James B. Blake" Cureton v. James H. "Jimmy" Cureton and Custom Metal Fabricators, Inc. "

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 20-520

JAMES B. "BLAKE" CURETON

VERSUS

JAMES H. "JIMMY" CURETON AND

CUSTOM METAL FABRICATORS, INC.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2020-274
HONORABLE CLAYTON DAVIS, DISTRICT JUDGE

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JOHN D. SAUNDERS

JUDGE

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Court composed of John D. Saunders, Phyllis M. Keaty, and Van H. Kyzar, Judges.

MOTION TO DISMISS APPEAL DENIED.

Timothy O'Dowd
Jared W. Shumaker
O'Dowd Law Firm, L.L.C.
924 Hodges Street
Lake Charles, LA 70601
(337) 310-2304
COUNSEL FOR DEFENDANTS/APPELLANTS:
James H. "Jimmy" Cureton
Custom Metal Fabricators, Inc.

Richard Dale Moreno
Attorney at Law
Post Office Box 149
Lake Charles, LA 70602
(337) 433-9535
COUNSEL FOR DEFENDANTS/APPELLANTS:
James H. "Jimmy" Cureton
Custom Metal Fabricators, Inc.

James Alvin Watson
Roddy, Watson & Everett
400 East College Street
Lake Charles, LA 70605
(337) 474-4886
COUNSEL FOR DEFENDANTS/APPELLANTS:
James H. "Jimmy" Cureton
Custom Metal Fabricators, Inc.

Todd Samuels Clemons
Todd Clemons & Associates
1740 Ryan Street
Lake Charles, LA 70601
(337) 477-0000
COUNSEL FOR PLAINTIFF/APPELLEE:
James B. "Blake" Cureton

Kellen J. Mathews
Adams and Reese, L.L.P.
450 Laurel Street, #1900
Baton Rouge, LA 70801
(225) 336-5200
COUNSEL FOR PLAINTIFF/APPELLEE:
James B. "Blake" Cureton

SAUNDERS, Judge.

On November 12, 2020, Appellee, James B. “Blake” Cureton (Blake), filed a

Motion to Dismiss Appeal, seeking to dismiss the instant appeal filed by Appellants,

James H. “Jimmy” Cureton (Jimmy) and Custom Metal Fabricators, Inc. (Custom

Metal). For the reasons discussed herein, we deny the motion to dismiss the appeal.

Blake states that he became a partner with his father, Jimmy, in Custom Metal

by virtue of a June 8, 2017 Sales Agreement, whereby Blake purchased a fifty-percent

partnership interest and fifty percent of the 2,000 shares of issued and outstanding

stock from Walter Lee, who had cofounded Custom Metal with Jimmy, for a total

purchase price of $2,500,000.00. On or about November 26, 2019, Jimmy, as acting

president of Custom Metal, terminated Blake’s employment with Custom Metal;

barred Blake from appearing at the corporation’s principle place of business; removed

Blake from any and all deposit accounts of the corporation; deprived Blake of benefits

associated with his employment, i.e. health insurance; and sought to keep Blake from

accessing corporate records.

Blake subsequently filed a Petition for Writ of Mandamus and Writ of Quo

Warranto against Jimmy and Custom Metal, seeking a judgment directing Jimmy and

Custom Metal to 1) provide inspection and copying of corporate and partnership

records of Custom Metal, and 2) show by what authority Jimmy holds or claims any

office in Custom Metal, and by what authority he purported to take the actions taken.

Following a hearing held on February 13, 2020, the trial court ruled in favor of Blake.

A written Judgment was signed on February 24, 2020, and ordered the following:

1. Blake is recognized as a partner with fifty percent interest in Custom Metal

and a shareholder, holding fifty percent of the outstanding share in Custom

Metal, and is thus entitled to all of the rights that Louisiana law affords in

connection with such ownership interests;

2. Within five days of the signing of judgment, Jimmy and the corporation

make available to Blake or his agents for inspection and copying, the

corporation records and partnership records from June 2017 to present; and

3. Jimmy and Custom Metal recognize Blake’s following rights with respect to

the corporation:

a. Reinstatement of employment with full back pay and benefits;

b. Full and unfettered access to the corporation’s business facilities;

c. Reinstatement as signatory on any and all of the corporation’s or

partnership’s bank or financial institution accounts; and

d. Access to the records of the corporation or partnership.

Blake was also awarded attorney’s fees and costs of court. Notice of judgment was

mailed to the parties on March 12, 2020.

Jimmy and Custom Metal subsequently filed a motion for suspensive appeal.

The trial court denied the motion on March 10, 2020, finding that the February 24,

2020 judgement was not a final judgment and was, therefore, not subject to appeal.

Jimmy and Custom Metal sought supervisory review in this court. On March 19,

2020, this court granted the writ and ruled as follows:

STAY DENIED.
WRIT GRANTED AND MADE PEREMPTORY. We find that the
trial court erred in denying Relator’s Motion and Order for Appeal.
Although the trial court correctly found that its February 24, 2020 ruling
is not a final judgment subject to appeal and that a supervisory writ might
be more appropriate, this court is the arbiter of its own jurisdiction. See
Morris v. State/Attorney General, 05-508 (La.App. 3 Cir. 4/21/05), 909
So.2d 1. As such, the trial court is without jurisdiction to determine
whether Relator is entitled to an immediate appeal. Accordingly, we
reverse and set aside the trial court’s ruling and remand the matter to the
trial court for further proceedings consistent with this court’s decision.
The hearing on Respondent’s Motion for Contempt scheduled on March
20, 2020, is rendered moot.

