Tami Jerrie Turnley v. Joseph Chad Turnley

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

NUMBER 2020 CA 0849

TAMI JERRIE TURNLEY

VERSUS

JOSEPH CHAD TURNLEY

Judgment Rendered: APR 2 9 2021

Appealed from the
Family Court
In and for the Parish of East Baton Rouge, Louisiana
Docket Number F209536, Division " A"
Honorable Pamela J. Baker, Judge Presiding

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Lisa L. Boudreaux Counsel for Plaintiff/Appellee,
Baton Rouge, LA Tami Jerrie Turnley

Brian J. Prendergast Counsel for Defendant/AppeIlant,
Baton Rouge, LA Joseph Chad Turnley
and

David M. Prados
New Orleans, LA

BEFORE: WHIPPLE, C.J., WELCH, AND CHUTZ, JJ.

WHIPPLE, C.J.

In this divorce and community partition matter, the husband appeals the trial

court' s April 16, 2020 judgment, which declared a Declaration of Separate

Property with Reservation of Fruits and Revenues to be invalid and unenforceable.

For the following reasons, we dismiss the appeal.

FACTS AND PROCEDURAL HISTORY

On September 5, 2001, two days prior to the parties' marriage, Joseph Chad

Turnley and Tami Jerrie Turnley signed a " Declaration of Separate Property with

Reservation of Fruits and Revenues with Concurrence and Acknowledgement"

the September 5, 2001 Declaration"), through which Mr. Turnley sought to

declare the separate nature of his interest in several corporations as well as all

fruits and revenues that may be derived therefrom. The September 5, 2001

Declaration was signed by a notary public, but was not signed before two

witnesses.

Both Mrs. Turnley and Mr. Turnley subsequently filed petitions for divorce,

with Mrs. Turnley filing her petition on June 9, 2017, and Mr. Turnley filing his

petition on May 9, 2019. By judgment dated July 2, 2019, the parties were

divorced.'

Thereafter, Mrs. Turnley filed a Petition for Partition, in which she averred

that Mr. Turnley' s September 5, 2001 Declaration was invalid in that it was not an

authentic act or an act under private signature duly acknowledged and, further, was

not filed in the conveyance records. Thus, she contended that the fruits and

revenues of Mr. Turnley' s separate property acquired during the community were

community assets to be divided between the parties.

The trial court also signed a Stipulated Judgment on April 17, 2019, which provided, in
part, that " IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that a Judgment shall
issue decreeing a separation of property between the parties retroactive to the date of filing the
Petition for Divorce of June 8, 2017 pursuant to Louisiana Civil Code Article 2374( C)."

2

Given the dispute between the parties as to the classification of the fruits and

revenues of Mr. Turnley' s separate property, Mrs. Turnley filed in these

proceedings a petition for declaratory judgment, seeking a declaration that the

September 5, 2001 Declaration was invalid for lack of conformity with the

requirements of LSA -GC. art. 2339.

Following a hearing on the matter, where evidence and testimony were

taken, the trial court signed the April 16, 2020 judgment, declaring the September

5, 2001 Declaration to be invalid and unenforceable. Mr. Turnley then filed the

instant appeal.z

DISCUSSION

Appellate courts have the duty to examine subject matter jurisdiction sua

sponte, even when the parties do not raise the issue. Nicaud v. Nicaud, 2016- 1531

La. App. 1St Cir. 9/ 15/ 17), 227 So. 3d 329, 330. The appellate jurisdiction of this

court extends to final judgments. See LSA- C. C. P. arts. 1911( B), 1915, & 2083( A).

Pursuant to LSA-C.C.P. art. 1871, a declaratory judgment " shall have the force and

effect of a final judgment or decree." However, LSA- C. C.P. art. 1877 further

provides that "[ a] ll orders, judgments, and decrees under Articles 1871 through

1883 may be reviewed as other orders, judgments, and decrees." A judgment that

only partially determines the merits of the action is a partial final judgment and is

appealable only if authorized by LSA-C. C. P. art. 1915. Boutte v. Meadows, 2013-

1189 ( La. App. 1St Cir. 2/ 18/ 14), 2014 WL 651754, * 3 ( unpublished).

The principal claim at this stage in these proceedings is the claim for

partition of the parties' former community property. The April 16, 2020 judgment

at issue does not partition the former community property, but, instead, merely

2The judgment on appeal also ordered Mr. Tumley to provide Mrs. Tumley an advance of
25, 000.00, with full reservation of all rights to be addressed when the former community
property is partitioned; however, Mr. Tumley seeks review of only the portion of the judgment
declaring the September 5, 2001 Declaration.

3

declares invalid and unenforceable the September 5, 2001 Declaration, through

which Mr. Turnley sought to declare the fruits and revenues of his separate

property accruing during the community to be his separate property. Thus, the

April 16, 2020 judgment on appeal is not determinative of the entirety of the merits

of the claims between the parties, because a community property partition has yet

to be effected. See Tramontin v. Tramontin, 2010- 0060 ( La. App. 1St Cir.

