Lobell v. Rosenberg

• Decision Date: 04 October 2017
• Docket Number: NO. 2017–CA–0111, NO. 2017–CA–0381,2017–CA–0111
• Citation: 228 So.3d 1241
• Parties: Kenneth H. LOBELL v. Cindy Ann ROSENBERG Kenneth H. Lobell v. Cindy Ann Rosenberg
• Court: Court of Appeal of Louisiana — District of US

228 So.3d 1241

Kenneth H. LOBELL

v.Cindy Ann ROSENBERG

Kenneth H. Lobell

v.Cindy Ann Rosenberg

NO. 2017–CA–0111

NO. 2017–CA–0381

Court of Appeal of Louisiana, Fourth Circuit.

OCTOBER 4, 2017

Louis C. LaCour, Jr., Ronald J. Sholes, ADAMS AND REESE LLP, 701 Poydras

Street, 4500 One Shell Square, New Orleans, LA 70139, Matthew L. Pepper, 25211 Grogans Mill Road, Suite 450, The Woodlands, TX 77380, Roderick Alvendia, ALVENDIA, KELLY & DEMAREST, L.L.C., 909 Poydras Street, Suite 1625, New Orleans, LA 70112–4500, COUNSEL FOR PLAINTIFFS/APPELLANTS/APPELLEES

Brian D. Katz, Herbert A. Cade, HERMAN, HERMAN & KATZ, LLP, 820 O'Keefe Avenue, New Orleans, LA 70113, Harry Rosenberg, PHELPS DUNBAR, LLP, 365 Canal Street, Suite 2000, New Orleans, LA 70130–6534, COUNSEL FOR DEFENDANTS/APPELLANTS/APPELLEES

(Court composed of Chief Judge James F. McKay, III, Judge Edwin A. Lombard, Judge Joy Cossich Lobrano )

Judge Joy Cossich Lobrano

These consolidated appeals arise from post-trial motions in a commercial lease dispute. 2025 Canal Street, L.L.C., Cindy Rosenberg Denn, Craig Rosenberg, Ricky Rosenberg, Harry Rosenberg, Lenore Rosenberg Bramblett, Ann Rosenberg Silberman, Carla Rosenberg Waggoner, Paige Rosenberg Hirschkop, Rosalie Rosenberg Samuelson, and Larry Rosenberg (collectively the "Rosenbergs") appeal the district court's September 6, 2016 judgment denying their Motion to Assess Payment of Post–Trial Unpaid Rent, Unpaid Taxes, Unpaid Insurance, and Interest Thereon. Kenneth H. Lobell and KHL Canal, L.L.C. (collectively "Lobell") separately appeal the district court's September 27, 2016 judgment denying their Motion to Amend Judgment under La. C.C.P. art. 1951. Finding that this Court lacks appellate jurisdiction to review the consolidated appeals, for the reasons that follow, we dismiss the appeals.

The procedural history of this matter is detailed in this Court's prior opinion, Lobell v. Rosenberg, 2014-0060 (La. App. 4 Cir. 1/7/15), 158 So.3d 874, writ granted, 2015-0247 (La. 5/1/15), 169 So.3d 366, and rev'd, 2015-0247 (La. 10/14/15), 186 So.3d 83 (" Lobell II")¹ ; the Louisiana Supreme Court's opinion, Lobell v. Rosenberg, 2015-0247 (La. 10/14/15), 186 So.3d 83 (" Lobell III"); and this Court's opinion on remand, and Lobell v. Rosenberg, 2014-0060 (La. App. 4 Cir. 1/27/16), 184 So.3d 850, reh'g denied(3/9/16), writ denied, 2016-0669 (La. 5/27/16), 192 So.3d 744 (" Lobell IV"). As summarized by the Supreme Court:

Mr. Lobell filed a petition for writ of possession and a possessory action against the Rosenbergs, [footnote omitted] alleging damages arising out of the Rosenbergs' failure to allow him time to cure the default pursuant to the 1957 lease provisions, anticipatory breach of contract, and wrongful eviction during the lease term. The Rosenbergs responded by filing an incidental demand against Mr. Lobell, alleging he breached the lease and consent agreement by failing to pay rent and taxes, maintain $2.6 million in hazard insurance, place insurance proceeds in trust, spend the insurance proceeds for the purpose of repairing the building and improvements, and keep improvements in good repair. [footnote omitted]. Following a trial on the merits, the district court rendered judgment in favor of the Rosenbergs and dismissed Mr. Lobell's claims. The court terminated the lease of the property and rendered a money judgment in favor of the Rosenbergs in the amount of $3,647,127.81.

