Triton Diving Services LLC v. Offshore Marine Service Association, Inc. and Aaron Smith

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2023 CA 0 169

TRITON DIVING SERVICES LLC

VERSUS

OFFSHORE MARINE SERVICE ASSOCIATION, INC. and
AARON SMITH

Judgment Rendered: SEP 21 2023

On Appeal from the
Seventeenth Judicial District Court
In and for the Parish of Lafourche
State of Louisiana
No. C- 143, 735 Division B

The Honorable John E. LeBlanc, Judge Pro Tempore

Jean- Paul Layrisson Attorneys for Plaintiff/Appellee
Timothy David Scandurro Triton Diving Services, LLC
Krista M. Eleew
New Orleans, Louisiana

Alex P. Tilling Attorneys for Defendants/ Appellants
Adam D. Whitworth Offshore Marine Service Association
Karen E. Futch and Aaron Smith
New Orleans, Louisiana

BEFORE: WELCH, HOLDRIDGE, AND WOLFE, JJ.

HOLDRIDGE, J.

The defendants, Offshore Marin Services Association (" OMSA") and Aaron

Smith ( OMSA' s President, Chief Executive Officer, and Director), have appealed a

trial court judgment awarding the plaintiff, Triton Diving Services, LLC, attorney' s

fees and costs pursuant to a special motion to strike pursuant to La. C. C. P. art.

971( B). The plaintiff has filed a motion seeking to dismiss defendants' appeal

because the judgment appears to be a partial judgment that was not certified as final

by the trial court under La. C. C. P. art. 1915( B). For the reasons set forth below, we

grant the motion and dismiss the appeal.

On November 9, 2021, plaintiff filed a " Petition for Damages and Injunctive

Relief," against defendants, OMSA and Aaron Smith. Plaintiff, which was an

offshore service company that provided diving, heavy lift, and project management

services to its customers in the Gulf of Mexico oil and gas industry, alleged that

OMSA [was] a lobbying and public relations tool of its members, many of which
were] direct business competitors of [ plaintiff,." Plaintiff further alleged that

OMSA, despite having no regulatory or other legal authority to enforce the Jones

Act, had acquired an ocean- going vessel it called " the Jones Act Enforcer" that it

claimed would " gather video and photographic evidence of Jones Act violations"

that "
w[ ould] be submitted to [ the] authorities, made public, and shared with the

media." Plaintiff alleged that it " became [ one of] the first victims of OMSA' s so

called ` Jones Act Enforcer' and its witch hunt program[,]" and OMSA had made

multiple blatantly false statements" to damage plaintiff. Plaintiff sought damages

due to the false publication and injunctive relief " enjoining defendants ... from

continuing to publish defamatory statements ... and requiring the removal and

mitigation of any such false publications." Plaintiff also alleged that OMSA may be

Pa

liable under the Louisiana Unfair Trade Practices Act (" LUTPA") for treble

damages and attorney' s fees.

In response, defendants filed a special motion to strike under La. C. C. P. art.

971.' Defendants alleged that any claim for defamation, as well as any claims

asserted under LUTPA ( which defendants aver relies on the success of the

defamation claims), should be struck from the petition. Following a hearing, the

trial court signed a judgment on June 20, 2022, denying defendants' special motion

to strike. The judgment further provided that any request plaintiff made for

attorney' s fees and costs pursuant to La. C. C.P. art. 971( B) was " to be considered

upon [ a] separate motion."

Thereafter, plaintiff filed a motion to set attorney' s fees and costs. Following

an August 31, 2022 hearing, the trial court made a ruling from the bench setting the

awards, at which time plaintiff' s counsel indicated he would submit a judgment.

Subsequently, on November b, 2022, the trial court signed the judgment in accord

with its oral ruling that granted attorney' s fees and costs in favor of plaintiff and

against defendants in the sum of $14, 000. 00 " pursuant to La. [C. C.P. art.] 971 B[.]"

