Johnson v. Pueblo Viejo, Inc.

134 So. 3d 593, 2013 WL 1442255, 2013 La. App. LEXIS 722
CourtLouisiana Court of Appeal
DecidedApril 10, 2013
DocketNo. 47,586-CA
StatusPublished
Cited by2 cases

This text of 134 So. 3d 593 (Johnson v. Pueblo Viejo, 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
Johnson v. Pueblo Viejo, Inc., 134 So. 3d 593, 2013 WL 1442255, 2013 La. App. LEXIS 722 (La. Ct. App. 2013).

Opinion

DREW, J.

| í Johnny Johnson (Johnson) and Dolores Wallace Johnson, plaintiffs, on October 31, 2006, leased commercial property at 3224 Louisville Avenue, Monroe, for use as a Mexican restaurant, to the defendants, Pueblo Viejo, Inc., Stephen Tabe, and Mario Andrade. This dispute over unpaid rents, reimbursements for repairs and insurance premiums along with other damages has a convoluted procedural history. Before reaching the merits, this court must decide whether defendants’ appeal is properly before the court. For the reasons set out below, we find that this appeal is appropriate for adjudication by this court. The judgment of the trial court is affirmed at defendants’ costs.

PROCEDURAL BACKGROUND

January 24, 2012 Written Reasons for Judgment

January 24, 2012 Judgment, Reserving Quantum of Attorney Fees

January 30, 2012 Amended Judgment Adding Interpreter’s Fee1

January 31, 2012 Plaintiffs’ Motion to Set Attorney Fees

February 13, 2012 Judgment Setting Attorney Fees of $22,138.50 and Costs of $5,282.70

February 17,2012 Defendants’ Motion for Suspensive Appeal

February 23, 2012 Order Granting Suspensive Appeal with $30,000.00 Appeal Bond

February 23,2012 Defendants’ Motion for New Hearing on Attorney Fees2

March 6, 2012 Plaintiffs’ Motion to Increase Suspensive Appeal Bond

April 13, 2012 Hearing on Attorney Fees and Suspensive Appeal Bond

[596]*596April 23, 2012 Judgment setting Attorney Fees in the same amount awarded in the February 13, 2012, Judgment

12April 23, 2012 Order Increasing the Amount of the Suspensive Appeal Bond to $110,000

April 24, 2012 Notice of the Judgment Mailed to the Parties

May 31, 2012 Appeal Lodged in Appellate Court

On June 14, 2012, Judges Stewart, Gas-kins and Lolley issued a rule to show cause why the February 17, 2012, appeal should not be dismissed for lack of jurisdiction based upon a premature appeal from an unappealable partial judgment dated January 24, 2012. In the interim, the trial court had disposed of the matters left pending by the January 24, 2012, judgment. Defendants’ motion for new hearing on one issue was filed on February 23, 2012, and resolved in a judgment dated April 23, 2012. On August 28, 2012, Judges Stewart, Gaskins and Lolley referred the issues raised in this court’s June 14, 2012, rule to show cause to the merits of the appeal.

La. C.C.P. art. 2088(B) states:

B. In the case of a suspensive appeal, when the appeal bond is not timely filed and the suspensive appeal is thereby not perfected, the trial court maintains jurisdiction to convert the suspensive appeal to a devolutive appeal, except in an eviction case.

In Overmier v. Traylor, 475 So.2d 1094 (La.1985), the Louisiana Supreme Court noted that appeals are favored and that the Code of Civil Procedure is to be “construed liberally, and with due regard for the fact that rules of procedure implement the substantive law and are not an end in themselves.” La. C.C.P. 5051. The Overmier decision ruled that an appeal granted before.the signing of a final judgment is subject to dismissal until the final judgment has been signed. Once the final judgment is signed, any previous defect of prematurity is cured and no useful purpose is served in dismissing an otherwise valid appeal. Overmier, supra.

IsGuided by Overmier, supra, the First Circuit in Chauvin v. Chauvin, 2010-1055 (La.App. 1st Cir.10/29/10), 49 So.3d 565, observed that Mr. Chauvin’s appeal was premature because he filed the appeal pri- or to the signing of the final judgment. However, the prematurity defect was cured once the final judgment was signed. Additionally, after his motion for appeal was granted, Mr. Chauvin filed a Motion for a New Trial. Since his appeal was pending, the trial court concluded it did not have jurisdiction to consider a new trial motion which was continued without date. Under La. C.C.P. art.2088, the First Circuit decided that Mr. Chauviris new trial motion was waived or abandoned when the order of appeal was signed, so that Mr. Chauvin’s appeal properly before the appellate court, notwithstanding his pending new trial motion.

In this matter, following the signing of the defendants’ order of appeal, defendants sought and received a new hearing on the quantum of attorney fees. Based on Chauvin, that new hearing on attorney fees was without effect, since the trial court was divested of jurisdiction when it signed the order of appeal. La. C.C.P.2088. These defendants waived or abandoned their right to seek a new hearing when they obtained the order for this appeal. A judgment on any matter reviewable on appeal and entered by a trial court after jurisdiction is divested is an absolute nullity. Tealwood Properties, LLC v. Succession of Graves, 47,446 (La.App.2d Cir.9/20/12), 105 So.3d 120.

[597]*597All matters before the trial court were resolved while the appeal was pending. Following the granting of the order of appeal, any prematurity |4issues were cured by subsequent judgments resolving all the issues pending in the trial court.

Even when an appeal is not a proper suspensive appeal, appeals are treated as devolutive. La. C.C.P. art. 2088(B). The record contains an order dated June 15, 2012, converting this matter from a sus-pensive to a devolutive appeal. This appeal is properly before this court for resolution.

REASONS FOR JUDGMENT

The trial court set out the facts in written reasons for judgment dated January 24, 2012. The lease ran from October 15, 2006, until January 31, 2012, with rent payments of $4,400 due on the first day of the month. Plaintiffs provided defendants with free occupancy from October 15, 2006, through February 2007. Defendants paid rent from March 1, 2007, until September 2010. The lease contained detailed repair and maintenance requirements on lessors and lessees along with assorted mandates for various types of insurance. Tabe (who denied signing) and Andrade (who admitted signing) executed a separate “In Solido Obligation and Guaranty Agreement” consenting to be personally responsible to fulfill the lease terms.

The Johnsons sued to recover unpaid rents, reimbursements for certain repairs, and insurance coverage the defendants failed to maintain. Additionally, they sought damages for defendants’ alleged breach of the lease terms. The Johnsons sought back rent for 16 months totaling $70,400.00, which was granted by the trial court.

To the defense assertion that the parties entered a verbal agreement | ¿requiring plaintiffs to make all the repairs needed to make the property suitable for use as a restaurant, the trial court found that the only circumstances under which the trial court could consider extrinsic evidence was if the lease itself was ambiguous. The trial court found this contract was clear and did not lead to absurd consequences. The lease of the premises was “as is” with all repairs3 to be made by the lessees.

Concerning the repairs, Johnson testified that plaintiffs made certain repairs after being told by Andrade (who managed the restaurant) that plaintiffs would be reimbursed.

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134 So. 3d 593, 2013 WL 1442255, 2013 La. App. LEXIS 722, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-pueblo-viejo-inc-lactapp-2013.