Nathaniel Joseph and Kecia Joseph v. Gerald D. Wasserman

• Court: Louisiana Court of Appeal
• Decided: December 17, 2021
• Docket: 2021-CA-0138
• Status: Published

Opinion

NATHANIEL JOSEPH AND * NO. 2021-CA-0138 KECIA JOSEPH * VERSUS COURT OF APPEAL * GERALD D. WASSERMAN FOURTH CIRCUIT * STATE OF LOUISIANA *******

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2004-18239, DIVISION “D” Honorable Nakisha Ervin-Knott, Judge ****** JUDGE SANDRA CABRINA JENKINS ****** (Court composed of Judge Terri F. Love, Judge Daniel L. Dysart, Judge Sandra Cabrina Jenkins)

Nathaniel Joseph Frank S. Mitchell Kecia Joseph Esteen Lucinda Mitchell Nathaniel Joseph, III Nicholas Joseph Nathan Joseph 311 Portsmouth Drive Slidell, LA 70460

PRO SE PLAINTIFFS/APPELLANTS

Beverly A. DeLaune Melissa M. Lessell DEUTSCH KERRIGAN, L.L.P. 755 Magazine Street New Orleans, LA 70130

COUNSEL FOR DEFENDANT/APPELLEE

APPEAL DISMISSED DECEMBER 17, 2021 SCJ TFL DLD This appeal arises from a legal malpractice case. Plaintiffs-appellants,

Nathanial Joseph, Kecia Esteen, Frank Mitchell, Lucinda Mitchell, Nathaniel

Joseph, III, Nicholas Joseph, and Nathan Joseph (collectively the “Josephs”)

appeal the trial court’s December 10, 2020 judgments denying their petition for

sequestration and denying their bifurcated motion to intervene and amend and

supplement the petition.1 For the foregoing reasons, we dismiss the appeal.

FACTUAL AND PROCEDURAL BACKGROUND

This matter has been before this Court on four prior occasions. To explain

the extensive history behind this litigation, we adopt the facts outlined in Joseph v.

Wasserman, 2017-0603, pp. 1-3 (La. App. 4 Cir. 1/10/18), 237 So.3d 14, 16-17 as

follows:

In December 2004, the Josephs commenced the Malpractice Case. In May 2006, the trial court rendered a judgment dismissing the Malpractice Case with prejudice; the reason for the dismissal is not relevant here. Although the Josephs timely appealed the May 2006 judgment by filing a motion for appeal (the “Motion for Appeal”), the Motion for Appeal was not signed until a decade later, in 2016. 1 Nathaniel Joseph, III, Nathan Joseph, and Nicolas Joseph are not parties to this litigation, although they signed as movers of the petition for sequestration and the bifurcated motion to intervene and amend and supplement the petition.

1 Meanwhile, in July 2013, the Josephs filed a Chapter 7, Voluntary Bankruptcy Petition, in the United States Bankruptcy Court for the Eastern District of Louisiana (the “Bankruptcy Case”). In the Bankruptcy Case, the Josephs failed to disclose the Malpractice Case as a potential asset of the bankruptcy estate.

In 2015, the Josephs filed in the Malpractice Case a motion seeking to have the Motion for Appeal signed by the trial court; instead, the trial court, sua sponte, declared their appeal from the May 2006 judgment of dismissal abandoned. This court vacated the trial court's judgment and remanded for further proceedings. Joseph v. Wasserman, 15-1193 (La. App. 4 Cir. 5/4/16), 194 So.3d 720 (“Joseph I”). In so doing, this court instructed the trial court “to sign the timely-filed order of appeal so that the appellate processes may commence.” Joseph I, 15–1193, at p. 2, 194 So.3d at 722. When this matter came before this court a second time, this court reversed the trial court's May 2006 judgment of dismissal and remanded for further proceedings. Joseph v. Wasserman, 16-0528 (La. App. 4 Cir. 12/7/16), 206 So.3d 970 (“Joseph II”).

In January 2017, Mr. Wasserman filed a partial exception of no right of action and a motion for partial summary judgment. The gist of his argument was that the Josephs lost their right to pursue the Malpractice Case as a result of their failure to disclose the Malpractice Case in their bankruptcy proceeding. According to Mr. Wasserman, the trustee of the Bankruptcy Case (the “Trustee”) became the only proper party to pursue the Malpractice Case.

Following a hearing, the trial court rendered the May 2017 Judgment, conditionally granting Mr. Wasserman's exception of no right of action, ordering that notice be issued to the Trustee in the form attached to the judgment, and staying the Josephs' claims pending the Trustee's intervention. The trial court expressly deferred ruling on Mr. Wasserman's motion for partial summary judgment as moot.

