Perry Emery v. Eunice Ben, Derek Russ, Ernest Jones, and Aca Realty, LLC

• Court: Louisiana Court of Appeal
• Decided: September 28, 2023
• Docket: 2023-CA-0063
• Status: Published

Opinion

PERRY EMERY * NO. 2023-CA-0063

VERSUS * COURT OF APPEAL EUNICE BEN, DEREK RUSS, * ERNEST JONES, AND ACA FOURTH CIRCUIT REALTY, LLC * STATE OF LOUISIANA *******

CONSOLIDATED WITH: CONSOLIDATED WITH:

PERRY EMERY NO. 2023-C-0067

VERSUS

EUNICE BEN, DEREK RUSS, ERNEST JONES, AND ACA REALTY, LLC

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2020-10296, DIVISION “B” Honorable Richard G. Perque, Judge ****** Judge Paula A. Brown ****** (Court composed of Judge Daniel L. Dysart, Judge Paula A. Brown, Judge Karen K. Herman)

Micah Zeno Martin E. Landrieu Gordon, Arata, Montgomery, Barnett, McCollam, Duplantis and Eagan, LLC 201 Saint Charles Ave 40th Floor New Orleans, LA 70170

COUNSEL FOR PLAINTIFF/APPELLEE

Ike Spears SPEARS & SPEARS 909 Poydras Street, Suite 1825 New Orleans, LA 70112

Ernest L. Jones ATTORNEY AT LAW 4211 S. Claiborne Avenue New Orleans, LA 70125

COUNSEL FOR DEFENDANT/APPELLANT

MOTION TO DISMISS APPEAL GRANTED; APPEAL DISMISSED; MOTION TO SEVER WRIT APPLICATION DENIED AS MOOT; WRIT GRANTED; RELIEF DENIED; REMANDED

SEPTEMBER 28, 2023 PAB DLD KKH

This is a civil dispute arising from an unperfected property title transfer.

Appellants, Eunice Ben (“Ms. Ben”), Derek Russ (“Mr. Russ”), Ernest Jones (“Mr.

Jones”), and ACA Realty, LLC (“ACA”) (collectively, “Appellants”), seek to

appeal the district court’s August 19, 2022 judgment, which purported to grant a

motion for partial summary judgment on liability in favor of Appellee, Perry

Emery (“Mr. Emery”). This appeal has been consolidated with a supervisory writ

application to this Court, filed on behalf of Mr. Emery. The supervisory writ

application asks this Court to exercise supervisory review of the district court’s

October 28, 2022 judgment, which denied Appellants’ exception of prescription as

to Ms. Ben, granted the exception in favor of Mr. Russ, Mr. Jones and ACA,

denied Appellants’ exception of no cause of action as to Ms. Ben and granted that

exception in favor of Mr. Russ, Mr. Jones and ACA. Additionally, Mr. Emery

filed a motion with this Court seeking to sever his supervisory writ application and

dismiss Appellants’ appeal for lack of jurisdiction. For the reasons that follow,

Mr. Emery’s motion to dismiss appeal is granted, and this appeal is dismissed.

1 Mr. Emery’s motion to sever is denied as moot. Mr. Emery’s writ application for

supervisory review is granted for the sole purpose of remanding this matter to the

district court for it to consider Mr. Emery’s timely-filed notice of intent to seek

supervisory writ as a motion for appeal.

FACTUAL AND PROCEDURAL BACKGROUND

In the judgment rendered on October 28, 2022, the district court succinctly

outlined the facts giving rise to the matter now before us. For the sake of

continuity, we have adopted and incorporated much of that recitation.

The events in the case sub judice unfolded as follows:

On May 24, 2004, Mr. Emery and Ms. Ben executed a Bond for Deed with

Mr. Emery as the purchaser and Ms. Ben as the owner of certain immovable

property with a municipal address of 2128 Bartholomew Street New Orleans,

Louisiana 70117 (the “Property”) for the purchase price of $36,533.92. Also on

May 24, 2004, Mr. Emery and Ms. Ben executed a Memorandum of Bond for

Deed with ACA acting as the real estate agent effecting the Bond for Deed and the

Memorandum. On October 9, 2007, Mr. Emery and Ms. Ben executed a Release

of the Bond for Deed for the Property. Mr. Jones acted as the notary before whom

the Release of the Bond for Deed was executed with ACA acting as the real estate

agent effecting the Release of the Bond for Deed.

