Joint Succession of Russell and Claire Cresson v. Liberty Mutual Fire Insurance Company

JOINT SUCCESSION OF * NO. 2023-CA-0198
RUSSELL AND CLAIRE
CRESSON *
COURT OF APPEAL
VERSUS *
FOURTH CIRCUIT
LIBERTY MUTUAL FIRE *
INSURANCE COMPANY STATE OF LOUISIANA
*******

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2021-08769, DIVISION “L”
Honorable Kern A. Reese, Judge
******
Chief Judge Terri F. Love
******
(Court composed of Chief Judge Terri F. Love, Judge Sandra Cabrina Jenkins,
Judge Rachael D. Johnson)

Kathleen Claire Cresson
CRESSON LAW FIRM
221 N. Clark Street - 5209
New Orleans, LA 70119

COUNSEL FOR PLAINTIFF/APPELLANT, JOINT SUCCESSION OF
RUSSELL AND CLAIRE CRESSON

Sheri M. Morris
Evan P. Fontenot
DAIGLE FISSE & KESSENICH, PLC
8900 Bluebonnet Blvd.
Baton Rouge, LA 70810

AND

Paul R. Trapani, III
DAIGLE FISSE & KESSENICH, PLC
227 Highway 21
Madisonville, LA 70447

COUNSEL FOR DEFENDANT/APPELLEE, STATE OF LOUISIANA,
DIVISION OF ADMINISTRATION, OFFICE OF COMMUNITY
DEVELOPMENT

APPEAL DISMISSED
SEPTEMBER 14, 2023

TFL
The Joint Succession of Russell and Claire Cresson filed suit against Liberty
SCJ
Mutual Fire Insurance Company for the loss of fair rental value of property
RDJ
damaged by Hurricanes Zeta and Ida, which was insured by Liberty. Liberty filed

a Petition for Concursus against the Succession and the State of Louisiana,

Division of Administration, Office of Community Development1 (“OCD”).

In response to the Concursus, OCD filed Exceptions of Improper Venue,

Improper Cumulation of Actions, and Unauthorized Use of Summary Proceeding.

During a hearing on September 16, 2022, the trial court orally granted the

Exception of Improper Venue and deemed the remaining exceptions moot. Prior to

the trial court signing the judgment, the Succession filed a Motion for New Trial

on September 22, 2022. Before signing a written judgment on the exception, the

trial court set a hearing on the Motion for New Trial on December 16, 2022. The

trial court then signed the judgment granting the Exception of Improper Venue on

September 29, 2022.

The trial court orally denied the Succession’s Motion for New Trial on

December 16, 2022, and signed a judgment on January 6, 2023. On January 19,

1 Following Hurricane Katrina, Russell and Claire Cresson executed a promissory note as part of

the Community Development Block Grant Program and signed the Road Home Small Rental
Property Program Incentive Payment Agreement.

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2023, the Succession filed a Motion and Order for Suspensive Appeal of the

September 29, 2022 and January 6, 2023 judgments.

After the lodging of the appeal, OCD filed a Motion to Dismiss Appeal,

asserting that the Motion for New Trial cannot interrupt the time delay to lengthen

the amount of time for seeking a suspensive appeal and that the judgment granting

the Exception of Improper Venue is interlocutory. We first address the claims

raised in the Motion to Dismiss prior to delving into the substantive aspects of the

Succession’s appeal.

MOTION TO DISMISS

The Succession seeks to appeal two judgments: 1) the September 29, 2022

judgment granting the Exception of Improper Venue, which transferred the

Concursus proceeding; and 2) the January 6, 2023 judgment denying the Motion

for New Trial.

SEPTEMBER 29, 2022 EXCEPTION OF IMPROPER VENUE

On September 29, 2022, the trial court ruled:

IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that OCD’s Exception of Improper
Venue is SUSTAINED. The Concursus is transferred to
the 19th Judicial District Court of East Baton Rouge
Parish; however, the funds deposited by Liberty remain
in the registry of this Court. This Court only ruled the
Civil District Court for the Parish of Orleans is an
improper venue for the Concursus.

“[A]n adverse ruling on venue is interlocutory in nature.” Blow v.

