Acadiana Helicopter Service, LLC v. Jerry Satterfield

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-244

ACADIANA HELICOPTER SERVICE, LLC

VERSUS

JERRY SATTERFIELD

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT,
PARISH OF ST. MARTIN, NO. 84383
HONORABLE KEITH R. J. COMEAUX, DISTRICT JUDGE

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VAN H. KYZAR

JUDGE

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Court composed of Phyllis M. Keaty, Van H. Kyzar, and David E. Chatelain, *
Judges.

APPEAL IN DOCKET NUMBER 17-346 DISMISSED.
SUSPENSIVE APPEAL CONVERTED TO SUPERVISORY WRIT.

Frank Barber, Attorney at Law
116 Field Street
New Iberia, Louisiana 70560
(337) 256-8370
Counsel for Defendant/Appellant:
Jerry Satterfield

Barry Sallinger, Attorney at Law
820 East St. Mary Boulevard
Lafayette, Louisiana 70503
(337) 235-5791
Counsel for Plaintiff/Appellee:
Acadiana Helicopter Service, LLC

*
Honorable David E. Chatelain participated in this decision by appointment of the
Louisiana Supreme Court as Judge Pro Tempore.

KYZAR, Judge.

Plaintiff, Acadiana Helicopter Service, LLC (AHS), filed a motion to

dismiss the unlodged appeal taken by Defendant, Jerry Satterfield (Jerry). The

appeal has since been lodged and bears docket number 17-346 in this court.

Michele Satterfield (Michele) is the authorized agent and majority

shareholder of AHS. She and her husband, Jerry, were divorcing. AHS was

created during the marriage. In the divorce proceedings, Michele and Jerry agreed

to operate the business together until it could be partitioned. Michele filed a

petition for accounting and for a writ of sequestration, alleging that Jerry was using

AHS assets for his own personal benefit.

Jerry filed exceptions of lis pendens, res judicata, and nonconformity with

La.Code Civ.P. arts. 891, et seq. A hearing on the petition for the writ of

sequestration and the exceptions was held on October 12, 2016. On October 25,

2016, the trial court issued a judgment denying Jerry’s exceptions and appointing

Michele as keeper of the property of AHS. The judgment also ordered Jerry to

return certain property and ordered Michele to vacate certain premises of which

Jerry had been granted the use in the divorce proceedings. The judgment

specifically stated that costs would not be assessed at that time and that they were

“deferred until final disposition of this matter.” Notice of judgment was issued on

October 31, 2016, and Jerry timely filed a motion for suspensive appeal on

November 29, 2016, seeking review of the denial of his exceptions, the grant of the

writ of sequestration, and the appointment of Michele as keeper. The district court

granted a suspensive appeal by order signed December 13, 2016. Since that time,

the litigation has moved forward with motions for contempt, for sanctions, and to

compel discovery.

AHS filed a motion to dismiss the appeal on the grounds that the October 25,

2016 judgment is an interlocutory judgment. An interlocutory judgment is one

“that does not determine the merits but only preliminary matters in the course of

the action.” La.Code Civ.P. art. 1841. “[A]n interlocutory judgment is appealable

only when expressly provided by law.” La.Code Civ.P. art 2083(C).

Jerry raised the declinatory exception of lis pendens, the dilatory exception

of nonconformity of the petition with La.Code Civ.P. art. 891, and the peremptory

exception of res judicata. All three exceptions were denied. The denial of the

exceptions of lis pendens and res judicata is an interlocutory ruling for which

appellate review by suspensive appeal “is not expressly provided for by law[.]”

Roberson v. Roberson, 12-2052, p. 4 (La.App. 1 Cir. 8/5/13), 122 So.3d 561, 564.

The denial of a dilatory exception is also an interlocutory judgment. State v.

Hartley, 614 So.2d 211 (La.App. 3 Cir. 1993). Moreover, the grant of a writ of

sequestration is an interlocutory judgment. Spiers v. Roye, 04-2189 (La.App. 1 Cir.

2/10/06), 927 So.2d 1158, opinion set aside in part on rehearing on other grounds

(5/19/06). Therefore this court finds that the October 25, 2016 judgment is an

interlocutory judgment and is, therefore, not appealable.

“[T]he decision to convert an appeal to an application for supervisory writs

is within the discretion of the appellate courts.” Stelluto v. Stelluto, 05-74, p. 7 (La.

6/29/05), 914 So.2d 34, 39; and La.Const. Art. V, §10(A). Appellate courts

generally will not exercise this discretion “when an adequate remedy exists by

appeal” after the entry of a final judgment. Kimsey v. National Automotive Ins. Co.,

13-856, p. 8 (La.App. 3 Cir. 2/12/14), 153 So.3d 1035, 1040. The grant of a writ

of sequestration is “an extremely harsh remedy.” Burton v. Jardell, 589 So.2d 610

(La.App. 2 Cir. 1991). Therefore, we find that the grant of a writ of sequestration

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cannot, as a practical matter, be corrected on appeal following a final judgment on

the merits. Moreover, the October 25, 2016 judgment is not subject to certification

as a final judgment under La.Code Civ.P. art. 1915(B) because that article

specifically refers to a partial judgment sustaining, not denying, an exception. See

Naquin v. Bollinger Shipyards, Inc., 11-1217 (La.App. 1 Cir. 9/7/12), 102 So.3d

875, writs denied, 12-2676, 12,-2754 (La. 2/8/13), 108 So.3d 87, 93.

In this instance, the judgment was signed on October 25, 2016. Notice of

judgment was issued on October 31, 2016. Jerry’s motion for suspensive appeal

was filed on November 29, 2016. Accordingly, we exercise our discretion and

construe the petition for appeal as a notice of intent to file supervisory writs. The

suspensive appeal in docket number 17-346 is hereby dismissed, and Jerry is

hereby given until May ___, 2017 (thirty days from the issuance of this opinion),

to file a properly documented application for supervisory writs pursuant to

Uniform Rules―Courts of Appeal, Rule 4‒5.

APPEAL IN DOCKET NUMBER 17-346 DISMISSED. SUSPENSIVE
APPEAL CONVERTED TO SUPERVISORY WRIT.

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

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