On November 1, 2007, Mr. Emery and Ms. Ben executed an Act of Cash

Sale for the Property where Mr. Emery paid the sale price to Ms. Ben and Ms. Ben

acknowledged its receipt. Mr. Russ acted as the notary before whom the Act of

Cash Sale was executed, with ACA acting as the real estate agent effecting the

2 same. No party or person recorded the Act of Cash Sale in the Orleans Parish

Conveyance Records. Mr. Emery alleges that sometime in June or July 2012, he

applied for a grant for which approval was contingent upon recordation of the Act

of Cash Sale. Mr. Emery’s grant application was denied as a result of the Act of

Cash Sale not being recorded.

Following the denial of his grant application, Mr. Emery requested that

Appellants record the Act of Cash Sale. Mr. Emery avers that, Appellants, through

Ms. Ben, demanded that Mr. Emery pay an additional $1,100.00 to them to have

the Act of Cash Sale recorded, which he paid soon thereafter. Between August and

December of 2020, Mr. Emery sent three additional correspondences requesting

that Appellants record the Act of Cash Sale. On December 4, 2020, Mr. Emery

filed a petition for relief against Appellants, alleging that he sustained damages as

a result of Appellants’ failure to transfer clear title of the property and to record the

Act of Cash Sale.

On May 23, 2022, Mr. Emery filed a motion for partial summary judgment

on the issue of liability, which was premised on the district court’s judgment that

deemed requests for admissions propounded on the Appellants admitted as true.

The motion for partial summary judgment came for hearing on July 29, 2022. On

August 19, 2022, the district court issued a judgment and written reasons for

judgment, holding that all Appellants were liable to Mr. Emery for damages related

to their failure to record the Act of Cash Sale.

On July 29, 2022, Appellants filed peremptory exceptions of prescription,

peremption and no cause of action, which came for hearing on September 23,

2022. On October 28, 2022, the district court issued a judgment with reasons, in

which it denied the exception of prescription as to Ms. Ben, but granted the

3 exception as to Mr. Russ, Mr. Jones and ACA, dismissing the case against them.

The judgment further denied the exception of no cause of action as to Ms. Ben, but

granted that exception as to Mr. Russ, Mr. Jones and ACA, dismissing the case

against them.

Appellants filed a motion to appeal the August 19, 2022 judgment on the

motion for partial summary judgement. On October 20, 2022. Mr. Emery timely

filed a notice of intent to seek supervisory writ for the October 28, 2022 judgment

on November 7, 2022. This Court, sua sponte, consolidated Mr. Emery’s writ

application for supervisory review with Appellants’ pending appeal. Following, on

March 30, 2023, Mr. Emery filed a motion to sever application for supervisory writ

and to dismiss appeal for lack of jurisdiction.

Before considering the merits of the issues presented to this Court, we must

first determine whether we have jurisdiction to hear the case sub judice. We begin

by discussing Mr. Emery’s motion to dismiss appeal for lack of jurisdiction.

Motion to dismiss appeal for lack of jurisdiction

In support of his motion to dismiss,1 Mr. Emery presents essentially two

arguments: (1) the partial final judgment, which is the subject of the appeal, lacks

the appropriate decretal language necessary to invoke this Court’s jurisdiction; and

(2) the factors that this Court uses to convert non-appealable judgments into

supervisory writs are not extant in this case; therefore this Court should decline to

exercise its jurisdiction. In each instance, we agree.

The judgment at issue in this appeal reads as follows:

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that plaintiffs Motion for Partial Summary Judgment on the issue of

1 The Appellants did not file an opposition to Mr. Emery’s motion.

4 liability is GRANTED in favor of Plaintiff, Perry Emery against Defendants Eunice Ben, Derek Russ, Ernest Jones, and ACA Realty, LLC.

La. C.C.P. art. 1915 provides the procedural directives for the circumstances

now facing this Court. It mandates, in relevant part:

A. 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, when the court: *** (3) Grants a motion for summary judgment, as provided by Articles 966 through 969, but not including a summary judgment granted pursuant to Article 966(E). *** (5) Signs a judgment on the issue of liability when that issue has been tried separately by the court, or when, in a jury trial, the issue of liability has been tried before a jury and the issue of damages is to be tried before a different jury. *** B. (1) When a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands, issues, or theories against a party, whether in an original demand, reconventional demand, cross-claim, third-party claim, or intervention, the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.

