CWI Holdings, LLC v. Robertson Dev., L.L.C.
| Decision Date | 22 December 2021 |
| Docket Number | 2021 CA 0569 |
| Citation | 340 So.3d 47 |
| Parties | CWI HOLDINGS, LLC d/b/a Builders Insulation of Louisiana, LLC v. ROBERTSON DEVELOPMENT, L.L.C. |
| Court | Court of Appeal of Louisiana — District of US |
Nelson Dan Taylor, Sr., J. K. Haynes Legal Defense Fund, Baton Rouge, Louisiana, Counsel for Appellant Defendant—Robertson Development, L.L.C.
Scott C. Barney, Charles D. Marshall, Chaffe McCall, L.L.P., Baton Rouge, Louisiana, Counsel for Appellees Plaintiffs—CWI Holdings, LLC D/B/A Builders Insulation of Louisiana, LLC
Before: McClendon, Welch, and Theriot, JJ.
In this construction contract dispute, the defendant appeals a motion for summary judgment granted in favor of the plaintiff, which ordered the defendant to pay outstanding invoice balances, interest, and attorney's fees. We reverse and remand.
The plaintiff/appellee, CWI Holdings, LLC d/b/a Builders Insulation of Louisiana, LLC ("CWI"), entered into verbal construction subcontracts with the defendant/appellant, Robertson Development, L.L.C. ("Robertson"), in which CWI agreed to supply and install insulation in houses that Robertson was constructing in or around Lafourche Parish between August 2014 and March 2016. Each contract was made for a specific construction project at a specific address. As work progressed under each contract, CWI issued separate invoices to Robertson, indicating the address of each project, the original contract amount for the project, an itemization of any accepted options under the contract, the total contract amount, and the details of amounts previously invoiced, paid, and remaining to be invoiced under the contract.
CWI filed suit on July 8, 2019, alleging that Robertson breached several of the contracts by failing to fully pay the balances due thereunder, leaving a combined balance due of $34,408.46. CWI also sought interest and attorney's fees, as provided for in CWI's invoices. Robertson answered, asserting general denials. Thereafter, CWI filed a motion for summary judgment on July 13, 2020, seeking the unpaid invoice balances of $34,408.46, plus interest at a rate of 18% per year, plus all costs and attorney's fees incurred in prosecuting its claims against Robertson.
The trial court set the hearing on CWI's motion for August 31, 2020. The morning of that hearing, Robertson filed a motion to continue and argued that recently engaged counsel needed time to conduct discovery to oppose CWI's motion for summary judgment. The trial court granted the continuance to October 26, 2020.
The morning of the re-set hearing, Robertson filed a "Notice of Illness of Counsel and Motion to Consider Defendant's Opposition to Petitioner's Motion for Summary Judgment"; an opposition to CWI's motion for summary judgment; and a motion for judgment on the pleadings.
The trial court treated Robertson's "Notice" as a motion for a continuance, which it denied. The trial court stated that Robertson's motion for judgment on the pleadings was "essentially an exception of prescription." The trial court stated that the exception of prescription could possibly be set for hearing, but that it would be possibly mooted by the outcome of CWI's motion for summary judgment; accordingly, the trial court did not rule on prescription. The trial court denied Robertson's motion to consider his opposition to CWI's motion for summary judgment, rejecting the untimely filed opposition, which the trial court stated presented no actual evidence in opposition. Although the trial court rejected Robertson's untimely-filed opposition, it discussed the arguments made therein with counsel for CWI, as to whether CWI's claims arose under an open account rather than separate contracts and whether those claims were prescribed.1 The trial court ultimately reasoned that Robertson's open account arguments were an affirmative defense to CWI's claims, which Robertson failed to properly raise and that would have to be proven at trial. Finding that CWI's motion was properly supported, the trial court granted summary judgment in favor of CWI and against Robertson, ordering Robertson to pay CWI $34,408.46, interest at 18% per year, and $4,000.00 in attorney's fees. The trial court signed a judgment in accordance with its ruling on November 18, 2020. Robertson now appeals.
This court, ex proprio motu, issued a rule to show cause, ordering the parties to show cause why this appeal should not be dismissed as untimely. An appellant's failure to timely file a devolutive appeal is a jurisdictional defect, in that neither the court of appeal nor any other court has the jurisdictional power and authority to reverse, revise, or modify a final judgment after the time for filing a devolutive appeal has elapsed. Everett v. Baton Rouge Student Housing, L.L.C., 2010-0856 (La. App. 1st Cir. 5/6/11), 64 So.3d 883, 886, writ denied, 2011-1169 (La. 9/16/11), 69 So.3d 1149.
Louisiana Code of Civil Procedure article 2121 provides, in pertinent part, that "[a]n appeal is taken by obtaining an order therefor, within the delay allowed, from the court which rendered the judgment." Louisiana Code of Civil Procedure article 2087, providing for devolutive appeals, states, in relevant part:
In the present case, the trial court signed the judgment on November 18, 2020. The Clerk of Court mailed notice of the judgment to the parties on November 20, 2020. Mailing of the notice of judgment commenced the seven-day delay, exclusive of legal holidays, for applying for a new trial. See La. C.C.P. arts. 1913, 1811, 1974, and 5059. Excluding legal holidays (namely, Thanksgiving Day, Acadian Day, and two weekends2 ), the time period for applying for a new trial expired on Thursday, December 3, 2020. The record shows that Robertson did not seek a new trial during the seven-day delay.
Expiration of the new trial delay commenced the sixty-day delay for obtaining an order of devolutive appeal. See La. C.C.P. art. 2087(A)(1). Thus, the time period for obtaining an order of devolutive appeal expired on Monday, February 1, 2021. Robertson filed a motion for a devolutive appeal on Monday, February 1, 2021. The trial court signed the order of devolutive appeal on February 3, 2021.
Recognizing that appeals are favored in the law and should be maintained, the Louisiana Supreme Court has stated that an appeal should not be dismissed when the motion for appeal is timely filed, but the order of appeal is not signed until after the delay has run. See Traigle v. Gulf Coast Aluminum Corporation, 399 So.2d 183 (La. 1981). Accordingly, because Robertson filed a motion for a devolutive appeal on the last day of the sixty-day period set forth in La. C.C.P. art. 2087(A)(1) for obtaining an order of devolutive appeal, his appeal is timely.
After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law.
La. C.C.P. art. 966(A)(3). In reviewing a trial court's ruling on a motion for summary judgment, appellate courts review evidence de novo using the same criteria that govern the trial court's determination of whether summary judgment is appropriate. Georgia-Pacific Consumer Operations, LLC v. City of Baton Rouge, 2017-1553, 2017-1554 (La. App. 1st Cir. 7/18/18), 255 So.3d 16, 22, writ denied, 2018-1397 (La. 12/3/18), 257 So.3d 194.
The Code of Civil Procedure places the initial burden of proof on the party filing the motion for summary judgment, here CWI. See La. C.C.P. art. 966(D)(1). Once the motion for summary judgment has been made and properly supported,3 the burden shifts to the non-moving party to produce factual support, through the use of proper documentary evidence attached to its opposition, which establishes the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. La. C.C.P. art. 966(D)(1). If the non-moving party fails to produce sufficient factual support in its opposition which proves the existence of a genuine issue of material fact, La. C.C.P. art. 966(D)(1) mandates the granting of the motion for summary judgment. See Babin v. Winn-Dixie Louisiana, Inc., 2000-0078...
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