State of Louisiana, Division of Administration, Office of Community Development - Disaster Recovery Unit Versus Randy Gordon A/K/A Randy a Gordon and Dana Gordon

STATE OF LOUISIANA, DIVISION OF NO. 23-CA-348
ADMINISTRATION, OFFICE OF
COMMUNITY DEVELOPMENT - DISASTER FIFTH CIRCUIT
RECOVERY UNIT
COURT OF APPEAL
VERSUS
STATE OF LOUISIANA
RANDY GORDON A/K/A RANDY A GORDON
AND DANA GORDON

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 799-492, DIVISION "A"
HONORABLE RAYMOND S. STEIB, JR., JUDGE PRESIDING

March 27, 2024

SUSAN M. CHEHARDY
CHIEF JUDGE

Panel composed of Judges Susan M. Chehardy,
John J. Molaison, Jr., and Timothy S. Marcel

APPEAL DISMISSED;
EXCEPTION OF PEREMPTION
DISMISSED WITHOUT PREJUDICE
SMC
JJM
TSM

COUNSEL FOR PLAINTIFF/APPELLEE,
STATE OF LOUISIANA, DIVISION OF ADMINISTRATION, OFFICE OF
COMMUNITY DEVELOPMENT - DISASTER RECOVERY UNIT ("OCD -
DRU")
Mary C. Cali
John C. Walsh
William J. Wilson
John C. Conine, Jr.
Drew D. Lyons
Hunter Farrar

COUNSEL FOR DEFENDANT/APPELLANT,
RANDY GORDON AND DANA GORDON
Shermin S. Khan

CHEHARDY, C.J.

Defendants, Randy and Dana Gordon, appeal the trial court’s judgment

denying their motion for new trial, which was filed in response to the State of

Louisiana’s Office of Community Development – Disaster Recovery Unit’s

Motion and Order for Dismissal, after the Judgment that OCD obtained against the

Gordons had been satisfied. Finding no appellate jurisdiction in this case, we

dismiss the appeal.

Background and Procedural History

After Hurricane Katrina, a program administered by the State’s Office of

Community Development – Disaster Recovery Unit (“OCD”) disbursed grant

money from the U.S. Department of Housing and Urban Development to property

owners to elevate their homes to meet or exceed the Advisory Base Flood

Elevations established by FEMA. The recipients of elevation funds were required

to sign an Elevation Incentive Agreement (EIA), in which the recipients agreed to

elevate their home within three years of receiving the funds. The Gordons applied

for the grant funds on September 27, 2007.

In 2019, OCD began suing elevation fund recipients who had not provided

the office with proof-of-elevation certificates. On September 16, 2019, OCD sued

the Gordons seeking the return of the $30,000 in elevation funds they received,

because the Gordons did not elevate their home.1 The Gordons answered the

lawsuit on January 30, 2020.

On May 4, 2021, OCD filed a motion for summary judgment, which the

Gordons opposed. On July 6, 2021, the Gordons filed a peremptory exception of

prescription, arguing that the prescriptive period for a breach of contract claim is

1
The property at issue is located at 4700 Henican Place in Metairie. The property was sold by an
act of cash sale to Jaime and Roger Cruz for $280,000 on February 20, 2014. The Gordons do
not dispute OCD’s assertion that they did not elevate their home. They argue, however, that the
need to elevate was eliminated when FEMA modified the base flood level elevations, and their
home was no longer located in a flood zone.

23-CA-348 1

ten years pursuant to La. C.C. art. 3499. Because they executed the EIA on

December 10, 2008, and OCD did not file suit against them until September 16,

2019, more than ten years later, they argued that the claim was prescribed.2 At the

hearing, the trial court determined that the agreement gave the Gordons three years

to elevate their home, therefore finding that the ten-year prescriptive period did not

begin to run until three years after the Gordons signed the agreement. In a

November 2, 2021 written judgment, the trial court denied the Gordons’ exception

of prescription. The Gordons did not seek supervisory review of this ruling.

