Coastal Fire Protection, LLC v. Tsm Investments, LLC

COASTAL FIRE * NO. 2025-C-0456
PROTECTION, LLC
* COURT OF APPEAL
VERSUS
* FOURTH CIRCUIT
TSM INVESTMENTS, LLC
* STATE OF LOUISIANA

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APPLICATION FOR WRITS DIRECTED TO
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2022-08521, DIVISION “D”
Honorable Monique E. Barial, Judge
******
Judge Sandra Cabrina Jenkins
******
(Court composed of Judge Sandra Cabrina Jenkins, Judge Tiffany Gautier Chase,
Judge Dale N. Atkins)

David C. Clement
Leslie J. Hill
CLEMENT & ASSOCIATES
650 Poydras Ste., Ste. 2828
New Orleans, LA 70130

COUNSEL FOR RELATOR

David W. Nance
3912 Constance Street
New Orleans, LA 70115

COUNSEL FOR RESPONDENT

WRIT GRANTED;
RELIEF DENIED
September 16, 2025

SCJ
TGC
DNA

Relator, Coastal Fire Protection, L.L.C., seeks review of the district court’s

June 23, 2025 judgment which granted the motion to compel discovery in favor of

Respondent, TSM Investments, L.L.C. Relator contends the district court lacked

jurisdiction to compel discovery relative to Respondent’s Reconventional Demand

while the appeal of the summary judgment ruling on the main demand was

pending. For the reasons that follow, we grant Relator’s writ application; however,

we deny relief.

FACTUAL/PROCEDURAL HISTORY

Relator maintains it entered into a subcontract agreement with Custom

Drywall & Painting LLC (“Custom”) to perform work on a fire sprinkler system at

a construction project (“Project) owned by Respondent. Relator avers it was owed

$13,599.28 for the work it performed. As a result of the alleged non-payment,

Relator filed a lien, a Statement of Claim and/or Privilege in connection with the

Project in the Orleans Parish land records and in accordance with the Louisiana

Private Works Act. Thereafter, Relator filed a petition to enforce the lien and

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collect the alleged outstanding monies owed (“Petition”) against Custom and

Respondent.

On October 27, 2022, Custom and Respondent jointly filed an Answer,

Affirmative Defenses, and Reconventional Demand to Relator’s Petition.

Subsequent thereto, Relator filed a motion for summary judgment against Custom

and Respondent, asserting that no genuine issue of material fact remained and that

Relator was entitled to judgment as a matter of law against Respondent and

Custom in the amount of $13,559.28, plus legal interest from the date of demand

and costs and expenses incurred in the recordation of its lien.

The summary judgment hearing as to Respondent took place on October 11,

2024. Respondent failed to file an opposition to Relator’s motion for summary

judgment. After the hearing, the district court granted Relator’s summary

judgment motion.

The district court held a separate summary judgment hearing on December

4, 2024, with reference to the claims against Custom.1 After argument, the district

court also granted Relator’s motion for summary judgment against Custom.

The district court granted both Respondent’s and Custom’s respective

motions and orders for appeal of the summary judgment rulings.2

Thereafter, on May 15, 2025, Respondent filed a motion to compel Relator

to respond to discovery requests propounded arising out of its Reconventional

Demand. Relator objected under the premise that the district court was divested of

1 Custom had not been served at the time of Respondent’s summary judgment hearing on

October 11, 2024.
2 The pending appeal(s) referenced in this opinion are Coastal Fire Protection, L.L.C. v. Custom
Drywall & Painting, L.L.C., 2025-0081(La. App. 4 Cir. - -/--/2025), --So.3d - - and its
companion case of Coastal Fire Protection, L.L.C. Drywall & Painting, L.L.C., 2025-0215 (La.
App. 4 Cir. --/--/2025), -- So.3d - -.

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jurisdiction while the appeal was pending. The district court granted Respondent’s

motion to compel on June 23, 2025.

Relator timely filed the present notice of intent to seek review of the June

23, 2025 judgment to compel discovery responses.

ASSIGNMENTS OF ERROR

Relator alleges the following assignments of error:

1. The district court erred in granting the motion to compel as the district court

was divested of jurisdiction pending the appeal of the judgments granting the

motion for summary judgment; and

2. The district court erred in granting the motion to compel as the

Reconventional Demand was ruled on in a final judgment and that judgment

extinguished the Reconventional Demand.

STANDARD OF REVIEW

The determination as to “[w]hether a court has subject matter jurisdiction is

reviewed on appeal under the de novo standard of review.” Catrambone v. Liotta,

2024-0456, p. 6 (La. App. 4 Cir. 2/14/25), 414 So.3d 686, 691, writ denied, 2025-

00321 (La. 5/29/25), 410 So.3d 146 (quoting Lassalle v. Napoleon, 2022-0460, p.

4 (La. App. 4 Cir. 12/20/22), 356 So.3d 74, 77).

DISCUSSION

Trial Court Jurisdiction

Relator relies on La. C.C.P. art. 2088 to support its position that the appeal

of the summary judgment ruling divested the district court of jurisdiction to act on

Respondent’s motion to compel. Louisiana Code of Civil Procedure art. 2088(A)

provides, in part, the following:

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The jurisdiction of the trial court over all matters in the case
reviewable under the appeal is divested, and that of the appellate court
attaches, on the granting of the order of appeal and the timely filing of
the appeal bond, in the case of a suspensive appeal, or on the granting
of the order of appeal, in the case of a devolutive appeal. Thereafter,
the trial court has jurisdiction in the case only over those matters not
reviewable under the appeal. . . .

As referenced in Waiters v. deVille, 2020-0556, pp. 10-11 (La. App. 4 Cir.

