Opinion
2017 CA 0900
02-22-2018
JOHN M. FLOYD & ASSOCIATES, INC. v. ASCENSION CREDIT UNION
Craig D. Dillard Michael R. Rahmn Houston, Texas Counsel for Plaintiff/Appellant John M. Floyd & Associates, Inc. S. Eliza James David S. Moyer Luling, Louisiana Counsel for Defendant/Appellee Ascension Credit Union
NOT DESIGNATED FOR PUBLICATION
On Appeal from the Twenty-Third Judicial District Court In and for the Parish of Ascension State of Louisiana
Docket No. 115930 Honorable Alvin Turner, Jr., Judge Presiding Craig D. Dillard
Michael R. Rahmn
Houston, Texas Counsel for Plaintiff/Appellant
John M. Floyd & Associates, Inc. S. Eliza James
David S. Moyer
Luling, Louisiana Counsel for Defendant/Appellee
Ascension Credit Union BEFORE: McCLENDON, WELCH, AND THERIOT, JJ. McCLENDON, J.
The defendant-in-reconvention appeals a trial court judgment that granted a partial summary judgment in favor of the plaintiff-in-reconvention. Recognizing our lack of appellate jurisdiction, we dismiss the appeal.
On May 4, 2016, John M. Floyd & Associates, Inc. (JMFA) filed a Petition for Breach of Contract against Ascension Credit Union (ACU), seeking the payment of $7,965.00 for works and services it allegedly performed for ACU. On May 24, 2016, ACU filed its answer, together with affirmative defenses and a reconventional demand. In the reconventional demand, ACU sought return of a $10,000.00 retainer. On March 10, 2017, ACU, as the plaintiff-in-reconvention, filed its motion for summary judgment, asserting that, as a matter of law, it was entitled to the return of the retainer. JMFA filed an opposition, and the trial court heard arguments on the motion for summary judgment on May 8, 2017. On May 11, 2017, the trial court signed a judgment granting the summary judgment, and JMFA appealed.
In the same pleading, ACU also filed a peremptory exception raising the objection of no cause of action as to JMFA's claim for attorney fees. The parties reached an agreement to dismiss JMFA's claim for attorney fees and penalties, and a consent judgment to that effect was signed on December 14, 2016.
This court's appellate jurisdiction extends to final judgments that determine the merits in whole or in part. LSA-C.C.P. arts. 1841 and 2083; Succession of 3aga, 16-1291 (La.App. 1 Cir. 9/15/17), 227 So.3d 325, 327; Malus v. Adair Asset Management, LLC, 16-0610 (La.App. 1 Cir. 12/22/16), 209 So.3d 1055, 1059. Appellate courts have a duty to examine subject matter jurisdiction sua sponte, even when the parties do not raise the issue. State, Dept. of Transp. and Development v. Henderson, 09-2212 (La.App. 1 Cir. 5/7/10), 39 So.3d 739, 741. Consequently, we must first determine whether this court has jurisdiction to review the May 11, 2017 judgment at this time.
It is undisputed that the trial court's judgment is a partial judgment, as resolution of the issue of the retainer on appeal will not conclude the litigation. As such, this court must consider whether this partial judgment is a final judgment for purposes of immediate appeal. See LSA-C.C.P. art. 2083; Henderson, 39 So.3d at 741.
Whether a partial judgment is immediately appealable is determined by examining the requirements set forth in Article 1915. Henderson, 39 So.3d at 741. Pursuant to Article 1915A, a partial judgment is a final judgment, 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; (2) grants a motion for judgment on the pleadings, as provided by Articles 965, 968, and 969; (3) grants a motion for summary judgment, as provided by Articles 966 through 969, but not including a summary judgment granted pursuant to Article 966E; (4) signs a judgment on either the principal or incidental demand, when the two have been tried separately, as provided by Article 1038; (5) signs a judgment on the issue of liability when that issue has been tried separately by the court, or when, in a jury trial, the issue of liability has been tried before a jury and the issue of damages is to be tried before a different jury; or (6) imposes sanctions or disciplinary action pursuant to Article 191, 863, or 864 or Code of Evidence Article 510G.
Article 966E provides:
A summary judgment may be rendered 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.
Article 1038 provides:
The court may order the separate trial of the principal and incidental actions, either on exceptions or on the merits; and after adjudicating the action first tried, shall retain jurisdiction for the adjudication of the other.
When the principal and incidental actions are tried separately, the court may render and sign separate judgments thereon. When in the interests of justice, the court may withhold the signing of the judgment on the action first tried until the signing of the judgment on the other.
A partial judgment that fits within one of these enumerated categories is a final judgment subject to immediate appeal without the necessity of any designation of finality by the court. See LSA-C.C.P. art. 1911B; Boudreaux v. Audubon Ins. Co., 01-2061 (La.App. 1 Cir. 10/16/02), 835 So.2d 681, 683. However, the judgment in this matter does not fit within any of the categories of partial judgments subject to immediate appeal under Article 1915A. Thus, this appeal is governed by Article 1915B, which provides:
B. (1) When a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands, issues, or theories against a party, 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 no just 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 of all the parties.
Under LSA-C.C.P. art. 1915B, it is clear that a partial summary judgment that disposes of some, but not all, of claims between the parties, must be designated by the trial court as a final judgment in order to be appealed. Shell Pipeline Corp. v. Kennedy, 00-3207 (La. 10/16/01), 799 So.2d 475, 477-78. Thus, in the absence of a designation of the judgment as final through an express determination - i.e., a meaningful and considered articulation by the trial court - of no just reason for delay, a jurisdictional defect exists.
The record before us shows no determination and designation of the partial summary judgment as final, in conformity with LSA-C.C.P. art. 1915B(1). Thus, applying the express language of Article 1915B(2), "[i]n 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."
Further, we decline to convert the appeal to an application for supervisory writs under our supervisory jurisdiction, as urged by ACU. The adjudication of the claim for the retainer amount will not be determinative of all the claims between the parties. As such, judicial efficiency and fundamental fairness do not dictate that the merits of such an application for supervisory writs be decided. See Herlitz Const. Co., Inc. v. Hotel Investors of New Iberia, Inc., 396 So.2d 878 (La. 1981). --------
For these reasons, JMFA's appeal of the partial summary judgment granted in favor of ACU is dismissed for lack of appellate jurisdiction. This case is remanded to the trial court for proceedings consistent with this ruling. Assessment of appeal costs shall await final disposition of this matter.
APPEAL DISMISSED; MATTER REMANDED.