Id.

The Josephs appealed the May 3, 2017 judgment. This Court dismissed the

appeal and answer to appeal, and remanded for further proceedings. Joseph, 2017-

0603, p. 10, 237 So.3d at 21.

On December 2, 2020, the Josephs filed a petition for writ of sequestration,

seeking for certain properties to be seized without bond. On the same date, they

filed a bifurcated motion to intervene and amend and supplement the petition. On

2 December 10, 2020, the trial court denied the petition for writ of sequestration and

the bifurcated motion to intervene and amend and supplement the petition.

On December 29, 2020, the Josephs filed their notice of intent, seeking

review of the trial court’s denial of their petition for writ of sequestration and

denial of their motion to intervene and amend the petition. The trial court assigned

January 19, 2021 as the return date. The writ was filed with this Court on January

22, 2021. On February 3, 2021, this Court declined to exercise supervisory

jurisdiction. Joseph v. Wasserman, unpub., 2021-0033 (La. App. 4 Cir. 2/3/21).

On February 4, 2021, the Josephs filed a notice of appeal on the same

December 10, 2020 judgments. This appeal follows.

DISCUSSION

Jurisdictional Issue

Appellate courts have a duty to determine sua sponte, whether the court has

proper jurisdiction to consider the merits of an appeal filed in the court.

Schwarzenberger v. Louisiana State Univ. Health Sciences Ctr.-New Orleans,

2018-0812, p. 2 (La. App. 4 Cir. 1/9/19), 263 So.3d 449, 451-52. An appellate

court’s jurisdiction must be invoked by a final judgment. Embrace Home Loans,

Inc. v. Burl, 2018-0321, p. 3 (La. App. 4 Cir. 9/19/18), 318 So.3d 86, 88 (citing Bd.

of Supervisors of Louisiana State Univ. v. Mid City Holdings, L.L.C., 2014-0506,

p. 2 (La. App. 4 Cir. 10/15/14), 151 So.3d 908, 910). A valid final judgment is one

that determines the merits in whole or in part and is identified as such by

appropriate language. See La. C.C.P. arts. 1841 and 1918. “Final judgments, even

in some cases partial final judgments, are appealable.” Thrasher Const., Inc. v.

Gibbs Residential, L.L.C., 2015-0607, p. 5 (La. App. 4 Cir. 6/29/16), 197 So.3d

3 283, 288 (quoting Francois v. Gibeault, 2010–0180, p. 1 (La. App. 4 Cir. 8/25/10),

47 So.3d 998, 1000).

Applying the foregoing principles, we find that the judgments denying a

petition for writ of sequestration, and motion to intervene and amend petition do

not fulfill the requirements for a valid appealable judgment. First, the judgments do

not determine the merits in whole or in part of the case. Further, the judgments are

not interlocutory judgments expressly appealable by law. See La. C.C.P. art. 2083.

The proper procedural vehicle to seek review of an interlocutory, non-appealable

judgment is an application for supervisory writ. Thrasher Const., Inc., 2015-0607,

p. 6, 197 So.3d at 288. Accordingly, we dismiss the Josephs’ appeal for lack of

appellate jurisdiction.

Conversion of Appeal to Writ Application

“A court of appeal has plenary power to exercise

supervisory jurisdiction over district courts and may do so at any time, according

to the discretion of the court.” Dupuy Storage & Forwarding, LLC v. Max

Speciality Ins. Co., 2016-0050, p. 9 (La. App. 4 Cir. 10/5/16), 203 So.3d 337, 344

(quoting Favrot v. Favrot, 2010-0986, p. 5 (La. App. 4 Cir. 2/9/11), 68 So.3d

1099, 1104). Therefore, we have discretion to consider these interlocutory

judgments under our supervisory authority. “Because the proper procedural vehicle

for seeking review of an interlocutory judgment is ordinarily by application for

supervisory review, we can—when appropriate—convert the improper appeal to

such an application.” Id. (quoting Succession of Scheuermann, 2015-0041, p. 13

(La. App. 4 Cir. 5/22/15), 171 So.3d 975, 983).

4 The Josephs sought supervisory review of the December 10, 2020

judgments, and this Court denied the writ. Therefore, we decline to convert the

appeal and exercise our supervisory jurisdiction.

CONCLUSION

For the foregoing reasons, this Court lacks appellate jurisdiction and

declines to exercise supervisory jurisdiction. Accordingly, the appeal is dismissed.

APPEAL DISMISSED