131 Beverly Knoll, LLC Versus Clipper Construction, LLC and Joseph S. Tufaro

• Court: Louisiana Court of Appeal
• Decided: February 9, 2022
• Docket: 21-CA-504
• Status: Unknown

Opinion

131 BEVERLY KNOLL, LLC NO. 21-CA-504

VERSUS FIFTH CIRCUIT

CLIPPER CONSTRUCTION, LLC AND COURT OF APPEAL JOSEPH S. TUFARO STATE OF LOUISIANA

ON APPEAL FROM THE FORTIETH JUDICIAL DISTRICT COURT PARISH OF ST. JOHN THE BAPTIST, STATE OF LOUISIANA NO. 74,367, DIVISION "A" HONORABLE VERCELL FIFFIE, JUDGE PRESIDING

February 09, 2022

STEPHEN J. WINDHORST JUDGE

Panel composed of Judges Susan M. Chehardy, Stephen J. Windhorst, and John J. Molaison, Jr.

APPEAL DISMISSED; REMANDED SJW SMC JJM 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 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

21-CA-504 1 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. 03/13/13), 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

21-CA-504 2 court as a final judgment after an express determination that there is no just reason

for delay.1 For these reasons, this court lacks appellate jurisdiction over this matter.

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.

APPEAL DISMISSED; REMANDED

1 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.

21-CA-504 3 SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

NANCY F. VEGA FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON SUSAN S. BUCHHOLZ STEPHEN J. WINDHORST FIRST DEPUTY CLERK HANS J. LILJEBERG JOHN J. MOLAISON, JR. FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX www.fifthcircuit.org

NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY FEBRUARY 9, 2022 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

21-CA-504 E-NOTIFIED 40TH DISTRICT COURT (CLERK) HONORABLE VERCELL FIFFIE (DISTRICT JUDGE) VERCELL FIFFIE (APPELLANT) JAMES C. CRONVICH (APPELLANT) JORDAN T. LEBLANC (APPELLANT) E. JOHN LITCHFIELD (APPELLEE) MICHAEL J. MARSIGLIA (APPELLEE)

MAILED JARRED P. BRADLEY (APPELLEE) CLARENCE F. FAVRET, III (APPELLANT) ATTORNEY AT LAW ATTORNEY AT LAW 3421 NORTH CAUSEWAY BOULEVARD 650 POYDRAS STREET SUITE 105 SUITE 2300 METAIRIE, LA 70002 NEW ORLEANS, LA 70130