Margeaux Fairley v. Jared Mertens Poche, Live Nation Worldwide, Inc. and Smg

• Court: Louisiana Court of Appeal
• Decided: September 7, 2022
• Docket: 2022-CA-0247
• Status: Published

Opinion

MARGEAUX FAIRLEY * NO. 2022-CA-0247

VERSUS * COURT OF APPEAL JARED MERTENS POCHE, * LIVE NATION WORLDWIDE, FOURTH CIRCUIT INC. AND SMG * STATE OF LOUISIANA *******

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2017-00362, DIVISION “N-8” Honorable Ethel Simms Julien, Judge ****** Judge Tiffany Gautier Chase ****** (Court composed of Judge Edwin A. Lombard, Judge Sandra Cabrina Jenkins, Judge Tiffany Gautier Chase)

JENKINS, J., CONCURS IN THE RESULT

Ryan P. Reece THE REECE LAW FIRM, LLC 4933 Utica Street Metairie, LA 70006

COUNSEL FOR PLAINTIFF/APPELLEE

Jeannie Cheng Prudhomme LOUISIANA DEPARTMENT OF JUSTICE 556 Jefferson Street, Suite 400 Lafayette, LA 70501

Craig J. Hebert LOUISIANA DEPARTMENT OF JUSTICE 1450 Poydras Street, Suite 900 New Orleans, LA 70112

COUNSEL FOR DEFENDANT/APPELLANT

APPEAL DISMISSED SEPTEMBER 7, 2022 1

TGC EAL

The State of Louisiana, through the Louisiana Stadium and Exposition

District, SMG, and ASM Global, L.L.C. (hereinafter collectively “the State”),

seeks review of the portion of the trial court’s February 1, 2022 judgment awarding

Margeaux Fairley (hereinafter “Ms. Fairley”) $750.00 in attorney’s fees.1 For the

reasons that follow, we dismiss the appeal.

FACTS AND PROCEDURAL HISTORY

The underlying facts of this matter can be found in this Court’s previous

opinion. Fairley v. Poche, 2020-0282, 2020-0308, pp. 1-2 (La.App. 4 Cir. 2/3/21),

313 So.3d 426, 427-28.

On June 29, 2021, Ms. Fairley filed a “Fourth Motion to Compel and for

Attorney’s Fees and Costs” requesting the court order the State to provide

discovery responses and produce certain documents. The matter was heard by the

trial court on December 10, 2021. By judgment dated February 1, 2022, the trial

1 The judgment also granted in part and denied in part Ms. Fairley’s motion to compel. The State

is not appealing the rulings on the motion to compel.

1 court granted in part and denied in part Ms. Fairley’s motion to compel and

ordered the State to pay Ms. Fairley’s “attorney’s fees in the amount of $750.00

plus costs[,] all costs incurred with the Fourth Motion to Compel.” On March 18,

2022, the State filed a motion for devolutive appeal seeking review of the portion

of the February 1, 2022 judgment awarding attorney’s fees.

On April 19, 2022, Ms. Fairley filed a motion to dismiss appeal for lack of

subject matter jurisdiction with this Court. Ms. Fairley argued that the February 1,

2022 judgment is a non-appealable interlocutory judgment. By order dated April

26, 2022 this Court deferred the motion to dismiss to the panel ultimately assigned

to decide the merits of the appeal. On April 28, 2022, Ms. Fairley filed an answer

to appeal asserting the same arguments in her motion to dismiss.

JURISDICTION

Judgments are either interlocutory or final. La. C.C.P. art. 1841. “A

judgment that does not determine the merits in whole or in part is a final

judgment.” Id. “A final judgment is appealable in all causes in which appeals are

given by law, whether rendered after hearing, by default, or by reformation under

[La. C.C.P. art.] 1814.” La. C.C.P. art. 2083(A). Conversely, “[a]n interlocutory

judgment is appealable only when expressly provided by law.” La. C.C.P. art.

2083(C). “When a court renders a partial judgment…or sustains an exception in

part…the judgment shall not constitute a final judgment unless it is designated as a

2 final judgment by the court after an express determination that there is no just

reason for delay.” La. C.C.P. art. 1915(B)(1).2

The February 1, 2022 judgment grants in part and denies in part Ms.