Notice of the foregoing judgment was issued on November 14, 2022.

1 Louisiana Code of Civil Procedure article 971 provides, in pertinent part:

A. (
1) A cause of action against a person arising from any act of that person in
furtherance of the person' s right of petition or free speech under the United States
or Louisiana Constitution in connection with a public issue shall be subject to a
special motion to strike, unless the court determines that the plaintiff has established
a probability of success on the claim.
2) In making its determination, the court shall consider the pleadings and
supporting and opposing affidavits stating the facts upon which the liability or
defense is based.
3) If the court determines that the plaintiff has established a probability of success
on the claim, that determination shall be admissible in evidence at any later stage
of the proceeding.

B. In any action subject to Paragraph A of this Article, a prevailing party on a
special motion to strike shall be awarded reasonable attorney fees and costs.
3

On December 6, 2022, defendants filed a motion seeking to appeal the

November 6, 2022 judgment, " as well as any other judgments, orders, per curiams

and/ or rulings that were adverse to Defendants."

After the record was lodged with this court, plaintiff filed two motions: 1) a

motion to dismiss the appeal for lack of jurisdiction; and 2) a motion to suspend

briefing delays. On April 6, 2023, this court denied the motion to suspend briefing

delays and the motion to dismiss the appeal for lack of jurisdiction was referred to

the panel that the appeal was assigned.

JURISDICTION

Before reaching the merits of this appeal, we will address plaintiff's motion

to dismiss the appeal for lack ofjurisdiction. Therefore, we must determine whether

we have jurisdiction over the November 6, 2022 judgment. Our jurisdiction extends

only to " final judgments." See La. C. C. P. art. 2083( A). This court cannot determine

the merits of an appeal unless our appellate jurisdiction is properly invoked by a
valid final judgment. Doctors for Women Medical Center, L.L.C. v. Breen, 2019-

0582 ( La. App. 1 Cir. 5/ 11/ 20), 303 So. 3d 667, 671. Partial final judgments defined

in La. C. C. P. art. 1915( A) are appealable as a matter of right. Other partial

judgments that fall outside of the scope of La. C.C. P. art. 1915( A) are generally not
appealable absent a La. C. C.P. art. 1915( B) designation.

In this case, the parties dispute whether the November 6, 2022 judgment is
appealable by operation of law under La. C.C. P. art. 1915( A)(4). Moreover,

defendants assert that the judgment is also appealable under La. C. C. P. art.

1915( A)( 6).
Louisiana Code of Civil Procedure article 1915( A)(4) provides:

A final judgment may be rendered and signed by the court, even though
it may not grant the successful party or parties all of the relief prayed
for, or may not adjudicate all of the issues in the case, when the court:

0

4) Signs a judgment on either the principal or incidental demand,
when the two have been tried separately, as provided by Article 1038.
Emphasis added.]

Defendants contend that La. C. C. P. art. 1915( A)(4) applies because the trial

court granted plaintiff' s request to deny defendants' motion to strike on the merits

and then, following a subsequent hearing, specified the amount of attorney' s fees

and costs awarded. In essence, defendants maintain that plaintiff' s opposition to the

motion to strike and subsequent request for attorney' s fees is an " incidental

demand."

However, plaintiff points out that incidental demands are defined in La.

C. C.P. art. 1031( B) as " reconvention, cross- claims,
intervention, and third -party
demands." Plaintiff avers that its opposition to the motion to strike and request for

attorney' s fees does not fall within any of the incidental demands recognized in La.
C. C. P. art. 1031. As such, plaintiff maintains that the November 6, 2022 judgment

is not appealable as a matter of right under La. C. C.P. art. 1915( A)(4).

