Linda LaRocca, Broker/Operating Partner of Keller Williams Realty Services v. Jeffrey E. Elliot Jr, Jason Lambert and Casey Lambert

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2022 CA 0764

LINDA LAROCCA, BROKER/OPERATING PARTNER OF
KELLER WILLIAMS REALTY SERVICES

VERSUS

JEFFREY E. ELLIOT, JR., JASON LAMBERT and CASEY
LAMBERT
C' j MAR 2 9 2073
Judgment Rendered:

On Appeal from the 21st Judicial District Court
In and for the Parish of Tangipahoa
State of Louisiana
Trial Court No. 2020- 0003338

Honorable Charlotte H. Foster, Judge Presiding

Sandra Destin Sims Attorney for Defendants/ Appellants,
Hammond, Louisiana Jason and Casey Lambert

Regina S. Wedig Attorney for Defendant/Appellee,
Amite, Louisiana Jeffrey E. Elliot, Jr.

J. Ronald Ward, Jr. Attorney for Plaintiff/Appellee,
Mandeville, Louisiana Linda LaRocca

I d BEFORE: WELCH, PENZATO, AND LANIER, JJ.

L-ai'r/ eiLJ )

PENZATO, J.

This is an appeal from a summary judgment rendered in a concursus

proceeding filed by a real estate broker in connection with a purchase agreement for

real property. The prospective sellers, Jason and Casey Lambert, appeal the award

of attorney fees to the prospective buyer, Jeffrey E. Elliot, Jr. Mr. Elliott answered

the appeal. For the reasons that follow, we dismiss both the appeal and the answer

to the appeal.

FACTS AND PROCEDURAL HISTORY

On October 11, 2020, the Lamberts and Mr. EIliot entered into a residential

purchase agreement for Mr. Elliot to purchase the Lamberts' property located at

39628 River Oaks Drive in Ponchatoula, Louisiana. In accordance with the purchase

agreement, Mr. Elliot paid a deposit in the amount of $5, 000. 00, which was held in

escrow by the listing broker, Linda LaRocca.

The purchase agreement provided for an inspection and due diligence period

of fourteen calendar days. Mr. Elliot had the property inspected and submitted an

inspection report identifying deficiencies and desired remedies to the Lamberts. The

Lamberts responded to the inspection report in the time provided in the purchase

agreement, electing to correct certain deficiencies and increasing the purchase price

by $ 10, 000. 00. Pursuant to the terms of the purchase agreement, Mr. Elliot had

seventy- two hours from the date of the Lamberts' response to the inspection report

to accept their response, to accept the property in its current condition, or to

terminate the purchase agreement. The purchase agreement further provided that:

Upon the BUYER' S failure to respond to the SELLER' S Response by
the time specified or the BUYER' S electing, in writing, to terminate
this Agreement, the Agreement shall be automatically, with no further
action required by either party, ipso facto null and void except for return
of Deposit to the BUYER.

Mr. Elliot did not respond to the Lamberts' response to the inspection report

within the seventy -two-hour period. However, after the expiration of the seventy -

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two-hour period, Mr. Elliot signed the inspection report indicating that he did not

accept the Lamberts' response and declared the purchase agreement null and void.

Mr. Elliot sought return of his $ 5, 000. 00 deposit, which the Lamberts refused.

Ms. LaRocca, as broker/operating partner of Keller Williams Realty Services,

instituted this concursus action to adjudicate the ownership of the $ 5, 000. 00 deposit

made by Mr. Elliot, naming as defendants Mr. Elliot and the Lamberts. The

Lamberts filed an answer to the petition for concursus. According to the Lamberts,

because Mr. Elliot exceeded the seventy -two-hour deadline in which to cancel the

purchase agreement, they were entitled to the $ 5, 000.00 deposit. The Lamberts

further contended that they were entitled to attorney fees and costs, as provided in

the purchase agreement.

Mr. Elliot answered the petition for concursus, averring that the deposit should

be returned to him. Additionally, Mr. Elliot asserted a reconventional demand

against Ms. LaRocca, contending that Ms. LaRocca breached her duty to return the

deposit to him pursuant to the terms of the purchase agreement and was liable for

damages, including attorney fees and costs, as authorized by the purchase agreement.

