STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
18-412
NOLTON DALCOURT
VERSUS
THOMAS MOYER, ET AL.
**********
APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT COURT PARISH OF ST. MARTIN, NO. 83622 HONORABLE GREGORY P. AUCOIN, DISTRICT JUDGE
MARC T. AMY JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and Marc T. Amy, Judges.
APPEAL DISMISSED. REMANDED.
Mark M. Bonura 7733 Maple Street New Orleans, LA 70118 (504) 598-3018 COUNSEL FOR DEFENDANTS/APPELLEES: Thomas Moyer Sherry Craig Moyer
John W. Tilly Keaty & Tilly, LLC 2701 Johnston Street, Suite 303 Lafayette, LA 70503 (337) 347-8995 COUNSEL FOR PLAINTIFF/APPELLANT: Nolton Dalcourt AMY, Judge.
This matter involves a failed purchase agreement for the sale of a residence.
The seller and the buyers each sought relief under the terms of the agreement, alleging
that the opposing party was responsible for the failure of the transaction. The trial
court found numerous deficiencies in the seller’s performance, awarding the return of
the deposit as well as attorney fees and costs to the buyers. By the resulting judgment,
the trial court ordered the buyers to submit an itemization of their attorney fees and
costs for review. The trial court further ordered that, in the event the parties cannot
agree to the quantum of such an award, the buyers are to file a rule to show cause for
such a determination. The seller appeals. Finding that this appeal was not taken from
a final appealable judgment, however, we dismiss the appeal and remand for further
proceedings.
Factual and Procedural Background
By a June 1, 2015 Louisiana Residential Agreement to Buy or Sell, the plaintiff,
Nolton Dalcourt, agreed to sell his St. Martin Parish home to the defendants, Thomas
Moyer and Sherry Craig.1 The agreement set forth a $455,000.00 purchase price2 and
required the buyers to provide a $4,000.00 deposit. The parties further agreed to a
fourteen-day inspection and due diligence period. They designated a June 30, 2015
closing date.
According to Mr. Moyer’s testimony at trial, following the close of the
inspection and due diligence period, he began to have concerns regarding the
boundary lines of the property. He further became aware of a utility servitude
1 Mr. Moyer testified at trial that he and Ms. Craig have since married. We refer to the buyers as “the Moyers.” 2 As a result of certain deficiencies identified through the general home inspection process, the parties ultimately agreed to a lesser purchase price by addendum. burdening the property which, he contended, was not previously disclosed. The
Moyers thereafter forwarded a June 27, 2015 addendum to Mr. Dalcourt, apprising
him that: “Buyer elects to make contract void with return of four thousand ($4,000.00)
deposit.” The record indicates that Mr. Dalcourt did not sign that addendum and, as
evidenced by the present proceeding, the sale was not completed. Upon the parties’
competing claims for the deposit, the broker jointly representing the parties in the
subject transaction disbursed the deposit to Mr. Dalcourt.
Mr. Dalcourt instituted this matter in January 2016, naming the Moyers as
defendants and alleging that they were in default by refusing to purchase the residence.
Referencing the purchase agreement’s provision for stipulated damages, Mr. Dalcourt
asserted that he elected to “terminate the agreement and recover an amount equal to
ten (10%) of the Sale Price.” He further sought attorney fees and penalties under the
terms of the agreement as well as lease payments that he asserted were incurred as a
result of the failed agreement.
By their answer, the Moyers denied their liability for the failed transaction.
They further alleged that Mr. Dalcourt was in breach of the purchase agreement due to
alleged misrepresentations as to the size of the property and purported encroachments.
The Moyers further cited difficulties allegedly encountered in the inspection process
and in an attempt to have the property surveyed. The Moyers sought judgment in
their favor.
Following a trial, the trial court ruled in favor of the Moyers upon a finding of
various deficiencies in Mr. Dalcourt’s performance. The trial court ordered the return
of the deposit to the Moyers and awarded them attorney fees and costs. By the
resulting judgment, the trial court ordered the buyers to submit an itemization of their
attorney fees and costs for review. The trial court further ordered that, in the event the
2 parties cannot agree as to the quantum of such an award, the buyers are to file a rule to
show cause for such a determination.
Mr. Dalcourt appeals. However, we do not reach the merits of the appeal.3 We
instead find that there is no jurisdictional basis on which to do so.
