Lathin Tanner v. Evelyn Tanner Morgan, Willie Morgan, The Succession of Mayola Tanner, The Succession of Mearn Tanner, Mildred Cyprian in her official capacity as Clerk of Court of the Parish of St. Helena

Opinion

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2024 CA 0974

LATHIN TANNER

VERSUS

EVELYN TANNER MORGAN, WILLIE MORGAN, THE SUCCESSION OF MAYOLA TANNER, THE SUCCESSION OF MEARN TANNER, MILDRED CYPRIAN IN HER OFFICIAL CAPACITY AS CLERK OF COURT OF THE PARISH OF ST. HELENA

Judgment Rendered: FEB 2 6 2025

On Appeal from the 21 st Judicial District Court In and for the Parish of St. Helena State of Louisiana

Trial Court Docket Number 23494, Div. " B"

Honorable Charlotte Foster, Judge Presiding

A. Shelby Easterly, III Counsel for Defendants/ Plaintiffs- in Denham Springs, Louisiana Reconvention/ Appellants, Tom S. Easterly Evelyn Tanner Morgan, Willie Baton Rouge, Louisiana Morgan, and M& M Community Grocery and Deli, L.L.C.

Brandon J. Decuir Counsel for Plaintiff/Defendant- in- Corey L. Pierce Reconvention/ Appellee, Ashley J. McCullen Lathin Tanner Baton Rouge, Louisiana

BEFORE: PENZATO, STROMBERG, AND CALLOWAY,' JJ.

1 Judge Curtis A. Calloway, retired, serving pro tempore by special appointment of the Louisiana Supreme Court.

PENZATO, J.

The judgment on appeal granted relief in favor of the plaintiff but failed to dispose of the defendants' reconventional demand. Consequently, the judgment is not final and appealable. This court lacks jurisdiction to consider the merits of the

appeal and to rule on the peremptory exceptions raised by appellants in this court. The appeal and exceptions are dismissed, and the matter is remanded to the trial

court for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

This petitory action between siblings, Lathin Tanner and Evelyn Tanner Morgan, concerns property in Greensburg, Louisiana. Lathin initiated this

proceeding in October 2017 by filing a Petition for Preliminary, Permanent Injunctive Relief, and Cancellation of Donation from the Conveyance Records of

the Clerk of Court. Lathin named as defendants Evelyn, Willie Morgan ( Evelyn' s

husband), the Succession of Mayola Tanner ( the siblings' mother), the Succession

of Mearn Tanner (the siblings' father), and Mildred Cyprian, in her capacity as the

Clerk of Court and Recorder for St. Helena Parish. Lathin alleged that he owned

and possessed a certain 50 x 100 foot parcel of land, which he acquired in 1993 from

M& M Community Grocery, Inc. ( through Mearn, as president of the corporation).

However, Evelyn recorded a donation in 2010 wherein Mearn and Mayola

purportedly donated land, including the parcel owned by Lathin, to Evelyn. Lathin sought cancellation of the donation and injunctive relief, preventing Evelyn and Willie' s continued interference with his peaceful possession and ownership.

Evelyn, Willie, and both successions, represented by Evelyn as independent testamentary executrix, answered Lathin' s petition in November 2017.2 Evelyn and Willie alleged they possessed as owners two parcels of land, including the buildings I-

2 At trial, Evelyn orally moved to be substituted in place of the successions, averring both were closed.

N

and improvements thereon, through an act of donation executed by Meam and Mayola. One of the parcels claimed was the same tract described in Lathin' s

petition. Evelyn and Willie also asserted a reconventional demand against Lathin,

seeking to maintain possession of the property and seeking injunctive relief prohibiting Lathin' s continued interference with their possession and operation of a country store" located on the property. They also sought an award of damages for anguish, harassment and intentional inflection of emotional distress[,]" which they

allegedly suffered as a result of Lathin' s actions. The pleading also included an intervention by M& M Community Grocery and Deli, L.L.C. (" M& M"), a limited liability company represented by Evelyn and Willie, its sole members and managers. M& M sought damages for Lathin' s " intentional interference and the resulting loss

of income[.]" Evelyn, Willie, and M& M are sometimes collectively referred to as

the defendants."

In March 2020, the trial court granted Evelyn and Willie' s motion for partial

summary judgment, recognizing that Lathin judicially confessed their possession of the property, thus converting this proceeding into a petitory action.' This motion did

not dispose of any other claims asserted by Evelyn and Willie or by M& M against Lathin.

A bench trial was held in September 2022. After the close of evidence and

testimony, the trial court took the matter under advisement. In a written judgment

signed on February 27, 2023, the trial court ruled that Lathin proved ownership of property described as:

A certain piece or parcel of land located in the Southeast Comer of the following described 17. 25 acres, said lot or parcel of land measuring 100 feet east and west by 50 feet north and south.

3 In Tanner v. Morgan, 2018- 1719 ( La. App. I st Cir. 7/ 10/ 19), 280 So. 3d 1237, this court reversed the first judgment granting the motion for partial summary judgment and remanded the matter to the trial court for consideration of peremptory exceptions raised by Lathin in response to the reconventional demand. On remand, the exceptions were denied in a judgment signed on January 20, 2020.

The judgment further stated that Lathin acquired ownership of the subject land, including buildings and improvements, from M& M Community Grocery, Inc., and also acquired just title through ten-year and thirty-year acquisitive prescription. The trial court subsequently denied the defendants' motion for new trial, and the

defendants filed this appeal.