(2) In the absence of such a determination and designation, any such order or decision shall not constitute a final judgment for the purpose of an immediate appeal and may be revised at any time prior to rendition of the judgment adjudicating all the claims and the rights and liabilities of all the parties.

This Court previously explained how to apply La. C.C.P. art. 1915 when

faced with the exact scenario we now entertain—an appeal on a partial summary

judgment on the issue of liability:

Here, the motion for partial summary judgment was granted as to the liability of [defendant] for legal malpractice pursuant to Louisiana Code of Civil Procedure article 966(E), leaving only the issue of damages to be tried. Therefore, by virtue of the literal language of Louisiana Code of Civil Procedure article 1915(A)(3), the judgment is not immediately appealable in the absence of a designation of finality pursuant to art. 1915(B). In Crescent City Physicians, Inc. v. Desse,

5 []04-1280 (La. 10/1/04), 883 So.2d 963, the Louisiana Supreme Court reversed this court and dismissed the appeal of a partial summary judgment on the issue of liability. In his concurrence, Chief Justice Calogero noted that La. C.C.P. art. 1915(A)(5) “is not applicable in this case because the issue of liability was not tried separately by the court....’ Instead, the trial court granted a partial summary judgment on the liability issue pursuant to . . . art. 966(E).” Id. (Calogero, C.J., concurring).

Accordingly, we find that absent a designation of finality pursuant to Louisiana Code of Civil Procedure 1915(B), the partial summary judgment rendered by the trial court on the issue of liability is not appealable. Because we lack jurisdiction, we dismiss the instant appeal.

Auto. Experts, LLC v. Joe Johnson, Inc., 17-0664, pp. 2-3 (La. App. 4 Cir.

12/13/17), 234 So.3d 1004, 1005-1006 (quoting Diecidue v. Tittle, 12-0903, pp. 4-

5 (La. App. 4 Cir. 8/14/13), 122 So.3d 1143, 1145-46).

Analogous to the Court’s discussion in Auto. Experts, in the case sub judice,

liability was not tried separately, thereby precluding its automatic designation as a

final appealable judgment under the auspices of La. C.C.P. art. 1915(A)(5). As

such, the mandates of La. C.C.P. art. 1915(B)(1) are applicable. Based on our

review, noticeably absent in the August 19, 2022 judgment is an express

determination that “the judgment is a final appealable judgment and that there is no

just cause for delay.” Rather, this language is only contained in the concluding

sentence in the district court’s reasons for judgment. “It is well-settled that a trial

court’s reasons for judgment are not part of the judgment and that appellate courts

review judgments, not reasons for judgment.” Heard, McElroy & Vestal, L.L.C.,

22-0221, p. 16 (La. App. 4 Cir. 9/21/22), 349 So.3d 663, 673 (citing Bruno v. CDC

Auto Transp., Inc., 19-1065, p. 9 (La. App. 4 Cir. 6/3/20), 302 So.3d 8, n. 11). For

these reasons, we find the August 19, 2022 judgment fails to comply with La.

C.C.P. art. 1915(B)(1) and is a non-appealable judgment.

6 Even assuming, arguendo, that the district court had properly designated the

August 19, 2022 judgment, as this Court noted in Schwarzenberger v. La. State

Univ. Health Scis. Ctr., “[a]nother important requirement for a valid appealable

judgment is that it contain decretal language ‘express[ing] the degree of fault of

each defendant as a percentage.’” Schwarzenberger v. La. State Univ. Health Scis.

Ctr., 18-0812, p. (La. App. 4 Cir. 1/9/19); 263 So.3d 449, 452 (quoting Urquhart

v. Spencer, 15-1354, 15-1355, p. 4 (La. App. 4 Cir. 12/1/16), 204 So.3d 1074,

1077-1078) (internal citations omitted). “A judgment also lacks the necessary

decretal language when it ‘does not set forth any determination as to whether the

defendants are jointly or solidarily liable such that it is unknown what amount each

defendant is obligated to pay.’” Id. Returning again to the August 19, 2022

judgment, we find the judgment to be lacking in either an assignment of any degree

of fault amongst the Appellants, or any indication of how each Appellant is

liable—jointly, solidarily or otherwise. Accordingly, we find that the August 19,

2022 partial summary judgment is not a final appealable judgment. Thus, this

Court lacks jurisdiction to hear this appeal.