In addition, on February 16, 2022, after a hearing, the trial court granted

OCD’s motion for summary judgment, ordering the Gordons to pay OCD $30,000

plus legal interest from the date of judicial demand, $5,000 in attorney’s fees, and

court costs. The Gordons did not appeal this judgment. On March 29, 2022, OCD

recorded the judgment in the Mortgage and Conveyance Office of Jefferson Parish.

In approximately May or June of 2022, the State of Louisiana publicly

indicated that OCD may begin dismissing lawsuits against the homeowners whom

OCD had sued for the return of elevation funds.3

Although the record is not clear on this point, it appears that around the same

time that the State indicated that the dismissal of elevation suits may be

forthcoming, an unspecified real estate transaction purportedly necessitated the

2
The Gordons also contended in their exception of prescription that on the date that the signed
the elevation incentive agreement, December 10, 2008, their residence actually exceeded
Jefferson Parish’s Base Flood Elevation requirement, and therefore was not required to be
elevated. The Gordons further stated that the Road Home Program representative who evaluated
their residence for the elevation award told them that they could use the elevation funds for any
Katrina-related repairs.
3
We take judicial notice of the fact that the State, with the concurrence of the U.S. Department
of Housing and Urban Development, publicly indicated that it would forego further legal action
and would release homeowners from their debt obligations. See, e.g., Division of Admin., Office
of Community Dev. – Disaster Recovery Unity v. Moreira, 22-245 (La. App. 5 Cir. 5/19/23), 365
So.3d 895, 897 n.1 (taking judicial notice of the State’s revised position, and remanding the
appeal to the trial court for dismissal of the suit with prejudice); State v. McCrea, 21-698 (La.
App. 5 Cir. 5/16/23), 364 So.3d 1291, 1293 n.1 (same). See also State of La. Div. of Admin.,
Office of Community Dev. – Disaster Recovery Unit v. Lekeshia Johnson, 21-C-682 (this Court
entered an April 13, 2023 en banc order granting the parties’ joint motion and order for
dismissal, with costs of the proceedings assessed to the State); State v. Martha Garcia, 21-C-266
(same); State v. Eliska Scott, 21-C-720 (same); State v. Diane Dodt-Gauthier, 22-C-583 (same).

23-CA-348 2

satisfaction of the February 16, 2022 judgment that OCD recorded in the mortgage

and conveyance records against the Gordons.4 Thus, on August 5, 2022, OCD

received a certified check in the amount of $40,247.14 in satisfaction of that

judgment.

The Gordons hired new counsel and on November 11, 2022, they filed a

separate lawsuit seeking to nullify the judgment entered against them. That lawsuit

was served on OCD in January 2023 and is the subject of a companion appeal that

is also pending in this Court, 23-CA-366, Gordon v. State of La., Div. of Admin.,

Office of Community Dev. – Disaster Recovery Unit.

On November 23, 2022, OCD filed a Notice of Mortgage Cancellation in the

Mortgage and Conveyance Office of the Jefferson Parish Clerk of Court, and the

inscription of the February 16, 2022 judgment against the Gordons was cancelled

as having been satisfied.

On January 23, 2023, OCD filed a motion and order for dismissal of its

lawsuit against the Gordons, indicating that the balance sued upon had been paid in

full. The trial court signed the Order of Dismissal the next day, January 24, 2023.

On February 3, 2023, the Gordons filed a “Motion for New Trial, or,

Alternatively, Reconsideration with Incorporated Memorandum.” On May 9, 2023,

the trial court heard the motion for new trial, denying it in a written judgment

issued May 24, 2023.

On June 8, 2023, the Gordons sought a devolutive appeal to review the

denial of their motion for new trial. On August 7, 2023, after the record was lodged

in this appeal, appellant also filed a Peremptory Exception of Peremption,

4
The record contains an August 2, 2022 letter to Crescent Title from counsel for OCD, which
stated that the payoff amount of the Judgment against the Gordons as of August 5, 2022 would
total $40,247.14. The letter asked Crescent Title to send a Certified Check to: Louisiana Division
of Administration-DRU; Shows, Cali & Walsh, LLP; 628 St. Louis St.; Baton Rouge, LA 70802.

