Shop Rite, Inc. v. Shawne Gielen Gardiner

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 21-172

SHOP RITE, INC., ET AL.

VERSUS

SHAWNE GIELEN GARDINER

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF ACADIA, NO. 201910957
HONORABLE LAURIE A. HULIN, DISTRICT JUDGE

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JOHN D. SAUNDERS

JUDGE

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Court composed of John D. Saunders, Van H. Kyzar and Charles G. Fitzgerald,
Judges.

MOTION TO DISMISS APPEAL DENIED.

Christopher Leonard Zaunbrecher
Briney Foret Corry
Post Office Box 51367
Lafayette, LA 70527-1367
(337) 237-4070
COUNSEL FOR PLAINTIFFS/APPELLEES:
Tobacco Plus, Inc.
Shop Rite, Inc.
Acadia Wholesale & Tobacco,Co., Inc.

Lauren Noel Maurer
Durio, McGoffin, Stagg & Ackermann
Post Office Box 51308
Lafayette, LA 70505-1308
(337) 233-0300
COUNSEL FOR DEFENDANT/APPELLANT:
Shawne Gielen Gardiner

SAUNDERS, Judge.

On March 16, 2021, Appellees-Plaintiffs and Defendants in Reconvention,

Shop Rite, Inc., Tobacco Plus, Inc., and Acadia Wholesale & Tobacco Co., Inc., filed

a Motion to Dismiss Appeal. For the reasons discussed herein, we deny the motion to

dismiss.

The instant case arises from a Petition for Declaratory Judgment filed by

Appellees on October 22, 2019, seeking a judicial declaration of the fair value and

terms for the purchase of shares owned by Appellant-Defendant and Plaintiff in

Reconvention, Shawne Gielen Gardiner, on the date of Appellant’s withdrawal as a

shareholder in all three corporations under La.R.S. 12:1-1435. Appellant filed an

Answer and Reconventional Demand, seeking a judicial determination of the fair

value and terms for the purchase of the naked ownership interest in the shares she had

inherited through a testamentary legacy from her father (Legacy Shares).

On July 2, 2020, Appellees subsequently filed a Peremptory Exception of No

Right of Action, excepting to Appellant’s reconventional demand to the extent

Appellant asked the trial court to determine the fair value and terms for purchase for

share described in paragraph 3 of the reconventional demand. Following a hearing on

the exception held on July 14, 2020, the trial court entered a partial judgment,

dismissing the Appellant’s reconventional demand. A written judgment was signed

on September 3, 2020.

Appellant moved for a devolutive appeal which was granted on November 17,

2020. Appellant then filed a Designation of Partial Record on Appeal on November

19, 2020. The procedures for designation of an appeal record are found in the

following articles. Louisiana Code of Civil Procedure Article 2128 states:

The form and content of the record on appeal shall be in
accordance with the rules of the appellate court, except as provided in the
constitution. However, within three days, exclusive of holidays, after
taking the appeal the appellant may designate in a writing filed with the
trial court such portions of the record which he desires to constitute the

record on appeal. Within five days, exclusive of holidays, after service of
a copy of this designation on the other party, that party may also
designate in a writing filed with the trial court such other portions of the
record as he considers necessary. In such cases the clerk shall prepare the
record on appeal as so directed, but a party or the trial court may cause to
be filed thereafter any omitted portion of the record as a supplemental
record. When no designation is made, the record shall be a transcript of
all the proceedings as well as all documents filed in the trial court.

Louisiana Code of Civil Procedure Article 2129 provides: “An assignment of

errors is not necessary in any appeal. Where the appellant designates only

portions of the record as the record on appeal, he must serve with his

designation a concise statement of the points on which he intends to rely, and

the appeal shall be limited to those points.”

Appellees assert that Appellant failed to file a statement of the points on which

she intends to rely as required by Article 2129. Appellees argue that they have been

prejudiced by Appellant’s failure to comply with Article 2129 because they were

prevented from ascertaining which portions of the record or whether the entire record

should be designated as the record on appeal. As such, Appellees pray that the appeal

be dismissed, or in the alternative, Appellant be ordered to file in the trial court a

concise statement of the points on which she intends to rely and that Appellees be

afforded an opportunity to supplement the appeal record if needed.

In opposition, Appellant argues that the judgment on appeal granting

Appellees’ exception of no right of action addressed a single issue—whether

Appellant had a right of action to seek judicial determination of the fair value and

terms for purchase of the naked ownership interest in the shares she inherited from her

father. Appellant maintains that she intends to rely on one point of error—the trial

court erred in ruling that she does not have the right of action for shares in which she

previously had an interest as a testamentary legatee of naked ownership. Appellant

urges that Appellees have always known that only a single issue was addressed in the

judgment on appeal, whether classified as a statement of points or assignment of

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errors. In fact, Appellant asserts that a separate appeal has been taken from the

judgment which addresses all other issues and that a separate docket number will be

assigned once the appeal record is lodged.

Next, Appellant states that she has prepared and attached to her opposition to

the motion to dismiss a concise statement of point, or assignment of error, which

reflects the singular point on appeal. Appellant contends that service of same upon

Appellees moots the basis of the instant motion to dismiss. In Appellant’s concise

statement of point, she indicates that she “intends to rely on the point that the trial

court erred in ruling that Mrs. Gardiner does not have the right of action against the

defendant in reconvention to seek a judicial determination of the fair value and terms

for purchase for shares in which Gardiner previously had an interest as a testamentary

legatee of naked ownership.”

Further, Appellant argues that the jurisprudence does not support the dismissal

of the appeal. See Hamilton v. Progressive Sec. Ins. Co., 10-1005 (La.App. 3 Cir.

10/6/10), 49 So.3d 513 (appellant ordered to serve a statement of points); Martin v. G

& A Ltd., 583 So.2d 611 (La.App. 3 Cir. 1991) (appellee’s motion to compel

transcription of entire record was granted); Perkins v. Johnson, 17-235 (La.App. 3 Cir.

5/17/17), ___ So.3d ___ (appellee’s motion to designate the entire record granted);

Miller v. Miller, 405 So.2d 534 (La.App. 3 Cir. 1981) (motion to compel transcription

of the record granted).

Regarding Appellee’s allegation of prejudice, Appellant argues that “[t]his

pretense should be transparent,” considering that after the ruling on the exception, no

portion of the record makes reference to the Legacy Shares, the claim for which has

already been dismissed. Moreover, Appellant points out, her motion for devolutive

appeal stated that she sought an appeal from the September 3, 2020 judgment

concerning a single issue. The trial court identified the single issue in its written

Reasons for Ruling as follows: “This court finds Ms. Gardiner does not have the right

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of action against the defendant in reconvention to seek a judicial determination of the

fair value and terms for purchase for shares in which Gardiner previously had an

interest as a testamentary legatee of naked ownership. The Peremptory Exception is

sustained.”

“The effect to be given to an appellant's failure to comply with the procedure

for taking a limited appeal is within the sound discretion of the Court of

Appeal. Martin v. G & A Ltd., 583 So.2d 611, 613 (La.App. 3

Cir.1991), citing Weber v. Press of H.N. Cornay, Inc., 135 So.2d 925 (La.App. 4

Cir.1962).” Hamilton, 49 So.3d at 515. Considering that a concise statement of the

point on which Appellant intends to rely has been served on Appellees, we find the

motion to dismiss the appeal for failing to comply with Article 2129 to be rendered

moot. Accordingly, we deny the motion to dismiss. Appellees are allowed the

opportunity to supplement the record on appeal as deemed necessary.

MOTION TO DISMISS APPEAL DENIED.

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

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