In Re: Kite Rv, LLC

• Court: Louisiana Court of Appeal
• Decided: March 20, 2013
• Docket: CA-0013-0106
• Status: Unknown

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

CA 13-106

IN RE: KITE RV, L.L.C.

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APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 2008-2682 HONORABLE RONALD F. WARE, DISTRICT JUDGE

JOHN D. SAUNDERS

JUDGE

Court composed of Sylvia R. Cooks, John D. Saunders, and Marc T. Amy, Judges.

MOTION TO CONSOLIDATE APPEAL WITH WRIT APPLICATION DENIED. APPEAL DISMISSED. APPELLANT IS PERMITTED TO FILE AN APPLICATION FOR SUPERVISORY WRITS.

Thomas Glynn Blazier Attorney at Law Post Office Box 6391 Lake Charles, LA 70606 (337) 474-5624 COUNSEL FOR PLAINTIFF/APPELLEE: R. Alan Kite Kenneth Michael Wright Attorney at Law 203 West Clarence St. Lake Charles, LA 70601 (337) 439-6930 COUNSEL FOR PLAINTIFF/APPELLEE: R. Alan Kite

Scott James Scofield Scofield, Gerard Post Office Drawer 3028 Lake Charles, LA 70602 (337) 433-9436 COUNSEL FOR DEFENDANTS/APPELLANTS: Robert Kite Jeffrey D. Kite Kite Bros., L.L.C.

Blaine Andrew Doucet Attorney at Law 130 W. Kirby Street Lake Charles, LA 70601 (337) 433-0100 COUNSEL FOR DEFENDANT/APPELLANT: Jeffrey D. Kite SAUNDERS, Judge.

This court issued, sua sponte, a rule ordering the Appellants, Jeff Kite;

Robert J. Kite; and Kite Bros., 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.

This case arises from a business dispute between two brothers, R. Alan and

Jeffrey Kite, who co-owned a business, Kite RV, L.L.C. (Kite RV). The dispute

has resulted in the filing of two lawsuits in two different parishes. One suit was

filed by Jeffery Kite and Kite RV in the Thirty-Sixth Judicial District Court in

Beauregard Parish, seeking damages from Alan Kite and R. Alan Kite, L.L.C., for

alleged unfair trade practices, abuse of authority, malfeasance, breach of contract,

and intentional infliction of emotional distress. The other suit, which R. Alan Kite

filed in the Fourteenth Judicial District Court in Calcasieu Parish, is the lawsuit out

of which the instant appeal arises, and it originated as an action for the liquidation

of Kite RV. Also, within the liquidation suit pending in Calcasieu Parish, Jeffery

Kite filed what he deems a ―precautionary suit‖ whereby he seeks damages similar

to those sought in the suit that is pending in Beauregard Parish.

Robert Kite intervened in the lawsuit in Calcasieu Parish asserting that he

had acquired some of Jeffrey Kite’s shares in Kite RV, as well as Jeffery Kite’s

litigious rights against R. Alan Kite and R. Alan Kite, L.L.C. Thereafter, R. Alan

Kite filed a Motion to Deposit and Determine Real Price of Transfer of Litigious

Rights and Exception of No Right of Action and Motion to Exercise Preemptive

Rights. By that pleading, R. Alan Kite seeks to have the trial court issue a

declaratory judgment regarding Jeffrey Kite’s transfer of company shares and

litigious rights to Robert Kite. In response to Allan Kite’s motion to deposit, Jeff Kite, Robert J. Kite, and Kite Bros., L.L.C. (hereinafter, ―Appellants‖), filed

exceptions of vagueness, improper venue, lis pendens, no right of action, no cause

of action, improper cumulation of actions, lack of procedural capacity, and

insufficiency of citation and service of process. Following a hearing, the trial court

denied Appellants’ exceptions. The judgment was signed on September 6, 2012,

and the notice of judgment was mailed on September 25, 2012. On September 27,

2012, Plaintiff filed a motion for appeal, and the trial court signed the order of

appeal on the same day. The appeal record was lodged in this court on February 1,

2013. As stated above, upon the lodging of the record in this appeal, this court

issued a rule for Appellants to show cause why the appeal should not be dismissed

as having been taken from a non-appealable, interlocutory order.

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

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

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, 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 denies various exceptions which were filed by

Appellants. 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

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

2 find that it was improper for the trial court to designate the judgment which denied

Appellants’ exceptions as a final, appealable judgment. Since this appeal was

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

Appellants’ cost.

Further, we note in their response to this court’s rule to show cause order,

Appellants acknowledge that the judgment at issue in this appeal is an

interlocutory judgment and is not subject designation of immediate appealability

under La.Code Civ.P. art. 1915(B). However, Appellants ask that this court either

convert the instant appeal to an application for supervisory writs or consolidate the

instant appeal with a separate, unrelated writ application which Appellants

currently have pending under this court’s docket number 12-1376. We decline to

consolidate the instant appeal with the writ application filed under this court’s

docket number 12-1376. However, we hereby permit Appellants, Jeff Kite; Robert

J. Kite; and Kite Bros., L.L.C., to seek review of the trial court’s judgment of

September 6, 2012, by filing a proper application for writs in compliance with

Uniform Rules—Courts of Appeal, Rule 4, no later than April 19, 2013. The

Appellant is not required to file a notice of intent to seek writs nor obtain an order

setting a return date pursuant to Uniform Rules—Courts of Appeal, Rule 4–3, as

we hereby construe the motion for appeal as a timely filed notice of intent to seek a

supervisory writ.

MOTION TO CONSOLIDATE APPEAL WITH WRIT APPLICATION DENIED. APPEAL DISMISSED. APPELLANT IS PERMITTED TO FILE AN APPLICATION FOR SUPERVISORY WRITS.

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