OneBeacon Am. Ins. Co., 16-0301, p. 2 (La. App. 4 Cir. 4/20/16), 193 So. 3d 244,

247. Accordingly, this Court stated, “in order to obtain review of the ruling, the

party adversely affected thereby must immediately apply for supervisory relief.”

Id.

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Instead of seeking supervisory review, the Succession sought to appeal the

September 29, 2022 judgment on January 19, 2023, after almost four months. “We

note that there are circumstances in which an appellate court may exercise its

discretion “ʽto convert an appeal of an interlocutory judgment that is not

immediately appealable into a supervisory writ application.’” Llopis v. State, 16-

0041, p. 6 (La. App. 4 Cir. 12/14/16), 206 So. 3d 1066, 1070 (quoting McGinn v.

Crescent City Connection Bridge Auth., 15-0165, p. 4 (La. App. 4 Cir. 7/22/15),

174 So. 3d 145, 148).

In order to convert the appeal, two conditions must be met. First, “[t]he

motion for appeal has been 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.” McGinn, 15-0165, p. 4, 174 So. 3d at 148 (quoting Mandina,

Inc. v. O’Brien, 13-0085, p. 8 (La. App. 4 Cir. 7/31/13), 156 So. 3d 99, 104).

Second, “an immediate decision of the issue sought to be appealed is necessary to

ensure fundamental fairness and judicial efficiency, such as where reversal of the

trial court’s decision would terminate the litigation.” Id.

In the present matter, the judgment was rendered on September 29, 2022.

The Succession did not file the Motion for Suspensive Appeal until January 19,

2023, almost four months after the judgment. Additionally, “[t]he time period for

applying for a supervisory writ on an interlocutory judgment, though, is not

suspended by the filing of a motion for new trial.”2 Llopis, 16-0041, p. 1, 206 So.

3d at 1067. Thus, the first requirement for converting the matter to an application

2 “A motion for new trial filed before the signing of a final judgment is premature and without

legal effect.” Carter v. Rhea, 01-0234, p. 5 (La. App. 4 Cir. 4/25/01), 785 So. 2d 1022, 1025
(quoting Clement v. American Motorists Insurance Co., 98-504, p. 3 (La. App. 3 Cir. 2/3/99),
735 So. 2d 670, 672).

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for supervisory review fails. Therefore, we decline to exercise our jurisdiction and

convert the appeal of the September 29, 2022 judgment to an application for

supervisory review.

JANUARY 6, 2023 MOTION FOR NEW TRIAL

On January 6, 2023, the trial court denied the Succession’s Motion for New

Trial on the Exception of Improper Venue.

“ʽ[T]he denial of a motion for new trial is not a final, appealable judgment.’”

Everett v. Air Products & Chemicals, Inc., 22-0539, 22-0540, 22-0541, p. 7 (La.

App. 4 Cir. 5/2/23), ___ So. 3d ___, ___, 2023 WL 3193154, *3 (quoting New

Orleans Fire Fighters Pension and Relief Fund v. City of New Orleans, 17-0320,

p. 5 (La. App. 4 Cir. 3/21/18), 242 So. 3d 682, 688 n.12). “[T]he denial of a

motion for new trial is . . . an interlocutory judgment.” Barham, Warner &

Bellamy, L.L.C. v. Strategic All. Partners, L.L.C., 09-1528, p. 4 (La. App. 4 Cir.

5/26/10), 40 So. 3d 1149, 1151. Thus, an appeal is unavailable.

In order to consider converting the appeal of the January 6, 2023 judgment,

we must examine the two requirements outlined in our previous section regarding

the original judgment. First, the Motion for Suspensive Appeal was filed on

January 19, 2023, clearly within the thirty-day time period for filing an application

for supervisory review. As such, the first criteria is met.

Second, we must examine the circumstances to determine whether “an

immediate decision of the issue sought to be appealed is necessary to ensure

fundamental fairness and judicial efficiency, such as where reversal of the trial

court’s decision would terminate the litigation.” McGinn, 15-0165, p. 4, 174 So.

3d at 148 (quoting Mandina, 13-0085, p. 8, 156 So. 3d at 104). We find no factors

of fundamental fairness or judicial efficiency that warrant converting the appeal of

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the January 6, 2023 judgment to an application for supervisory review. “[T]he

provisions of the Louisiana Code of Civil Procedure are clear that motions for new

trial may be taken only from a final judgment.” Carter v. Rhea, 01-0234, p. 5 (La.

