Forstall v. City of New Orleans

• Decision Date: 17 January 2018
• Docket Number: NO. 2017–CA–0414,2017–CA–0414
• Citation: 238 So.3d 465
• Parties: Beulah M. FORSTALL, Wife of/and Barry A Forstall v. The CITY OF NEW ORLEANS, Ulis Gaines, and Reconcile New Orleans, Inc.
• Court: Court of Appeal of Louisiana — District of US

238 So.3d 465

Beulah M. FORSTALL, Wife of/and Barry A Forstall
v.
The CITY OF NEW ORLEANS, Ulis Gaines, and Reconcile New Orleans, Inc.

NO. 2017–CA–0414

Court of Appeal of Louisiana, Fourth Circuit.

JANUARY 17, 2018

Christopher J. Davidson, DAVIDSON & DAVIDSON, APLC, 2901 Independence Street, Suite 201, Metairie, LA 70006, COUNSEL FOR PLAINTIFF/APPELLANT

(Court composed of Judge Edwin A. Lombard, Judge Rosemary Ledet, Judge Paula A. Brown )

Judge Rosemary Ledet

This is a suit to quiet a tax sale of certain immovable property located in the City of New Orleans (the "Property"). In

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June 2009, Beulah and Barry Forstall (the "Forstalls") commenced this suit. In their petition, the Forstalls averred that they were the sole owners of the Property; and they named as defendants the following three parties: (i) the City of New Orleans (the "City"); (ii) a prior owner of the Property, Ulis Gaines; and (iii) a subsequent donee of the Property, Reconcile New Orleans, Inc. ("Reconcile").¹

In July 2016, a one-day bench trial was held in this matter. At trial, three witnesses testified—the Forstalls and Walter O'Brien, the revenue clerking supervisor of the City's Bureau of Treasury, Department of Finance. At the close of the trial, the trial court judge orally ruled as follows:

The only thing that I'm taking up today is whether or not there was notice to the Forstalls relative to the second tax sale, absent notice to the Forstalls of the second, not the tax sale they participated in but the subsequent tax sale, then I've got to grant their request for nullity of that second tax same. [sic] That's all I'm rendering judgment on.

The trial court stated that it was reserving judgment on the following two issues: (i) "whether or not the Forstalls are entitled to title"; and (ii) "whether or not[,] if they [the Forstalls] are entitled to title[,] any reimbursement[s] are due and/or taxes specifically are due to the City."

Six months elapsed between the July 2016 trial and the issuance of a written judgment on January 17, 2017 (the "January Judgment"). In the January Judgment, the trial court, memorializing its earlier oral ruling, ordered that "the trial is bifurcated and the evidence presented at trial pertained only to the validity of the tax sale plaintiff is seeking to be annulled." Also in this judgment, the trial court recognized the City's stipulation, at trial, that it had "no evidence of notice of tax sale" to the Forstalls. The trial court thus ruled in the Forstalls' favor, and against the City, declaring the October 2, 1986 tax sale adjudication of the Property to the City a nullity.

During the six-month period between the trial and the January Judgment, Reconcile filed a motion for summary judgment.² Following a hearing, the trial court, on November 18, 2016, issued a judgment granting the motion for summary judgment and dismissing Reconcile with prejudice (the "November Judgment"). In November 2016, the Forstalls filed a motion for new trial from the November Judgment. The trial court, however, did not rule on that motion until February 2017.³

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On appeal, the Forstalls seek review of both the November Judgment and the January Judgment. For the reasons that follow, we dismiss the appeal insofar as it pertains to the January Judgment, reverse the November Judgment, and remand.

Jurisdictional issues

Appellate courts have a duty to determine, even if the parties do not raise the issue, whether subject matter jurisdiction exists to entertain an appeal. See Moulton v. Stewart Enters., Inc. , 17–0243, 17-0244, p. 3 (La. App. 4 Cir. 8/3/17), 226 So.3d 569, 571 (citing Moon v. City of New Orleans , 15–1092, 15-1093, p. 5 (La. App. 4 Cir. 3/16/16), 190 So.3d 422, 425 ). The threshold question that must be answered before reaching the merits of an appeal is whether the ruling from which a party seeks review is an appealable judgment. "A party may appeal (1) from a final judgment in actions in which appeals are given by law; (2) an interlocutory judgment only when expressly provided by law; and (3) from a judgment reformed in accordance with an additur or remittitur." Frank Maraist, 1 LA. CIV. L. TREATISE, CIVIL PROCEDURE § 14:3 (2d ed. 2017) (citing La. C.C.P. art. 2083 ) ("Maraist ").⁴

A judgment that determines the merits in whole—or in part—is a final—or a partial final—judgment; whereas, 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. "[A]ll judgments other than final judgments and partial final judgments are interlocutory." Maraist , supra.

