NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
CA 17-824
LYNTON O. HESTER, IV
VERSUS
BURNS BUILDERS, ET AL.
**********
APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 230,061 HONORABLE THOMAS MARTIN YEAGER, DISTRICT JUDGE
SYLVIA R. COOKS
JUDGE
Court composed of Sylvia R. Cooks, John E. Conery, and Van H. Kyzar, Judges.
RULE RECALLED. APPEAL MAINTAINED.
Harold Alan Murry Attorney at Law 608 Murray Street Alexandria, Louisiana 71301 (318) 448-4441 COUNSEL FOR PLAINTIFF/APPELLANT: Lynton O. Hester, IV Wade Thomas Visconte All American Law Firm 401 Edwards Street, #2100 Shreveport, Louisiana 71101 (318) 918-1245 COUNSEL FOR DEFENDANT/APPELLEE: Malcolm L. Burns d/b/a Burns Builders
Karl H. Schmid Degan, Blanchard & Nash 400 Poydras Street, Suite 2600 New Orleans, Louisiana 70130 (504) 529-3333 COUNSEL FOR DEFENDANT/APPELLEE: Gemini Insurance Company
Lynton O. Hester, IV 2517 Avenue B Alexandria, Louisisna71301 (318) 442-5667 PLAINTIFF/APPELLANT: IN PROPER PERSON COOKS, JUDGE.
This court issued, sua sponte, a rule ordering the Plaintiff-Appellant, Lynton
O. Hester, IV, to show cause, by brief only, why the appeal in this case should not
be dismissed for having been taken from a partial final judgment which has not
been designated immediately appealable pursuant to La.Code Civ.P. art. 1915(B).
For the reasons assigned, we hereby recall the rule and maintain the appeal.
Plaintiff and Defendant, Malcolm L. Burns d/b/a Burns Builders, entered
into a contract for Defendant to build Plaintiff a new home in Rapides Parish. The
initial contract price was $303,287.00; however, pursuant to an addendum to the
contract, the contract price was increased to $322,287.00. Plaintiff made the first
three installment payments that were due under the home construction contract.
However, because Plaintiff was dissatisfied with the quality of Defendant’s work
at the trim stage of construction, Plaintiff refused to tender a scheduled payment
for that stage of construction. After the parties were unable to reach an agreement
regarding correction of the alleged construction defects, Plaintiff filed suit against
Defendant seeking damages for breach of contract, defects in construction, and
delay in completion of the home. Defendant filed a reconventional demand
seeking payment of sums that Plaintiff allegedly owed Defendant under the
construction contract.
Defendant filed a motion for summary judgment seeking dismissal of
Plaintiff’s claims and payment of Defendant’s reconventional demand. On August
30, 2011, the trial court signed a judgment granting Defendants’ motion for
summary judgment. Via that judgment, Plaintiff’s claims for damages and specific
performance under the construction contract were dismissed, and Defendant was
awarded $96,686.10 plus interest for the reconventional demand. Also, a third
party claim which Defendant had filed against Gemini Insurance Company
(Gemini) was reserved. In 2011, Plaintiff appealed the August 30, 2011 judgment in a prior appeal
which was filed under this court’s docket number 11-1537. In that prior appeal,
this court found that the contract between the parties requires Defendant to fix any
defects in construction and permits Plaintiff to withhold payment if there are any
defects. Hester v. Burns Builders, 11-1537 (La.App. 3 Cir. 6/6/12), 92 So.3d 641,
writ denied, 12-1576 (La. 10/12/12), 98 So.3d 875. This court also found that the
question of whether there were defects in the construction is a question of fact that
should be determined by the trier of fact. Id. Therefore, this court reversed the
August 30, 2011 judgment and remanded the case to the trial court. Id.
After the case was remanded to the trial court, Defendant and the third-party
defendant, Gemini, filed a motion for summary judgment seeking to have
Plaintiff’s claims dismissed and to have the residential construction contract
dissolved so that Defendant would owe no future performance under the contract.
On March 30, 2017, the trial court signed a judgment granting summary judgment
and dismissing Plaintiff’s claims but reserving Defendant’s reconventional demand
against Plaintiff and Defendant’s third-party demand against Gemini. Plaintiff
now seeks to appeal that judgment. After the appeal was lodged with this court,
the rule to show cause order was issued requiring Plaintiff to show cause why the
appeal should not be dismissed for having been taken from a partial judgment
which has not been designated immediately appealable pursuant to La.Code Civ.P.
art. 1915(B).
