STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
CA 17-250
HIDDEN GROVE, LLC
VERSUS
RICHARD BRAUNS AND LESLIE BRAUNS
**********
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. C-20134910 HONORABLE LAURIE A. HULIN, DISTRICT JUDGE
JOHN E. CONERY
JUDGE
Court composed of John E. Conery, D. Kent Savoie, and Van H. Kyzar, Judges.
MOTION TO DISMISS APPEAL DENIED.
Patrick J. Briney Michael Patrick Corry Briney & Foret Post Office Box 51367 Lafayette, LA 70505-1367 (337) 237-4070 COUNSEL FOR DEFENDANTS/APPELLANTS: Richard Brauns Leslie Brauns Gerald Charles deLaunay Perrin, Landry, deLaunay 251 La Rue France Lafayette, LA 70508 (337) 237-8500 COUNSEL FOR PLAINTIFF/DEFENDANT IN RECONVENTION/APPELLEE Hidden Grove, LLC COUNSEL FOR THIRD PARTY DEFENDANTS/APPELLEES: Jeffrey Mark Gossen Gerald Millard Gossen, Jr. Jonathan Webster Burke
James Lawrence Bullen Strain, Dennis, Mayhall & Bate Post Office Box 53319 Lafayette, LA 70505-3319 (337) 237-5900 COUNSEL FOR DEFENDANTS/APPELLANTS: Richard Brauns Leslie Brauns CONERY, Judge.
The Plaintiff/Defendant in Reconvention/Appellee, Hidden Grove, LLC,
moves to dismiss the appeal by the Defendants/Plaintiffs in Reconvention/
Appellants, Richard and Leslie Brauns. For the reasons assigned below, we deny
the motion to dismiss.
The instant litigation arises out of the purchase of lots in the Hidden Grove
Subdivision. The Braunses purchased Lot 14 of this subdivision from a third party
unrelated to this litigation. They purchased Lot 15 from Hidden Grove. In
association with the purchase of Lot 15, the Braunses were also given a right of
first refusal for Lots 16 and 17 of the subdivision by Hidden Grove.
A disagreement arose regarding the excavation of Lots 16 and 17 by the
Braunses. They claim that Hidden Grove had agreed to permit them to lower the
elevation of Lots 16 and 17 without having to build a retaining wall at the back of
these lots. Hidden Grove contends that the excavation of Lots 16 and 17 were only
approved because the Braunses had agreed to build a retaining wall at the back of
these lots.
Hidden Grove filed suit seeking specific performance and damages
associated with the removal of the soil from Lots 16 and 17 and the construction of
a retaining wall at the back of these lots. Initially, the Braunses answered the suit
and filed a reconventional demand against Hidden Grove raising a claim for
damages based on detrimental reliance. The Braunses later amended that
reconventional demand and also filed a third party demand seeking damages
against three individuals: Jeffery Gossen, Gerald Gossen, and Jonathan Burke,
based on their alleged actions and agreements with respect to the excavation. Hidden Grove filed a motion for summary judgment seeking dismissal of the
claims made by the Braunses in their reconventional demand against Hidden Grove
based on detrimental reliance. The trial court granted the motion for summary
judgment, and a written judgment was signed by the trial court on August 8, 2016.
The pertinent part of the judgment reads, “[T]he Reconventional Demand filed by
Defendants, Richard Brauns and Leslie Brauns, against Plaintiff, Hidden Grove,
LLC, be and is hereby dismissed with prejudice.” Notice of the signing of this
judgment was mailed to the parties by the district court’s clerk’s office on August
17, 2017.
On October 4, 2016, the Braunses filed their Motion to Certify Judgment as
Final. By a written judgment signed on October 18, 2016, the trial court granted
this motion, certifying the judgment of August 8 as final for the reasons set forth
by the Braunses in their motion. The district court’s clerk’s office certified that
notice of the rendition of this judgment was sent to the parties’ counsel on October
24, 2016.
On December 28, 2016, the Braunses filed their Motion for Devolutive
Appeal. The trial court granted the order of appeal on January 3, 2017. This court
lodged the record in this appeal on March 13, 2017. On May 3, 2017, Hidden
Grove filed the Motion to Dismiss Appeal sub judice.
Hidden Grove’s first argument in support of dismissing the Braunses’ appeal
is that the appeal is untimely because the appealed judgment falls under the
provision of La.Code Civ.P. art. 1915(A) such that the delay for applying for a new
trial and for seeking an appeal began running when notice was mailed of the
August 8 judgment. Alternatively, Hidden Grove contends that even if the
judgment had to be designated as final pursuant to La.Code Civ.P. art. 1915(B), the
2 appeal should still be dismissed. First, Hidden Grove asserts that the request for
designation of the judgment as final was untimely presented to the trial court.
Alternatively to this argument, Hidden Grove argues that the motion for appeal
was not filed within sixty days of the order designating the August 8 judgment as
final.