Both the November Judgment and the January Judgment are partial final judgments. The right to appeal a partial final judgment is governed by La. C.C.P. art. 1915, which has two subparts—"Subpart A" and "Subpart B." Subpart A " 'designates certain categories of partial judgments as final judgments subject to immediate appeal without the necessity of any designation of finality by the trial court.' " Wells Fargo Fin. Louisiana, Inc. v. Galloway , 17-0413, pp. 4-5 (La. App. 4 Cir. 11/15/17), 231 So.3d 793, 798, 2017 WL 5485412, *2 (quoting Quality Envtl. Processes, Inc. v. Energy Dev. Corp. , 16–0171, 16-0172, p. 6 (La. App. 1 Cir. 4/12/17), 218 So.3d 1045, 1053 ).

Subpart B " 'provides that when a court renders a partial judgment, partial motion for summary judgment, or exception in part, it may designate the judgment as final when there is no just reason for delay.' " Id. , 17–0413, at p. 5, 231 So.3d at 798, 2017 WL 5485412, *2 (quoting Quality Envtl. Processes , supra ). Subpart B has the following two subparts:

• "[T]he judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay." La. C.C.P. art. 1915(B)(1) ; and

• "In the absence of such a determination and designation, any such order or decision shall not constitute a final

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judgment for the purpose of an immediate appeal and 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 also La. C.C.P. art. 1911(B) (providing, in part, that "[n]o 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.").

The November Judgment falls under Subpart A because it "[d]ismisses the suit as to less than all of the parties, defendants, third party plaintiffs, third party defendants, or intervenors." La. C.C.P. art. 1915(A)(1). The November Judgment dismisses the suit as to one party—Reconcile. The November Judgment thus is a partial final judgment that is immediately appealable pursuant to Subpart A without the necessity of a designation of finality by the trial court. See In re LoCicero , 10-0624, p. 4 (La. App. 4 Cir. 10/20/10), 51 So.3d 126, 128. This court has jurisdiction over the Forstalls' appeal from the November Judgment.

The January Judgment falls under Subpart B because it is a bifurcated judgment not covered by Subpart A. Subpart A authorizes only the following two categories of bifurcated judgments as partial final judgments: (i) a judgment "on the issue of liability when that issue has been tried separately by the court;" and (ii) "when, in a jury trial, the issue of liability has been tried before a jury and the issue of damages is to be tried before a different jury." La. C.C.P. art. 1915(A)(5). The January Judgment falls into neither of those categories; it bifurcates the issues before the trial court and grants relief as to only one issue—the nullity of the October 2, 1986 tax sale adjudication to the City. Because the trial court did not certify the January Judgment as immediately appealable, it is a non-appealable judgment. See Richardson v. Tessier , 07-0374, p. 3 (La. App. 1 Cir. 11/2/07), 977 So.2d 55, 56. (noting that the bifurcated judgment was not a final, appealable judgment because it "adjudicate[d] fewer than all the claims and was not certified as final by the trial court in accordance with La. C.C.P. art. 1915(B)(1)").

When, as here, a non-appealable judgment is appealed, this court has the discretion to convert the appeal to an application for supervisory writ. Stelluto v. Stelluto , 05-0074, p. 7 (La. 6/29/05), 914 So.2d 34, 39. This court's discretionary authority, however, is not unlimited. One condition is that the appeal must have been filed within the thirty-day period for filing a writ application.⁵ This condition is not met here. The trial court rendered the bifurcated judgment on January 17, 2017. The Forstalls filed their motion for appeal

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on March 10, 2017. The motion for appeal thus was not filed within the thirty-day period for filing an application for supervisory writs.

Although the Forstalls filed a motion for new trial, which the trial court denied on February 10, 2017, " 'the filing of a motion for new trial seeking reconsideration of an interlocutory judgment cannot interrupt the 30–day period for filing an application for supervisory writs established by Rule 4–3 of the Uniform Rules—Courts of Appeal.' " Johno v. Doe , 16-0200, p. 5 (La. App. 4 Cir. 8/17/16), 198 So.3d 1216,...