App. 4 Cir. 4/25/01), 785 So. 2d 1022, 1025. Further, this Court reiterated and

concluded “[b]ecause there is no cognizable procedure for applying for a new trial

on an interlocutory judgment, the trial court erred in considering and ruling on the

motion for new trial in this case.” Llopis, 16-0041, p. 1, 206 So. 3d 1067.

Accordingly, we decline to exercise our discretion and convert the appeal of the

January 6, 2023 judgment to an application for supervisory review.

LA. C.C.P. ART. 1915(B) CERTIFICATION OF JUDGMENTS

The Succession contends that both judgments are final and appealable

because the trial court signed the Order for Suspensive Appeal, which provided

that the judgments were final and appealable.

The ability for the trial court to certify judgments as final is outlined in La.

C.C.P. art. 1915(B), which states:

B. (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.
(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.

The trial court signed the order created by the Succession, which included

the following language:

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ORDER

IT IS ORDERED that plaintiff’s motion is
granted and that an application for appeal be filed in the
Fourth Circuit Court of Appeal for the State of Louisiana,
on or before the 31st day of March, 2023, or as allowed
by law, and that all proceedings herein be stayed pending
final determination of plaintiffs application.
IT IS ALSO ORDERED that Plaintiffs Motion to
certify the judgments as final is granted ex parte and that
said Judgments are designed as a final judgment for
purpose of appeal, as there is no further reason for delay.
And this Court will timely give its written reasons,
as requested
Finally, this Court sets the security in the amount
of $1,500.00.

“However, a trial court’s certification pursuant to La. C.C.P. art. 1915(B) is not

determinative of jurisdiction.” McGaha v. Franklin Homes, Inc., 21-0244, p. 23

(La. App. 4 Cir. 2/4/22), 335 So. 3d 842, 857, writ denied, 22-00374 (La. 4/26/22),

336 So. 3d 897. “Rather, 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.” Id., 21-0244, pp. 23-24, 335 So. 3d at 858.

This Court previously expounded that “[a] trial court’s certification of an

interlocutory judgment as ‘final’ pursuant to La. C.C.P. art. 1915(B)(1) does not

transform the interlocutory judgment into a judgment subject to an immediate

appeal.” Id., 21-0244, pp. 24-25, 335 So. 3d at 858. This Court then determined

that no appeal would lie and did not convert the appeal to an application for

supervisory review because the motion for appeal was filed outside of the thirty-

day period for seeking supervisory review. Id., 21-0244, pp. 25-26, 335 So. 3d at

858-59.

The Succession did not file a Motion for Suspensive Appeal until almost

four months after the September 29, 2022 judgment was rendered. Therefore, the

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extensive delay does not support a conversion to supervisory writ. Furthermore,

even if the judgment was final, the time delays for requesting a suspensive or

devolutive appeal long expired during the almost four-month delay. See La. C.C.P.

art. 2123 and 2087.

As to the January 6, 2023 judgment denying the Motion for New Trial, we

previously characterized the judgment as interlocutory. As stated in McGaha,

certification does not transmute the interlocutory judgment into a final, appealable

judgment. 21-0244, pp. 24-25, 335 So. 3d at 858. Moreover, we held that “the

denial of a motion for new trial is not subject to designation as a final judgment.”

Shelton v. Pavon, 16-0758, p. 2 (La. App. 4 Cir. 2/15/17), 212 So. 3d 603, 606.

See also Boquet v. Boquet, 18-105, p. 4 (La. App. 3 Cir. 3/21/18), 241 So. 3d 1127,

1130 (“an order denying a motion for new trial is interlocutory and is incapable of

being appealed, even if the trial court attempts to designate the ruling as final and

appealable”). Accordingly, we find the Succession’s assertions that the judgments

are final and appealable lack merit. The appeal is dismissed.

DECREE

For the above-mentioned reasons, neither judgment appealed by the

Succession was final and appealable. As such, OCD’s Motion to Dismiss is

granted. The appeal is dismissed.

APPEAL DISMISSED

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