In response, defendants aver that La. C. C.P. art. 1915( A)(4) does not reference

La. C.C.P. art. 1031; rather, it only references the trial court' s ability to try related
matters separately as described in La. C. C.P. art. 1038 ( which addresses the trial

court' s right to try " principal and incidental actions" separately). As such,

defendants aver that La. C.C.P. art. 1915( A)(4) should not be limited to include only
those incidental actions recognized in La. C. C. P. art. 1031.

Moreover, defendants aver that " the sole issue between [ d] efendants and

plaintiff] regarding the award of attorney' s fees and costs was the amount of said

fees/ costs that was reasonably recoverable by [ plaintiff] as the prevailing party
against the m] otion to [ s] trike. The November 6[, 2022] [ j]udgment fully
adjudicated that issue. Thus, the November 6[, 2022] j]udgment is final and

E

appealable because it disposes of the issue offeeslcosts relating to the [ s) pecial

m] otion to [ s] trike." ( Emphasis in original).

In support of its argument, defendants cite Succession of Fanz, 2019- 0867

La. App. 4 Cir. 2/ 12/ 20), 292 So. 3d 940, 942, writ denied, 2020- 00417 ( La.

9/ 23/ 20), 301 So. 3d 1155, wherein the Fourth Circuit applied La. C. C. P. art.

1915( A)(4) in the context of a succession proceeding. In the succession action, one

of the parties filed a petition for declaratory judgment seeking to annul a donation

inter vivos made by the decedent of certain immovable property prior to his death.

The trial court subsequently granted the declaratory judgment and annulled the
donation.
The trial court later signed a second judgment that awarded attorney' s
fees.
After co- executors appealed the judgment awarding attorney' s fees, the

appellee filed a motion to dismiss the appeal, urging that the judgment was a non -

appealable interlocutory ruling. The Fourth Circuit disagreed, indicating that "[ t]he

petition for declaratory judgment is a demand incidental to the main demand

regarding the succession." In maintaining the appeal, the Fourth Circuit indicated

that "[
t] he judgment disposes of all the issues between the parties, regarding the
current award of attorney' s fees, and specifies the amount of those fees. Thus, we

find that the judgment is a final appealable judgment pursuant to La. C. C.P. art.
1915( A)(4)
and because it disposes of the issue of attorney' s fees regarding the
Schonekas Firm." Succession of Fanz, 292 So. 3d at 943.

In Succession of Fanz, the Schonekas Firm had been retained to specifically
represent the appellee in her capacity as co- excecutor and file the petition for

declaratory judgment challenging the donation inter vivos. By contrast, the

judgment at issue herein does not resolve the issues between the parties, all counsel

representing the parties are still involved in the litigation, and the underlying merits
of the principal action are unresolved.

M

Defendants cite several cases from this court, but those cases do not support

defendants' argument. In those appeals the motions to strike were granted and

attorney' s fees were awarded. Given that the motions to strike had been granted,

there was nothing left to be adjudicated by the trial court because the underlying

suits had been dismissed. See Samuel v. Remy, 2015- 0464 ( La. App. 1 Cir.

8/ 31/ 16), 2016 WL 4591885, at * 2- 3 ( unpublished), writ denied, 2016- 1785 ( La.

11/ 29/ 16), 211 So. 3d 387; Davis v. Benton, 2003- 0851 ( La. App. 1 Cir. 2/ 23/ 04),

874 So.2d 185, 188; see also Alost v. Lawler, 2020- 0832 ( La. App. 1 Cir. 6/ 2/ 21),

326 So. 3d 1255, 1260, writ denied, 2021- 00941 ( La. 10/ 19/ 21), 326 So.3d 256. 2 By

contrast, in the instant appeal, the trial court denied the defendants' motion to strike

and later, in a separate judgment, granted plaintiff' s request for attorneys' fees.

Neither of those judgments resolve the entirety of the underlying dispute, which
remains pending in the trial court.

