April Markiewicz, wife of/and Mark Markiewicz v. Sun Construction, LLC, Penn Mill Lakes, LLC, and Cooper Engineering, Inc, A Professional Engineering Corporation

• Court: Louisiana Court of Appeal
• Decided: May 28, 2020
• Docket: 2019CA0869, 2019CA0871, 2019CA0870
• Status: Unknown

Opinion

STATE OF LOUISIANA

COURT OF APPEAL

A) - Jb ti/ " FIRST CIRCUIT

2019 CA 0869 U V)

APRIL MARKIEWICZ, WIFE OF/ AND MARK MARKIEWICZ

VERSUS

SUN CONSTRUCTION, LLC, PENN MILL LAKES, LLC, AND COOPER ENGINEERING, INC., A PROFESSIONAL ENGINEERING CORPORATION

C/ W 2019 CA 0870

JANET SHEA, WIFE OF/ AND ALPHONSE SHEA

SUN CONSTRUCTION, LLC, SUNRISE CONSTRUCTION AND DEVELOPMENT, LLC, PENN MILL LAKES, LLC, AND COOPER ENGINEERING, INC., A PROFESSIONAL ENGINEERING CORPORATION

C/ W 2019 CA 0871

PATRICIA GRANT, RICHARD GRANT, MARGUERITE GUARINO, WILLIAM GUARINO, SHERON SPRAWLS, VERNON SPRAWLS, DIANNE WHITE, JOHNNY WHITE, JO ANN YOUNGBLOOD, WILLIAM YOUNGBLOOD, LYNELL ROWAN, ALVIN ROWAN, GAYLE AYO, JAMES AYO, DEBORAH LASCARI AND DANIEL LASCARI AND ON BEHALF OF PERSONS SIMILARLY SITUATED

SUN CONSTRUCTION, LLC, PENN MILL LAKES, LLC, SUNRISE CONSTRUCTION, AND COOPER ENGINEERING, INC., A PROFESSIONAL ENGINEERING CORPORATION

Judgment Rendered: MAY 2 8 2020

On Appeal from the Twenty -Second Judicial District Court In and for the Parish of St. Tammany State of Louisiana Docket No. 2006- 16084 c/ w 2008- 10737 c/ w 2008- 11536

Honorable Reginald T. Badeaux, III, Judge Presiding Adam S. Lambert Plaintiffs/ Appellants, Patricia Grant, New Orleans, Louisiana Individually and as Independent Maurice Le Gardeur Executrix of the Estate of Richard L. Covington, Louisiana Grant, Marguerite Guarino, William Guarino, Sheron Sprawls, Vernon Sprawls, Dianne White, Johnny White, Jo Ann Youngblood, William Youngblood, Lynell Rowan, Alvin Rowan, Gayle Ayo, James Ayo, Deborah Lascari and Daniel Lascari and on Behalf of Persons Similarly Situated

Thomas P. Anzelmo, T.A. Defendants/ Appellees, St. Tammany Lynda A. Tafaro Parish Government, James " Red" New Orleans, Louisiana Thompson, Jean M. Thibodeaux, P. E.

Glen E. Mercer Defendant/ Appellee, Clarendon Kourtney French Twenhafel America Insurance Company New Orleans, Louisiana

Robert I. Siegel Defendant/ Appellee, Insurance New Orleans, Louisiana Company of the State of Pennsylvania

John S. Lawrence, Jr. Defendants/ Appellees, Jeffrey Scott Loeb Sun Construction, LLC Jonas Peyton Baker Lawrence A. Kornman, Carl T. Conrad Penn Mill Lakes, LLC Charles T. Williams Aldric C. Poirier, Jr. Mandeville, Louisiana

Louis R. Koerner, Jr. Defendant/ Appellee, New Orleans, Louisiana Louis E. Koerner, Jr.

Adrian G. Nadeau Defend a nts/ Ap pel les, Brad M. Barback John E. Bonneau, Baton Rouge, Louisiana John E. Bonneau and Associates, Inc.

David M. Moragas Defendant/ Appellee, New Orleans, Louisiana Zurich American Insurance Company

BEFORE: WHIPPLE, C. J., GUIDRY, AND BURRIS, 1 JJ.

1 Judge William J. Burris, retired, serving pro tempore by special appointment of the Louisiana Supreme Court.

rj BURRIS, J.

The plaintiffs appeal from a February 14, 2019 judgment granting the

defendants' motion for summary judgment and cross- motion for summary

judgment and denying the plaintiffs' motion for partial summary judgment. For

the reasons set forth below, the appeal is dismissed.

FACTS AND PROCEDURAL HISTORY

This consolidated appeal arises out of a dispute concerning, among other

things, the ownership and maintenance of drainage retention ponds located in

Penn Mill Lakes Subdivision in St. Tammany Parish. The plaintiffs, residents of the

subdivision, assert that the ponds were statutorily dedicated to the St. Tammany

Parish Council at the time the subdivision plats were approved and recorded by

the Parish, pursuant to St. Tammany Parish Ordinance 499, thus making St.

