANTED as to all claims for breach of contract and tort, including fraud and conversion, and all such claims are DISMISSED WITH PREJUDICE ; and
IT IS FURTHER ORDERED that the peremptory exception of prescription is DENIED as to the claim for defamation and as to the claim for the alleged nullity of the judgment rendered in the proceeding entitled Yettie Schulthess Costner v. Georgia Management Enterprises, Inc., Donald C. Burniac, Linda A. Burniac, and Kurt Hines, No. 09V-192 (Superior Court of McIntosh County, State of Georgia); and
IT IS FURTHER ORDERED that the dilatory exception of vagueness and ambiguity of the petition is SUSTAINED as to Plaintiffs' claim for defamation, and Plaintiffs shall file an amended Petition within 15 days to amend their Petition to set forth specific facts to adequately inform the Defendants of the nature of the defamation claim against them; and
IT IS FURTHER ORDERED that in the event that Plaintiffs do not file an amended Petition within 15 days setting forth specific facts to adequately inform the Defendants of the nature of the defamation claim, Plaintiffs' claims for defamation shall be dismissed with prejudice; and
IT IS FURTHER ORDERED that the exceptions of no cause of action as to claims against John Reis and Henry Costner are GRANTED, and Plaintiffs shall file an amended Petition within 15
days to set forth a valid claim against John Reis and/or Henry Costner; and
IT IS FURTHER ORDERED that in the event that Plaintiffs do not file an amended Petition within 15 days setting forth a valid claim against John Reis and/or Henry Costner, Plaintiffs' claims against John Reis and/or Henry Costner shall be dismissed with prejudice; and
IT IS FURTHER ORDERED that the exception of no cause of action asserted by Yettie Costner Reis is PREMATURE in light of the Court's ruling on the exception of vagueness and ambiguity; and
IT IS FURTHER ORDERED that the exceptions of no right of action and res judicata are MOOT in light of the Court's ruling on the exception of prescription.
The Burniacs appealed the August 15, 2018 judgment. After the record was lodged, however, this court issued a rule to show cause order questioning the finality of the August 15, 2018 judgment, and hence, the propriety of the appeal. In response to the show cause order, the Burniacs filed a memorandum and several motions with this court. In their memorandum, titled in part, "In Opposition to Motion to Dismiss the Appeal," the Burniacs appear to assert that the judgment is appealable based on the trial court sustaining the objection of no cause of action, but they nonetheless state "[t]he ruling of the [trial court] on tangential issues [is] not something to be appealed." In the filing titled a "Motion to Abandon," the Burniacs state that they "expressly abandon the claims for defamation or nullity" and further noted that they "do not desire to amend their petition," as allowed in the judgment appealed. Thus, they requested that the "suit proceed to appeal the other issues in this case, having abandoned [their] claims [of] defamation or nullity." Additionally, the Burniacs filed a "Motion for Leave of Court to File Pleadings in Current Court Record," wherein they seek to supplement the record before us with a judgment from a Michigan court. They also filed a "Motion to Supplement Trial Court Record," wherein they advise this court that "the only issue before the Court is whether the Georgia Court had personal or subject matter jurisdiction. As a consequence, the other so called issues do not need to be addressed."
In the motion for appeal, the Burniacs incorrectly referred to July 19, 2018, as the date of the judgment appealed, which is actually the date of the trial court's written reasons for judgment.
No motion to dismiss the appeal has been filed with this court. Instead, the Burniacs appear to be referring to the rule to show cause order issued by this court, wherein the parties were ordered to show cause, by briefs, why the appeal "should or should not be dismissed."
An appellate court cannot review evidence that is not in the record on appeal and cannot receive new evidence. As an appellate court, we have no jurisdiction to receive new evidence. Rathe v. Rathe, 17-1326, p. 10 (La. App. 1st Cir. 8/21/18), 256 So.3d 1001, 1007. Moreover, while a court may take judicial notice of its own proceedings, La. C.E. art. 202 does not allow, nor has it ever been interpreted to allow, courts to take judicial notice of suit records in other courts. Documentation of other courts' proceedings must be offered into evidence in the usual manner. Shannon v. Vannoy, 17-1722, p. 12 n.7 (La. App. 1st Cir. 6/1/18), 251 So.3d 442, 450 n.7. Consequently, we deny the Burniacs' motion seeking to supplement the record before us with a judgment from a Michigan court.
The rule to show cause order, as well as the various motions filed by the Burniacs, have been referred to this panel to consider in conjunction with the assigned appeal.
APPELLATE JURISDICTION
As related above, the August 15, 2018 judgment before us appears to be a partial judgment, as it does not adjudicate all of the claims, demands, issues, or theories against a party in the case. Further, the judgment is not certified nor can it otherwise be considered a final judgment pursuant to La. C.C.P. art. 1915. While a portion of the judgment sustains the peremptory exceptions raising the objection of no cause of action filed by Mr. Reis and Mr. Costner and further provides for the dismissal of the action as to those two defendants in the event the Burniacs do not amend the petition to remove the grounds for the objection, that portion of the judgment is not final. It has been held that such a decree does not constitute a final judgment, because it merely permits an amendment within the delay allowed by the court as provided by La. C.C.P. art. 934 and does not dismiss the plaintiff's suit nor any party to the suit. Hence, even if the delay period within which to amend has passed, the plaintiff may still amend unless the defendant has moved for dismissal. Schroeder v. Board of Supervisors of Louisiana State University, 540 So.2d 380, 382 (La. App. 1st Cir. 1989). More importantly, this court has definitively held that where a portion of a judgment is uncertain and indefinite, the entire judgment is non-appealable. See Advanced Leveling & Concrete Solutions v. Lathan Company, Inc., 17-1250, p. 5 (La. App. 1st Cir. 12/20/18), 268 So.3d 1044, 1046–47, 2018 WL 6716997, at *2.
