Robert C. Lehman v. Tommy Benasco and Benasco Construction LLC

• Court: Louisiana Court of Appeal
• Decided: February 26, 2020
• Docket: 2019CA0779
• Status: Unknown

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2019 CA 0779

ROBERT C. LEHMAN

VERSUS

TOMMY BENASCO AND BENASCO CONSTRUCTION, LLC

Judgment Rendered FEB 2 6 2020

APPEALED FROM THE TWENTY-SECOND JUDICIAL DISTRICT COURT, IN AND FOR THE PARISH OF ST. TAMMANY STATE OF LOUISIANA DOCKET NUMBER 2011- 13533, DIVISION " C"

HONORABLE RICHARD SWARTZ, JUDGE

Robert C. Lehman Plaintiff/Appellant Mandeville, Louisiana Pro -Se

Julie M. Knight Attorney for Defendant/Appellee Covington, Louisiana Tommy Benasco

BEFORE: McDONALD, THERIOT, and CHUTZ, JJ. McDonald, J.

This is an appeal from a trial court judgment denying a motion to award

additional attorney fees, and finding exceptions of prescription and improper use of

summary proceedings moot in light of its ruling on the motion. After review, we

dismiss the appeal, and remand the matter for a final judgment.

FACTS AND PROCEDURAL HISTORY

Tommy Benasco hired attorney Robert C. Lehman to provide legal services

in connection with claims Mr. Benasco made against his homeowner' s insurer for

storm damage. The case settled. Afterward, Mr. Lehman maintained that he never

received full payment from Mr. Benasco for his legal services pursuant to the

parties' contingency fee contract.

Mr. Benasco eventually provided Mr. Lehman with a promissory note for

30, 035. 00, which provided for monthly payments of $ 1, 776. 24. Mr. Benasco

paid the first monthly installment, but the second installment check was returned

for insufficient funds and no further payments were made.

Mr. Lehman then filed suit against Mr. Benasco for payment of the

outstanding balance owed on the promissory note.' The trial court ultimately

signed a judgment in favor of Mr. Lehman on October 26, 2011, awarding him

30, 035. 00, less a payment of $1, 776.24, plus interest, costs, and attorney fees in

the amount of 25 percent of the amount owed.

On October 14, 2015, Mr. Lehman filed a motion for an award of additional

attorney fees.' In his motion, Mr. Lehman averred that after the judgment was

rendered, Mr. Benasco and his wife, Joanne Benasco, filed for Chapter 7

bankruptcy protection and sought to have the debt discharged in bankruptcy. Mr.

Benasco Construction, LLC was also named as a defendant but was later dismissed from the suit. 2 While Mr. Lehman captioned his pleading as a " motion," it was more in the nature of a rule to show cause, as authorized by La. R.S. 9: 2781( F). 2 Lehman avers that he was required to spend an extensive amount of time on the

bankruptcy litigation and engage the services of an attorney specializing in

bankruptcy, and that he incurred substantial attorney fees.

In response, Mr. Benasco opposed Mr. Lehman' s motion seeking additional

attorney fees, and filed exceptions raising objections of prescription and improper

use of summary proceedings. After a hearing, the trial court determined that there

was no statute authorizing Mr. Lehman to seek postjudgment attorney fees and

costs incurred in enforcing the judgment. The trial court signed a judgment on

October 11, 2018, denying the motion for additional attorney fees, and ruling that

the exceptions of prescription and improper use of summary proceedings were

moot in light of the denial of the motion for additional attorney fees. Mr. Lehman

has appealed that judgment.

This court issued a show cause order on July 22, 2019, noting that the

judgment does not appear to be a final, appealable ruling. A final judgment must

be precise, definite, and certain. Advanced Leveling & Concrete Solutions v.

Lathan Company, Inc., 2017- 1250 ( La. App. 1 Cir. 12/ 20/ 18), 268 So. 3d 1044,

1046 ( en banc). Moreover, a final appealable judgment must contain decretal

language, and 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.

A judgment that does not contain decretal language cannot be considered as

a final judgment for the purpose of an immediate appeal, and this court lacks

jurisdiction to review such a judgment. Johnson v. Mount Pilgrim Baptist

Church, 2005- 0337 ( La. App. 1 Cir. 3/ 24/ 06), 934 So. 2d 66, 67.

The October 11, 2018 judgment denies a motion for additional attorney fees

filed by Mr. Lehman, and it pretermits consideration of the exceptions of

3 prescription and improper use of summary proceedings filed by Mr. Benasco as

moot. However, the judgment does not indicate that it dismisses all of Mr.

Lehman' s claims or whether a La. C. C. P. art. 1915( B) designation was necessary.

While Mr. Lehman' s contention may be correct that the judgment was final and

disposed of all of the claims in this case, the judgment at issue does not provide as

such, rather, one must consider extrinsic sources in order to make that

determination. The specific relief granted should be determinable from the

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

judgment. State by and through Caldwell v. Teva Pharmaceuticals Industries,

Ltd., 2017- 0448 ( La. App. 1 Cir. 2/ 8/ 18), 242 So. 3d 597, 602. Therefore, in the

absence of either appropriate decretal language dismissing the appellant' s claims in

their entirety or a La. C. C. P. art. 1915( B) designation, the October 11, 2018

judgment is defective and cannot be considered a final judgment for purposes of

appeal. Thus, this court lacks appellate jurisdiction to review this matter, and we

must dismiss this appeal .3 See Thompson v. Cenac Towing Co., L.L.C., 2018-

1282 ( La. App. 1 Cir. 4/ 12/ 19), 2019 WL 1578170, * 2 ( unpublished).

DECREE

For the foregoing reasons, the appeal is dismissed. The matter is remanded

to the trial court for a final judgment. The costs of this appeal are assessed against

Robert C. Lehman.

APPEAL DISMISSED; REMANDED.

3 The motion for appeal was not filed within the thirty -day delay for seeking a writ application. See Uniform Rules -Courts of Appeal, Rule 4. 3. The notice of judgment was mailed on October 16, 2018. The motion for appeal was not filed until December 11, 2018. ( R.p. 147) As such, this court will not convert the appeal to a writ application. See Matter of Succession of Porche, 2016- 0538 ( La. App. 1 Cir. 2/ 17/ 17), 213 So. 3d 401, 406, n. 2. 4