“‘When, as here, a non-appealable judgment is appealed, this court has the

discretion to convert the appeal to an application for supervisory writ.’” Chenet v.

Colgate-Palmolive Co., 22-0666, p. 19 (La. App. 4 Cir. 2/1/23), 357 So.3d 479,

492 (quoting Forstall v. City of New Orleans, 17-0414, p. 5 (La. App. 4 Cir.

1/17/18), 238 So.3d 465, 469). However, this Court has consistently declined to

exercise its jurisdiction unless each of two specific circumstances are met: (1) the

motion for appeal has been filed within the thirty-day time period allowed for the

7 filing of an application for supervisory writs under Rule 4-32 of the Uniform Rules,

Courts of Appeal; and (2) when the circumstances indicate that an immediate

decision of the issue sought to be appealed is necessary to ensure fundamental

fairness and judicial efficiency, such as where reversal of the trial court's decision

would terminate the litigation. See, e.g. Reed v. 21st Century Centennial Ins. Co.,

18-1071, p. 2 (La. App. 4 Cir. 4/17/19), 268 So.3d 1273, 1275; Petkovich v.

Franklin Homes, Inc., 21-0448, p. 21 (La. App. 4 Cir. 9/22/22), 349 So.3d 1042,

1058.

In this instance, the notice of signing of judgment for the August 19, 2022

judgment is dated September 9, 2022. The Appellants filed a motion to appeal that

judgment on October 20, 2022, thus, well beyond the thirty-day time period

allowed for applying for supervisory writs. Because it is required that both of the

above-mentioned circumstances be satisfied in order for us to convert this appeal

to a supervisory writ, the failure to satisfy the first leaves us without any authority

to exercise our discretion or jurisdiction.

Motion to sever application for supervisory writ

Based on our foregoing discussion in which we find that dismissal of the

appeal is appropriate, we find the motion to sever to be moot. Therefore, we will

consider the merits of the supervisory writ application separately.

Supervisory writ application

2 Rule 4-3 of the Uniform Rules—Courts of Appeal provides, in pertinent part:

The judge who has been given notice of intention as provided by Rule 4-2 shall immediately set a reasonable return date within which the application shall be filed in the Court of Appeal. The return date in civil cases shall not exceed 30 days from the date of notice of the judgment, as provided in La. C.C.P. art. 1914.

8 Mr. Emery seeks supervisory review of the district court’s October 28, 2022

judgment,3 which granted an exception of prescription as to Mr. Russ, Mr. Jones

and ACA, and further granted an exception of no cause of action to those same

parties, dismissing each from the case. Mr. Emery’s application raises six issues

for our review; however, we find that the first issue presented—that the October

28, 2022 judgment did not contain decretal language—is the only issue pertinent to

our review.

This Court has previously explained that “[f]or a judgment to be ‘a valid

final judgment,’ it must contain ‘decretal language.’” In re Benoit, 17-0802, p. 4

(La. App. 4 Cir. 4/11/18), 244 So.3d 44, 48 (quoting Tsegaye v. City of New

Orleans, 15-0676, p. 3 (La. App. 4 Cir. 12/18/15), 183 So.3d 705, 710). “The

absence of necessary decretal language means that the judgment is not final and

appealable.” Id. “Importantly, for the language of a judgment to be considered

‘decretal,’ it ‘must name the party in favor of whom the ruling is ordered, the party

against whom the ruling is ordered, and the relief that is granted or denied.[’]” Id.

(internal citations omitted) “Established jurisprudence requires that a valid

judgment be precise, definite and certain.” Id. (citing Input/Output Marine v.

Greatbatch Techs., Inc., 10-0477, p. 12 (La. App. 5 Cir. 10/29/10), 52 So.3d 909,

915).

“‘The decree alone indicates the decision. The result decreed must be spelled

out in lucid, unmistakable language. The quality of definiteness is essential to a

3 Mr. Emery filed a notice of intent to seek supervisory writ on October 31, 2022, which the

district court granted and set a return date of December 19, 2022. On November 7, 2022, he filed a motion for extension of time. The district court granted this motion and set a return date for January 31, 2023, citing to Rule 4-3 of the Uniform Rules for its authority to do so. See Barnard v. Barnard, 96-0859 (La. 6/24/96), 675 So.2d 734 and Cutcher-Tufts Corp. v. Coleman, 15-0340 (La. 5/22/15), 170 So.3d 972, (wherein the Supreme Court recognized that the district court has the authority to extend the deadline for filing a supervisory writ under Rule 4-3). .

