Tri-State Oil Company, Inc. v. Ditcharo's La. Wild Caught Shrimp, L.L.C.

TRI-STATE OIL COMPANY, * NO. 2020-CA-0076
INC.
*
VERSUS COURT OF APPEAL
*
DITCHARO'S LA. WILD FOURTH CIRCUIT
CAUGHT SHRIMP, L.L.C. *
STATE OF LOUISIANA
*******

CONSOLIDATED WITH:

NO. 2020-CA-0077

APPEAL FROM
25TH JDC, PARISH OF PLAQUEMINES
NO. 64-190, DIVISION “B”
Honorable Michael D. Clement,
******
Judge Daniel L. Dysart
******
(Court composed of Chief Judge James F. McKay, III, Judge Roland L. Belsome,
Judge Daniel L. Dysart)

Francis J. Lobrano
David F. Waguespack
Megan Grantham
CARVER DARDEN KORETZKY TESSIER FINN BLOSSMAN & AREAUX,
LLC
147 Keating Drive
Belle Chasse, LA 70037
COUNSEL FOR PLAINTIFF/APPELLANT

Leo J. Palazzo
Jason J. Markey
Mario A. Arteaga, Jr.
PALAZZO LAW FIRM, APLC
732 Behrman Highway, Suite F & G
Gretna, LA 70056
COUNSEL FOR DEFENDANT/APPELLEE

APPEAL DISMISSED

APRIL 15, 2020

Plaintiff/appellant, Tri-State Oil Company, Inc., appeals the grant of a partial
DLD
JFM
summary judgment in favor of Defendants/Appellees, Ditcharo’s LA Wild Caught
RLB
Shrimp, L.L.C., D. Ditcharo Jr. Seafoods, L.L.C., Derek Ditcharo, and Dominick

Ditcharo (collectively sometimes referred to as “the Ditcharos”).

After the appeal was lodged, this Court issued an Order to the parties to

show cause as to why the appeal should not be dismissed because there is no right

to appeal a partial summary judgment. Tri-State responded to the Order, noting

that the trial court’s judgment improperly identified Ditcharos’ motion as a motion

for partial summary judgment. While the trial court may have inadvertently

referenced a partial summary judgment in its judgment, the judgment at issue did

not dispose of all issues raised by the Ditcharos, is not designated a final,

appealable judgment, and does not contain sufficient decretal language to be

considered final. Accordingly, and as will be discussed more fully herein, we

dismiss this appeal.

FACTUAL BACKGROUND

Tri-State filed suit against Ditcharo’s Wild Caught Shrimp in 2018, seeking

sums allegedly due on an open account, as well as attorney’s fees and costs.

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Ditcharo’s LA Wild Caught Shrimp answered the suit and filed a reconventional

demand against Tri-State. The reconventional demand sought damages from Tri-

State, including a refund “of any and all overpayments made to” Tri-State, as well

as attorney’s fees, treble damages, and costs. The suit was thereafter consolidated

with a suit previously filed by Tri-State against D. Ditcharo Jr. Seafoods, L.L.C.,

Derek Ditcharo, and Dominick Ditcharo.

On April 18, 2018, Tri-State filed Combined Motions for Summary

Judgment seeking a determination that the Ditcharos owed the sums on the open

account, and that Tri-State was entitled to statutory attorney’s fees and costs. The

Ditcharos opposed the Tri-State’s motion and filed a cross motion for summary

judgment, arguing that Tri-State knowingly and intentionally misrepresented the

amount of fuel it delivered and sold to the Ditcharos since 1992, and asserting

various theories of recovery against Tri-State. In their cross-motion, the Ditcharos

sought a finding that: (1) “[t]he custom in Louisiana, as in all southern states, is

that bulk fuel be sold on the basis of net gallons, not gross gallons”; (2) “Tri-State

violated this custom and the law of Louisiana when it billed the Ditcharos for gross

gallons of fuel and delivered only net gallons of fuel;” and (3) “[t]he Ditcharos

have been harmed by this practice, and have suffered damages as a result.” They

also requested additional time to conduct discovery to “calculate and bring to the

Court’s attention the amount of financial damages [they] have sustained over the

last twenty-five (25) years, estimated to be in the millions of dollars.”

A hearing on the motions for summary judgment was held on August 9,

2018. By judgment dated August 29, 2018, the trial court denied Tri-State’s

motion for summary judgment and granted the Ditcharos’ motion for summary

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judgment. As previously noted, the trial court’s judgment refers to the Ditcharos’

motion as a “motion for partial summary judgment.”

On September 10, 2018, Tri-State filed a Motion for New Trial, or

Alternatively, for Clarification of Judgment, insofar as the judgment “does not

provide what relief was granted without reference to other documents, which is

improper under Louisiana law.” On September 13, 2019, the trial court denied the

motion for new trial.

Tri-State then filed an application for an application for a writ of supervisory

review with this Court seeking a reversal of the denial of its motion for summary

judgment on June 28, 2019. This Court denied the writ application on July 9,

2019. Tri-State Oil Co. v. Ditcharo’s LA Wild Caught Shrimp, et al., 19-0569

(unpub.)(La. App. 4 Cir. 7/19/19).

Tri-State then appealed the August 29, 2018 judgment, granting the

Ditcharos’ summary judgment, on October 11, 2019.