Considering the foregoing, La. C.C. P. art. 1915( A)(4) does not apply under
the specific circumstances herein given that: 1) the judgments at issue do not appear

to be incidental demands as intended under the Article; 2) the underlying merits

claims between the parties remain pending; and 3) all parties and their respective
counsel remain in the litigation.

Defendants also aver that the judgment is appealable under La. C.C. P. art.

1915( A)(6), which provides that a judgment that "[ i] mposes sanctions or

disciplinary action pursuant to Article 191, 863, or 864 or Code of Evidence Article
510( G)" is final and appealable.
Defendants aver that because a prevailing party on

2 We note that Alost involved an appeal that this court converted to a supervisory writ application.
Alost concerned the grant of a special motion to strike, which dismissed the petition with prejudice
and ordered payment of $3, 000.00 in attorney fees— a judgment which apparently resolved the
entire case and was final and appealable of its own accord as a matter of right. Given the
procedural nuances of the particular appeal, including issues with an outstanding motion for a
limited new trial that had been granted prior to the order of appeal being signed and that had been
denied during the pendency of the appeal, this court converted the appeal to a supervisory writ
application. Alost did not involve the application of or even mention La. C. C.P. art. 1915( A)(4).
7

a special motion to strike must be granted attorney' s fees and costs under La. C. C. P.

art. 971' s language, both the law and jurisprudence calls on the trial courts to

exercise their inherent discretionary powers under Article 191 to determine the

reasonable amount of such a sanctions award.' Defendants maintain that because

La. C. C.P. art. 191 is implicated, it brings the November 6, 2022 judgment under

La. C. C.P. art. 1915( A)(6)' s purview, making the judgment final and appealable.

Louisiana Code of Civil Procedure article 1915( A)(6) concerns judgments

imposing sanctions and disciplinary action. Louisiana Code of Civil Procedure

articles 863 and 864, which are enumerated in La. C. C. P. art. 1915( A)(6),

specifically mention sanctions and disciplinary action. Our court, as a result of

Louisiana Supreme Court directives,' has read La. C. C. P. art. 1915( A)(6) very

broadly to include contempt judgments awarding sanctions beyond those specific

articles listed in La. C. C. P. art. 1915( A)(6). Ultimately, this court has concluded

that contempt rulings holding a party in contempt are appealable judgments,

3 Louisiana Code of Civil Procedure article 191 provides:

A court possesses inherently all of the power necessary for the exercise of its
jurisdiction even though not granted expressly by law.
4
Historically, this court did not consider a contempt ruling as to a party to be an appealable
judgment, because a judgment of contempt is an interlocutory judgment that does not determine
the substantive merits of the case.
Succession of Bell, 2006- 1710 ( La. App. 1 Cir. 6/ 8/ 07), 964
So. 2d 1067, 1072.
Subsequently, in Robinson v. Harlan, 2011- 0703 ( La. App. 1 Cir. 11/ 9/ 11),
79 So. 3d 1034, this court addressed the proper application of La. C. C. P. art. 1915( A)(6), noting
that contempt judgments that did not impose sanctions pursuant to any of the enumerated codal
provisions— La. C. C. P. arts. 191, 863, or 864, or La. Code Evid. art. 510( G)— was not an
appealable partial final judgment under La. C. C. P. art. 1915( A)( 6). Because the sanctions therein
arose for discovery violations under La. C. C. P. art. 1471, which is not enumerated in La. C. C.P.
art. 1915( A)( 6), this court dismissed the appeal. Robinson, 79 So.3d at 1035- 36.

