John Taylor, Et Ux. v. Leger Construction

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

10-29

JOHN TAYLOR AND CHRISTINE TAYLOR

VERSUS

LEGER CONSTRUCTION, LLC, ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF ACADIA, NO. 84956
HONORABLE DURWOOD CONQUE, DISTRICT JUDGE

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JIMMIE C. PETERS
JUDGE

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Court composed of Jimmie C. Peters, Elizabeth A. Pickett, and Shannon J.
Gremillion, Judges.

APPEAL DISMISSED.

Eddie J. Lambert
Attorney at Law
Post Office Box 88
Gonzales, LA 70707
(225) 647-9788
COUNSEL FOR DEFENDANT/APPELLEE:
Post-Tension Slab-General

Michael Wayne Adley
Judice and Adley
Post Office Drawer 51769
Lafayette, LA 70505-1769
(337) 235-2405
COUNSEL FOR PLAINTIFFS/APPELLANTS:
John Taylor
Christine Taylor

Susan A. Daigle
John Daniel Rayburn, Jr.
Rachal Welch
Daigle, Crawford & Jamison
Post Office Box 3667
Lafayette, LA 70509-3667
(337) 234-7000
COUNSEL FOR DEFENDANT/APPELLEE:
Post-Tension Slabs, Inc.

Timothy Alan Maragos
Caffery Plaza, Suite 100
4023 Ambassador Caffery Pkwy
Lafayette, LA 70503
(337) 988-7240
COUNSEL FOR DEFENDANT/APPELLEE:
State Farm Fire & Casualty Co.

Kyle Patrick Polozola
Liskow & Lewis
Post Office Box 52008
Lafayette, LA 70505
(337) 232-7424
COUNSEL FOR DEFENDANT/APPELLEE:
Randy Rivera

PETERS, Judge.

After the lodging of the record in the above captioned appeal, this court issued

an order for the plaintiffs-appellants, John and Christine Taylor, to show cause why

their appeal should not be dismissed as having been taken from a non-appealable

ruling. The plaintiffs have filed their brief in response to this court’s order. For the

reasons given below, we dismiss this appeal as premature.

In the course of litigating this suit, the defendant-appellee, Post-Tension Slabs,

Inc., filed exceptions of no cause of action and no right of action. The trial court

entered judgment on October 2, 2009, stating, in pertinent part:

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that
defendant’s Peremptory Exception of No Cause of Action is hereby
granted and therefore;

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that
there be judgment herein in favor of defendant, POST-TENSION
SLABS, INC., and against plaintiffs, JOHN AND CHRISTINE
TAYLOR, dismissing with prejudice all claims for damages asserted
against defendant, POST-TENSION SLABS, INC., as alleged in the
Petition by the Taylors;

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that
plaintiffs, JOHN TAYLOR AND CHRISTINE TAYLOR, have ten (10)
days from today’s date to amend their Petition to allege any other claims
they may have against defendant, POST-TENSION SLABS, INC.;

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that
the costs of court associated with the Exception of No Cause of Action
be and hereby (sic) assessed to the plaintiffs, with all remaining court
costs to be deferred to the trial on the merits.

The appellants designated the record in this appeal. Therefore, this court could

not discern from the record presented whether the plaintiffs had amended their

petition within ten days of the foregoing order. Furthermore, the record contains no

subsequent judgment ordering complete dismissal of the plaintiffs’ action as to Post-

Tension Slabs, Inc. Therefore, this court issued an order for the plaintiffs to show

cause why their appeal should not be dismissed as premature, citing La.Code Civ.P.

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arts. 934 and 2083, and Hughes v. Energy & Marine Underwriters, 07-490 (La.App.

5 Cir. 3/11/08), 978 So.2d 566, writ denied, 08-957 (La. 8/29/08), 989 So.2d 100.

Louisiana Code of Civil Procedure Article 2083 provides that appeals may be

taken from final judgments, judgments reformed in accordance with a remittitur or

additur, and interlocutory judgments which are made appealable by express law. In

Hughes, 978 So.2d 566, the pertinent portion of the judgment appealed was quoted

by the fifth circuit as follows, “The judgment ‘ordered that Plaintiff’s claims under

the Louisiana Wage Payment Act, La. R.S. 23:631, et seq. are dismissed with

prejudice and Plaintiff has fifteen (15) days to amend his Petition for Unpaid Wages,

Penalties, and Attorney’s Fees to assert viable claims and to convert his lawsuit to an

ordinary proceeding.’ (Emphasis added.)” 978 So.2d at 567 (emphasis supplied;

footnote omitted). The court noted that the plaintiff filed his appeal prior to the

expiration of the time set by the trial court for the plaintiff to amend his petition. The

fifth circuit proceeded to dismiss this appeal based on the finding that the judgment

was interlocutory since the plaintiff was afforded the opportunity to file an amending

petition.