Discussion
Subject Matter Jurisdiction
Notably, an appellate court’s jurisdiction is not properly invoked absent a valid
final judgment. See La.Code Civ.P. art. 2083.4 See also Brown v. Breaux Bridge
Ventures, LLC, 16-662 (La.App. 3 Cir. 12/7/16), 207 So.3d 1083 (quoting
Input/Output Marine Sys., Inc. v. Wilson Greatbatch Tech., Inc., 10-477 (La.App. 5
Cir. 10/29/10), 52 So.3d 909). While the parties have not addressed whether the
underlying judgment is final in nature, “it is the duty of a court to examine subject
matter jurisdiction sua sponte, even when the issue is not raised by the litigants.”
Boudreaux v. State, Dep’t of Transp. & Dev., 01-1329, p. 8 (La. 2/26/02), 815 So.2d 7,
13.
3 Mr. Dalcourt assigned the following as error:
[1.] The Trial Court erred when it did not apply the clear and unambiguous language of the contract entered into between the parties when it found the Defendants did not breach the contract by terminating the agreement after the deadline to do so had already passed.
[2.] The Trial Court erred when it found the Plaintiff owed obligations to disclose information and to allow access to the property, when no such language in the contract obligated him to do so. 4 Titled “Judgments appealable[,]” La.Code Civ.P. art. 2083 provides, in pertinent part, that:
A. 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 Article 1814.
....
C. An interlocutory judgment is appealable only when expressly provided by law.
3 Louisiana Code of Civil Procedure Article 1841 provides that “[a] judgment
that determines the merits in whole or in part is a final judgment.”5 And, La.Code
Civ.P. art. 1918 provides that: “A final judgment shall be identified as such by
appropriate language.” Also, a valid judgment must be precise, definite, and certain.
Input/Output Marine Sys., 52 So.3d 909. In the event that a purported final judgment
is rendered upon a money demand, as here, the judgment must indicate the amount of
recovery with certainty and precision. Kimsey v. Nat’l Auto. Ins. Co., 13-856 (La.App.
3 Cir. 2/12/14), 153 So.3d 1035 (citing Elston v. Montgomery, 46,262 (La.App. 2 Cir.
5/18/11), 70 So.3d 824, writ denied, 11-1292 (La. 9/23/11), 69 So.3d 1165).
“Importantly, if the amount must be determined by a future contingency or
ascertained by extrinsic reference (or is otherwise indefinite and uncertain), it is not a
proper judgment.” Id. at 1038.
Reference to the judgment under review indicates that it is lacking the
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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
18-412
NOLTON DALCOURT
VERSUS
THOMAS MOYER, ET AL.
**********
APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT COURT PARISH OF ST. MARTIN, NO. 83622 HONORABLE GREGORY P. AUCOIN, DISTRICT JUDGE
MARC T. AMY JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and Marc T. Amy, Judges.
APPEAL DISMISSED. REMANDED.
Mark M. Bonura 7733 Maple Street New Orleans, LA 70118 (504) 598-3018 COUNSEL FOR DEFENDANTS/APPELLEES: Thomas Moyer Sherry Craig Moyer
John W. Tilly Keaty & Tilly, LLC 2701 Johnston Street, Suite 303 Lafayette, LA 70503 (337) 347-8995 COUNSEL FOR PLAINTIFF/APPELLANT: Nolton Dalcourt AMY, Judge.
This matter involves a failed purchase agreement for the sale of a residence.
The seller and the buyers each sought relief under the terms of the agreement, alleging
that the opposing party was responsible for the failure of the transaction. The trial
court found numerous deficiencies in the seller’s performance, awarding the return of
the deposit as well as attorney fees and costs to the buyers. By the resulting judgment,
the trial court ordered the buyers to submit an itemization of their attorney fees and
costs for review. The trial court further ordered that, in the event the parties cannot
agree to the quantum of such an award, the buyers are to file a rule to show cause for
such a determination. The seller appeals. Finding that this appeal was not taken from
a final appealable judgment, however, we dismiss the appeal and remand for further
proceedings.