In his response to this court’s rule, Plaintiff takes the position that the instant
appeal should be allowed to proceed because the March 30, 2017 judgment
dismisses all of Plaintiff’s claims against Defendant with prejudice. The judgment
is styled, “Partial Judgment,” and it initially appeared to be a partial judgment
under La.Code Civ.P. art. 1915(B). However, upon further review of the record
and judgment at issue, we note that this case does not involve a situation in which
2 only some of a particular party’s claims have been dismissed. Instead, the March
30, 2017 judgment, which grants Defendant’s motion for summary judgment,
dismisses all of Plaintiff’s claims in the principal demand but reserves all of the
claims in Defendant’s reconventional demand and in Defendant’s third-party
demand against Gemini. Thus, while the judgment at issue dismisses Plaintiff
from the lawsuit in his capacity as Plaintiff, it does not serve to dismiss Plaintiff in
his capacity as Defendant-in-Reconvention.
This court has previously addressed the application of La.Code Civ.P. art.
1915 in a case wherein principal and incidental demands had been filed but
summary judgment was granted only with regard to the main demand. In Weeks v.
SunStream, Inc., 09-706 (La.App. 3 Cir. 2/10/10), 30 So.3d 1163, writ denied, 10-
0577 (La. 06/25/10), 38 So.2d 337, the plaintiff, Adonis Cole Weeks (Weeks), was
injured during the course and scope of his employment as a maintenance mechanic
for Pilgrim’s Pride Corporation (Pilgrim’s). An “arcing explosion” allegedly
occurred when Weeks attempted to re-set a circuit breaker. Weeks filed a
negligence action against SunStream, which is a contractor that provided electrical
services to Pilgrim’s; Northern, which is SunStream’s insurer; Schneider Electric
Engineering Services, L.L.C. (Schneider); and Square D, which is the
manufacturer of the breaker. Schneider was dismissed from the case on an
exception of no cause of action. Pilgrim’s filed an intervention action against
SunStream, Northern, Schneider, and Square D. SunStream and Northern filed a
motion for summary judgment seeking dismissal of Weeks’ claims against them on
the ground that Weeks had no evidence to prove the issues of causation and breach
of duty.
The trial court granted the motion for summary judgment and dismissed
Weeks’ claims against SunStream and Northern. Weeks’ principal demand against
3 Square D and Pilgrim’s intervention action remained pending in the trial court.
Weeks appealed the judgment granting the motion for summary judgment.
Seeking to have the appeal dismissed, SunStream and Northern argued that
the judgment at issue in that case was a partial final judgment under La.Code Civ.P.
art.
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NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
CA 17-824
LYNTON O. HESTER, IV
VERSUS
BURNS BUILDERS, ET AL.
**********
APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 230,061 HONORABLE THOMAS MARTIN YEAGER, DISTRICT JUDGE
SYLVIA R. COOKS
JUDGE
Court composed of Sylvia R. Cooks, John E. Conery, and Van H. Kyzar, Judges.
RULE RECALLED. APPEAL MAINTAINED.
Harold Alan Murry Attorney at Law 608 Murray Street Alexandria, Louisiana 71301 (318) 448-4441 COUNSEL FOR PLAINTIFF/APPELLANT: Lynton O. Hester, IV Wade Thomas Visconte All American Law Firm 401 Edwards Street, #2100 Shreveport, Louisiana 71101 (318) 918-1245 COUNSEL FOR DEFENDANT/APPELLEE: Malcolm L. Burns d/b/a Burns Builders
Karl H. Schmid Degan, Blanchard & Nash 400 Poydras Street, Suite 2600 New Orleans, Louisiana 70130 (504) 529-3333 COUNSEL FOR DEFENDANT/APPELLEE: Gemini Insurance Company
Lynton O. Hester, IV 2517 Avenue B Alexandria, Louisisna71301 (318) 442-5667 PLAINTIFF/APPELLANT: IN PROPER PERSON COOKS, JUDGE.
This court issued, sua sponte, a rule ordering the Plaintiff-Appellant, Lynton
O. Hester, IV, to show cause, by brief only, why the appeal in this case should not
be dismissed for having been taken from a partial final judgment which has not
been designated immediately appealable pursuant to La.Code Civ.P. art. 1915(B).
