John Aaron Duhon v. 3-D Sugar Farms, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 11-1544

JOHN AARON DUHON

VERSUS

3-D SUGAR FARMS, INC., ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-20106219
HONORABLE MARILYN CARR CASTLE, DISTRICT JUDGE

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MARC T. AMY

JUDGE

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Court composed of Sylvia R. Cooks, Jimmie C. Peters, and Marc T. Amy, Judges.

APPEAL DISMISSED.

Steven Gerald Durio
Joseph Francis Durio
Durio, McGoffin, Stagg & Ackermann
Post Office Box 51308
Lafayette, LA 70505-1308
(337) 233-0300
COUNSEL FOR PLAINTIFF/APPELLANT:
John Aaron Duhon

Katherine A. Theunissen
Mahtook & Lafleur
Post Office Box 3605
Lafayette, LA 70502
(337) 266-2189
COUNSEL FOR DEFENDANTS/APPELLEES:
Richard Paul Duhon
3-D Sugar Farms, Inc.
3-D Land Company, LLC
Warren Dale Duhon
Vickie Duhon Badeaux

AMY, Judge.

Appellant, John Aaron Duhon, filed two claims against Appellees, Richard

Paul Duhon; DDB Operations, LLC; Warren Dale Duhon and Vickie Duhon

Badeaux−one for revocation of a donation and a second as a “derivative action for

recovery of amounts obtained by exploiting conflict of interest.” Appellees moved

for summary judgment on both claims. The trial court granted summary judgment

in part, dismissing Appellant’s claim for the revocation of donation only. In

response, Appellant filed a motion for reconsideration or new trial, which was

denied. Next, Appellant applied for supervisory writs to which Appellees

responded. Appellant then filed a motion for devolutive appeal. The order of

appeal was signed by the trial court soon thereafter.

After the appeal was lodged in this court, it was soon discovered that a

formal judgment had not been issued nor a hearing held on Appellant’s motion for

reconsideration or new trial. Accordingly, this court issued a rule, sua sponte,

ordering Appellant to show cause, by brief only, why this appeal should not be

dismissed as premature. Days later, Appellees filed a motion to dismiss the appeal

on grounds that the judgment from which Appellant appealed was not a final,

appealable judgment.

On January 3, 2012, in response to the rule to show cause, Appellant

submitted a brief and “Order for Rule to Show Cause or New Trial.” Thus, it

appears that the necessity of a formal judgment or hearing on the motion for new

trial, discussed in Egle v. Egle, 05-0531 (La.App. 3 Cir. 2/8/06), 923 So.2d 780,

has now been satisfied. See La.Code Civ.P. art. 2123(C). Appellees’ motion to

dismiss, however, remains at issue.

Appellant contends that the judgment granting Appellees’ motion is a final,

immediately appealable judgment under La.Code Civ.P. art. 1915(A)(1) and (3)

“insofar as it dismisses all of John Aaron Duhon’s individual claims against his

ungrateful defendant sons and daughter, such that the only remaining claim in this

matter is the claim of the corporation, 3-D Sugar Farms, Inc., for which Aaron is

merely the shareholder.” We disagree. Louisiana Code of Civil Procedure Article

1915(A), in pertinent part, provides 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 of the parties,
defendants, third party plaintiffs, third party defendants, or
intervenors.

....

(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).

The partial granting of Appellees’ motion for summary judgment did not

dismiss the suit as to any party, defendant, third party plaintiff or defendant, or

intervenor. Although Appellant sued Appellees individually for revocation and in

his capacity as a shareholder in the shareholder derivative suit, he remains the sole

claimant or plaintiff in this case. Further, while Appellant seeks to appeal the

granting of Appellees’ motion for summary judgment, the summary judgment

appealed is only partial in nature and is, therefore, governed by La.Code Civ.P. art.

1915(B).

Article 1915(B)(1) provides that a granted, partial summary judgment is not

immediately appealable unless “it is designated as a final judgment by the court

after an express determination that there is no just reason for delay.” 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

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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.” La.Code

Civ.P. art. 1915(B)(2).

Based on the foregoing, we find that the instant appeal is not properly before

this court. Accordingly, we hereby order that this appeal be dismissed at

Appellant’s cost.

APPEAL DISMISSED.

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