Thereafter, the Louisiana Supreme Court granted a writ of certiorari, reinstated the appeal,
and remanded to this court for further proceedings. See Robinson v. Harlan, 2012- 0363 ( La.
4/ 9/ 12),
85 So.3d 131 ( citing La. C. C.P. art. 1915( A)(6) and In re Jones, 2010-66 (La. App. 5 Cir.
11/ 9/ 10), 54 So. 3d 54).
Although the Louisiana Supreme Court did not explain its rationale in
Robinson, the court later in Capital City Press, LLC v. Louisiana State University System Bd.
of Sup' rs, 2013- 1994 ( La. 8/ 28/ 13),
120 So.3d 250, denied an application for supervisory writs
submitted by a relator aggrieved by a contempt judgment imposing sanctions against him,
reasoning that relator " ha[ d]
an adequate remedy by suspensive appeal." In so ruling, the
Louisiana Supreme Court cited the same authority it cited in Robinson.
8

regardless of whether they are specifically enumerated contempt judgments under

La. C. C. P. art. 1915( A)(6). 5 As such, this court has addressed, on appeal, a sanctions

judgment under La. C. C.P. art. 224 (" Constructive contempt") as well as one issued

under La. C. C. P. art. 1471 (" Failure to comply with order compelling discovery;

sanctions").
These are all sanctions judgments arising from contempt.

While attorney' s fees are normally awarded as part of a judgment arising from

sanctions or disciplinary action, the judgment at issue in this appeal did not arise

from sanctions or disciplinary action. Rather, it is a statutory award of attorney' s

fees mandated to be awarded under La. C. C. P. art. 971. While defendants aver that

this court, in reviewing the propriety of the attorney' s fee award, must consider the

trial court' s authority under Article 191 ( which is specifically mentioned in La.

C. C. P. art. 1915( A)(6)), the attorney' s fees at issue were authorized solely by La.

C. C. P. art. 971 and do not arise from a sanction or disciplinary action. To expand

La. C. C. P. art. 1915 ( A)(6) in the manner suggested by defendants would make any

statutory award of attorney' s fees appealable even though such award does not arise

from sanctions or disciplinary action. As such, given that the judgment does not

arise from sanctions or disciplinary action, the judgment is not appealable as a matter

of right under La. C. C.P. art. 1915( A)(6). 6

5 See e. g., Kott v. Kott, 2018- 1639 (La. App. 1 Cir. 4/ 12/ 19), 2019 WL 1589739, * 2 ( unpublished)
where the appeal panel recognized that a prior writ panel concluded that the " portion of the trial
court order finding the plaintiff in contempt of court [ under La. C.C.P. art. 224 concerning
constructive contempt"]
was a final and appealable judgment once reduced to writing."); see also
Stevens v. St. Tammany Parish Government, 2016-0534 ( La. App. 1 Cir. 1/ 18/ 17), 212 So. 3d
568, 575 ( wherein this court recognized contempt of court for discovery violations under Article
1471 was not included under Article 1915( A)(6), but given the Louisiana Supreme Court decisions
in Robinson and Capital City Press, ajudgment sanctioning a party and his attorney for violations
of Article 1471 " constitutes a partial final judgment subject to immediate appeal pursuant to La.
C. C. P. art. 1915( A)(6)."

6 It is the legislature' s role to amend La. C. C. P. art. 1915( A)(6) to include an appeal from an award
of attorney' s fees on the denial of a motion to strike under La. C. C. P. art. 971.
9

Accordingly, we find that the November 6, 2022 judgment is not appealable

by operation of law under La. C. C. P. arts. 1915( A)(4) or ( A)(6). This court' s

appellate jurisdiction does not attach to review the November 6, 2022 judgment

absent a La. C. C. P. art. 1915( B) certification by the trial court. See Hughes v.

Capital City Press, L.L.C. d/ b/ a The Advocate, 2021- 0201 ( La. App. 1 Cir.

12/ 7/ 21), 332 So. 3d 1198, 1202, n.3, writ denied, 2022- 00023 ( La. 2/ 22/ 22), 333

So.3d 444 where this court recently considered the denial of an La. C. C.P. art. 971

motion to strike and a corresponding attorney' s fee award under its appellate

jurisdiction given that the trial court certified the judgment under La. C. C. P. art.

1915( B).