For the reasons assigned, we hereby recall the rule and maintain the appeal.
Plaintiff and Defendant, Malcolm L. Burns d/b/a Burns Builders, entered
into a contract for Defendant to build Plaintiff a new home in Rapides Parish. The
initial contract price was $303,287.00; however, pursuant to an addendum to the
contract, the contract price was increased to $322,287.00. Plaintiff made the first
three installment payments that were due under the home construction contract.
However, because Plaintiff was dissatisfied with the quality of Defendant’s work
at the trim stage of construction, Plaintiff refused to tender a scheduled payment
for that stage of construction. After the parties were unable to reach an agreement
regarding correction of the alleged construction defects, Plaintiff filed suit against
Defendant seeking damages for breach of contract, defects in construction, and
delay in completion of the home. Defendant filed a reconventional demand
seeking payment of sums that Plaintiff allegedly owed Defendant under the
construction contract.
Defendant filed a motion for summary judgment seeking dismissal of
Plaintiff’s claims and payment of Defendant’s reconventional demand. On August
30, 2011, the trial court signed a judgment granting Defendants’ motion for
summary judgment. Via that judgment, Plaintiff’s claims for damages and specific
performance under the construction contract were dismissed, and Defendant was
awarded $96,686.10 plus interest for the reconventional demand. Also, a third
party claim which Defendant had filed against Gemini Insurance Company
(Gemini) was reserved. In 2011, Plaintiff appealed the August 30, 2011 judgment in a prior appeal
which was filed under this court’s docket number 11-1537. In that prior appeal,
this court found that the contract between the parties requires Defendant to fix any
defects in construction and permits Plaintiff to withhold payment if there are any
defects. Hester v. Burns Builders, 11-1537 (La.App. 3 Cir. 6/6/12), 92 So.3d 641,
writ denied, 12-1576 (La. 10/12/12), 98 So.3d 875. This court also found that the
question of whether there were defects in the construction is a question of fact that
should be determined by the trier of fact. Id. Therefore, this court reversed the
August 30, 2011 judgment and remanded the case to the trial court. Id.
After the case was remanded to the trial court, Defendant and the third-party
defendant, Gemini, filed a motion for summary judgment seeking to have
Plaintiff’s claims dismissed and to have the residential construction contract
dissolved so that Defendant would owe no future performance under the contract.
On March 30, 2017, the trial court signed a judgment granting summary judgment
and dismissing Plaintiff’s claims but reserving Defendant’s reconventional demand
against Plaintiff and Defendant’s third-party demand against Gemini. Plaintiff
now seeks to appeal that judgment. After the appeal was lodged with this court,
the rule to show cause order was issued requiring Plaintiff to show cause why the
appeal should not be dismissed for having been taken from a partial judgment
which has not been designated immediately appealable pursuant to La.Code Civ.P.
art. 1915(B).
In his response to this court’s rule, Plaintiff takes the position that the instant
appeal should be allowed to proceed because the March 30, 2017 judgment
dismisses all of Plaintiff’s claims against Defendant with prejudice. The judgment
is styled, “Partial Judgment,” and it initially appeared to be a partial judgment
under La.Code Civ.P. art. 1915(B). However, upon further review of the record
and judgment at issue, we note that this case does not involve a situation in which
2 only some of a particular party’s claims have been dismissed. Instead, the March
30, 2017 judgment, which grants Defendant’s motion for summary judgment,
dismisses all of Plaintiff’s claims in the principal demand but reserves all of the
claims in Defendant’s reconventional demand and in Defendant’s third-party
demand against Gemini. Thus, while the judgment at issue dismisses Plaintiff
from the lawsuit in his capacity as Plaintiff, it does not serve to dismiss Plaintiff in
his capacity as Defendant-in-Reconvention.
This court has previously addressed the application of La.Code Civ.P. art.
1915 in a case wherein principal and incidental demands had been filed but
summary judgment was granted only with regard to the main demand. In Weeks v.