12/ 22/ 10), 53 So. 3d 707, 712. Accordingly, the judgment constitutes a partial

judgment that is appealable only if authorized by LSA- C. C.P. art. 1915. See Fils

v. Allstate Insurance Company, 2015- 0360 ( La. App. 1St Cir. 12/ 23/ 15), 2015 WL

9435273, * 4 ( unpublished); see also St. Pierre v. St. Pierre, 2008- 2475 ( La. App.

I" Cir. 2/ 12/ 10), 35 So. 3d 369, 371- 372, writ not considered, 2010- 0587 ( La.

3/ 17/ 10), 29 So. 3d 1243 ( trial court' s judgment, which simply declared that the

parties operated under a community property regime during their marriage was a

partial judgment, which this court determined was improperly designated as a final

judgment for purposes of immediate appeal pursuant to LSA- C. C. P. art. 1915( B));

see also Tramontin, 53 So. 3d at 709- 712 ( trial court' s judgment, which in part

rescinded a Partition of Community Property Agreement, but which did not re -

partition the former community property of the parties, was a partial judgment,

which this court determined was improperly designated as final for purposes of

immediate appeal pursuant to LSA- C. C. P. art. 1915( B)).

A partial judgment is a final judgment that is immediately appealable if it

falls into one of the categories under LSA-C. C. P. art. 1915( A), including a

judgment that: ( 1) dismisses the suit as to less than all of the parties, defendants,

third party plaintiffs, third party defendants, or intervenors; ( 2) grants a motion for

judgment on the pleadings, as provided by Articles 965, 968, and 969; ( 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); ( 4) determines

M

either the principal or incidental demand, when the two have been tried separately,

as provided by Article 1038; ( 5) determines 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; or ( 6) imposes sanctions or disciplinary action. pursuant to LSA-

C. C.P. arts. 191, 863, or 864 or LSA-C. E. art. 510( G). A partial judgment that is

not included in one of these categories is not a final judgment unless it is properly

designated as " final" by the court after an express determination that there is no

just reason for delay. LSA- C. C. P. arts. 1911( B) & 1915( B); Boutte, 2014 WL

651754 at * 3.

Pursuant to LSA-C. C. P. art. 1915( B)( 1), when a court renders a partial

judgment as to " one or more but less than all of the claims, demands, issues, or

theories" presented in an action, that judgment shall not constitute a final judgment

and, thus, shall not be immediately appealable, " unless it is designated as a final

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

delay." 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 of the claims and the rights and liabilities of the parties. LSA-

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

A review of the April 16, 2020 judgment on appeal demonstrates that it does

not fall into any of the categories of partial final judgments set forth in LSA-C. C.P.

art. 1915( A). Moreover, the judgment on appeal does not contain a designation

that it is final for purposes of immediate appeal pursuant to LSA-C. C.P. art.

1915( B)( 1). Thus, the April 16, 2020 judgment is not a final judgment, and this

court lacks subject matter jurisdiction to review it on appeal. See Joseph v.

Ratcliff, 2010- 1342 ( La. App. 1" Cir. 3/ 25/ 11), 63 So. 3d 220, 224.

5

We also decline to exercise our plenary power of supervisory jurisdiction, as

the merits of the instant case do not meet the criteria set forth by the Louisiana

Supreme Court in Herlitz Constuction Company, Inc. v. Hotel Investors of New

Iberia, Inc., 396 So. 2d 878 ( La. 1981) ( per curiam).

CONCLUSION

For the above and foregoing reasons, the appeal of the trial court' s April 16,

2020 judgment is dismissed. Costs of this appeal are assessed against appellant,

Joseph Chad Turnley.

APPEAL DISMISSED.

0

TAMI JERRIE TURNLEY FIRST CIRCUIT

COURT OF APPEAL
VERSUS
STATE OF LOUISIANA

JOSEPH CHAD TURNLEY NO. 2020 CA 0849

CH Z9 J., dissenting.
g

I respectfully dissent from the dismissal of this appeal on jurisdictional grounds

without a review of the merits. The majority correctly notes that this court lacks

appellate jurisdiction to review the judgment at issue because it is a partial judgment

that does not fall into any of the categories of immediately appealable partial final

judgments delineated in La. C. C. P. art. 1915( A) and it lacks a certification of finality

under La. C. C. P. art. 1915( B). Nevertheless, the judgment declaring the " Declaration

of Separate Property with Reservation of Fruits and Revenues" ( the Declaration)

entered into by the parties to be invalid involves an issue crucial to the partition of the

community property belonging to the parties. In the interests of judicial efficiency

and economy, I believe this court should exercise its discretion to convert this matter

to an application for a supervisory writ and review the judgment pursuant to our

supervisory jurisdiction, particularly since the result reached by the trial court is

arguably incorrect. To do otherwise risks a potential waste of the time and expense

incurred by the trial court in partitioning the community property based upon its

arguably incorrect determination that the Declaration is invalid.