Favrot v. Favrot

• Decision Date: 25 February 2011
• Docket Number: No. 2010–CA–0986.,2010–CA–0986.
• Citation: 68 So.3d 1099
• Parties: T. Semmes FAVROTv.James P. FAVROT.
• Court: Court of Appeal of Louisiana — District of US

68 So.3d 1099

T. Semmes FAVROT

v.James P. FAVROT.

No. 2010–CA–0986.

Court of Appeal of Louisiana, Fourth Circuit.

Feb. 9, 2011.Writ Denied May 6, 2011.Rehearing Denied Feb. 25, 2011.

Philip A. Franco, Elizabeth A. Roussel, Adams and Reese LLP, New Orleans, LA, for Plaintiff/Appellant.Jack M. Alltmont, April L. Watson, Sessions Fishman Nathan & Israel, L.L.P., New Orleans, LA, for Defendant/Appellee.(Court composed of Judge JAMES F. McKAY, III, Judge MICHAEL E. KIRBY, Judge PAUL A. BONIN).PAUL A. BONIN, Judge.

[4 Cir. 1] Semmes Favrot sued his brother, James, initially seeking injunctive relief. Being mostly unsuccessful, he then amended his suit to claim that James had breached a contract with him or, alternatively, tortiously interfered with a contract. The trial court granted James' motion for partial summary judgment and dismissed those added claims, but granted no other relief at that time. Semmes then appealed.

In response to our inquiry whether we had appellate jurisdiction to consider the partial summary judgment, which had not been designated as a final judgment by the trial court, Semmes and James jointly agreed that a ruling which affirmed the judgment would effectively terminate this litigation. We now convert Semmes' appeal to an application for supervisory relief and grant the application.

Following our de novo review of the partial summary judgment, we agree that essential elements necessary to Semmes' claims are absent such that no genuine issue of material fact exists and that James is entitled to judgment as a matter of law. We, therefore, amend the judgment in order to dismiss Semmes' [4 Cir. 2] lawsuit with prejudice and affirm the judgment as amended. We explain our decision in greater detail in the following parts.

I

In this Part we explain why we cannot exercise our appellate jurisdiction, and why, if we are to give full consideration to this matter at this time,¹ it is necessary for us to convert Semmes' appeal to an application for supervisory relief.

The Louisiana Constitution of 1974 provides for our appellate jurisdiction and our supervisory jurisdiction. See La. Const. Art. 5, § 10(A). “Appeal is the exercise of the right of a party to have a judgment of a trial court revised, modified, set aside, or reversed by an appellate court.” La. C.C.P. Art. 2082. “Supervisory writs may be applied for and granted in accordance with the constitution and rules of the supreme court and other courts exercising appellate jurisdiction.” La. C.C.P. Art. 2201. As we have observed, “the difference between supervisory jurisdiction and appellate jurisdiction is that the former is discretionary on the part of the appellate court while the latter is invocable by the litigant as a matter of right.” Livingston Downs Racing Ass'n, Inc. v. Louisiana State Racing Com'n, 96–1215, p. 3 (La.App. 4 Cir. 6/5/96), 675 So.2d 1214, 1216.

“A final judgment is appealable in all cases in which appeals are given by law, whether rendered after hearing, by default, or by reformation under Article [4 Cir. 3] 1814.” La. C.C.P. Art. 2083 A. “A judgment that determines the merits in whole or in part is a final judgment.” La. C.C.P. Art. 1841. “No appeal may be taken from a partial final judgment under Article 1915(B) until the judgment has been designated a final judgment under Article 1915(B). An appeal may be taken from a final judgment under Article 1915(A) without the judgment being so designated.” La. C.C.P. Art. 1911.

“A judgment that does not determine the merits but only preliminary matters in the course of the action is an interlocutory judgment.” La. C.C.P. Art. 1841. “An interlocutory judgment is appealable only when expressly provided by law.” La. C.C.P. Art. 2083 C; see, e.g., La. C.C.P. Art. 3612 B (relating to the denial or the granting of a preliminary injunction), or La. C.C.P. Art. 592 A(3)(b) (relating to certification in class actions). If not expressly provided by law, there is no right to appeal an interlocutory judgment. See, e.g., La. C.C.P. Art. 968 (“An appeal does not lie from the court's refusal to render any judgment on the pleading or summary judgment.”).

Therefore, in order to determine whether a particular judgment or order is appealable as of right, it must be determined whether the judgment is (1) a final judgment which has determined the merits in whole, La. C.C.P. Art. 1911; (2) a partial final judgment which does not require designation as a final judgment, La. C.C.P. Art. 1915 A; (3) a partial judgment which requires designation as a final judgment, La. C.C.P. Art. 1915 B(1); (4) an interlocutory judgment from which an appeal is expressly provided by law, La. C.C.P. Art. 2083 C, or (5) an [4 Cir. 4] interlocutory judgment from which an appeal is not expressly provided by law, id. See also LaDonte A. Murphy, Access to Appellate Review: Writs, Appeals, and Interlocutory Judgments, 34 S.U.L.Rev. 27 (2007).