23-CA-348 3

contending that OCD’s contract claim is perempted by the five-year peremption

period found in La. R.S. 9:2772.

Subject Matter Jurisdiction

At the outset, we must address this court’s appellate jurisdiction to hear this

appeal. OCD contends that this Court does not have appellate jurisdiction over this

appeal, because the Gordons have appealed the denial of a motion for new trial,

which is an interlocutory, non-appealable ruling. Truitt v. Graco, Inc., 19-121 (La.

App. 5 Cir. 11/20/19), 284 So.3d 674, 677. We agree that this Court lacks appellate

jurisdiction.

The denial of a motion for new trial is an interlocutory judgment which is

not appealable; it is reviewable only under the appellate court’s supervisory

jurisdiction for an abuse of discretion. 9029 Jefferson Highway, L.L.C. v. S&D

Roofing, L.L.C., 15-686 (La. App. 5 Cir. 2/25/16), 187 So.3d 522, 524. However,

appeals are favored in the law and will not be dismissed for mere technicalities. Id.

Thus, for example, when the motion for appeal refers to a specific judgment

denying a motion for new trial, yet the appellant exhibits a clear intention to appeal

instead the judgment on the merits, the appeal should be considered. Id.

Here, the appellants’ June 8, 2023 motion for appeal refers only to the trial

court’s May 9, 2023 judgment denying the motion for new trial; it does not

reference either the trial court’s January 24, 2023 Order dismissing the suit or the

February 16, 2022 judgment on OCD’s motion for summary judgment. Moreover,

appellants’ brief assigns a single error: that the trial court legally erred and abused

its discretion in denying the motion for new trial.5 As such, we are bereft of

appellate jurisdiction to consider this appeal. Moreover, it is not this Court’s policy

to convert jurisdictionally defective appeals into writ applications. See In re

5
To the extent that the Gordons’ new trial motion actually sought a new trial of the February 16,
2022 summary judgment granted in favor of OCD, their motion for new trial would have been
untimely pursuant to La. C.C.P. art. 1974.

23-CA-348 4

Medical Review Panel Proceedings of Foster, 17-653 (La. 5 Cir. 3/28/18), 243

So.3d 1282, 1285; State v. Toussaint, 14-352 (La. App. 5 Cir. 10/29/14), 164 So.3d

900, 901 n.3. Nevertheless, should they choose to do so, defendants are permitted

to file an application for supervisory writ to review the trial court’s denial of their

motion for new trial within 30 days of the date of this decision.

Peremptory Exception of Peremption

Having no appellate jurisdiction to consider the denial of the motion for new

trial, and in light of the fact that the Gordons correctly acknowledge in their

memorandum in support of their exception of peremption that jurisdiction would

be supervisory, pursuant to La. Const. Art. V, § 10, La. C.C.P. art. 2201, and Rule

4 of the Uniform Rules – Courts of Appeal, we dismiss the Gordons’ peremptory

exception of peremption without prejudice.

DECREE

This appeal is dismissed for lack of appellate jurisdiction. Having no

jurisdiction to hear this appeal, we also dismiss without prejudice appellants’

peremptory exception of peremption.

APPEAL DISMISSED;
EXCEPTION OF PEREMPTION
DISMISSED WITHOUT PREJUDICE

23-CA-348 5

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
STEPHEN J. WINDHORST LINDA M. WISEMAN
JOHN J. MOLAISON, JR.
FIRST DEPUTY CLERK
SCOTT U. SCHLEGEL
TIMOTHY S. MARCEL FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX
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NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
MARCH 27, 2024 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

23-CA-348
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HON. RAYMOND S. STEIB, JR. (DISTRICT JUDGE)
DREW D. LYONS (APPELLEE) MARY C. CALI (APPELLEE) WILLIAM J. WILSON (APPELLEE)
SHERMIN S. KHAN (APPELLANT)

MAILED
HUNTER FARRAR (APPELLEE)
JOHN C. CONINE, JR. (APPELLEE)
JOHN C. WALSH (APPELLEE)
ATTORNEYS AT LAW
POST OFFICE DRAWER 4425
BATON ROUGE, LA 70821