Jonathan Kale Keen v. Webeland, Inc.

• Court: Louisiana Court of Appeal
• Decided: February 21, 2020
• Docket: 2019CW0281
• Status: Unknown

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

NUMBER 2019 CA 0708 &- 2019 CW 0281

JONATHAN KALE KEEN

VERSUS

WEBELAND, INC.

Judgment Rendered: FEB 2 12070

Appealed from the Twenty -Second Judicial District Court In and for the Parish of St. Tammany, Louisiana Docket Number 2017- 13078

Honorable Alan Zaunbrecher, Judge Presiding

Richard A. Richardson Counsel for Plaintiff/Appellee, Covington, LA Jonathan Kale Keen

John A. E. Davidson Counsel for Defendant/Appellant, Christopher J. Davidson Webeland, Inc. Metairie, LA

BEFORE: WHIPPLE, C.J., GUIDRY, AND BURRIS,' JJ.

Honorable William J. Burris, retired, is serving pro tempore by special appointment of the Louisiana Supreme Court. WHIPPLE, C.J.

In this appeal, the defendant challenges the trial court' s judgment granting

the plaintiffs' motion for partial summary judgment, ordering that a Bond for Deed

contract remained in effect, setting forth the amount due thereunder, and further

denying the defendant' s cross-motion for summary judgment. Defendant also filed

an application for supervisory writs seeking supervisory review of the judgment.

For the following reasons, we dismiss the appeal and decline to consider the writ.

FACTS AND PROCEDURAL HISTORY

On July 5, 2017, plaintiff, Jonathan Keen, filed the instant suit against

Webeland, Inc., seeking a declaratory judgment declaring that a Bond for Deed

contract he had entered into with Webeland on June 24, 2010, was still in full force

and effect.2 He also sought a temporary restraining order (" TRO") and preliminary

injunction, preventing Webeland from breaching the Bond for Deed contract.

Through the Bond for Deed contract, Jonathan agreed to purchase immovable

property and improvements thereon located at 2504 Shubert Lane (" the Shubert

Lane property") in Covington, Louisiana, for a purchase price of $100, 000. 00, with

1, 000.00 to be paid by Keen and the remaining $ 99, 000. 00 to be paid in

installments as outlined in the contract. The Shubert Lane property previously had

been owned by Jonathan' s parents, Clifford Lane Keen, Jr. and Vickie Sue Keen,

but had been sold at sheriff' s sale and had also been conveyed to Webeland by

Clifford and Vickie Keen by Cash Sale without Warranty Deed.

Webeland answered the petition, asserting defenses of novation and lesion

beyond moiety. As to novation, it contended that although it had entered into the

Bond for Deed contract with Jonathan, Jonathan was acting as a " nominee/ agent"

for his parents Vickie and Clifford Keen and, further, that the Bond for Deed

2A bond for deed contract is a contract through which the owner of immovable property agrees to transfer title to that property to a purchaser after the purchaser has paid a specified purchase price, which is paid in the form of installment payments. LSA-R. S. 9: 2941.

2 contract had been novated when a " new performance" was substituted under two

subsequent agreements to purchase. Specifically, it contended that the Bond for

Deed contract was extinguished by a June 8, 2016 Agreement to Purchase the

Shubert Lane property between Casey Keen ( another son of Clifford and Vickie

Keen) and Webeland, changing the terms, parties, price and incorporated payment,

an agreement which Webeland averred was negotiated between Webeland and

Clifford and Vickie Keen. Webeland further averred that after the sale was not

confected under the June 8, 2016 Agreement to Purchase, it entered into a second

Agreement to Purchase the Shubert Lane property with Casey Keen, with the full

approval of Clifford and Vickie Keen, which again renegotiated the purchase price.

Webeland acknowledged in its answer that the second Agreement to Purchase also

was not fulfilled.