A partial judgment which requires designation as a final judgment by the trial court (the third category, ante ) but which has not received such a designation is not an appealable judgment. See La. C.C.P. Art. 1915 B(2) (“In the absence of such a determination and designation, [any such order or decision] ... shall not constitute a final judgment for the purpose of an immediate appeal.”) Such an undesignated judgment, like an interlocutory judgment, “may be revised at any time prior to rendition of the judgment adjudicating all the claims and the rights and liabilities of all the parties.” La. C.C.P. Art. 1915 B(2); see, e.g., Regions Bank v. Weber, 10–1169, p. 1 (La.App. 4 Cir. 12/15/10), 53 So.3d 1284 (“An interlocutory judgment may be reconsidered or revised upon proper motion at any time until the rendition of a final judgment.”), citing to Magallanes v. Norfolk Southern Railway Co., 09–0605, p. 4 (La.App. 4 Cir. 10/14/09), 23 So.3d 985, 988. See also Roger A. Stetter, Louisiana Civil Appellate Procedure, § 3:20 (2010–2011 ed.) (“Any partial judgment that does not dismiss a party and that is not expressly authorized by Article 1915 is interlocutory in character rather than final.”).

Insisting that a partial judgment be designated as final because “there is no just reason for delay” allows us to enforce the “policy against multiple appeals and piecemeal litigation.” [4 Cir. 5] R.J. Messinger, Inc. v. Rosenblum, 04–1664, p. 13 (La.3),5 894 So.2d 1113, 1122; see also 1 Frank L. Maraist & Harry T. Lemmon, Louisiana Civil Law Treatise–Civil Procedure, § 14.3, p. 363 (1999). Such insistence also helps to “ensure that our courts operate under principles of sound judicial administration to promote judicial efficiency and economy.” Id.

The judgment which Semmes “appeals” was a partial summary judgment. The judgment did not dismiss any party. See La. C.C.P. Art. 1915 A(1). The judgment purports only to dismiss Semmes' claims for breach of contract and for tortious interference with a contract. “A summary judgment may be rendered dispositive of a particular issue, theory of recovery, cause of action, or defense, in favor of one or more parties, even though the granting of the summary judgment does not dispose of the entire case.” La. C.C.P. Art. 966 E. Such a partial summary judgment, however, cannot be appealed without a designation of finality by the trial court. See La. C.C.P. Arts. 1911 and 1915 A(3). But Semmes had not obtained the requisite trial court designation of a “final judgment” and, therefore, has no right to a revision, modification, or reversal by an appellate court.

Without a designation as a final judgment, the proper procedural vehicle for the review of this partial summary judgment was for Semmes to apply for a supervisory writ. La. C.C.P. Art. 2201; see also Lalla v. Calamar, N.V., 08–0952, p. 6 (La.App. 4 Cir. 2/11/09), 5 So.3d 927, 931. “A court of appeal has plenary power to exercise supervisory jurisdiction over district courts and may do so at any time, according to the discretion of the court.” Herlitz Constr. Co., Inc. v. Hotel Investors of New Iberia, Inc., 396 So.2d 878, 878 (La.1981). Thus, we have the [4 Cir. 6] discretion to consider this judgment under our supervisory authority. And we have in similar circumstances converted “appeals” of nonappealable judgments to applications for supervisory writs in those cases in which the motions for appeal were filed within the thirty-day period allowed for the filing of applications for supervisory writs. See Ordoyne v. Ordoyne, 07–0235 (La.App. 4 Cir. 4/2/08), 982 So.2d 899; Ganier v. Inglewood Homes, Inc., 06–0642 (La.App. 4 Cir. 11/8/06), 944 So.2d 753; Rule 4–3, Uniform Rules–Courts of Appeal. In Francois v. Gibeault, 10–0180, p. 2 (La.App. 4 Cir. 8/25/10), 47 So.3d 998, 1000, we stated:

In the interest of justice, and especially considering that this appeal was filed within the delays allowed for applying for supervisory writs, see Rule 4–3, Uniform Rules–Courts of Appeal, we convert the pending appeal to a writ application for review under our supervisory jurisdiction. (citations omitted).

Semmes, too, filed his motion for appeal within the delays allowed for applying for supervisory writs.

We, moreover, are persuaded by the parties' joint representation,² confirmed by our own independent review of the record, that the exercise of our supervisory jurisdiction will result in a final disposition of all issues in this case and that there is no reason to remand the matter for the rendition of a final appealable judgment. When action by our court “will terminate the litigation, and where there is no dispute of fact to be resolved, judicial efficiency and fundamental fairness to the litigants dictates that the merits of the application for supervisory writs should be [4 Cir. 7] decided in an attempt to avoid the waste of time and expense.” Herlitz Constr. Co., Inc., 396 So.2d at 878; see also Alex v. Rayne Concrete Service, 05–1457, p. 7 (La.1/26/07), 951 So.2d 138, 145 n. 5.

Therefore, we...