Tammany Parish Government responsible for operating and maintaining the

ponds. Conversely, St. Tammany Parish Government asserts that the Penn Mill

Lakes Homeowners' Association owns the ponds and is responsible for all

maintenance.

Related motions and partial motions for summary judgment were considered

by the trial court on November 13, 2018. The trial court granted a motion for

summary judgment in favor of defendants, St. Tammany Parish Government,

Parish Councilperson James A. ""Red" Thompson, and Jean M. Thibodeaux, P. E.,

dismissing those defendants with prejudice, granted a cross- motion for summary

judgment in favor of St. Tammany Parish Government, and denied plaintiffs'

motion for partial summary judgment against St. Tammany Parish Government.

A judgment was signed on February 14, 2019, and this appeal, filed by the

plaintiffs, followed.

On July 11, 2019, this court, ex proprio mote, issued a rule to show cause

order to the parties, directing them to show cause why the appeal should not be

3 dismissed due to the lack of decretal language in the February 14, 2019 judgment.2

The judgment provides, in part,

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that St. Tammany Parish Government's cross- motion for summary judgment is GRANTED.

Thus, it is not evident from the face of the judgment what exact relief was

sought and what exact relief was granted. In response to this court's show cause

order, the parties concede the judgment lacks appropriate decretal language.'

JURISDICTION

Appellate courts have a duty to examine subject matter jurisdiction sua

sponte, even when the parties do not raise the issue. Advanced Leveling &

Concrete Sols. v. Lathan Co., Inc., 2017- 1250 ( La. App. 1st Cir. 12/ 20/ 18), 268

So. 3d 1044, 1046 ( en banc). This court's appellate jurisdiction only extends to

final judgments." Kelley v. Estate of Kelley, 2019- 1044 ( La. App. 1st Cir.

2/ 21/ 20), 2020 WL 862598, * 1 ( unpublished). A final judgment determines the

merits in whole or in part and is appealable. La. Code Civ. P. arts. 1841 and

2083( A).

A valid judgment must be " precise, definite, and certain." Advanced

Leveling, 268 So. 3d at 1046. Moreover, a final appealable judgment must contain

decretal language, and it must name the party in favor of whom the ruling is

ordered, the party against whom the ruling is ordered, and the relief that is granted

or denied. These determinations must be evident from the language of the

2 The rule to show cause order was referred to this panel to consider in conjunction with the assigned appeal.

3 We recognize this court has discretion to convert an appeal of a non -appealable judgment to an application for supervisory writs. See Stelluto v. Stelluto, 2005- 0074 ( La. 6/ 29/ 05), 914 So. 2d 34, 39. However, when the jurisdictional defect lies in the non -finality of a judgment, an appellate court will generally refrain from the exercise of its supervisory jurisdiction when an adequate remedy exists by appeal, particularly when an adequate remedy by appeal will exist upon the entry of the requisite precise, definite, and certain decretal language necessary for appellate review. Accordingly, we decline to exercise our discretion to convert this appeal of a judgment that is not final for lack of decretal language to an application for supervisory writs. Kelley v. Estate of Kelley, 2019- 1044 ( La. App. 1st Cir. 2/ 21/ 20), 2020 WL 862598, * 2, n. 1 unpublished).

2 judgment without reference to other documents in the record. Id. This court has

held that, where a judgment merely grants a motion for summary judgment, but

fails to contain proper decretal language, the judgment is defective and cannot be

considered a final judgment. Pugh v. St. John Fathers' Club, 2017- 1400 ( La.

App. 1st Cir. 4/ 6/ 18), 2018 WL 1663144, * 1 ( unpublished). In the absence of a

final judgment, this court lacks appellate jurisdiction. Id.

Although the February 14, 2019 judgment indicates that the cross- motion

for summary judgment filed by St. Tammany Parish Government was granted, the

judgment does not indicate against whom the ruling was rendered and which

claims, if any, were dismissed. One must consider extrinsic sources to make that

determination; however, the specific relief granted should be determinable from

the judgment itself without reference to extrinsic sources, such as a pleading or

reasons for judgment. Kelley, 2020 WL 862598, * 2.

Because the February 14, 2019 judgment lacks appropriate decretal

language, it cannot be considered a final judgment for purposes of appeal.

Consequently, this court lacks appellate jurisdiction to review this matter and must

dismiss this appeal. 4

CONCLUSION

For the foregoing reasons, we dismiss the appeal. We decline to assess

costs pending the rendition of a final judgment.

APPEAL DISMISSED.

4 Although the portion of the judgment that grants the motion for summary judgment filed by St. Tammany Parish Government, James A. " Red" Thompson, and Jean M. Thibodeaux, P. E., contains appropriate decretal language, 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, 268 So. 3d at 1047.