Louisiana Code of Civil Procedure Article 1915 provides:
A. A final judgment may be rendered and signed by the court, 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 966(E).
(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.
(6) Imposes sanctions or disciplinary action pursuant to Article 191, 863, or 864 or Code of Evidence Article 510(G).
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.
3 (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.
C. If an appeal is taken from any judgment rendered under the provisions of this Article, the trial court shall retain jurisdiction to adjudicate the remaining issues in the case.
In First Bank and Trust v. Proctor’s Cove II, 10-1 (La.App. 5 Cir. 3/16/10),
37 So.3d 1019, writ denied, 10-860 (La. 6/18/10), 38 So.3d 328, the plaintiff
brought suit against the defendant based on a promissory note. In response the
defendant filed a reconventional demand. The trial court dismissed the
reconventional demand on exceptions filed by the plaintiff. When the defendant
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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
CA 17-250
HIDDEN GROVE, LLC
VERSUS
RICHARD BRAUNS AND LESLIE BRAUNS
**********
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. C-20134910 HONORABLE LAURIE A. HULIN, DISTRICT JUDGE
JOHN E. CONERY
JUDGE
Court composed of John E. Conery, D. Kent Savoie, and Van H. Kyzar, Judges.
MOTION TO DISMISS APPEAL DENIED.
Patrick J. Briney Michael Patrick Corry Briney & Foret Post Office Box 51367 Lafayette, LA 70505-1367 (337) 237-4070 COUNSEL FOR DEFENDANTS/APPELLANTS: Richard Brauns Leslie Brauns Gerald Charles deLaunay Perrin, Landry, deLaunay 251 La Rue France Lafayette, LA 70508 (337) 237-8500 COUNSEL FOR PLAINTIFF/DEFENDANT IN RECONVENTION/APPELLEE Hidden Grove, LLC COUNSEL FOR THIRD PARTY DEFENDANTS/APPELLEES: Jeffrey Mark Gossen Gerald Millard Gossen, Jr. Jonathan Webster Burke
James Lawrence Bullen Strain, Dennis, Mayhall & Bate Post Office Box 53319 Lafayette, LA 70505-3319 (337) 237-5900 COUNSEL FOR DEFENDANTS/APPELLANTS: Richard Brauns Leslie Brauns CONERY, Judge.
The Plaintiff/Defendant in Reconvention/Appellee, Hidden Grove, LLC,
moves to dismiss the appeal by the Defendants/Plaintiffs in Reconvention/
Appellants, Richard and Leslie Brauns. For the reasons assigned below, we deny
the motion to dismiss.
The instant litigation arises out of the purchase of lots in the Hidden Grove
Subdivision. The Braunses purchased Lot 14 of this subdivision from a third party
unrelated to this litigation. They purchased Lot 15 from Hidden Grove. In
association with the purchase of Lot 15, the Braunses were also given a right of
first refusal for Lots 16 and 17 of the subdivision by Hidden Grove.
A disagreement arose regarding the excavation of Lots 16 and 17 by the
Braunses. They claim that Hidden Grove had agreed to permit them to lower the
elevation of Lots 16 and 17 without having to build a retaining wall at the back of
these lots. Hidden Grove contends that the excavation of Lots 16 and 17 were only
approved because the Braunses had agreed to build a retaining wall at the back of
these lots.
Hidden Grove filed suit seeking specific performance and damages
associated with the removal of the soil from Lots 16 and 17 and the construction of
a retaining wall at the back of these lots. Initially, the Braunses answered the suit
and filed a reconventional demand against Hidden Grove raising a claim for
damages based on detrimental reliance. The Braunses later amended that
reconventional demand and also filed a third party demand seeking damages
against three individuals: Jeffery Gossen, Gerald Gossen, and Jonathan Burke,
based on their alleged actions and agreements with respect to the excavation. Hidden Grove filed a motion for summary judgment seeking dismissal of the
claims made by the Braunses in their reconventional demand against Hidden Grove
based on detrimental reliance. The trial court granted the motion for summary
judgment, and a written judgment was signed by the trial court on August 8, 2016.
The pertinent part of the judgment reads, “[T]he Reconventional Demand filed by
Defendants, Richard Brauns and Leslie Brauns, against Plaintiff, Hidden Grove,
LLC, be and is hereby dismissed with prejudice.” Notice of the signing of this
judgment was mailed to the parties by the district court’s clerk’s office on August
17, 2017.
On October 4, 2016, the Braunses filed their Motion to Certify Judgment as
Final. By a written judgment signed on October 18, 2016, the trial court granted
this motion, certifying the judgment of August 8 as final for the reasons set forth
by the Braunses in their motion. The district court’s clerk’s office certified that
notice of the rendition of this judgment was sent to the parties’ counsel on October
24, 2016.
