Nolton Dalcourt v. Thomas Moyer

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

18-412

NOLTON DALCOURT

VERSUS

THOMAS MOYER, ET AL.

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF ST. MARTIN, NO. 83622
HONORABLE GREGORY P. AUCOIN, DISTRICT JUDGE

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MARC T. AMY
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and
Marc T. Amy, Judges.

APPEAL DISMISSED. REMANDED.

Mark M. Bonura
7733 Maple Street
New Orleans, LA 70118
(504) 598-3018
COUNSEL FOR DEFENDANTS/APPELLEES:
Thomas Moyer
Sherry Craig Moyer

John W. Tilly
Keaty & Tilly, LLC
2701 Johnston Street, Suite 303
Lafayette, LA 70503
(337) 347-8995
COUNSEL FOR PLAINTIFF/APPELLANT:
Nolton Dalcourt

AMY, Judge.

This matter involves a failed purchase agreement for the sale of a residence.

The seller and the buyers each sought relief under the terms of the agreement, alleging

that the opposing party was responsible for the failure of the transaction. The trial

court found numerous deficiencies in the seller’s performance, awarding the return of

the deposit as well as attorney fees and costs to the buyers. By the resulting judgment,

the trial court ordered the buyers to submit an itemization of their attorney fees and

costs for review. The trial court further ordered that, in the event the parties cannot

agree to the quantum of such an award, the buyers are to file a rule to show cause for

such a determination. The seller appeals. Finding that this appeal was not taken from

a final appealable judgment, however, we dismiss the appeal and remand for further

proceedings.

Factual and Procedural Background

By a June 1, 2015 Louisiana Residential Agreement to Buy or Sell, the plaintiff,

Nolton Dalcourt, agreed to sell his St. Martin Parish home to the defendants, Thomas

Moyer and Sherry Craig.1 The agreement set forth a $455,000.00 purchase price2 and

required the buyers to provide a $4,000.00 deposit. The parties further agreed to a

fourteen-day inspection and due diligence period. They designated a June 30, 2015

closing date.

According to Mr. Moyer’s testimony at trial, following the close of the

inspection and due diligence period, he began to have concerns regarding the

boundary lines of the property. He further became aware of a utility servitude

1
Mr. Moyer testified at trial that he and Ms. Craig have since married. We refer to the
buyers as “the Moyers.”
2
As a result of certain deficiencies identified through the general home inspection process,
the parties ultimately agreed to a lesser purchase price by addendum.

burdening the property which, he contended, was not previously disclosed. The

Moyers thereafter forwarded a June 27, 2015 addendum to Mr. Dalcourt, apprising

him that: “Buyer elects to make contract void with return of four thousand ($4,000.00)

deposit.” The record indicates that Mr. Dalcourt did not sign that addendum and, as

evidenced by the present proceeding, the sale was not completed. Upon the parties’

competing claims for the deposit, the broker jointly representing the parties in the

subject transaction disbursed the deposit to Mr. Dalcourt.

Mr. Dalcourt instituted this matter in January 2016, naming the Moyers as

defendants and alleging that they were in default by refusing to purchase the residence.

Referencing the purchase agreement’s provision for stipulated damages, Mr. Dalcourt

asserted that he elected to “terminate the agreement and recover an amount equal to

ten (10%) of the Sale Price.” He further sought attorney fees and penalties under the

terms of the agreement as well as lease payments that he asserted were incurred as a

result of the failed agreement.

By their answer, the Moyers denied their liability for the failed transaction.

They further alleged that Mr. Dalcourt was in breach of the purchase agreement due to

alleged misrepresentations as to the size of the property and purported encroachments.

The Moyers further cited difficulties allegedly encountered in the inspection process

and in an attempt to have the property surveyed. The Moyers sought judgment in

their favor.

Following a trial, the trial court ruled in favor of the Moyers upon a finding of

various deficiencies in Mr. Dalcourt’s performance. The trial court ordered the return

of the deposit to the Moyers and awarded them attorney fees and costs. By the

resulting judgment, the trial court ordered the buyers to submit an itemization of their

attorney fees and costs for review. The trial court further ordered that, in the event the

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parties cannot agree as to the quantum of such an award, the buyers are to file a rule to

show cause for such a determination.

Mr. Dalcourt appeals. However, we do not reach the merits of the appeal.3 We

instead find that there is no jurisdictional basis on which to do so.

Discussion

Subject Matter Jurisdiction

Notably, an appellate court’s jurisdiction is not properly invoked absent a valid

final judgment. See La.Code Civ.P. art. 2083.4 See also Brown v. Breaux Bridge

Ventures, LLC, 16-662 (La.App. 3 Cir. 12/7/16), 207 So.3d 1083 (quoting

Input/Output Marine Sys., Inc. v. Wilson Greatbatch Tech., Inc., 10-477 (La.App. 5

Cir. 10/29/10), 52 So.3d 909). While the parties have not addressed whether the

underlying judgment is final in nature, “it is the duty of a court to examine subject

matter jurisdiction sua sponte, even when the issue is not raised by the litigants.”

Boudreaux v. State, Dep’t of Transp. & Dev., 01-1329, p. 8 (La. 2/26/02), 815 So.2d 7,

13.

