Project Build a Future and Habitat for Humanity: Calcasieu Area, Inc. v. Block Builders, LLC

• Court: Louisiana Court of Appeal
• Decided: November 9, 2011
• Docket: CM-0011-1259
• Status: Unknown

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

CM 11-1259

PROJECT BUILD A FUTURE, ET AL.

VERSUS

BLOCK BUILDERS, L.L.C., ET AL.

**********

APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 2010-5335 HONORABLE CLAYTON DAVIS, DISTRICT JUDGE

SYLVIA R. COOKS

JUDGE

Court composed of Sylvia R. Cooks, John D. Saunders, and James T. Genovese, Judges.

MOTION TO DISMISS UNLODGED SUSPENSIVE APPEAL DENIED.

Philip Anthony Franco Christopher J. Kane Adams and Reese 701 Poydras Street, Ste 4500 New Orleans, LA 70139 (504) 581-3234 COUNSEL FOR DEFENDANT/APPELLEE: Michael Sullivan

Leonard Knapp, Jr. Attorney at Law Post Office Box 1665 Lake Charles, LA 70602 (337) 439-1700 COUNSEL FOR PLAINTIFFS/APPELLEES: Project Build A Future, Inc. Habitat For Humanity: CalcasieuArea, Inc. Charles V. Musso, Jr. Plauche, Smith & Nieset Post Office Box 1705 Lake Charles, LA 70602 (337) 436-0522 COUNSEL FOR DEFENDANT/APPELLEE: Best Buy Carpets and Flooring, Inc.

Thomas Allen Filo Michael Kevin Cox Cox, Cox, & Filo 723 Broad Street Lake Charles, LA 70601 (337) 436-6611 COUNSEL FOR PLAINTIFFS/APPELLEES: Habitat For Humanity: CalcasieuArea, Inc. Project Build A Future, Inc.

Scott Edward Frazier Kracht & Frazier 5149 Bluebonnet Blvd. Baton Rouge, LA 70809-3076 (225) 293-4568 COUNSEL FOR DEFENDANT APPELLANT: Block Builders, LLC

Mark Reese Pharr, III Galloway, Johnson, et al 4021 Ambassador Caffery, #175 Lafayette, LA 70503 (337) 735-1760 COUNSEL FOR DEFENDANT APPELLEE: Court Street Engineering, P.C.

David Allen Lowe Attorney at Law 5555 Hilton Ave., Suite 205 Baton Rouge, LA 70808 (225) 364-3600 COUNSEL FOR DEFENDANT/APPELLEE: Advanced Insulation Systems, LLC

Carlton Jones, III K. Scott Kirkpatrick Roedel, Parsons, Koch, Frost 8440 Jefferson Hwy, #301 Baton Rouge, LA 70809 (225) 929-7033 COUNSEL FOR DEFENDANT/APPELLEE: Cypress Realty Partners, LLC COOKS, Judge.

The Plaintiffs-Appellees, Project Build a Future and Habitat for Humanity:

Calcasieu Area, Inc., move to dismiss this unlodged suspensive appeal and convert to

a devolutive appeal, on the ground that the appeal was not timely obtained. For the

reasons given herein, we deny the motion.

The Plaintiffs filed suit against various Defendants relating to the “Katrina

Cottages” built in Lake Charles, alleging defective construction and drainage in the

subdivision. Following a failed mediation, the Plaintiffs obtained a preliminary

default and confirmed the default judgment in the amount of $574,701.02 plus

attorneys’ fees. The Defendant, Block Builders, L.L.C., filed a motion for new trial

and/or to annul the judgment. Following a hearing on the motion, the trial court took

the matter under advisement. On June 20, 2011, the trial court signed and issued

“Written Reasons for Judgment” denying the motion for new trial and/or to annul

judgment. The trial court’s ruling stated that the motion is denied and further

instructed counsel for Plaintiffs to prepare a judgment in conformity with the ruling.

Notice of the ruling was mailed on June 20, 2011. On July 12, 2011, the trial court

signed the subsequent judgment ordering that the motion for new trial and/or to annul

judgment is denied. Notice of mailing of judgment was sent on July 19, 2011. The

Defendant filed its motion and order for appeal, and the order granting a suspensive

appeal was signed by the trial court on August 16, 2011.

In the Plaintiffs’ motion to dismiss the Defendant’s unlodged suspensive appeal

and convert to devolutive appeal, they contend that the motion for appeal was

untimely filed pursuant to La.Code Civ.P. art. 2123. The Plaintiffs claim that the

appeal delays in this case began from the mailing of the trial court’s refusal to grant

the new trial, specifically the June 20, 2011, ruling denying the motion for new trial.

However, we find that the trial court’s June 20, 2011, ruling titled “Written Reasons

for Judgment” did not constitute the trial court’s judgment denying the motion for new trial and/or to annul judgment. See Miller v. ConAgra, Inc., 06-653 (La.App. 3

Cir. 7/19/06), 935 So.2d 388, writs denied, 06-1994 and 06-2247 (La.11/9/06), 941

So.2d 43. Just as in the Miller case, although the trial court’s written reasons included

a provision that the motion for new trial was denied, this action was not sufficient to

trigger appeal delays. In Miller, 935 So.2d at 389, this court stated: “Pursuant to

La.Code Civ.P. art. 1914, the denial of a motion for new trial must be accomplished

through a written judgment and notice thereof sent by the clerk.” More specifically,

this court stated in Egle v. Egle, 05-531 (La.App. 3 Cir. 2/8/06), 923 So.2d 780, 783:

"[a] final judgment shall be identified as such by appropriate language." La.Code Civ.P. art.1918. "A valid judgment must be precise, definite and certain." Jenkins v. Recovery Tech. Investors, 02-1788, p. 3 (La.App. 1 Cir. 6/27/03), 858 So.2d 598, 600.

In the facts of the instant case, although the trial court’s written reasons for

ruling included a statement that the motion was denied, the ruling also instructed

counsel for Plaintiffs to prepare a judgment in conformity with the ruling. Therefore,

we find that the Defendant properly relied on the trial court’s statement in its written

reasons that a written judgment would be forthcoming. Because it is well settled that

appeals are favored in Louisiana, an appeal must be maintained whenever possible

and not dismissed for technicalities. Parfait v. Transocean Offshore, Inc., 07-1915 (La.

3/14/08), 980 So.2d 634, and Hannie v. Guidry, 10-216 (La.App. 3 Cir. 10/6/10), 48

So.3d 396.

In the case sub judice, the suspensive appeal delays began to run from the

mailing of the notice of the trial court’s July 12, 2011, judgment denying the motion.

The notice was mailed on July 19, 2011, and the Defendant timely filed its motion and

order for suspensive appeal on August 16, 2011. Accordingly, we deny the motion to

dismiss this unlodged suspensive appeal and convert to devolutive.

2 MOTION TO DISMISS UNLODGED SUSPENSIVE APPEAL DENIED.

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION. Rule 2-16.3 Uniform Rules, Court of Appeal.