MacRo Companies, Inc. v. Dearybury Oil & Gas, Inc.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 20-254

MACRO COMPANIES, INC.

VERSUS

DEARYBURY OIL & GAS, INC., ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-20184283
HONORABLE JULES DAVIS EDWARDS, DISTRICT JUDGE

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BILLY H. EZELL

JUDGE

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Court composed of Billy H. Ezell, Shannon J. Gremillion, and Phyllis M. Keaty,
Judges.

APPEAL SUSPENDED;
REMANDED WITH INSTRUCTIONS.

Thomas J. Eppling
David C. Bernard
Staines, Eppling & Kenney
3500 North Causeway Boulevard, Suite 820
Metairie, LA 70002
(504) 838-0019
COUNSEL FOR DEFENDANTS/APPELLANTS:
Florida Marine Transporters, LLC
Kenneth R. Pullen

Charles A. Mouton
Mahtook & Lafleur
Post Office Box 3089
Lafayette, LA 70502
(337) 266-2189
COUNSEL FOR DEFENDANT/APPELLEE:
Dearybury Oil & Gas, Inc.

Robert D. Felder
Davidson, Meaux, Sonnier, McElligott, Fontenot, Gideon & Edwards
810 South Buchanan Street
Lafayette, LA 70501
(337) 237-1660
COUNSEL FOR PLAINTIFF/APPELLEE:
Macro Companies, Inc.

EZELL, Judge.

This court issued a rule ordering Defendant-Appellant, Florida Marine

Transporters, LLC (FMT), to show cause, by brief only, why the appeal as to the July

29, 2019 judgment should not be dismissed as untimely and as having been taken

from a judgment lacking proper decretal language. See La.Code Civ.P. art. 2087;

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

Cir. 10/29/10), 52 So.3d 909. For the reasons that follow, we suspend the appeal and

remand this matter to the trial court with instructions to issue a judgment containing

proper decretal language.

FACTS AND PROCEDURAL HISTORY

The instant case arises from events following the September 20, 2017 landfall

of Hurricane Maria on Puerto Rico. The storm left the area in desperate need of fuel

for emergency response. Federal Emergency Management Agency (FEMA)

contacted Plaintiff, Macro Companies, Inc. (Macro), to supply five million gallons of

fuel. Macro subsequently arranged for the sale of the fuel directly from Defendant,

Dearybury Oil and Gas, Inc., to FEMA via a broker, Kenneth Pullen (Pullen) of FMT.

Macro was to receive a five cent per gallon commission on the fuel sold to FEMA.

After the completion of the sale, Macro was not paid the commission, leading to the

instant litigation.

At issue herein is a Motion for Summary Judgment filed by Macro, seeking the

dismissal of a reconventional demand filed by FMT. Following a hearing, a written

Judgment on Rules was signed on July 29, 2019, which provided, in pertinent part, as

follows:

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that
the Motion for Summary Judgment be and is hereby granted as to
allegations occurring prior to the alleged midday phone call between
Pullen and McElligott on the 30th day of September 2017. The motion
for summary judgment is denied as to allegations occurring thereafter.

Costs associated with these proceedings are split equally between the
parties.

On February 7, 2020, Defendant-Appellant filed a motion for devolutive appeal

of that judgment along with a judgment dated November 25, 2019. When the record

was received by this court, we discovered that the July 29, 2019 judgment did not

contain decretal language dismissing any part of FMT’s claim. Therefore, we ordered

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

from a judgment lacking proper decretal language. FMT responded to the rule to

show cause, arguing that the judgment contains the requisite decretal language. We

disagree.

In the instant case, the judgment contains no decretal language dismissing any

of FMT’s claims. Consequently, this court finds that it lacks jurisdiction to consider

the merits of the appeal. Accordingly, we suspend the appeal and remand this matter

to the trial court for the limited purpose of rendering a proper final judgment as we did

in Mouton v. AAA Cooper Transp., 17-666, 17-667 (La.App. 3 Cir. 1/10/18), 237

So.3d 594.

Regarding timeliness, we find that the July 29, 2019 ruling, a partial summary

judgment, was interlocutory and not designated as a final judgment after an express

determination that there is no just reason for delay. La.Code Civ.P. art 1915(B).

FMT asserts that the suit has now been finally adjudicated by virtue of the judgment

rendered by the trial court on November 25, 2019, which finally dismissed with

prejudice all claims by all parties. Accordingly, we find that the July 29, 2019

judgment is now appealable upon the unrestrictive appeal of the entire matter; thus,

we withdraw the rule as to timeliness.

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DECREE

For the reasons given, this court lacks jurisdiction to consider the merits of this

appeal because it was taken from a judgment that lacks proper decretal language.

This appeal is suspended, and the matter is remanded to the trial court with

instructions to sign a judgment containing proper decretal language no later than

September 4, 2020. The Clerk of Court for the Fifteenth Judicial District Court shall

forward the judgment so signed to this court as a supplement to the appellate record,

in duplicate.

APPEAL SUSPENDED; REMANDED WITH INSTRUCTIONS.

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION.
Uniform Rules―Courts of Appeal, Rule 2-16.3.

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