On December 28, 2016, the Braunses filed their Motion for Devolutive
Appeal. The trial court granted the order of appeal on January 3, 2017. This court
lodged the record in this appeal on March 13, 2017. On May 3, 2017, Hidden
Grove filed the Motion to Dismiss Appeal sub judice.
Hidden Grove’s first argument in support of dismissing the Braunses’ appeal
is that the appeal is untimely because the appealed judgment falls under the
provision of La.Code Civ.P. art. 1915(A) such that the delay for applying for a new
trial and for seeking an appeal began running when notice was mailed of the
August 8 judgment. Alternatively, Hidden Grove contends that even if the
judgment had to be designated as final pursuant to La.Code Civ.P. art. 1915(B), the
2 appeal should still be dismissed. First, Hidden Grove asserts that the request for
designation of the judgment as final was untimely presented to the trial court.
Alternatively to this argument, Hidden Grove argues that the motion for appeal
was not filed within sixty days of the order designating the August 8 judgment as
final.
Louisiana Code of Civil Procedure Article 1915 provides:
A. A final judgment may be rendered and signed by the court, 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 966(E).
(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.
(6) Imposes sanctions or disciplinary action pursuant to Article 191, 863, or 864 or Code of Evidence Article 510(G).
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.
3 (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.
C. If an appeal is taken from any judgment rendered under the provisions of this Article, the trial court shall retain jurisdiction to adjudicate the remaining issues in the case.
In First Bank and Trust v. Proctor’s Cove II, 10-1 (La.App. 5 Cir. 3/16/10),
37 So.3d 1019, writ denied, 10-860 (La. 6/18/10), 38 So.3d 328, the plaintiff
brought suit against the defendant based on a promissory note. In response the
defendant filed a reconventional demand. The trial court dismissed the
reconventional demand on exceptions filed by the plaintiff. When the defendant
pursued an appeal from that judgment, the plaintiff moved to dismiss the appeal
based on the lack of a designation of the judgment as final pursuant to La.Code
Civ.P. art. 1915(B). The appellate court agreed with the plaintiff and dismissed the
appeal without prejudice. See also Brown v. Loraso, 11-196 (La.App. 5 Cir.
10/27/11), 77 So.3d 455, and Slack v. Alcor Group, L.L.C., 04-928 (La.App. 5 Cir.
12/3/04), 893 So.2d 101. We agree with the holdings in these cases; therefore, we
find that the judgment at issue in the instant case was not subject to an immediate
appeal without being designated as final by the trial court’s October 18, 2016
ruling. This holding is made even more reasonable in the instant case where the
judgment only dismisses the Braunses’ claims against Hidden Door and leaves
undisturbed the Braunses’ claims based on the same allegations against the three
third party defendants.
Until the judgment of August 8 was designated final, we also find that a
motion for new trial would have been premature. Without a designation of finality
pursuant to La.Code Civ.P. art. 1915(B), the ruling was interlocutory. Article
4 1915(B)(2) specifically states that, lacking a designation, the judgment is not final
for purposes of an immediate appeal and the judgment is subject to revision by the
trial court. See Hayward v. Hayward, 12-720 (La.App. 1 Cir. 3/18/13), 182 So.3d
966. A motion for new trial can only be filed as to a final judgment and does not
lie from an interlocutory ruling. See Carter v. Rhea, 01-234 (La.App. 4 Cir.
4/25/01), 785 So.2d 1022. Furthermore, a motion for new trial filed prior to entry
of a final judgment is premature and without legal effect. Bordelon v. Dauzat, 389
So.2d 820 (La.App. 3 Cir. 1980). Accordingly, we find that the delay for seeking a
new trial did not begin to run until notice was mailed of the signing of the October
18 judgment designating the August 8 judgment final. When the delays for filing a
motion for new trial are added to the sixty days within which a devolutive appeal
may be taken, it is clear that the Braunses’ appeal was timely perfected. La.Code
Civ.P. arts. 1974 and 2087.
Finally, we note that Hidden Grove contends that the motion seeking the
designation of the judgment as final should itself be held to have been filed
untimely. We find no support for such a proposition in the words of La.Code
Civ.P. art. 1915, and, to the contrary, find that as this statute is currently worded,
Hidden Grove’s suggestion is clearly without merit. Article 1915 not only
provides that the judgment rendered pursuant to Article 1915(B) is not final
without its being designated as such, Article 1915(B)(2) inferentially provides that
review may be sought of any partial judgment not previously designated as final as
of the time that a complete adjudication of the action is rendered. See for instance
Setliff v. Slayter, 09-817 (La.App. 3 Cir. 8/26/09), 19 So.3d 43. Thus, had the trial
court not designated the August 8 judgment final in its October 18 ruling, this
judgment could have been appealed whenever a complete adjudication of this
5 action was rendered, which would have been even later than December 28 when
the current appeal was taken.
For the foregoing reasons, we deny the motion to dismiss the appeal.