Webeland also asserted a reconventional demand against Jonathan, claiming

fraud and seeking attorney' s fees and damages purportedly sustained. It further

sought judgment declaring that the June 24, 2010 Bond for Deed contract was

terminated and directing the Clerk of Court of St. Tammany Parish to cancel and

erase the inscription of the Bond for Deed Contract. Alternatively, Webeland

alleged that its pleading " hereby serves [ as] notice of Eviction" to Jonathan and his

parents. Webeland further averred that it was thereby providing notice of default

under the Bond for Deed contract " insofar as payments under the allegedly

ongoing Bond for Deed Contract are seriously in default" and made demand for all

past due amounts, as well as other amounts to which it claimed entitlement,

amounts which it contended were in excess of $124, 000. 00. 3

Meanwhile, by order dated July 11, 2017, Jonathan' s request for a TRO was

denied. Additionally, following a hearing on his request for a preliminary

Webeland also asserted a third -party demand against Vickie Keen, Clifford Keen, and Casey Keen, seeking the identical declaratory judgment relief and damages that it sought from Jonathan.

3 injunction, the trial court rendered judgment dated September 19, 2017, denying

his request for a preliminary injunction.

Thereafter, Jonathan filed a " Motion for Partial Summary Judgment,"

seeking a judgment in his favor declaring that: ( 1) the June 24, 2010 Bond for

Deed Contract for the purchase of the Shubert Lane property is in full force and

effect; and ( 2) the balance owed under the Bond for Deed Contract as of July 14,

2017 is the principal balance of $61, 820. 00, accrued interest of $5, 055. 00, past

due/ late fees of $1, 440.69, and all property taxes paid by Webeland.

Webeland also filed a motion for summary judgment, seeking to have

Jonathan' s claims dismissed and further seeking to have the Bond for Deed

contract declared null and void on the grounds of lesion or, alternatively, novation,

but also seeking " to be granted judgment against Jonathan ... for the value of the

continued occupancy [ of the Shubert Lane property] through his parents" in the

amount of $34,200. 00.

Following a hearing on both motions, the trial court rendered judgment,

dated January 8, 2019, denying Webeland' s Motion for Summary Judgment,

granting Jonathan' s Motion for Partial Summary Judgment, declaring that the

Bond for Deed contract is not subject to rescission on the grounds of lesion or

novation and remains in effect, and declaring the amount due thereunder.

From this judgment, Webeland has appealed, contending that the trial court

erred in: ( 1) enforcing a sale of immovable property for a price less than one- half

of its market value, and ( 2) failing to find that the Bond for Deed Contract was

novated.

On June 20, 2019, this court issued a Rule to Show Cause Order, noting that

the January 8, 2019 judgment on appeal appears to be a partial judgment without

the required designation of finality pursuant to LSA-C. C.P. art. 1915( B). Thus, the

parties were ordered to show cause by briefs why the appeal should or should not

C! be dismissed. Webeland filed a brief in response to the Show Cause Order, and by

order dated September 3, 2019, the Rule to Show Cause Order was referred to the

panel to which this appeal is assigned. Accordingly, we will address it herein.

Webeland also filed an application for supervisory writs, seeking

supervisory review of the trial court' s January 8, 2019 judgment and raising the

same arguments as in the instant appeal. By order dated July 22, 2019,

Webeland' s writ application ( 2019CW0821) was referred to the same panel to

which the instant appeal is assigned. Thus, we will likewise address the writ

application herein.

RULE TO SHOW CAUSE ORDER

Appellate courts have the duty to examine subject matter jurisdiction sua

sponte, even when the parties do not raise the issue. Nicaud v. Nicaud, 2016- 1531

La. App. 1St Cir. 9/ 15/ 17), 227 So. 3d 329, 330. As an appellate court, we are

obliged to recognize any lack of jurisdiction if it exists. The appellate jurisdiction

of this court extends to " final judgments." See LSA- C. C. P. arts. 1911, 1915, 2083.

However, a judgment that only partially determines the merits of an action is a

partial final judgment and, as such, is immediately appealable only if authorized by

LSA- C. C. P. art. 1915. Quality Environmental Processes, Inc. v. Energy

Development Corporation, L.L. C., 2016- 0171, 2016- 0172 ( La. App. 1St Cir.

4/ 12/ 17), 218 So. 3d 1045, 1053.