DISCUSSION

As this Court noted in its February 10, 2020 Order to show cause why this

appeal should not be dismissed, an appellate court has a duty to determine, sua

sponte, whether the court has proper jurisdiction to consider the merits of an appeal

filed in the court. Schwarzenberger v. Louisiana State Univ. Health Scis. Ctr.-New

Orleans, 18-0812, p.2 (La. App. 4 Cir. 1/9/19), 263 So.3d 449, 451-452. An

appellate court cannot reach the merits of an appeal unless its jurisdiction has been

properly invoked by a valid final judgment. Id., p.2, 263 So.3d at 452. “When a

court renders a . . . partial summary judgment . . . as to one or more but less than

all of the claims, demands, issues, or theories against a party, . . . the

judgment shall not constitute a final judgment unless it is designated as a final

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judgment by the court after an express determination that there is no just reason for

delay.” La. C.C.P. art. 1915(B)(1). When a judgment lacks such a 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.”

La. C.C.P. art. 1915(B)(2).

Tri-State notes in its Response to this Court’s Order that the Ditcharo’s

motion was not titled a motion for partial summary judgment. However, it is clear

that the motion did not seek a resolution of all issues raised by the Ditcharos. The

Ditcharos’ reconventional demand seeks damages, and their motion for summary

judgment expressly requests additional time to conduct discovery on the issue of

damages. As such, although the Ditcharos entitled their pleading as a cross-motion

for summary judgment, it is clear that they were seeking only a partial summary

judgment. See Joseph v. Wasserman, 15-1193, p. 6 n.3 (La. App. 4 Cir. 5/4/16),

194 So.3d 720, 725 (“it is the substance rather than the caption of a pleading that

determines its effect.”)(quoting Brown v. Harrel, 98-2931, p. 4 La. App. 4 Cir.

8/23/00), 774 So.2d 225, 228).

The grant of a partial summary judgment is not a final judgment unless it has

been so designated pursuant to La. C.C.P. art. 1915 B, which provides, in pertinent

part:

(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.

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(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.

Here, the trial court did not designate the judgment as final, nor did it find

“no just reason for delay;” it is, therefore, not an appealable judgment. See

Quarter Holdings, LLC v. Bufkin, 17-0671 (La. App. 4 Cir. 2/21/18), 238 So.3d

525; Alden v. Lorning, 02-1668 (La. App. 4 Cir. 3/5/03), 842 So.2d 428; Nalty v.

D.H. Holmes Co., 99-2826 (La. App. 4 Cir. 12/27/00), 775 So.2d 695.

We also find that the judgment lacks sufficient decretal language for it to be

considered a final judgment. “In addition to requiring that a judgment be precise,

definite, and certain, the jurisprudence has required that a valid final judgment be

self-contained; stated otherwise, ‘[o]ne must be able to determine from the

judgment itself—without any reference to an extrinsic source—the specific relief

granted.’” Lewis v. B-3 Prop., 18-0428, p. 2 (La. App. 4 Cir. 10/24/18), 258 So.3d

107, 109 (Citation omitted). Moreover, a “judgment that simply states that a . . .

motion for summary judgment is granted, is defective and cannot be considered a

final judgment.” Id., p. 3, 258 So.3d 107, 109 (Citation omitted).

Here, the trial court’s judgment simply states:

IT IS FURTHER ORDERED, ADJUDGED AND
DECREED that the Motion for Partial Summary
Judgment filed by Ditcharo’s Wild Caught Shrimp,
L.L.C., D. Ditcharo Jr. Seafoods, L.L.C., Derek Ditcharo,
and Dominick Ditcharo, III is GRANTED.

It is clear that the judgment does not have sufficient decretal language to

satisfy the requirements of a final, appealable judgment. It does not specify the

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relief sought and can only be understood by reference to extrinsic documents. For

this additional reason, the judgment is not appealable.

As we noted in Lewis, “[u]nder certain circumstances, this Court has

exercised its discretion to convert ‘appeals’ of non-appealable judgments to

applications for supervisory writs in those cases in which the motions for appeal

were filed within the thirty-day period allowed for the filing of applications for

supervisory writs.” Id., p. 5, 258 So.3d at 111. Here, the judgment granting the

partial summary judgment was rendered on August 29, 2018 and the motion for

appeal was not filed until October 11, 2019, long after the deadline for applying for

a supervisory writ.

We note, too, that the period for applying for a supervisory writ was not

extended by Tri-State’s filing of a motion for new trial on September 28, 2018.

While the trial court did not rule on the motion for new trial until September 10,

2019, our jurisprudence is well-settled that a motion for new trial does not suspend

the period for applying for a supervisory writ of review. See Llopis v. State, 16-

0041, p. 5 (La. App. 4 Cir. 12/14/16), 206 So.3d 1066, 1069, writ denied sub nom.

Llopis v. State Dep't of Health & Hosps./ Louisiana State Bd. of Dentistry, 17-0202

(La. 3/24/17), 217 So.3d 355 (where a “judgment . . . is a non-final partial

summary judgment, not appealable under the provisions of La. C.C.P. Art. 1915[,]

the filing of a motion for new trial seeking reconsideration of an interlocutory

judgment cannot interrupt the 30–day period for filing an application for

supervisory writs established by Rule 4–3 of the Uniform Rules–Courts of

Appeal.”)(quoting Carter v. Rhea, 01-0234, p. 5 (La. App. 4 Cir. 4/25/01), 785

So.2d 1022, 1025.

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Accordingly, we decline to exercise our supervisory jurisdiction and convert

the appeal to an application for a supervisory writ.

CONCLUSION

For the foregoing reasons, the appeal by Tri-State Oil Company, Inc. of the

partial summary judgment rendered in August 29, 2018 is hereby dismissed.

APPEAL DISMISSED.

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