Elaine Setliff v. Aaron Slayter

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

08-1337

ELAINE SETLIFF, ET AL.

VERSUS

AARON SLAYTER, ET AL.

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APPEAL FROM THE
ALEXANDRIA CITY COURT
PARISH OF RAPIDES, NO. 105965
HONORABLE RICHARD E. STARLING, JR., CITY COURT JUDGE

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MARC T. AMY
JUDGE

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Court composed of John D. Saunders, Jimmie C. Peters, and Marc T. Amy,
Judges.

APPEAL DISMISSED.

Henry Howard Lemoine, Jr.
Attorney at Law
607 Main Street
Pineville, LA 71360
(318) 473-4220
COUNSEL FOR DEFENDANT/APPELLANT:
Aaron Slayter

Thomas D. Davenport, Jr.
The Davenport Firm
1628 Metro Drive
Alexandria, LA 71301
(318) 445-9696
COUNSEL FOR PLAINTIFFS/APPELLEES:
Elaine Setliff and Louisiana Lagniappe Realty, LLC

AMY, Judge.

Upon the lodging of the appeal record in the instant suit, this court sue sponte

issued a rule to show cause to the defendant/appellant why the appeal should not be

dismissed as having been taken from a partial final judgment which has not been

designated as immediately appealable pursuant to La.Code Civ.P. art. 1915(B). For

the reasons assigned, we dismiss the appeal.

At issue in the instant appeal is the trial court’s judgment granting the

plaintiffs’ motion for summary judgment, finding that the defendant breached his

contractual agreement, entitled a “Listing Agreement,” with the plaintiffs. Judgment

was signed on June 16, 2008, and notice was sent the same day. No motion for new

trial was filed. After the trial court rendered judgment, the defendant filed an

application for supervisory writs, docketed in this court under number CW-08-897.

On August 12, 2008, this court denied the writ application finding the following:

Appellate courts generally will not exercise their supervisory jurisdiction when
an adequate remedy exists by appeal. Douglass v. Alton Ochsner Medical
Found., 96-2825 (La. 6/13/97), 695 So.2d 953. The judgment at issue grants
a motion for partial summary judgment. Although this judgment falls under
the provisions of either La.Code Civ.P. art. 1915(A) or (B), we find that the
defendant-relator, Aaron Slayter, has an adequate remedy by appeal.

After this court issued its ruling, the defendant filed a motion for appeal on

August 14, 2008. The trial court granted the motion for appeal without designating

the judgment as appealable and without giving reasons. The instant appeal was

lodged in this court on October 31, 2008.

The defendant submits that the judgment from which appeal is being sought is

appealable pursuant to La.Code Civ.P. art. 1915(B) and submits that despite the lack

of designation, this court should maintain the judgment. As mentioned above, the

judgment as to which an appeal is being sought determined that the defendant had

breached the contractual agreement he had with the plaintiffs. This constitutes a

judgment on a motion for partial summary judgment as to a single issue.

Accordingly, we find this judgment falls within the scope of La.Code Civ.P. art.

1915(B), thus, requiring designation as to why the judgment should be immediately

appealable.

In Succession of David Jones, Jr. a/k/a David Jones, III a/k/a David Jones, 08-

1088, pp. 2-4 (La.App. 3 Cir. 10/29/08), ___ So.2d ___, this court set forth the

following discussion examining the procedure to be followed in reviewing a 1915(B)

judgment that was not designated as appealable by the trial court:

The trial court failed to designate the judgment from which
appeal is being sought as immediately appealable. Because the
trial court did not designate the judgment as final or give reasons
why the judgment should be allowed an immediate appeal, we
find the de novo standard of review is applicable. See generally
R.J. Messinger, Inc. v. Rosenblum, 2004-1664 (La. 3/2/05), 894
So.2d 1113.

Louisiana Code of Civil Procedure Article 1841 provides
that a final judgment is one that “determines the merits in whole
or in part.” Louisiana Code of Civil Procedure Article 1915
further provides, in pertinent part, the following:

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 the
parties, defendants, third party
plaintiffs, third party defendants, or
intervenors.
....

B. (1) W hen a court renders a partial
judgment . . . as to one or more but less
than all of the claims, demands, issues,
or theories, whether in an original
demand, reconventional demand, cross-
c la im, third p a rty c laim, o r
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.

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(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
constitute a final judgment for the
purposes of appeal.

In Messinger, 894 So.2d 1113, the supreme court found
that a trial court should give express reasons why there is no just
reason for delay of an appeal of a partial final judgment.
However, should the trial court fail to certify a partial final
judgment, the Messinger court found that an appellate court
cannot summarily dismiss the appeal. Instead, when the trial
court fails to give reasons for designating a partial summary
judgment as appealable, the Messinger court held that the
appellate court should make a de novo determination by looking
to the record for the existence of any justification for maintaining
the appeal. The Messinger court additionally found that the
appellate court could alternatively issue a rule to show cause why
the appeal should not be dismissed.

Recently, in Fakier v. State, Bd. of Supervisors for Univ. of
La. Sys., 08-111 (La.App. 3 Cir. 5/28/08), 983 So.2d 1024, this
court examined the issue of whether a partial judgment was a final
judgment for purposes of an immediate appeal. The court noted
that Messinger, 894 So.2d 1113, adopted from Allis-Chalmers
Corp. v. Philadelphia Elec. Co., 521 F.2d 360 (3rd Cir.1975),
several non-exclusive factors for use by trial courts when
determining certification of a judgment and for use by appellate
courts when conducting de novo reviews when no reasons are
given by the trial court for designation. The factors for examining
certification are:

1) The relationship between the adjudicated and
unadjudicated claims;

2) The possibility that the need for review might
or might not be mooted by future
developments in the trial court;

3) The possibility that the reviewing court might
be obliged to consider the same issue a
second time; and

4) Miscellaneous factors such as delay,
economic and solvency considerations,
shortening the time of trial, frivolity of
competing claims, expense, and the like.

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Fakier, 983 So.2d 1029, quoting Messinger, 894 So.2d at 1122.

As in Succession of Jones, we find that remanding this matter for designation

would be a waste of judicial resources, and therefore, we will proceed to review

whether an immediate appeal is appropriate. La.Const. art. 5, §10; La.Code Civ.P.

art. 2201. For the reasons given infra, we find that the judgment in the instant case

should not be designated immediately appealable.

Applying the factors set forth in Fakier, we find that a reversal of the judgment

sub judice, which granted a motion for partial summary judgment, will not terminate

the entire litigation. In addition, the trial court could revise its ruling on the motion

for partial summary judgment at any time prior to final judgment pursuant to La.Code

Civ.P. art. 1915(B)(2), thus rendering the need for this appeal moot. We find that

judicial resources would be wasted by the appellate review of the partial summary

judgment at this time, considering the probability of a later appeal involving the

adjudication of the remaining claims. Thus, we find that this matter is not ripe for

immediate appeal. Rather, we find that review of this ruling can be made upon the

rendition of the final judgment adjudicating all remaining issues in this action.

Therefore, we dismiss the appeal at appellant’s cost.

APPEAL DISMISSED.

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