Russ Builders, L.L.C. v. Holy Family Limited Partnership

• Court: Louisiana Court of Appeal
• Decided: March 31, 2021
• Docket: CA-0021-0044
• Status: Unknown

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

CA 21-44

RUSS BUILDERS, L.L.C.

VERSUS

HOLY FAMILY LIMITED PARTNERSHIP

**********

APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. 20170222 HONORABLE DAVID MICHAEL SMITH, DISTRICT JUDGE

CANDYCE G. PERRET

JUDGE

Court composed of Billy H. Ezell, Candyce G. Perret and Sharon D. Wilson, Judges.

APPEAL DISMISSED. APPELLANT PERMITTED TO FILE APPLICATION FOR SUPERVISORY WRITS. Michael Dean Hebert James Paul Doherty, III Katherine E. Currie Becker & Hebert, L.L.C. 201 Rue Beauregard Lafayette, LA 70508 (337) 233-1987 COUNSEL FOR DEFENDANT/APPELLANT: Holy Family Limited Partnership

Troy Allen Broussard Allen & Gooch Post Office Box 81129 Lafayette, LA 70598-1129 (337) 291-1000 COUNSEL FOR DEFENDANT/APPELLANT: Holy Family Limited Partnership

Tyler Graham Storms Attorney at Law 941 North Trenton Street Ruston, LA 71270 (318) 255-7805 COUNSEL FOR PLAINTIFF/APPELLEE: Russ Builders, L.L.C.

Mary Anne Wolf Keogh Cox 701 Main Street Baton Rouge, LA 70802 (225) 383-3796 COUNSEL FOR THIRD PARTY APPELLEE: Continental Casualty Company Ardoin Architecture S. Brodie Ardoin PERRET, Judge.

On February 1, 2021, this court issued a rule ordering Defendant-Appellant,

Holy Family Limited Partnership (Holy Family), to show cause, by brief only, why

the instant appeal should not be dismissed for having been taken from a non-

appealable, interlocutory ruling. For the reasons discussed herein, we dismiss the

appeal.

In this appeal, Holy Family seeks review of the denial of a declaratory

judgment. The underlying litigation involves a contractual dispute arising from a

construction contract between Russ Builders, L.L.C. (Russ Builders), Plaintiff-

Appellee, and Holy Family. Prior to filing its Petition for amounts due under the

contract, Russ Builders filed a “Statement of Claim and Privilege” under the

Louisiana Private Works Act, purporting to encumber the property upon which the

project was taking place. Holy Family subsequently filed a “substitution of Bond

for Lien”, securing the cancellation of Russ Builders’ lien and substituting a bond

in its place. Holy Family has paid the annual premium on the bond since the

inception of the bond.

Since the filing of Russ Builders’ Petition, Holy Family filed a Motion for

Declaratory Judgment, seeking a declaration or decree that maintenance of the

bond is unnecessary, such that the bond may be released or cancelled. The motion

was denied and designated as a final, appealable judgment pursuant to La.Code

Civ.P. arts. 1871, 1911, and 1915(B). Holy Family filed the instant appeal.

A rule to show cause why the appeal should not be dismissed as having been

taken from a non-appealable interlocutory judgment, citing Walker v. State, 09-973

(La.App. 4 Cir. 10/21/09), 26 So.3d 782. In Walker, the court held:

The June 2, 2008, judgment denying a declaratory judgment is neither a final judgment nor a partial final judgment. La. C.C.P. arts. 1841, 1877 and 1915. No relief was granted to any party and the plaintiff's suit was not dismissed as to any party; there is no dispositive language in the decree. Therefore, it is an interlocutory judgment. La. C.C.P. art. 1841. Article 2083 C provides that “[a]n interlocutory judgment is appealable only when expressly provided by law.” We have been cited no law which would allow an appeal from this interlocutory judgment. Cf., e.g., La. C.C.P. art. 3612 B. Accordingly, because this is not an appealable judgment, we dismiss Mr. Walker's appeal of the judgment of June 2, 2008, and remand the matter to the district court for further proceedings.

Id. at 784.

In response to the rule to show cause, Holy Family argues that “A

declaratory judgment has the force and effect of a final judgment or decree and

may be reviewed as other orders, judgments, and decrees.” La.Code Civ.P. arts

1871 and 1877. Further, Holy Family maintains that a declaratory judgment is

appealable as a final judgment, citing Moody v. United National Insurance Co., 95-

1 (La.App. 5 Cir. 5/10/95), 657 So.2d 236, writ denied, 95-2063, 95-2085 (La.

11/17/95), 663 So.2d 713. In Moody, after determining that the ruling at issue was

a declaratory judgment, the court stated, “A declaratory judgment has the force and

effect of a final judgment or decree, La.Code Civ. P. art. 1871, and therefore it is

appealable. La.Code Civ. P. art. 1877; Fisher–Rabin Med. Ctr. v. Burdick

Corp., 525 So.2d 1178, 1180 (La.App. 5th Cir.1988).” Id. at 241.