Factual and Procedural Background
By a June 1, 2015 Louisiana Residential Agreement to Buy or Sell, the plaintiff,
Nolton Dalcourt, agreed to sell his St. Martin Parish home to the defendants, Thomas
Moyer and Sherry Craig.1 The agreement set forth a $455,000.00 purchase price2 and
required the buyers to provide a $4,000.00 deposit. The parties further agreed to a
fourteen-day inspection and due diligence period. They designated a June 30, 2015
closing date.
According to Mr. Moyer’s testimony at trial, following the close of the
inspection and due diligence period, he began to have concerns regarding the
boundary lines of the property. He further became aware of a utility servitude
1 Mr. Moyer testified at trial that he and Ms. Craig have since married. We refer to the buyers as “the Moyers.” 2 As a result of certain deficiencies identified through the general home inspection process, the parties ultimately agreed to a lesser purchase price by addendum. burdening the property which, he contended, was not previously disclosed. The
Moyers thereafter forwarded a June 27, 2015 addendum to Mr. Dalcourt, apprising
him that: “Buyer elects to make contract void with return of four thousand ($4,000.00)
deposit.” The record indicates that Mr. Dalcourt did not sign that addendum and, as
evidenced by the present proceeding, the sale was not completed. Upon the parties’
competing claims for the deposit, the broker jointly representing the parties in the
subject transaction disbursed the deposit to Mr. Dalcourt.
Mr. Dalcourt instituted this matter in January 2016, naming the Moyers as
defendants and alleging that they were in default by refusing to purchase the residence.
Referencing the purchase agreement’s provision for stipulated damages, Mr. Dalcourt
asserted that he elected to “terminate the agreement and recover an amount equal to
ten (10%) of the Sale Price.” He further sought attorney fees and penalties under the
terms of the agreement as well as lease payments that he asserted were incurred as a
result of the failed agreement.
By their answer, the Moyers denied their liability for the failed transaction.
They further alleged that Mr. Dalcourt was in breach of the purchase agreement due to
alleged misrepresentations as to the size of the property and purported encroachments.
The Moyers further cited difficulties allegedly encountered in the inspection process
and in an attempt to have the property surveyed. The Moyers sought judgment in
their favor.
Following a trial, the trial court ruled in favor of the Moyers upon a finding of
various deficiencies in Mr. Dalcourt’s performance. The trial court ordered the return
of the deposit to the Moyers and awarded them attorney fees and costs. By the
resulting judgment, the trial court ordered the buyers to submit an itemization of their
attorney fees and costs for review. The trial court further ordered that, in the event the
2 parties cannot agree as to the quantum of such an award, the buyers are to file a rule to
show cause for such a determination.
Mr. Dalcourt appeals. However, we do not reach the merits of the appeal.3 We
instead find that there is no jurisdictional basis on which to do so.
Discussion
Subject Matter Jurisdiction
Notably, an appellate court’s jurisdiction is not properly invoked absent a valid
final judgment. See La.Code Civ.P. art. 2083.4 See also Brown v. Breaux Bridge
Ventures, LLC, 16-662 (La.App. 3 Cir. 12/7/16), 207 So.3d 1083 (quoting
Input/Output Marine Sys., Inc. v. Wilson Greatbatch Tech., Inc., 10-477 (La.App. 5
Cir. 10/29/10), 52 So.3d 909). While the parties have not addressed whether the
underlying judgment is final in nature, “it is the duty of a court to examine subject
matter jurisdiction sua sponte, even when the issue is not raised by the litigants.”
Boudreaux v. State, Dep’t of Transp. & Dev., 01-1329, p. 8 (La. 2/26/02), 815 So.2d 7,
13.
3 Mr. Dalcourt assigned the following as error:
[1.] The Trial Court erred when it did not apply the clear and unambiguous language of the contract entered into between the parties when it found the Defendants did not breach the contract by terminating the agreement after the deadline to do so had already passed.
[2.] The Trial Court erred when it found the Plaintiff owed obligations to disclose information and to allow access to the property, when no such language in the contract obligated him to do so. 4 Titled “Judgments appealable[,]” La.Code Civ.P. art. 2083 provides, in pertinent part, that:
A. 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 Article 1814.
....
C. An interlocutory judgment is appealable only when expressly provided by law.
3 Louisiana Code of Civil Procedure Article 1841 provides that “[a] judgment
that determines the merits in whole or in part is a final judgment.”5 And, La.Code
Civ.P. art. 1918 provides that: “A final judgment shall be identified as such by
appropriate language.” Also, a valid judgment must be precise, definite, and certain.