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Mr. Dalcourt assigned the following as error:

[1.] The Trial Court erred when it did not apply the clear and unambiguous
language of the contract entered into between the parties when it found the
Defendants did not breach the contract by terminating the agreement after the
deadline to do so had already passed.

[2.] The Trial Court erred when it found the Plaintiff owed obligations to disclose
information and to allow access to the property, when no such language in the
contract obligated him to do so.
4
Titled “Judgments appealable[,]” La.Code Civ.P. art. 2083 provides, in pertinent part, that:

A. A final judgment is appealable in all causes in which appeals are given by
law, whether rendered after hearing, by default, or by reformation under Article 1814.

....

C. An interlocutory judgment is appealable only when expressly provided by
law.

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Louisiana Code of Civil Procedure Article 1841 provides that “[a] judgment

that determines the merits in whole or in part is a final judgment.”5 And, La.Code

Civ.P. art. 1918 provides that: “A final judgment shall be identified as such by

appropriate language.” Also, a valid judgment must be precise, definite, and certain.

Input/Output Marine Sys., 52 So.3d 909. In the event that a purported final judgment

is rendered upon a money demand, as here, the judgment must indicate the amount of

recovery with certainty and precision. Kimsey v. Nat’l Auto. Ins. Co., 13-856 (La.App.

3 Cir. 2/12/14), 153 So.3d 1035 (citing Elston v. Montgomery, 46,262 (La.App. 2 Cir.

5/18/11), 70 So.3d 824, writ denied, 11-1292 (La. 9/23/11), 69 So.3d 1165).

“Importantly, if the amount must be determined by a future contingency or

ascertained by extrinsic reference (or is otherwise indefinite and uncertain), it is not a

proper judgment.” Id. at 1038.

Reference to the judgment under review indicates that it is lacking the

hallmarks of a final judgment. In particular, the final paragraph reflects the indefinite

nature of judgment as it provides:

IT IS ORDERED, ADJUDGED AND DECREED that NOLTON
DALCOURT was in default of the Louisiana Real Estate Buy and Sell
Agreement signed by Nolton Dalcourt, as Seller, and Thomas Moyer and
Sherry Craig, as Buyer, on June 1, 2015.

IT IS ORDERED, ADJUDGED AND DECREED that THOMAS
MOYER AND SHERRY CRAIG MOYER are entitled to their deposit of
Four Thousand and no/100 ($4,000.00) Dollars and are awarded the sum
of FOUR THOUSAND AND NO/100 ($4,000.00) DOLLARS
representing the deposit amount, along with legal interest.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that
THOMAS MOYER AND SHERRY CRAIG MOYER are awarded
attorney’s fees and costs. The Defendants are to submit an itemization of
attorney’s fees and costs to the Plaintiff and the Court for review. If the

5
Louisiana Code of Civil Procedure Article 1841 further indicates that an interlocutory
judgment is one “that does not determine the merits but only preliminary matters in the course of the
action[.]”

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parties cannot reach an agreement as to these attorney’s fees and costs,
then the Defendants are to file a Rule to Show Cause for determination of
the amount of attorney’s fees and costs.

Thus, by its wording, the judgment is not final. In fact, the judgment not only

anticipates a future contingency and extrinsic evidence, it includes an order for such

an occurrence. See, e.g., Lobell v. Rosenberg, 17-0111, p. 5 (La.App. 4 Cir. 10/4/17),

228 So.3d 1241, 1245 (wherein the fourth circuit dismissed an appeal upon

recognizing a want of appellate jurisdiction on review of a judgment awarding

attorney fees but in which the amount of such fees had “not been adjudicated by the

district court” and which “issue between the parties remain[ed] to be resolved.”).

Accordingly, we find it necessary to dismiss this appeal due to lack of subject matter

jurisdiction. We below remand this matter for future proceedings.

Finally, we recognize that an appellate court has discretion to convert an appeal

to an application for supervisory writ. See Stelluto v. Stelluto, 05-0074 (La. 6/29/05),

914 So.2d 34. In this situation, however, we find that an exercise of such discretion is

inappropriate as “an appellate court will generally refrain from the exercise of its

supervisory jurisdiction when an adequate remedy exists by appeal.” Kimsey, 153

So.3d at 1040 (citing Thomas v. Lafayette Par. Sch. Sys., 13-91 (La.App. 3 Cir.

3/6/13), 128 So.3d 1055). Here, the trial court ordered the parties to take further

actions. Upon the occurrence of such proceedings, and upon the entry of a precise,

definite, and certain judgment, an adequate remedy by appeal will exist at that time.

See also Conrad v. McGowan Working Partners, Inc., 08-1251, p. 3 (La.App. 3 Cir.

11/12/08), 997 So.2d 872, 875 (wherein a panel of this court observed that permitting

an appeal to proceed on a partial judgment that awarded attorney fees but did not set

the amount of those fees constituted “could result in a piecemeal appeal of this

litigation.”).

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DECREE

For the foregoing reasons, the appeal of the plaintiff/appellant, Nolton Dalcourt,

is dismissed. This matter is remanded for further proceedings. Costs of this

proceeding are assessed to Mr. Dalcourt.

APPEAL DISMISSED. REMANDED.

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