Charles Webster, Et Ux. v. Doug Selman Builders, LLC

• Court: Louisiana Court of Appeal
• Decided: August 24, 2011
• Docket: CA-0011-0902
• Status: Unknown

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

11-902

CHARLES WEBSTER AND NENA LUNEAU WEBSTER VERSUS DOUG SELMAN BUILDERS, L.L.C.

********** APPEAL FROM THE TWELFTH JUDICIAL DISTRICT COURT PARISH OF AVOYELLES NO. 2010-6049-B HONORABLE MARK A. JEANSONNE, DISTRICT JUDGE

**********

J. DAVID PAINTER JUDGE

Court composed of Oswald A. Decuir, J. David Painter, and James T. Genovese, Judges.

APPEAL DISMISSED.

Fred A. Pharis Pharis Law Offices 831 Desoto Street Alexandria, LA 71301 (318) 445-8266 COUNSEL FOR PLAINTIFFS/APPELLEES Charles Webster & Nena Luneau Webster Michael J. Floyd Gold, Weems, Bruser, Sues, and Rundell Post Office Box 6118 Alexandria, LA 71307 (318) 445-6471 COUNSEL FOR DEFENDANT/APPELLANT: Doug Selman Builders, L.L.C. PAINTER, Judge.

This court issued, sua sponte, a rule ordering the Defendant-Appellant, Doug

Selman Builders, L.L.C., to show cause, by brief only, why the appeal in this case

should not be dismissed for having been taken from a non-appealable,

interlocutory order. For the reasons assigned, we hereby dismiss the appeal.

Plaintiffs, Charles Webster and Nena Luneau Webster, have filed suit under

the New Home Warranty Act (NHWA), La.R.S. 9:3141, et seq., alleging that

Defendant, a residential building contractor, defectively constructed their home

which is located in Centerpoint, Louisiana. In response to the lawsuit, Defendant

filed an exception of no cause of action seeking dismissal of some of Plaintiffs’

damage claims on the ground that they are not allowable under the NHWA. With

regard to Plaintiffs’ claims for damages for mental anguish and mental distress, the

trial court held that Defendant’s exception should be denied; however, with regard

to Plaintiffs’ claim for consequential damages, the trial court granted Defendant’s

exception and dismissed that claim. Because the parties disagreed as to whether

the judgment should be certified as immediately appealable under La.Code Civ.P.

art. 1915(B), Defendant’s counsel submitted to the trial court both a proposed

judgment containing a certification of immediate appealability and a proposed

judgment without such a certification. On May 27, 2011, the trial court signed the

judgment which contained the provision certifying the judgment as a final,

appealable judgment. The notice of judgment was mailed on the same day. On

June 9, 2011, Defendant filed a motion for appeal, and the trial court signed the

order of appeal. The appeal record was lodged in this court on July 21, 2011. As

stated above, upon the lodging of the record in this appeal, this court issued a rule

1 for the Defendant to show cause why the appeal should not be dismissed as having

been taken from a non-appealable, interlocutory judgment.

In its response to this court’s rule to show cause order, Defendant asserts

that this court should allow the appeal to proceed. Defendant agrees with that

portion of the trial court’s judgment which grants Defendant’s exception of no

cause of action as it pertains to Plaintiffs’ claims for consequential damages. Thus,

Defendant acknowledges that the only ruling being appealed is the trial court’s

denial of Defendant’s exception of no cause of action as it pertains to Plaintiffs’

claims for mental anguish and non-pecuniary damages under the NHWA.

Defendant contends that a designation of immediate appealability under La.Code

Civ.P. art. 1915(B) is appropriate for the ruling at issue because the Louisiana

circuit courts of appeal are split on the issue of whether damages for mental

anguish are recoverable under the NHWA and because the NHWA itself contains

inconsistent provisions on this issue.

We note that the trial court designated the partial judgment at issue as a final

judgment pursuant La.Code Civ.P. art. 1915(B)(1), which provides as follows:

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, 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.

The judgment being appealed partially denies Defendant’s exception of no

cause of action. Although La.Code Civ.P. art. 1915(B) authorizes a trial court to

designate a partial judgment granting an exception as final, the jurisprudence has

held that a judgment denying an exception, in whole or in part, is an interlocutory

judgment which cannot be designated immediately appealable. See Young v. City 2 of Plaquemine, 04-2305 (La.App. 1 Cir. 11/4/05), 927 So.2d 408; Ascension

School Employees Credit Union v. Provost Salter Harper & Alford, L.L.C., 06-

0992 (La.App. 1 Cir. 3/23/07), 960 So.2d 939. Accordingly, in the instant case, we

find that the trial court’s designation was ineffectual as to the portion of the

judgment which denied Defendant’s exception of no cause of action. Since this

appeal was taken from a non-appealable, interlocutory ruling, we hereby dismiss

the appeal at Defendant’s cost.

Further, we find that the exercise of this court’s jurisdiction is not warranted

because reversal of the trial court’s ruling would not terminate the litigation. See

Herlitz Construction Company, Inc. v. Hotel Investors of New Iberia, Inc., 396

So.2d 878 (La.1981). Therefore, find that it is unnecessary to grant Defendant an

opportunity to file an application for supervisory relief.

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION. Rule 2-16.3 Uniform Rules, Court of Appeal.