On remand, the trial court signed an Order on March 20, 2020, granting Jimmy

and Custom Metal’s Motion for Suspensive Appeal and ordering them to furnish

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security in the amount of $200,000.00. Jimmy and Custom Metal posted a Suspensive

Appeal Bond on March 31, 2020, in the amount of $200,000.00. Due to numerous

delays associated with the pandemic and Hurricanes Laura and Delta, this court did

not issue a Notice of Lodging and Briefing Order until October 30, 2020.

Blake subsequently filed a Motion to Dismiss Appeal that was received in this

court on November 12, 2020. In his motion, Blake argues that as this court has

already found that Jimmy and Custom Metal do not have a right to appeal. As such,

Blake maintains that the ruling is now law of the case; thus, the appeal should be

dismissed.

Further, Blake asserts that the legislature knows how to provide a right to

appeal from an interlocutory ruling in a summary proceeding. For example, La.Code

Civ.P. art 3612 provides a right to an appeal from an order or judgment related to a

preliminary injunction. In contrast, however, there are no procedural articles

governing mandamus that provide a similar right to an immediate appeal of an order

making a writ of mandamus peremptory. While La.Code Civ.P. art. 3785 states that

one may be held in contempt for failing to comply with an order making a writ of

mandamus peremptory, that statute does not provide for an immediate appeal.

Consistent with statutory law, Blake adds that the supreme court in State ex rel.

Long v. Bd. of Deacons of Good Hope Second Baptist Church of Algiers, 144 La. 413,

80 So. 608 (1916), explicitly held that an order making the writ of mandamus

peremptory is an interlocutory order not subject to an appeal. In Long, members of a

church filed a writ of mandamus, seeking to compel the board of trustees to hold an

election. The trial court made the writ peremptory, ordering an election. The board

moved for an appeal which was denied by the trial court. The board then held the

election, and the trial court ruled that the election results were valid. The board

appealed the second judgment. Before addressing the merits of the appeal, the court

addressed the issue of when a defendant has a right to appeal in a mandamus action—

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the initial judgment making the writ peremptory and ordering an election is “an

interlocutory decree, from which the district court properly refused to grant an

appeal.” Id., 144 La. at 416, 80 So. at 610. The board did subsequently gain a right of

appeal after it held the election.

In opposition to the motion to dismiss the appeal, Jimmy and Custom Metal

argue that the February 24, 2020 Judgment is a final judgment as defined by La.Code

Civ.P. art. 1841, in that it adjudicated all issues, save for the determination of

attorney’s fees and costs to be determined at a later date. Jimmy and Custom Metal

disagree with Blake’s reliance on Long, asserting that it has no value in attempting to

intellectually determine current law applicable to this appeal. Jimmy and Custom

Metal complain that the Long case is old, and although it has not been expressly

overruled, it predates the substantial changes in appellate procedure contained in the

1968 Code of Civil Procedure, namely Articles 1841, 1915, and 2088.

In support of their argument, Jimmy and Custom Metal cite an unpublished

opinion, Individual Members of Grand Lodge of the State of Louisiana v. Jenkins, 19-

59 (La.App. 5 Cir. 3/3/19), 2019 WL 1187146, wherein members of the Grand Lodge

filed a petition of quo warranto against the Board of Directors, seeking various forms

of relief. The petition was granted, and the Board sought a suspensive appeal. The

trial court denied the appeal, finding that the Judgment encompassed injunctive relief.

On writs, the appellate court found that the Board was entitled to a suspensive appeal.

In reaching its conclusion, the court reasoned, “Louisiana courts have narrowly

construed exceptions to the general right of suspensive appeal and have concluded that

general principles governing appeal are applicable to review of judgments in quo

warranto. See Pioneer Petroleum Corp. v. Gertler, 187 So.2d 205 (La.App. 4 Cir.

1966).” Id.

Following this court’s review of the jurisprudence, we note that this court, in an

unpublished opinion, held that “[p]ursuant to the jurisprudence, judgments granting or

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denying a writ of mandamus are reviewable on appeal. See, e.g., Wilson v.

Duhon, 08–368 (La.App. 3 Cir. 10/1/08), 997 So.2d 575; Authement v. Larpenter, 97–

1985 (La.App. 1 Cir. 5/15/98), 713 So.2d 718, writ denied, 98–1584 (La.9/18/98), 724

So.2d 771.” State, Dept. of Trans. and Development v. Triangle Property, LLC, 12-

143 (La.App. 3 Cir. 3/7/12), 2012 WL 724149. Considering the more recent

jurisprudence regarding appellate review of a judgment granting a writ of mandamus

and quo warranto, we find that the mandamus and quo warranto judgment in the

instant case is an appealable judgment. Therefore, we hereby deny Appellee’s motion

to dismiss this appeal.

MOTION TO DISMISS APPEAL DENIED.

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

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