Mr. Elliot also raised cross claims against the Lamberts, alleging they were liable for

damages, including 10% of the purchase price as stipulated damages, attorney fees,

and costs, as authorized by the purchase agreement.

Ms. LaRocca answered the reconventional demand and raised an exception of

no cause of action, contending that the reconventional demand was an improper

procedural action to take in a concursus proceeding.' The Lamberts answered the

cross claims, denying their liability for damages.

Mr. Elliot then filed a motion for summary judgment, attaching thereto his

affidavit; the purchase agreement; the inspection report, including the Lamberts'

Ms. LaRocca' s exception was not accompanied by a proposed order requesting that the exception
be set for hearing. See La. District Court Rules, R. 9. 8. Therefore, the exception remains
outstanding.

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response thereto; and the affidavit of his attorney and her invoices. Mr. Elliot argued

that the purchase agreement explicitly provided that when the buyer ( Mr. Elliot)

failed to respond to the proposal of the seller ( the Lamberts) in response to the

buyer' s inspection demands, the agreement automatically became null and void,

except for the return of the deposit to the buyer. According to Mr. Elliot, there was

no dispute that he failed to respond within the required time period, and thus he was

entitled to the return of the $ 5, 000. 00 deposit. He further argued that the Lamberts

breached the purchase agreement when they failed to return his deposit, and,

pursuant to the purchase agreement, were liable for stipulated damages in the amount

of 10% of the purchase price, a reasonable amount of attorney fees, and all costs.

Finally, Mr. Elliot argued that Ms. LaRocca did not disburse the deposit to him,

despite the reasonable interpretation of the contract she used and was supposed to

understand, and was thus liable for Mr. Elliot' s damages.

The Lamberts filed a response in opposition to Mr. Elliot' s motion for

summary judgment. The Lamberts argued therein that Mr. Elliot' s rejection of their

response to the inspection report after the deadline was not an option specifically

defined in the purchase agreement, and thus, did not automatically result in the return

of Mr. Elliot' s deposit. The Lamberts further argued that if Mr. Elliot was entitled

to the return of his deposit because the purchase agreement was rendered " null and

void," all other terms of the purchase agreement were also void, including the

provisions for damages and costs. The Lamberts requested that the trial court deny

the motion for summary judgment and " grant any additional relief deemed

appropriate."

Ms. LaRocca also opposed the motion for summary judgment. She argued

that there was neither a basis for damages against her under the facts of the

transaction nor a basis for attorney fees against her as a result of her filing a

concursus proceeding. Ms. LaRocca requested that the trial court resolve the dispute

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over the deposit, as it was the only valid claim before the court.

Following a hearing on February 28, 2022, the trial court found that Mr.

Elliot' s lack of response to the Lamberts' counteroffer to the inspection report within

the seventy -two-hour period was a rejection of the counteroffer that terminated the

purchase agreement, and thus, Mr. Elliot was entitled to the return of his deposit.

The trial court further found that the termination of the agreement did not nullify

the entire thing," and that Mr. Elliot was entitled to attorney fees and costs. The

trial court denied Mr. Elliot' s claim for damages in the amount of 10% of the

purchase price, finding that the Lamberts did not default, but proposed a

counteroffer. Finally, the trial court indicated that Ms. LaRocca acted appropriately,

and was not liable for damages.

4n March 10, 2022, the trial court signed a judgment in accordance with its

oral ruling, granting Mr. Elliot' s motion for summary judgment in part, denying it in

part, and ordering as follows:

1. [ Mr.] Elliot' s request for damages against Linda LaRocca is denied.

2. [ Mr.] Elliot' s request for return of his deposit in the amount of
5, 000. 00 is granted and the Clerk of Court is ordered to disburse the
full amount of $5, 000. 00 to [ Mr.] Elliot, deposited in this concursus
proceeding.

3. [ Mr.] Elliot' s request for attorney fees and court costs is granted and
Jason and Casey Lambert are cast in judgment in the amount of
5, 319.95 attorney fees and all court costs.