Nevertheless, in an effort to maintain the appeal, the Burniacs filed the aforementioned "Motion to Abandon" with this court, in which they purport to abandon their claims of "defamation or nullity," but conversely, in their appellate brief as well as in their memorandum in response to this court's show cause order, the Burniacs solely argue about the validity and enforceability of the Georgia judgment. The Burniacs do not identify any pending action wherein anyone has sought to enforce the Georgia judgment in this state. The Reises have stated in the proceedings below and in this court that no proceedings have been filed to enforce the Georgia judgment in Louisiana. They acknowledge that proceedings to enforce the judgment have been filed in Michigan.
There is nothing in the record before us that indicates there are or have been any proceedings filed to enforce the Georgia judgment in this state . The record reflects that the only Louisiana proceedings relative to the Georgia judgment are the instant proceedings instituted by the Burniacs. And while in the underlying petition, the Burniacs properly characterized their action as one seeking to annul what they contend to be a void Georgia judgment, it is evident that what the Burniacs seek on appeal is to have this court determine the validity of the Georgia judgment. However, because that issue was never decided by the trial court, the matter is not properly before us to decide on appeal.
We construe the "Motion to Abandon," "Motion to Supplement Trial Court Record," and the "Memorandum in Opposition to Motion to Dismiss the Appeal" filed by the Burniacs as simply a request by them to limit our review of the judgment appealed to the sole issue of the alleged nullity of the Georgia judgment.
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Prior to the hearing on the exceptions in the proceedings below, the Burniacs filed the following motions on June 13, 2018: (1) to declare the Georgia judgment void; (2) to dismiss the peremptory exceptions and to request a hearing on whether the Georgia judgment should be found void on the basis of due process; and (3) to consolidate their motions with the hearing on the exceptions filed by the Reises and Mr. Costner. They also filed a "Supplementary and Amended Petition" on that same date. The Reises opposed the motions, and the hearing on the exceptions proceeded as scheduled.
At the hearing on the exceptions, evidence was offered and arguments were presented regarding the Georgia proceedings and judgment, but as was acknowledged by counsel for the Reises and the trial court, such evidence and argument was construed as being relevant to the objection of res judicata. Moreover, the hearing transcript as well as the resulting judgment and reasons for judgment state that the only matters considered and decided by the trial court were the exceptions filed by the Reises and Mr. Costner.
Further, while the Reises did respond to the Burniacs' motions, they nonetheless advised the trial court that in the event the trial court was inclined to give any credence to the Burniacs' argument, a full evidentiary hearing should be ordered where further evidence could be presented to address the Burniacs' allegations. It has been held that even if the record contains all of the evidence necessary to adjudicate an issue not decided by the trial court, if an opposing party was not given a reasonable opportunity in the trial court to assert affirmative defenses and present evidence, or if adequate notice of the issue was not given, the issue should not be considered on appeal. Carter's Insurance Agency, Inc. v. Franklin, 428 So.2d 808, 815-16 (La. App. 1st Cir. 1982).
Moreover, as a general rule, appellate courts will not consider issues that were not raised in the pleadings, were not addressed by the trial court, or are raised for the first time on appeal. Stewart v. Livingston Parish School Board, 07-1881, p. 6 (La. App. 1st Cir. 5/2/08), 991 So.2d 469, 474 ; Gremillion v. Gremillion, 10-0005, p. 6 (La. App. 3d Cir. 7/7/10), 43 So.3d 1063, 1068, writ denied, 10-2125 (La. 12/10/10), 51 So.3d 726. Under article 5, § 10 of the Louisiana Constitution, courts of appeal have broad supervisory jurisdiction; however, even with such broad power, this court will not act on the merits of a claim not yet acted upon by the lower tribunal. Jordan v. City of Baton Rouge, 93-2125, p. 7 n.5 (La. App. 1st Cir. 3/10/95), 652 So.2d 701, 705 n.5 ; see also Uniform Rules-Courts of Appeal, Rule 1-3. Hence, we decline to consider an issue not determined by the judgment before us on appeal. See Hudson v. East Baton Rouge Parish School Board, 02-0987, p. 3 (La. App. 1st Cir. 3/28/03), 844 So.2d 282, 285 ; Knabel v. Lewis, 00-1464, p. 7 (La. App. 1st Cir. 9/28/01), 809 So.2d 314, 319, writ denied, 01-2892 (La. 3/8/02), 811 So.2d 886.
Accordingly, we deny the motions filed by the Burniacs, and finding no basis on which review of the judgment before us can be maintained, we dismiss the appeal. All costs of this appeal are cast to the appellants, Donald C. Burniac, Linda A. Burniac, and Georgia Management Enterprises, Inc.