Holy Family also cites Lantz v. Campbell, 376 So.2d 631, 632 (La.App. 3

Cir. 1979), wherein this court explained:

It is apparent from the Code of Civil Procedure that a declaratory judgment is a final judgment, not an interlocutory decree. Since a declaratory judgment is not an interlocutory decree, one need not show irreparable harm to have the right to appeal. The appellees' contention that the declaratory judgment is an interlocutory decree, not subject to appeal, is without merit. Next, Holy Family asserts that a judgment that only partially determines the

merits of an action is a partial final judgment and, as such, is appealable only if

authorized by La.Code Civ.P. art. 1915. A partial judgment not included in one of

2 the categories set forth in La.Code Civ.P. 1915(A) is not a final judgment for

purposes of immediate appeal unless it is properly designated that there is no just

reason for delay.

Regarding the decision in Walker, 26 So.3d 782, Holy Family urges that the

decision was erroneously decided and/or is distinguishable from the instant case.

Holy Family points out that the Walker court failed to make any mention of

La.Code Civ.P. art. 1871, which provides that declaratory judgments “shall have

the force and effect of a final judgment or decree.” Holy Family concludes that by

virtue of Article 1871, a declaratory judgment is by definition a judgment that

determines the merits at least in part and is not merely determining preliminary

matters. Holy Family adds that the Walker court noted in footnote 2 that the trial

court did not expressly designate the judgment as a partial final judgment subject

to immediate appeal as provided in Articles 1911 and 1915(B).

In reply/opposition to Holy Family’s brief, Russ Builders argues that the

Walker decision is exactly on point in this matter. Further, Russ Builders urges

that Holy Family does not distinguish the “grant” of a declaratory judgment from a

“denial.” The request for a declaratory judgment, Russ Builders concludes, was

denied and therefore it is an interlocutory judgment which is non-appealable

according to Walker.

We note that in Delta Administrative Services, LLC v. Limousine Livery, Ltd.,

15-110, p. 6 (La.App. 4 Cir. 6/17/15), 216 So.3d 906, 910, the fourth circuit

followed its decision in Walker:

A judgment denying a declaratory judgment is an interlocutory judgment. Walker v. State, 09-0973, p. 2 (La.App. 4 Cir. 10/21/09), 26 So.3d 782, 784 (holding that a ‘judgment denying a declaratory judgment is neither a final judgment nor a partial final judgment.’).”

3 Also, in Hood Partners, LLC v. Davidge, 19-1150, p. 2 (La.App. 1 Cir. 5/11/20),

303 So.3d 349, 350, the first circuit relied on Walker:

Our review of the June 11, 2019 judgment denying Hood's petition for declaratory judgment without dismissing the lawsuit or designating the judgment as final, reveals that it is neither a final judgment nor a partial final judgment. La. Code Civ. P. arts. 1841, 1911, and 1915. No relief was granted to any party and the suit was not dismissed as to any party. There is no dispositive language in the decree. Therefore, it is an interlocutory judgment. La. Code Civ. P. art. 1841. An interlocutory judgment is appealable only when expressly provided by law. La. Code Civ. P. art. 2083(C). There is no law that would allow an appeal of this particular interlocutory judgment. See Walker v. State, 2009-0973 (La.App. 4th Cir. 10/21/09), 26 So.3d 782, 784.

Likewise, we find that the judgment herein, a declaratory judgment, is

an interlocutory ruling that is neither a final judgment nor a partial final

judgment. Further, an interlocutory ruling cannot be designated as an

appealable ruling. See Cole v. Sabine Bancshares, Inc., 16-796 (La.App. 3

Cir. 11/16/16), 205 So.3d 995. “Although the trial court designated the

judgment as a final judgment, an appellate court is not bound by such

designation. See Mitchell Co. v. Mucavil, Inc., 02–381 (La.App. 3 Cir.

10/1/03), 855 So.2d 426.” A&B Valve and Piping Systems, L.L.C., v.

Commercial Metals Co., 09-1535, p. 4 (La.App. 3 Cir. 1/27/10), 28 So.3d

1202, 1205.

The judgment at issue was signed on September 14, 2020. Notice of

judgment was issued on September 21, 2020. Holy Family filed its motion to

appeal on September 24, 2020, within the thirty-day period allowed for the filing

of an application for supervisory writs. Uniform Rules—Courts of Appeal, Rule 4-

3. In the interest of justice, this court may permit a party to file a writ application

when a motion for appeal is filed within thirty days of the trial court’s ruling. Rain

CII Carbon, LLC v. Turner Industries Group, LLC, 14-121 (La.App. 3 Cir.

4 3/119/14), 161 So.3d 688. Accordingly, we exercise our discretion and construe

the petition for appeal as a notice of intent to file for supervisory writs. The

devolutive appeal in docket number 21-44 is hereby dismissed, and Holy Family is

given until April 30, 2021, to file a properly documented application for

supervisory writs pursuant to Uniform Rules—Courts of Appeal, Rule 4-5.

APPEAL DISMISSED. APPELLANTS PERMITTED TO FILE APPLICATION FOR SUPERVISORY WRITS.

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