JURISDICTION

The February 27, 2023 judgment does not dispose of the reconventional demand asserted by Evelyn, Willie, and M& M against Lathin. The record does not otherwise contain a judgment dismissing or ruling on the merits of the

reconventional demand. After considering the pertinent Code of Civil Procedure articles and this court' s jurisprudence, we conclude this court lacks jurisdiction over

the appeal and exceptions raised in this court.'

An appellate court cannot determine the merits of an appeal unless its

appellate jurisdiction is properly invoked by a valid final judgment. Triton Diving Services, LLC v. Offshore Marine Service Association, Inc., 2023- 0169 ( La. App.

1st Cir. 9/ 21/ 23), 372 So. 3d 832, 836. Because the reconventional demand is

pending, the February 27, 2023 judgment only partially determines the merits of the action and is only appealable if authorized by La. C. C.P. art. 1915. See Louisiana

Workers' Compensation Corp. v. Sims, 2014- 1378 ( La. App. 1st Cir. 4/ 24/ 15), 2015 WL 18826081 * 3 ( unpublished). Louisiana Code of Civil Procedure article

1915( A)(4) provides that 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 ofthe issues in the case, when the court signs ajudgment on either the principal or incidental demand when the two have been tried separately as provided by La. C. C. P. art. 1038.

4 Appellate courts have the duty to examine subject matter jurisdiction sua sponte, even when the parties do not raise the issue. Bayou Manchac Holdings, LLC v. Iberville Parish Council, 2023- 0446 ( La. App. 1st Cir. 12/ 14/ 23), 380 So. 3d 635, 638.

5

Evelyn and Willie' s compulsory reconventional demand was asserted pursuant to La. C. C. P. art. 1061( B), and M& M intervened by joining with the plaintiffs -in -reconvention. See La. C. C. P. arts. 1033 and 1091. Lathin' s principal

demand and Evelyn, Willie, and M& M' s reconventional demand were not tried

separately, nor could they have been, considering the interconnected, dependent nature of the claims. By granting the relief prayed for by Lathin, the trial court implicitly denied the relief sought in the reconventional demand. However, the

judgment is silent as to the reconventional demand and does not dismiss or otherwise

dispose of the claims asserted by Evelyn, Willie, and M& M. See Sims, 2015 WL 1882608, * 3 ( dismissing the appeal upon concluding subject matter jurisdiction did

not exist in a substantially similar situation).5 Thus, the February 27, 2023 judgment does not meet the criteria of La. C. C. P. art. 1915( A) and is not a final, appealable judgment. It likewise does not contain a certificate pursuant to La. C. C. P. art.

1915( B). 6

For judicial efficiency, we note the defendants' assertion that the February 27, 7"

2023 judgment does not precisely define the immovable property at issue. All

final judgments which affect title to immovable property shall describe the immovable property affected with particularity." La. C. C. P. art. 1919; see also La.

C. C. P. art. 2089. During the hearing on the defendants' motion for new trial, which

5 In Sims, 2015 WL 1882608 at * 2- 3, the trial court implicitly denied the defendants' claim that the plaintiff overcharged them for premiums, asserted in a reconventional demand, by granting the plaintiff's motion for summary judgment for unpaid premiums and late fees. However, the judgment was silent as to the reconventional demand. A certification that the judgment was final under La. C. C. P. art. 1915( B) was required where the principal demand and the reconventional demand both concerned the " issue" of premium payments, and the judgment seemingly disposed of that issue, yet failed to dismiss or otherwise dispose of the reconventional demand. See Qasem v. Acadian Apartments, Inc., 2017- 1591 ( La. App. 1st Cir. 6/ 1/ 18), 252 So. 3d 1, 3 n.5, discussing Sims, 2015 WL 1882608.

6 The February 27, 2023 judgment states, without explanation, " This is a FINAL JUDGMENT[.]" 7 We also note the February 27, 2023 judgment does not contain " the name of the party against whom the relief is awarded" and would be scrutinized under La. C. C. P. art. 1918( A) if it were a final, appealable judgment. Finally, we observe that Mildred Cyprian was named as a defendant. It is unclear from the record whether she was served; however, she did not make an appearance. Yet, the record does not contain a voluntary dismissal of the claims against Ms. Cyprian, in her capacity as the Clerk of Court and Recorder for St. Helena Parish. See La. C. C. P. art. 1671.

10

was, in part, based on this issue, the parties and the trial court agreed the judgment

should be amended to include a sufficient legal description. An amended judgment

was to be prepared and circulated. However, the record does not contain an amended

judgment, and the motion for new trial was denied in its entirety in a judgment signed on December 4, 2023. Nevertheless, when a judgment is not final for the purpose

of an immediate appeal, it may be revised at any time prior to rendition of the judgment adjudicating all of the claims and the rights and liabilities of all the parties. La. C. C. P. art. 1915( B)( 2); Bayou Manchac Holdings, LLC v. Iberville Parish

Council, 2023- 0446 ( La. App. 1st Cir. 12/ 14/ 23), 380 So. 3d 635, 638.

DECREE

For the above and foregoing reasons, we dismiss the appeal of the February 27, 2023 judgment and dismiss the peremptory exceptions raised in this court by the defendants. The matter is remanded to the trial court for further proceedings

consistent with this opinion. Costs of this appeal are assessed to Evelyn Tanner Morgan, Willie Morgan, and M& M Community Grocery and Deli, L.L.C.

EXCEPTIONS DISMISSED; APPEAL DISMISSED.