In cases where the trial court denies a motion to strike, the better practice

would be for the trial court to award the attorney' s fees and costs in accordance with

La. C. C.P. art. 971 at the trial on the merits and include the award in the final

judgment.
To do so would avoid the conundrum of having to appeal a partial

judgment in accordance with La. C. C.P. art. 1915( B) that may or may not be granted
by this court.

In addition to seeking review of the November 6, 2022 attorney' s fee

judgment, defendants are seeking review of the prior June 20, 2022 judgment

denying their motion to strike. Plaintiff avers that because this court cannot review

the propriety of the June 20, 2022 judgment given that review was not sought within

the supervisory writ delays, this court should decline to exercise its supervisory
jurisdiction to review the November 6, 2022 judgment awarding attorney' s fees.
Although this court could convert this matter to an application for supervisory
writs, we decline to do so. This court has discretion to convert an appeal of a non -

appealable judgment to an application for supervisory writs. See Stelluto v.

Stelluto, 2005- 0074 ( La. 6/ 29/ 05), 914 So.2d 34, 39. Pursuant to Herlitz

10

Construction Company, Inc. v. Hotel Investors of New Iberia, Inc., 396 So -2d

878 ( La. 1981) ( per curiam), appellate courts should consider an application for

supervisory writs when the trial court judgment is arguably incorrect, there is no

dispute of fact to be resolved, and a reversal would terminate the litigation. The

Herlitz factors are not met at this time. An appellate court will generally refrain

from the exercise of its supervisory jurisdiction when an adequate remedy exists by

appeal upon the entry of the requisite final judgment. See Boyd Louisiana Racing,

Inc. v. Bridges, 2015- 0393 ( La. App. 1 Cir. 12/ 23/ 15), 2015 WL 9435285, * 4

unpublished).
This court' s exercise of its supervisory review in this case would

promote piecemeal review and infringe on the principles of judicial economy.

Burford v. Burford, 2018- 0558 ( La. App. 4 Cir. 11/ 28/ 18), 259 So. 3d 1086, 1089.

Therefore, we decline to exercise our discretion to convert this appeal to an

application for supervisory writs, and we dismiss this appeal. Krielow v. Louisiana

Dep' t of Agric. & Forestry, 2022- 0591 ( La. App. 1 Cir. 12/ 22/ 22), 360 So. 3d 551,

555.

Accordingly, we dismiss this appeal for lack ofjurisdiction.

CONCLUSION

For the foregoing reasons, we dismiss defendants', Offshore Marine Service

Association and Aaron Smith, appeal of the November 6, 2022 judgment and the

matter is remanded to the trial court for further proceedings. All costs of this appeal

are assessed to defendants, Offshore Marine Service Association and Aaron Smith.

MOTION TO DISMISS GRANTED; APPEAL DISMISSED; AND
REMANDED.

11

TRITON DIVING SERVICES LLC STATE OF LOUISIANA

VERSUS XII0 4 1Ell ff.,
19

OFFSHORE MARINE SERVICE FIRST CIRCUIT
ASSOCIATION, INC. and
AARON SMITH NO. 2023 CA 0169

WOLFE, J., dissenting.

I respectfully disagree with the majority' s dismissal of this appeal without

allowing the trial court the opportunity to certify the judgment as final pursuant to

La. Code Civ. P. art. 1915( B). See La. Code Civ. P. art. 2088( 11); Hughes v.

Capital City Press, L.L.C., 2021- 0201 ( La. App. 1st Cir. 12/ 7/ 21), 332 So. 3d 1198,

1202 n.3, writ denied, 2022- 00023 ( La. 2/ 22/ 22), 333 So. 3d 444. Absent the

certification, I would convert the appeal to a writ and consider the matter under this

court' s supervisory jurisdiction. I disagree that doing so would promote piecemeal

review and infringe on the principles of judicial economy. See Hughes, 332 So. 3d
at 1202 n.3.