9 proper judgment.’” Id. (quoting Input/Output Marine, 10–0477, p. 13, 52 So.3d at

916). “‘The specific relief granted should be determinable from the judgment

without reference to an extrinsic source such as pleadings or reasons for

judgment.’” In re Med. Rev. Panel of Hurst, 16-0934, p. 2 (La. App. 4 Cir.

5/3/17), 220 So.3d 121, 124 (quoting Moon v. City of New Orleans, 15–1092, 15-

1093, p. 6 (La. App. 4 Cir. 3/16/16), 190 So.3d 422, 425).

The judgment at issue decreed:

ACCORDINGLY, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the Exception of Prescription is DENIED to Eunice Ben and GRANTED to Derek Russ, Ernest Jones, and ACA Realty, LLC with same being dismissed against Derek Russ, Ernest Jones, and ACA Realty, LLC.

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that for those same reasons provided above the Exception of No Cause of Action is DENIED to Eunice Ben and GRANTED to Derek Russ, Ernest Jones, and ACA Realty, LLC, insofar as the action against Derek Russ, Ernest Jones, and ACA Realty, LLC are prescribed and dismissed.

It is Mr. Emery’s contention that the judgment is unclear, both in its

language, by stating the “same” is “dismissed,” and its specificity as to which of

his eleven stated causes of action relief is being granted or denied. We disagree.

The two decrees issued by the district court, although one may argue the verbiage

is inartful, are unequivocally lucid as to the exceptions, the exceptions of

prescription and no cause of action, and whether each is being granted or denied,

specifically naming each defendant. Furthermore, we find it clear that the district

court is dismissing all claims against Mr. Russ, Mr. Jones and ACA. Louisiana

Code of Civil Procedure article 1915(A)(1) provides that:

A. 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, when the court:

10 (1) Dismisses the suit as to less than all of the parties, defendants, third party plaintiffs, third party defendants, or intervenors.

Applying this article to the case sub judice, wherein three of the four defendants

were dismissed from the suit, we find the October 28, 2022 judgment to be a final,

appealable judgment. Accordingly, the proper method of seeking review by this

Court is through an appeal. Previously in our discussion, we noted the

jurisprudence allowing us to exercise our discretion to convert an attempted appeal

of a non-appealable judgement into an application for supervisory review;

however, our research has not shown the opposite to be true—i.e., we have no

authority to convert an improperly filed application for supervisory review into an

appeal.4

Consequently, we conclude that Mr. Emery’s writ application for

supervisory review by this Court was procedurally improper. Thus, the writ is

granted for the for the sole purpose of remanding this matter to the district court for

it to consider Mr. Emery’s timely-filed notice of intent to seek supervisory writ as

a motion for appeal.

CONCLUSION

For the foregoing reasons, Mr. Emery’s motion to dismiss appeal is granted,

and this appeal is dismissed. Mr. Emery’s motion to sever is denied as moot. Mr.

Emery’s writ application for supervisory review is granted for the sole purpose of

4 The proper procedure for taking an appeal is laid out in the Louisiana Code of Civil Procedure,

Book III, Title I, Chapter 2. La. C.C.P. art. 2121 provides, in pertinent part that “[a]n appeal is taken by obtaining an order therefor, within the delay allowed, from the court which rendered the judgment.” Additionally, there are specific costs associated with the filing of an appeal. See La. C.C.P. art. 2126. After the costs are set by the clerk of the trial court, La. C.C.P. art. 2125 provides, in pertinent part that “[t]he return day of the appeal shall be thirty days from the date estimated costs are paid if there is no testimony to be transcribed and lodged with the record and forty-five days from the date such costs are paid if there is testimony to be transcribed, unless the trial judge fixes a lesser period.”

11 remanding this matter to the district court for it to consider Mr. Emery’s timely-

filed notice of intent to seek supervisory writ as a motion for appeal.

MOTION TO DISMISS APPEAL GRANTED; APPEAL DISMISSED; MOTION TO SEVER WRIT APPLICATION DENIED AS MOOT; WRIT GRANTED; RELIEF DENIED; REMANDED