4. [ Mr.] Elliot' s request for stipulated damages in an amount equal to
10% of the purchase price is denied.

The Lamberts appealed, contending the trial court erred in awarding Mr. Elliot

attorney fees.' Mr. Elliot answered the appeal, arguing that the trial court erred in

denying his request for stipulated damages and seeking additional legal fees for the

proceedings on appeal.

The Lamberts did not contest the return of Mr. Elliot' s deposit or the assessment of costs against
them.

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INTERIM ORDER

On January 4, 2023, this Court issued an interim order indicating that the

March 10, 2022 judgment on appeal lacked decretal language disposing of and/ or

dismissing any claims. We further noted that we were unable to determine from the

judgment alone that all disputes between the parties to the concursus proceeding

were resolved by the March 10, 2022 judgment. We remanded this matter for the

limited purpose of requesting that the trial court: ( 1) issue an amended judgment that

corrected the foregoing deficiencies and complied with La. C. C.P. art. 1918; ( 2)

certify the March 10, 2022 judgment in accord with La. C. C. P. art. 1915 ( B); or ( 3)

indicate that it declined to certify the March 10, 2022 judgment.

Thereafter, the trial court supplemented the record with an amended judgment

signed on January 21, 2023, which provided as follows:

This is a FINAL JUDGMENT which disposes of all claims raised by
all parties to this concursus proceeding and adjudicates all the parties'
interests in compliance with La. CCP art. 1915 and has been amended
and restated in compliance with La. CCP art. 1951 and 2058( A).

IT IS ORDERED, ADJUGED [sic] AND DECREED that [Mr.] Elliot' s
Motion for Summary Judgment is granted in part and denied in part as
follows:

1. [ Mr.] Elliot' s request for damages against Linda LaRocca is denied.

2. [ Mr.] Elliot' s request for return of his deposit in the amount of
5, 000. 00 is granted and the Clerk of Court is ordered to disburse the
full amount of $5, 000. 00 to [ Mr.] Elliot, deposited in this concursus
proceeding.

Elliot' s request for attorney fees and court costs is granted and
3. [ Mr.]
Jason and Casey Lambert are cast in judgment in the amount of
5, 219.953 for attorney fees and all court costs are assessed against the
Lamberts in favor of [Mr.] Elliot.

4. [ Mr.] Elliot' s request for stipulated damages in an amount equal to
10% of the purchase price is denied.

5. All other claims and disputes among the parties are denied.

3 We note that this amount differs from the amount of attorney fees in the March 22, 2022
judgment.

APPELLATE JURISDICTION

Appellate courts have a duty to examine subject matter jurisdiction sua

sponte, even when the parties do not raise the issue. Advanced Leveling & Concrete

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

1046 ( en bane). This Court' s appellate jurisdiction extends to " final judgments,"

which are those that determine the merits in whole or in part. See La. C. C. P. art.

1841 and 2083.

A valid judgment must be " precise, definite, and certain." Advanced Leveling,

268 So. 3d at 1046. 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.

Additionally, a final appealable judgment must contain appropriate decretal

language disposing of or dismissing claims in the case. University Medical Center

u Schnauder, 2019- 0149 ( La. App. 1 Cir. 10/ 23/ 19), 2019 WL 5485181, * 1

unpublished).

The January 21, 2023 amended judgment granted Mr. Elliot' s motion for

summary judgment with regard to his claim for the return of his deposit in the

concursus proceeding and his claims for attorney fees and costs asserted in his cross

claims against the Lamberts. The judgment denied Mr. Elliot' s motion for summary

judgment for his claim for damages asserted in his reconventional demand against

Ms. LaRocca and his claim for stipulated damages asserted in his cross claims

against the Lamberts.

While the trial court indicated that the January 21, 2023 amended judgment

was a final judgment " in compliance with" La. C. C. P. art. 1918 in that it disposed of

all claims raised by all parties and adjudicated all the parties' interests, it did not

correct the deficiencies in the March 10, 2022 judgment noted in this Court' s interim

order. The January 21, 2023 amended judgment denied Mr. Elliot' s motion for

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summary judgment in connection with his reconventional demand and his claim for

stipulated damages asserted in his cross claims, but it did not dismiss the

reconventional demand or the claim for stipulated damages. However, the record

reflects that, based upon the procedural posture of the case, dismissal of the

reconventional demand and claim for stipulated damages would not be appropriate.