SunStream, Inc., 09-706 (La.App. 3 Cir. 2/10/10), 30 So.3d 1163, writ denied, 10-
0577 (La. 06/25/10), 38 So.2d 337, the plaintiff, Adonis Cole Weeks (Weeks), was
injured during the course and scope of his employment as a maintenance mechanic
for Pilgrim’s Pride Corporation (Pilgrim’s). An “arcing explosion” allegedly
occurred when Weeks attempted to re-set a circuit breaker. Weeks filed a
negligence action against SunStream, which is a contractor that provided electrical
services to Pilgrim’s; Northern, which is SunStream’s insurer; Schneider Electric
Engineering Services, L.L.C. (Schneider); and Square D, which is the
manufacturer of the breaker. Schneider was dismissed from the case on an
exception of no cause of action. Pilgrim’s filed an intervention action against
SunStream, Northern, Schneider, and Square D. SunStream and Northern filed a
motion for summary judgment seeking dismissal of Weeks’ claims against them on
the ground that Weeks had no evidence to prove the issues of causation and breach
of duty.
The trial court granted the motion for summary judgment and dismissed
Weeks’ claims against SunStream and Northern. Weeks’ principal demand against
3 Square D and Pilgrim’s intervention action remained pending in the trial court.
Weeks appealed the judgment granting the motion for summary judgment.
Seeking to have the appeal dismissed, SunStream and Northern argued that
the judgment at issue in that case was a partial final judgment under La.Code Civ.P.
art. 1915(B) and that the appeal was not properly before this court because the
judgment had not been designated immediately appealable. On the other hand,
Weeks argued that designation was not required. This court held as follows:
Louisiana Code of Civil Procedure Article 1915(A) 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 of the issues in the case.” We find that the judgment at issue is a final judgment under La.Code Civ.P. art. 1915(A)(1) and (3), rather than a partial judgment under 1915(B), because it disposes of Weeks’ entire claim against SunStream and Northern. No designation is necessary under La.Code Civ.P. art. 1911, which provides that “[a]n appeal may be taken from a final judgment under Article 1915(A) without the judgment being so designated.” This is not a situation where the summary judgment does not dispose of the entire case under La.Code Civ.P. art. 966(E). That SunStream and Northern remain in the suit as defendants-in- intervention is of no moment because the summary judgment dismissed all of Weeks’ claims against them in the principal demand.
Weeks, 30 So.3d at 1165 (footnote omitted).
Following the reasoning and holding set forth by this court in Weeks, 30
So.3d 1163, we find that the judgment at issue in the instant case does not
constitute a partial judgment under La.Code Civ.P. art. 1915(B). Rather, we find
that the March 30, 2017 judgment, which dismisses Plaintiff’s principal demand,
falls under La.Code Civ.P. art. 1915(A)(1) and (3). Pursuant to 1915(A)(1) and
(3), even if all of the claims in a case have not been adjudicated, a judgment is
deemed final if it “[d]ismisses the suit as to less than all of the parties, defendants,
third party plaintiffs, third party defendants, or intervenors” or “[g]rants a motion
for summary judgment, as provided by Articles 966 through 969, but not including
a summary judgment granted pursuant to Article 966(E).” Louisiana Code of Civil
Procedure Article 966(E), in pertinent part, provides that “[a] summary judgment
4 may be rendered dispositive of a particular issue, theory of recovery, cause of
action, or defense, in favor of one or more parties, even though the granting of the
summary judgment does not dispose of the entire case as to that party or parties.”
In the instant case, the March 30, 2017 judgment falls under La.Code Civ.P. art.
1915(A)(3) because it grants Defendant’s motion for summary judgment and
disposes of Plaintiff’s principal demand in its entirety, rather than granting
summary judgment as to particular issues as contemplated by La.Code Civ.P. art.
966. We find that the judgment also falls 1915(A)(1) because it dismisses Plaintiff
from the lawsuit in his capacity as Plaintiff. This finding is not affected by the fact
that the Plaintiff remains in the lawsuit in the capacity of the Defendant-in-
Reconvention. See Weeks, 30 So.3d 1163.
Having determined that the judgment at issue in this appeal is a final
judgment under La.Code Civ.P. art. 1915(A), we find that there is no need for the
judgment to be designated immediately appealable. See La.Code Civ.P. art.
1911(B). Therefore, we hereby recall the rule and maintain the appeal.
This opinion is NOT DESIGNATED FOR PUBLICATION. Rules 2-16.2 and 2-16.3, Uniform Rules, Courts of Appeal.