Input/Output Marine Sys., 52 So.3d 909. In the event that a purported final judgment
is rendered upon a money demand, as here, the judgment must indicate the amount of
recovery with certainty and precision. Kimsey v. Nat’l Auto. Ins. Co., 13-856 (La.App.
3 Cir. 2/12/14), 153 So.3d 1035 (citing Elston v. Montgomery, 46,262 (La.App. 2 Cir.
5/18/11), 70 So.3d 824, writ denied, 11-1292 (La. 9/23/11), 69 So.3d 1165).
“Importantly, if the amount must be determined by a future contingency or
ascertained by extrinsic reference (or is otherwise indefinite and uncertain), it is not a
proper judgment.” Id. at 1038.
Reference to the judgment under review indicates that it is lacking the
hallmarks of a final judgment. In particular, the final paragraph reflects the indefinite
nature of judgment as it provides:
IT IS ORDERED, ADJUDGED AND DECREED that NOLTON DALCOURT was in default of the Louisiana Real Estate Buy and Sell Agreement signed by Nolton Dalcourt, as Seller, and Thomas Moyer and Sherry Craig, as Buyer, on June 1, 2015.
IT IS ORDERED, ADJUDGED AND DECREED that THOMAS MOYER AND SHERRY CRAIG MOYER are entitled to their deposit of Four Thousand and no/100 ($4,000.00) Dollars and are awarded the sum of FOUR THOUSAND AND NO/100 ($4,000.00) DOLLARS representing the deposit amount, along with legal interest.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that THOMAS MOYER AND SHERRY CRAIG MOYER are awarded attorney’s fees and costs. The Defendants are to submit an itemization of attorney’s fees and costs to the Plaintiff and the Court for review. If the
5 Louisiana Code of Civil Procedure Article 1841 further indicates that an interlocutory judgment is one “that does not determine the merits but only preliminary matters in the course of the action[.]”
4 parties cannot reach an agreement as to these attorney’s fees and costs, then the Defendants are to file a Rule to Show Cause for determination of the amount of attorney’s fees and costs.
Thus, by its wording, the judgment is not final. In fact, the judgment not only
anticipates a future contingency and extrinsic evidence, it includes an order for such
an occurrence. See, e.g., Lobell v. Rosenberg, 17-0111, p. 5 (La.App. 4 Cir. 10/4/17),
228 So.3d 1241, 1245 (wherein the fourth circuit dismissed an appeal upon
recognizing a want of appellate jurisdiction on review of a judgment awarding
attorney fees but in which the amount of such fees had “not been adjudicated by the
district court” and which “issue between the parties remain[ed] to be resolved.”).
Accordingly, we find it necessary to dismiss this appeal due to lack of subject matter
jurisdiction. We below remand this matter for future proceedings.
Finally, we recognize that an appellate court has discretion to convert an appeal
to an application for supervisory writ. See Stelluto v. Stelluto, 05-0074 (La. 6/29/05),
914 So.2d 34. In this situation, however, we find that an exercise of such discretion is
inappropriate as “an appellate court will generally refrain from the exercise of its
supervisory jurisdiction when an adequate remedy exists by appeal.” Kimsey, 153
So.3d at 1040 (citing Thomas v. Lafayette Par. Sch. Sys., 13-91 (La.App. 3 Cir.
3/6/13), 128 So.3d 1055). Here, the trial court ordered the parties to take further
actions. Upon the occurrence of such proceedings, and upon the entry of a precise,
definite, and certain judgment, an adequate remedy by appeal will exist at that time.
See also Conrad v. McGowan Working Partners, Inc., 08-1251, p. 3 (La.App. 3 Cir.
11/12/08), 997 So.2d 872, 875 (wherein a panel of this court observed that permitting
an appeal to proceed on a partial judgment that awarded attorney fees but did not set
the amount of those fees constituted “could result in a piecemeal appeal of this
litigation.”).
5 DECREE
For the foregoing reasons, the appeal of the plaintiff/appellant, Nolton Dalcourt,
is dismissed. This matter is remanded for further proceedings. Costs of this
proceeding are assessed to Mr. Dalcourt.