Louisiana Code of Civil Procedure article 966( F) makes clear that a summary

judgment may be rendered " only as to those issues set forth in the motion under

consideration by the court at that time." Anderson a Laborde Construction

Industries, L.L. C., 2019- 0356 ( La. App. 1 Cir. 3/ 1. 2/ 20), 311 So. 3d 1072, 1080, writ

denied, 2020- 00924 ( La. 10120120), 303 So. 3d 307. As held by the Louisiana

Supreme Court, a court cannot render a motion for summary judgment dismissing a

claim that has not been challenged by the pleading. Id., citing Hoover a Hoover,

2001- 2200 ( La. 4/ 3/ 02), 813 So. 2d 329, 334.

The only matter before the trial court at the February 28, 2022 hearing was

Mr. Elliot' s motion for summary judgment. While both Ms. LaRocca and the

Lamberts filed oppositions to Mr. Elliot' s motion, neither filed a cross- motion for

summary judgment. Thus, the only issues under consideration by the trial court were

Mr. Elliot' s claims for the return of his deposit, for attorney fees and costs, and for

damages against the Lamberts and Ms. LaRocca. Accordingly, the trial court could

not render a summary judgment dismissing Mr. Elliot' s reconventional demand or

cross claims. Thus, any judgment resulting from the matters heard on February 28,

2022, would necessarily be a partial summary judgment.

A partial summary judgment may be immediately appealed only if it has been

designated as a final judgment by the trial court after an express determination that

there is no just reason for delay. La. C.C. P. art. 1915( B). Belleview Estates, LLC v

Knoll & Dufour Lands, LLC, 2019- 1394 ( La. App. 1 Cir. 9/ 21/ 20), 315 So. 3d 252,

258. However, the January 21, 2023 amended judgment was not designated as a

final judgment by the trial court after an express determination that there is no just

reason for delay. See La. C. C.P. art. 1915( B).

Based upon the determinations of the trial court as expressed in the January

21, 2023 amended judgment, we decline to order a second remand to the trial court.

Moreover, as the trial court has previously declined to certify the judgment in

accordance with La. C. C. P. art. 1915( B), we do not have jurisdiction to consider the

merits of the January 21, 2023 amended judgment.

We recognize that this Court has discretionary authority to convert an appeal

from an interlocutory judgment to an application for supervisory writs. See Stelluto

v Stelluto, 2005- 0074 (La. 6129105), 914 So. 2d 34, 39. Under certain circumstances,

appellate courts have exercised that discretion to convert an appeal of an

interlocutory judgment into an application for supervisory writs, such as when the

motion for appeal was filed within the thirty -day time period allowed for the filing

of an application for supervisory writs under Rule 4- 3 of the Uniform Rules, Courts

of Appeal, and where reversal of the trial court' s decision would terminate the

litigation, or where clear error in the trial court' s judgment, if not corrected, will

create a grave injustice. Boyd Louisiana Racing, Inc. v Bridges, 2015- 0393 ( La.

App. 1 Cir. 12123115), 2015 WL 9435285, * 3 ( unpublished).

Although we have the discretionary authority to convert the Lamberts' appeal

to an application for supervisory writs and rule on the writ application, we decline

to do so in this case because the ruling would not terminate the litigation as Mr.

Elliot' s reconventional demand and cross claims have not been dismissed, and both

the Lamberts and Mr. Elliot will have an adequate remedy by review on appeal after

rendition of a final judgment. See Succession ofSaucier, 2021- 1466 ( La. App. 1 Cir.

6/ 29/ 22), 344 So. 3d 108, 114.

E

CONCLUSION

For the foregoing reasons, we dismiss the appeal of the January 21, 2023

amended judgment. We further dismiss the answer to the appeal filed by Mr. Elliot

because it is based on a non -appealable judgment. We decline to assess costs

pending the rendition of a final judgment.

APPEAL DISMISSED; ANSWER TO APPEAL DISMISSED.

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