12/20/20), 365 So.3d 544, 553 (quoting Bates v. City of New Orleans, 2013-1153,

2013-1587, p. 20 (La. App. 4 Cir. 03/26/14), 137 So. 3d 774, 788), “[t]he

jurisprudence has construed the catch-all phrase in Article 2088--all matters ‘not

reviewable under the appeal’--to mean that the trial court retains jurisdiction over

all issues that are ‘unaffected by the appeal,’ even issues not specifically

enumerated in La. C.C.P. art. 2088.[3]”

2020-0556, pp. 10-11 (La. App. 4 Cir. 12/20/20), 365 So.3d 544, 553.
3 As enumerated under La. C.C.P. art. 2088(A), the list of matters over which the trial court

retains jurisdiction that is not reviewable under appeal, includes the right to do any of the
following:

(1) Allow the taking of a deposition, as provided in Article 1433.
(2) Extend the return day of the appeal, as provided in Article 2125.
(3) Make, or permit the making of, a written narrative of the facts of the case, as
provided in Article 2131.
(4) Correct any misstatement, irregularity, informality, or omission of the trial
record, as provided in Article 2132.
(5) Test the solvency of the surety on the appeal bond as of the date of its filing or
subsequently, consider objections to the form, substance, and sufficiency of the
appeal bond, and permit the curing thereof, as provided in Articles 5123, 5124,
and 5126.
(6) Grant an appeal to another party.
(7) Execute or give effect to the judgment when its execution or effect is not
suspended by the appeal.
(8) Enter orders permitting the deposit of sums of money within the meaning of
Article 4658.
(9) Impose the penalties provided by Article 2126, or dismiss the appeal, when
the appellant fails to timely pay the estimated costs or the difference between the
estimated costs and the actual costs of the appeal.
(10) Set and tax costs, expert witness fees, and attorney fees.
(11) Amend a judgment to provide proper decretal language in accordance with
Article 1918 or 1951.

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Relator’s motion for summary judgment did not address the allegations

raised in the Reconventional Demand. The Reconventional Demand averred, in

part, that Relator failed to obtain approval for the sprinkler system from the Office

of the State Fire Marshall (“OSFM”); did not comply with other OSFM guidelines;

and failed to install the sprinkler heads at the correct height; whereas, the summary

judgment motion sought adjudication of the claims Relator raised in its Petition.

These claims included: 1) Coastal timely filed a valid lien under the Louisiana

Private Works Act; 2) Custom and Coastal entered into an agreement for Coastal to

perform certain fire protection work for the Project and Coastal is due and owning

$13,559.28 for the work Coastal performed and invoiced pursuant to the

agreement; 3) Custom misapplied the payment of $13,559.28 it received from

TSM for the work performed and invoiced by Coastal; and, 4) Custom violated

Louisiana’s Open Account Statute by failing to pay the $13,559.28 due and owing

to Coastal after demand for payment.

The transcript of the December 4, 2024 summary judgment hearing shows

the district court did not decide the merits of the Reconventional Demand when it

granted Relator’s motion for summary judgment. The district court espoused the

following as to the grant of the motion for summary judgment and its impact on the

Reconventional Demand:

A Reconventional Demand can and often does stand by itself when
the original claims of the original petition, petitioner, have been
resolved. It does not dismiss the cause of action that is set forth in the
Reconventional Demand.

I do not in any way, shape or form, intend to imply that by the
granting of this Motion for Summary judgment - - and I do so grant
the Motion for Summary Judgment as prayed for - - I do not intend to
imply that the Reconventional Demand by your client is diminished in
any way. Nor do I intend to imply that if your client is successful as

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to their Reconventional Demand, that it may not offset, because it
may very well offset any claims that have been granted.

The record supports that the merits of the Reconventional Demand were not

considered in granting the motion for summary judgment. Thus, the

Reconventional Demand is not a part of the judgment reviewable on appeal.

Accordingly, we find the district court retained jurisdiction to compel Relator to

respond to outstanding discovery arising out of Respondent’s Reconventional

Demand, notwithstanding the pending appeal. This error is without merit.

We now consider whether the district court erred in granting Respondent’s

motion to compel.

Motion to Compel

Relator alleges the district court prematurely considered the motion to

compel as the outcome of the appeal could extinguish Respondent’s entitlement to

relief pursuant to the Reconventional Demand.

“Under Louisiana law, ‘[a] trial court has broad discretion in handling

discovery matters and an appellate court should not upset a ruling absent an abuse

of discretion.’” Riggio v. Ports Am. La., L.L.C., 2023-0294, pp. 2-3 (La. App. 4

Cir. 11/13/23), 377 So.3d 418, 420 (alteration in original) (quoting Dabezies v.

Trelo, 2018-0278, p. 2 (La. App. 4 Cir. 5/23/18), 248 So.3d 498, 501)). Under this

abuse of discretion standard, the reviewing court weighs the information sought

against the hardship caused by an order to compel in determining whether the

district court erred in its discovery order. Matthews v. Phillips 66 Company, 2024-

0227, p. 17 (La. App. 4 Cir. 11/13/24), 409 So.3d 226, 238.

We find Relator’s claims of prematurity and the possible extinguishment of

the Reconventional Demand are not evidence of hardship for purposes of finding

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the district court abused its discretion in compelling Relator’s responses to

Respondent’s discovery demands. Accordingly, this error lacks merit.4

CONCLUSION

Based on the foregoing reasons, we grant Relator’s writ application and

deny relief.

WRIT GRANTED; RELIEF DENIED

4 We judicially note the district court’s colloquy referenced herein indicates the court did not

intend to extinguish the Reconventional Demand by granting Relator’s summary judgment
motion.

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