Fairley’s motion to compel. The portion of the judgment for which the State seeks

review is the award of $750.00 in attorney’s fees to Ms. Fairley as a result of the

motion to compel. A judgment as to discovery matters is interlocutory because it

determines only preliminary matters. See La. C.C.P. art. 1841; La. C.C.P. art.

2083(C); Channelside Servs., LLC v. Chrysochoos Grp., Inc., 2015-0064, p. 7

(La.App. 4 Cir. 5/13/16), 194 So.3d 751, 756. Additionally, jurisprudence has

routinely held “that judgments as to discovery matters, including those awarding

attorney’s fees, are interlocutory rather than final.” Gorvine v. Travelers Ins.

Companies, 1998-0287, p. 3 (La.App. 4 Cir. 11/18/98), 724 So.2d 248, 250 (citing

Broda v. Jack Sutton., Inc., 488 So.2d 226, 227 (La.App. 4th Cir. 1986); Fontenot

v. Opelousas General Hospital, 525 So.2d 75 (La.App. 3rd Cir. 1988); Winslow v.

Goodyear Tire Co., 359 So.2d 699 (La.App. 1st Cir. 1978). As the February 1,

2022 judgment involved the award of attorney’s fees as a result of a discovery

matter, it is an interlocutory judgment.3 Additionally, the trial court did not

2 La. C.C.P. art. 1915(A)(6) also permits the appeal of a judgment that imposes sanctions or

disciplinary action pursuant to La. C.C.P. arts. 191, 863, or 864. None of these codal articles are applicable to the February 1, 2022 judgment. 3 The State asserts that in Louis v. New Orleans City Park Improvement Ass’n, 2022-0047 (La.App. 4 Cir. 5/4/22), 340 So.3d 143, this Court determined that an award for attorney’s fees, as a result of a motion to compel, is a final appealable judgment. However, in Louis this Court did not explicitly make that determination. We noted that “[i]n the case sub judice, the district court’s judgment is a final appealable judgment, as the award for attorney’s fees is quantified with an amount of $500.00.” Id., p. 8, 340 So.3d at 148, n. 4 (citation omitted). The defendant initially filed a timely application for supervisory writs and subsequently voluntarily withdrew its writ application and timely filed a devolutive appeal. Id., p. 3, 340 So.2d at 145-46. We also find

3 designate the judgment as a final appealable judgment. Accordingly, the proper

procedural vehicle to seek review is through an application for supervisory writ,

not an appeal. Delahoussaye v. Tulane Univ. Hosp. & Clinic, 2012-0906, 2012-

0907, p. 4 (La.App. 4 Cir. 2/20/13), 155 So.3d 560, 562.

This Court has “exercised its discretion to convert the appeal of an

interlocutory judgment into an application for supervisory writ.” Id. “However, we

do so only when the motion for appeal has been filed within the thirty-day time

period allowed for the filing of an application for supervisory writs under Rule 4-3

of the Uniform Rules, Courts of Appeal.” Id., 2012-0906, p. 5, 155 So.3d at 563. In

the case sub judice, the trial court’s judgment was rendered (and the notice of

signing of judgment mailed) on February 1, 2022. The motion for devolutive

appeal was filed forty-five days later, on March 18, 2022. As the motion for

devolutive appeal was filed beyond the thirty-day time period allowed for filing an

application for supervisory writ, we decline to exercise our discretion to consider

the State’s motion for devolutive appeal as an application for supervisory writ.

Accordingly, we dismiss the appeal for lack of jurisdiction.

APPEAL DISMISSED

Louis distinguishable as a review of the record reveals that the defendant’s motion for devolutive appeal sought review of the trial court’s ruling on the motion to compel and the grant of attorney’s fees. It was not until the defendants lodged their appeal that they presented the sole assignment of error for review as the district court’s award of attorney’s fees. In the case sub judice, the State’s motion for appeal only sought review of the district court’s ruling granting attorney’s fees.

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