In the brief filed in this court by the plaintiffs, the plaintiffs attempt to

distinguish the holding in Hughes, 978 So.2d 566, by citing this court to the

dispositive language in the judgment appealed herein. Thus, the plaintiffs contend

that in the instant case, the trial judge dismissed the plaintiffs’ claims in full with

prejudice and permitted amendment of the petition only to assert “any other claims

they may have against defendant”. The plaintiffs argue that the judgment, therefore,

is clearly appealable as to the dismissal of the claims that the plaintiffs attempted to

set forth in their petition.

According to the plaintiffs’ argument, the trial court’s judgment became final

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once the ten day period passed for amendment and the plaintiffs’ chose not to amend

their petition. Thus, the plaintiffs contend that in Hughes, 978 So.2d 566, the

judgment was not appealable when the appeal was taken because the motion for

appeal was filed before the time period for amending the petition had expired. We

find no basis in law for the plaintiffs’ proposition.

We disagree with the plaintiffs’ attempt to distinguish the holding in Hughes,

978 So.2d 566. To the contrary of the plaintiffs’ position, the trial court in Hughes,

as in the instant case, used similar language in the judgment granting the exception

of no cause of action and dismissing the plaintiff’s claims that were originally

attempted to be set forth. In the matter sub judice, the plaintiffs want this court to

find that since the trial court dismissed the claims originally set forth in the petition

and permitted amendment only for the purpose of raising new claims, the judgment

is final and appealable as to the original claims.

In Ramey v. DeClaire, 2003-1299, p. 7 (La. 3/19/04), 869 So.2d 114, 118, the

supreme court stated:

A cause of action, when used in the context of the peremptory
exception, is defined as the operative facts that give rise to the plaintiff's
right to judicially assert the action against the defendant. Everything on
Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1238
(La.1993). The function of the peremptory exception of no cause of
action is to test the legal sufficiency of the petition, which is done by
determining whether the law affords a remedy on the facts alleged in the
pleading. Id. at 1235. No evidence may be introduced to support or
controvert an exception of no cause of action. La. C.C.P. art. 931.
Consequently, the court reviews the petition and accepts well-pleaded
allegations of fact as true. Jackson v. State ex rel. Dept. of Corrections,
00-2882, p. 3 (La.5/15/01), 785 So.2d 803, 806; Everything on Wheels
Subaru, 616 So.2d at 1235. The issue at the trial of the exception is
whether, on the face of the petition, the plaintiff is legally entitled to the
relief sought. Montalvo v. Sondes, 93-2813, p. 6 (La.5/23/94), 637
So.2d 127, 131.

Louisiana has chosen a system of fact pleading. La. C.C.P. art.
854 cmt. (a); Montalvo at p. 6, 637 So.2d at 131. Therefore, it is not
necessary for a plaintiff to plead the theory of his case in the petition.

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Kizer v. Lilly, 471 So.2d 716, 719 (La.1985). However, the mere
conclusions of the plaintiff unsupported by facts does not set forth a
cause of action. Montalvo at p. 6, 637 So.2d at 131.

Thus, inherent in a decision that a petition fails to state a cause of action is the

decision that the plaintiff has failed to set forth operative facts that would afford the

plaintiff a right to assert a judicially cognizable action against the defendant.

Therefore, any amended petition would necessarily have to state a new claim

inasmuch as the original petition has failed to state one. Further, we note that at the

conclusion of the supreme court’s opinion in Ramey, 869 So.2d 114, the court ordered

that if the plaintiff failed to amend the petition within thirty days of the finality of that

court’s decision granting the exception of no cause of action, the trial court was

ordered to dismiss the suit.

Finally, comments must be made on the plaintiffs’ contention that the judgment

became appealable upon the expiration of the ten day period for amending the

petition. Were this court to apply such a legal principle, the result would be a lack

of certainty as to the legal delay for seeking an appeal. Moreover, a court in this state

has no authority to extend the delays for seeking an appeal. State ex rel. E.A., 2002-

996 (La.App. 3 Cir. 10/2/02), 827 So.2d 594. In this case, we find that the appeal is

premature until there is a proper final judgment dismissing Post-Tension Slabs, Inc.,

from this action. Therefore, we dismiss this appeal at plaintiffs’ cost.

APPEAL DISMISSED.

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