Additionally, a judgment must be precise, definite, and certain. A final

appealable judgment must name the party in favor of whom the ruling is ordered,

the party against whom the ruling is ordered, and the relief that is granted or

denied, and these determinations should be evident from the language of the

judgment without reference to other documents in the record. Qualily

Environmental Processes, Inc., 218 So. 3d at 1053. In relevant part, a final

appealable judgment " must contain appropriate decretal language disposing of or

67 1St dismissing claims in the case." State in Interest of J. C., 2016- 0138 ( La. App.

Cir. 6/ 3/ 16), 196 So. 3d 102, 107.

As set forth above, at the December 11, 2018 hearing resulting in the

judgment before us, the trial court had before it Jonathan' s Motion for Partial

Summary Judgment and Webeland' s Motion for Summary Judgement. With

regard to Jonathan' s motion, the trial court had before it only Jonathan' s request

for declaratory judgment relief.' As to Webeland' s motion, the issues before the

trial court were Webeland' s request to have Jonathan' s claims dismissed and also

some of the relief for which it had prayed in its Reconventional Demand, including

judgment declaring the Bond for Deed contract null and void on the grounds of

lesion or, alternatively, novation, and " judgment against Jonathan ... for the value

of the continued occupancy [ of the Shubert Lane property] through his parents" in

the amount of $34, 200. 00.

Pretermitting whether the trial court' s January 8, 2019 judgment granting

Jonathan' s motion, but denying Webeland' s motion constitutes a partial judgment

requiring a designation of finality pursuant to LSA-C. C. P. art. 1915( B), we note at

the outset that the judgment before us is not precise, definite, and certain, and, thus,

there is no final, appealable judgment. See Advanced Leveling & Concrete

Solutions v. Lathan Company, Inc., 2017- 1250 ( La. App. 1St Cir. 12/ 20/ 18), 268

So. 3d 1044, 1046. The language of the judgment that renders it imprecise reads as

follows:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Bond for Deed is not subject to rescission for lesion, was not novated or modified as a result of Purchase Agreement # 1 or Purchase Agreement #2, has not been cancelled by Webeland, presently remains in effect, and that the amount due thereunder as of July 14, 2017 is the principal balance of $61, 820. 00, accrued interest of $5, 055. 00, past due/ late fees of $1, 440. 69, and all property taxes paid by Webeland.

4A noted above, in his petition, Jonathan' s requests for a TRO and preliminary injunction had been denied before he filed his Motion for Partial Summary Judgment.

0 Emphasis by bold typeface and italics added). While the judgment declares that

the " Bond for Deed" contract presently remains in effect, it does not identify the

Bond for Deed contract by date, by parties to the deed, or by property transferred.

Moreover, the judgment provides that the " Bond for Deed" was not novated or

modified as a result of "Purchase Agreement # 1" or " Purchase Agreement # 2," but

does not in any way specify what these documents are by date, parties, or property

involved. These determinations cannot be made without reference to documents in

the record. See Successin of Wilkins, 2018- 0932 ( La. App. Pt Cir. 4/ 17/ 19), 276

So. 3d 598, 600. Finally, while the judgment purports to declare the balance due

under the " Bond for Deed" contract, it provides in part that the amount due

includes " all property taxes paid by Webeland," without specifying the amount of

those property taxes. In the absence of a valid final judgment, this court lacks

subject matter jurisdiction, and the appeal must be dismissed. Advanced Leveling

Concrete Solutions, 268 So. 3d at 1047.

WEBELAND' S APPLICATION FOR SUPERVISORY WRITS

With regard to Webeland' s application for supervisory writs, we decline to

consider same. In addition to there being various rule violations in the writ

application itself, we decline to exercise our supervisory jurisdiction to facilitate a

review of such an imprecise and indefinite judgment. See Mizell v. Willis, 2019-

0141 ( La. App. 1St Cir. 11/ 15/ 19), So. 3d n.3.

CONCLUSION

For the above and foregoing reasons, Webeland, Inc.' s appeal of the trial

court' s January 8, 2019 judgment is hereby dismissed. Webeland, Inc.' s

7 application for supervisory writs, docketed as number 2019 CW 0281, is denied.

Costs of this appeal are assessed against Webeland, Inc.

APPEAL DISMISSED; WRIT APPLICATION NUMBER 2019 CW

0281 DENIED.