L. Neil Conrad, Jr. v. McGowan Working Partners, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

08-1251

L. NEIL CONRAD, JR., INDIVIDUALLY AND AS TRUSTEE OF THE
AMELIA STOUT BEARD ESTATE TRUST
VERSUS
McGOWAN WORKING PARTNERS, INC.

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APPEAL FROM THE
THIRTY-THIRD JUDICIAL DISTRICT COURT
PARISH OF ALLEN, NO. C-2007-131
HONORABLE JOEL GERARD DAVIS, DISTRICT JUDGE

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MICHAEL G. SULLIVAN
JUDGE

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Court composed of Michael G. Sullivan, Billy H. Ezell, and J. David Painter,
Judges.

APPEAL DISMISSED.
Robert L. Cabes
Milling, Benson, et al.
Post Office Box 51327
Lafayette, LA 70505-1327
(337) 232-3929
COUNSEL FOR DEFENDANT/APPELLEE:
McGowan Working Partners, Inc.

Kenneth O'Neil Privat
Attorney at Law
Post Office Drawer 449
Crowley, LA 70527-0449
(337) 783-7141
COUNSEL FOR PLAINTIFF/APPELLANT:
L. Neil Conrad, Jr., etc.

SULLIVAN, Judge.

This court, ex proprio motu, issued a rule for the plaintiff-appellant, L.

Neil Conrad, Jr., individually and as Trustee of the Amelia Stout Beard Trust,

to show cause, by brief only, why the appeal in this matter should not be

dismissed for having been taken from a partial judgment which has not been

designated as final and appealable pursuant to La.Code Civ.P. art. 1915(B).

The appellant filed a brief in response to this court’s rule. Finding that this

appeal has been taken from a judgment that requires a designation pursuant to

Article 1915(B) and that no such designation appears of record, we dismiss this

appeal.

The plaintiff filed this suit seeking various relief arising out of a mineral

lease, including a demand for attorney fees. In the course of this litigation, the

defendant-appellee, McGowan Working Partners, Inc., filed a motion for

summary judgment. Following a contradictory hearing on this motion, the trial

court signed a judgment which states:

IT IS ORDERED, ADJUDGED AND DECREED that the Motion
for Summary Judgment is GRANTED, that the Plaintiff’s suit is
dismissed, and Plaintiff be awarded reasonable attorney fees and costs.
Plaintiff is ordered to submit to the Defendant, for its review and
agreement, Plaintiff’s proposed attorney fees and costs. If the Plaintiff
and Defendant cannot agree on reasonable attorney fees and costs, the
court will entertain additional proceedings to determine such.

The plaintiff filed an appeal from the above judgment. Upon the lodging

of the record in this appeal, this court issued the subject rule for the plaintiff

to show cause why this appeal should not be dismissed as having been taken

from a partial judgment which has not been designated as immediately

appealable pursuant to La.Code Civ.P. art. 1915(B).

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In responding to this court’s rule, the plaintiff cites this court to Moore

v. Prudential Ins. Co. of Am., 302 So.2d 381 (La.App. 1 Cir. 1974). In

reviewing a grant of summary judgment finding insurance coverage in the full

amount of the policy at issue in that case, the first circuit also stated:

We are unable to consider plaintiff’s prayer for penalties and
attorney’s fees contained in his answer. The trial judge, in effect, denied
plaintiff’s motion for summary judgment to that extent. Under Article
968 of the Code of Civil Procedure, an appeal does not lie from a refusal
to render any summary judgment. Article 1915 of the Code of Civil
Procedure permits a partial judgment to be rendered, and provides that
the trial court retains jurisdiction to adjudicate such issues as have not
been disposed of thereby. We are therefore without authority to
consider this issue.

302 So.2d at 384.

Initially, this court would point out that La.Code Civ.P. art. 1915 has

undergone significant revision since the opinion was rendered in Moore, and

in particular, that statute now requires a certification of a partial judgment

which does not fall within the purview of paragraph A of that statute. Thus,

the version of Article 1915 applicable to the instant case reads, in pertinent

part:

A. 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:

(1) Dismisses the suit as to less than all of the parties, defendants,
third party plaintiffs, third party defendants, or intervenors.

(2) Grants a motion for judgment on the pleadings, as provided by
Articles 965, 968, and 969.

(3) Grants a motion for summary judgment, as provided by
Articles 966 through 969, but not including a summary judgment
granted pursuant to Article 966(E).

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

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(5) Signs a judgment on the issue of liability when that issue has
been tried separately by the court, or when, in a jury trial, the issue of
liability has been tried before a jury and the issue of damages is to be
tried before a different jury.

(6) Imposes sanctions or disciplinary action pursuant to Article
191, 863, or 864 or Code of Evidence Article 510(G).

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, 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
order or decision which adjudicates fewer than all claims or the rights
and liabilities of fewer than all the parties, shall not terminate the action
as to any of the claims or parties and shall not constitute a final
judgment for the purpose of an immediate appeal. Any such order or
decision issued 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.

We find that the judgment rendered in the instant case does not fall

within any of the provisions in La.Code Civ.P. art. 1915(A). Since the

judgment awards the plaintiff attorney fees but does not set the amount of those

fees, we find that the trial court’s ruling is a partial judgment which falls under

the provisions of La.Code Civ.P. art. 1915(B). We further distinguish the

holding in Moore, 302 So.2d 381, by the fact that in that case, the trial court’s

judgment had denied attorney fees to the party appealing. In the instant case,

the trial court has entered judgment awarding the plaintiff attorney fees; the

only issue left in the judgment besides the assessment of court costs was the

amount for the attorney fee award.

Further elaborating on this court’s reasoning, we would note that

permitting this appeal to proceed at this time could result in a piecemeal appeal

of this litigation. In the brief filed in this court in response to the rule to show

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cause, the plaintiff stated that subsequent to entry of the judgment appealed,

the parties have been unsuccessful in establishing the dollar figure to be

assigned the attorney fee award. Therefore, this issue must be presented to the

trial court. If the plaintiff or defendant is not satisfied with the amount of the

attorney fee award, either party or both could seek review from this court of

that ruling. Moreover, we note that the attorney fee award was an element of

the damage claim raised in the plaintiff’s petition in this case. Thus, on the

facts of the instant case, we find that in order for this appeal to be permitted,

the judgment at issue would have had to have been designated as final and

appealable after an express determination that there was no just reason for

delay an immediate appeal herein. In the absence of this designation, we find

that this appeal was filed prematurely and must be dismissed at this time at

plaintiff’s cost.

APPEAL DISMISSED.

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