Hood Partners, L.L.C. v. David D. Davidge, Jr. and Sherry Anita Davidge Burke

• Court: Louisiana Court of Appeal
• Decided: May 11, 2020
• Docket: 2019CA1150
• Status: Unknown

Opinion

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

NO. 2019 CA 1150

HOOD PARTNERS, L.L. C. L

VERSUS

DAVID D. DAVIDGE, JR. AND SHERRY ANITA DAVIDGE BLJRKE

Judgment Rendered: MAY 1 1 2020

On Appeal from the 21 st Judicial District Court In and for the Parish of Tangipahoa State of Louisiana Trial Court No. 2018- 0000794

Honorable Jeffrey S. Johnson, Judge Presiding

Frank J. DiVittorio Attorneys for Plaintiff A - ppellant, Hammond, LA Hood Partners, L.L.C.

J. Mark Rolling Attorney for Defendants -Appellees, Hammond, LA David D. Davidge, Jr., and Sherry Anita Davidge Burke

BEFORE: HIGGINBOTHAM, PENZATO, AND LANIER, JJ.

1 j, HIGGINBOTHAM, J.

This is an appeal from the denial of a petition for declaratory judgment.

BACKGROUND

In 2017, Hood Partners, L.L.C. (" Hood") purchased a parcel of land in

Hammond, Louisiana, from Northlake Partnership (" Northlake"). When Northlake

acquired the property from Rumsie M. Davidge (now deceased), David D. Davidge,

Jr., and Sherry Anita Davidge Burke (" the Davidges") in 1983, the conveyance deed

contained a provision that restricted Northlake and its " heirs, successors or assigns"

from constructing multi -family dwellings on the property. On March 9, 2018, Hood

filed a petition for declaratory judgment against the Davidges, seeking to obtain a

judicial declaration that the restriction: ( 1) is unenforceable as to Hood and any

successor owners; ( 2) is against public policy; and ( 3) is prescribed. The Davidges

filed an answer to the petition in the form of a general denial. Hood and the Davidges

filed a joint motion to set a trial on the merits with oral argument, waiving their right

to present testimony of any witnesses. The parties agreed to submit the matter based

upon the evidence and stipulations as set forth in the pretrial order. While Hood

argued that the restriction was unenforceable, the Davidges maintained that the

restriction created a real right, intended to run with the land and be enforceable

against successive owners.

On May 1, 2019, the trial court issued written reasons for judgment finding in

favor of the Davidges and ruling that the restriction was in the nature of a predial

servitude. The trial court signed a judgment on June 11, 2019, stating in pertinent

part:

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the Petition for Declaratory Judgment filed by [ Hood] against [ the Davidges] is hereby denied.

Hood now appeals.

2 LAW AND ANALYSIS

It is the duty of an appellate court to examine its subject matter jurisdiction

sua sponte, even when the parties do not raise the issue. Monterrey Center, LLC

v. Ed. ucation Partners, Inc., 2008- 0734 (La. App. 1 st Cir. 12/ 23/ 08), 5 So. 3d 225,

228- 29. Our review of the June 11, 2019 judgment denying Hood' s petition for

declaratory judgment without dismissing the lawsuit or designating the judgment as

final, reveals that it is neither a final judgment nor a partial final judgment. La. Code

Civ. P. arts. 1841, 1911, and 1915. No relief was granted to any party and the suit

was not dismissed as to any party. There is no dispositive language in the decree.

Therefore, it is an interlocutory judgment. La. Code Civ. P. art. 1841. An

interlocutory judgment is appealable only when expressly provided by law. La.

Code Civ. P. art. 2083( C). There is no law that would allow an appeal of this

particular interlocutory judgment. See Walker v State, 2009- 0973 ( La. App. 4th

Cir. 10/ 21/ 09), 26 So. 3d 782, 784.

We also decline to exercise our supervisory jurisdiction in this matter, because

we find that in the posture presented by the petition for declaratory judgment there

is no justiciable controversy. The filing of a petition for declaratory judgment does

not automatically entitle the petitioner to relief. Goodwin v. City of Mandeville,

2018- 1118 ( La. App. 1st Cir. 5/ 31/ 19), 277 So. 3d 822, 828, writ denied, 2019- 01083

La. 10/ 8/ 19), So. 3d Jurisprudence has limited the availability of

declaratory judgments by holding that courts will only act in cases of a present,

justiciable controversy and will not render merely advisory opinions. Church Point

Wholesale Beverage Co., Inc. v. Tarver, 614 So. 2d 697, 701 ( La. 1993). In the

context of a declaratory judgment, a justiciable controversy must involve uncertain

or disputed rights in an immediate and genuine situation, and must be a substantial

and actual dispute as to the legal relations of parties having real, adverse interests.

Steiner v. Reed, 2010- 1465 ( La. App. 1st Cir. 2/ 11/ 11), 57 So. 3d 1188, 1192. Such

k a justiciable controversy must be distinguished from one that is merely hypothetical

or abstract, or one presenting an issue that is academic, theoretical, or based on a

contingency that may or may not arise. Id.

There is actually nothing in the petition or the evidence submitted at trial

suggesting that Hood or any other party has or ever will seek to construct multi-

family dwellings on the parcel of land at issue. Accepting the existing facts as

framed by the parties, the dispute over whether the restriction as to the construction

of multi -family dwellings is based upon an uncertain contingency that is neither

immediate nor actual. These parties do not have real, adverse interests ripe for

judicial determination, and any judgment or decree rendered would not have a

conclusive effect upon Hood' s rights. As such, any judgment or decree upon the

issue would amount to a mere advisory opinion. Because there is no justiciable

controversy presented under the facts as alleged and shown at trial, Hood has failed

to state a cause of action; and thus, the trial court lacked subject matter jurisdiction.

Because our subject matter jurisdiction is derivative of that of the trial court, we also

lack supervisory jurisdiction to determine the merits of Hood' s petition for

declaratory judgment. See Steiner, 57 So. 3d at 1193. See also In Matter of Jelks,

2016- 0730 ( La. App. 1 st Cir. 12/ 22/ 16), 209 So. 3d 854, 859.

CONCLUSION

This appeal must be dismissed for want of subject matter jurisdiction, because

the June 11, 2019 judgment is not an appealable judgment and no justiciable

controversy exists. All costs of this appeal are assessed to the plaintiff-appellant,

Hood Partners, L.L.C.

APPEAL DISMISSED.

rd