Cent. Bldg. Servs., LLC v. St. Augustine High Sch., Inc.

258 So. 3d 103
CourtLouisiana Court of Appeal
DecidedOctober 17, 2018
DocketNO. 2018-CA-0427
StatusPublished
Cited by6 cases

This text of 258 So. 3d 103 (Cent. Bldg. Servs., LLC v. St. Augustine High Sch., Inc.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cent. Bldg. Servs., LLC v. St. Augustine High Sch., Inc., 258 So. 3d 103 (La. Ct. App. 2018).

Opinion

Judge, Dale N. Atkins

St. Augustine High School appeals a partial summary judgment granted in favor of Central Building Services, Inc. For the reasons set forth below, we dismiss the appeal and remand for further proceedings.

BACKGROUND

This case involves a contract dispute between St. Augustine High School ("St. Augustine") and Central Building Services, Inc. ("Central") arising from a janitorial services contract. Pursuant to the contractual language, termination of the contract for any reason other than non-performance must occur at least 30 days before the contract's automatic renewal date, and notice of termination must be mailed via the United States Postal Service ("USPS"), certified mail, return receipt requested. It is undisputed that St. Augustine mailed notice of termination in a timely fashion, yet the termination letter was mailed via Federal Express, not USPS. Central therefore filed a motion for summary judgment asserting breach of contract and requesting damages commensurate with the terms of the contract.

At the September 8, 2017 hearing on Central's motion for summary judgment, the district court granted partial summary judgment in favor of Central and against St. Augustine High School for failure to provide notice of termination according to the explicit provisions outlined in the contract. However, the district court denied summary judgment on the issue of damages in open court.

On October 5, 2017, within 30 days of the district court's September 8 ruling in open court, St. Augustine filed a Petition for Devolutive Appeal. The district court signed the Order granting the devolutive appeal the same day.1

After the appellate record was lodged in this Court, Central filed a Motion to Dismiss Appeal for Lack of Jurisdiction. Central argues that the judgment being appealed is a partial summary judgment that was not designated as final and appealable under La. C.C.P. art. 1915 (B), nor did the district court express any reason why the *105issue should be immediately appealed. As such, the judgment on appeal is not a final judgment and cannot be considered on appeal. We agree.

DISCUSSION

"[A] judgment that only partially determines the merits of an action is a partial final judgment and, as such, is immediately appealable only if authorized by La. C.C.P. art. 1915." O'Bannon v. Moriah Tech., Inc. , 2017-0728, p. 6 (La. App. 1 Cir. 3/29/18), 248 So.3d 392, 398 (citing Rhodes v. Lewis , 2001-1989, p. 3-4 (La. 5/14/02), 817 So.2d 64, 66 ).

La. C.C.P. art. 1915"divides partial judgments into two groups: (1) those under Article 1915 (A), which lists six specific types of partial final judgments that are appealable without being designated as final by the trial court; and (2) those covered by Art. 1915 (B), which provides that any other partial judgment (excluding those listed in Part A) is not deemed to be final, and not subject to appeal, unless the trial court designates it as such." Andrew Paul Gerber Testamentary Trust v. Flettrich , 2016-0065, pp. 4-5 (La. App. 4 Cir. 11/2/16), 204 So.3d 634, 637-38.

Paragraph (3) under La. C.C.P. art. 1915 (A) includes summary judgments as one of the types of judgments that are immediately appealable without being designated as final, unless the summary judgment is granted pursuant to La. C.C.P. art. 966 (E). Article 966 (E) provides that "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." In other words, if a partial summary judgment is granted on a particular issue, as is the case here, then Article 1915 (A) does not apply. Instead, the provisions of La. C.C.P. art. 1915 (B) would apply. Under La. C.C.P. art. 1915 (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.

St. Augustine opposes Central's Motion to Dismiss Appeal by arguing first that the district court's judgment was final because the portion of the judgment granting summary judgment went to the issue of liability, and the court's judgment in this case resolved liability but not damages. In support of this argument, St. Augustine references La. C.C.P. art. 1915 (A)(5), which provides that a judgment is final if a court "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." Second, St. Augustine argues that even if the judgment is not a final judgment, this Court may convert the appeal into a supervisory *106writ application, because it filed the petition for appeal within the 30-day time period allowed for seeking a supervisory writ.

We find no merit to St. Augustine's first argument, as La. C.C.P. art. 1915 (A)(5) does not apply in these circumstances. Contrary to St. Augustine's argument, the district court's judgment does not resolve all issues of liability; indeed, at the September 8, 2017 hearing, the court seemed to suggest that if Central were also found liable because it allegedly "performed in a substandard manner," this would or could have some bearing on damages. More importantly, because this is a partial summary judgment granted pursuant to La. C.C.P. art. 966 (E), Article 1915 (B)(2), which specifically addresses motions for partial summary judgment, applies rather than Article 1915 (A)(5). Under Article 1915 (B)(2), in the absence of a determination that the judgment is final and there is no just reason for delaying the appeal, the judgment shall not constitute a final judgment for the purposes of an immediate appeal.

St. Augustine's second argument - that this Court may convert the appeal to a supervisory writ - has some merit, however, because this Court has indeed held that it may, in its discretion, convert an improper appeal to a supervisory writ application when certain criteria are met, as expressed in Mandina, Inc. v. O'Brien , 2013-0085 (La. App. 4 Cir. 7/31/13), 156 So.3d 99 :

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258 So. 3d 103, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cent-bldg-servs-llc-v-st-augustine-high-sch-inc-lactapp-2018.