...

Mr. Lobell appealed. On appeal, the court of appeal affirmed the portion of the judgment dismissing Mr. Lobell's causes of action and claims for damages against the Rosenbergs. However the court of appeal vacated the portion of the district court's judgment which terminated the lease and awarded damages. In finding the lease was not properly terminated, the court of appeal found the Rosenbergs' default letters failed to afford Mr. Lobell a period of time to remedy his default...

Lobell III, 2015–0247 at pp. 4–8, 186 So.3d at 86–88 (internal citations omitted).²

Upon the application of the Rosenbergs, the Supreme Court granted certiorari, reversed this Court's judgment insofar as it vacated the district court's judgment, and "reinstate[d] the district court's judgment holding that the lease was properly terminated." Id., 2015–0247 at p. 11, 186 So.3d at 91. Because this Court pretermitted consideration of the district court's award of damages, the Supreme Court remanded the case to this Court for consideration of this issue. Id. On remand, this Court affirmed the district court's award of restoration costs. Lobell IV, 2014–0060 atp. 1, 184 So.3d at 852. Lobell then applied for a writ of certiorari, which the Supreme Court denied. Lobell v. Rosenberg, 2016-0669 (La. 5/27/16), 192 So.3d 744.

After the conclusion of the prior appeal, the district court heard eight post-trial motions on August 31, 2016, including the two motions that are the subject of these consolidated appeals.

The Rosenbergs filed a motion to assess payment of post-trial rent, taxes, insurance, and interest arguing that, because Lobell sought suspensive appeal of the August 22, 2013 judgment, the Rosenbergs were deprived of use of the leased property but continued to incur and were required to pay taxes, insurance, and maintenance costs on the property while the suspensive appeal was pending. Lobell opposed the Rosenbergs' motion, contending that the Supreme Court held that the lease was terminated in 2008 by default letters sent by the Rosenbergs to Lobell and that the Rosenbergs are not entitled to recover post-termination damages.

Lobell raised a similar argument in his motion to amend the August 22, 2013 judgment, in which he contended that the Supreme Court's opinion requires that the district court's award of damages be recalculated. Lobell argues that damages should be reduced to reflect a lease termination date in 2008, and the award of judicial interest should be amended to reflect that interest on restoration costs is due only from the date of judgment, not from the date of judicial demand. The Rosenbergs opposed Lobell's motion, arguing that Lobell is seeking substantive amendments to a final judgment, which are prohibited by La. C.C.P. art. 1951,³ and that Lobell's arguments regarding the lease termination date and interest were not raised at trial in 2013 or to the Supreme Court on the prior appeal and were waived.⁴

The district court rendered judgments on September 6, 2016 and September 27, 2016 denying both motions. The Rosenbergs devolutively appealed the September 6, 2016 judgment, Lobell devolutively appealed the September 27, 2016 judgment, and the appeals were consolidated on Lobell's motion. Before addressing the merits, this Court must determine whether we have jurisdiction to consider the appeals.

Turning to the September 6, 2016 judgment, it is evident from the record that the district court's denial of the Rosenbergs' motion to assess post-trial rent, taxes, and insurance resolved some, but not all, of the Rosenbergs' remaining claims against Lobell. We must therefore consider whether it is an appealable judgment. La. C.C.P. art. 1915(B) provides:

(1) When a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands, issues, or theories against a party, whether in an original demand, reconventional demand, cross-claim, third-party claim, or intervention, the 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.

(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 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.

The record reveals that the Rosenbergs also filed a motion for post-trial attorneys' fees. In the September 27, 2016 judgment, in which the district court ruled on many of the post-trial motions heard on August 31, 2016, the district court granted the motion for post-trial attorneys' fees, but reserved the issues of reasonableness of fees and start date for calculation of judicial interest.⁵ The September 27, 2016 judgment anticipated that the parties would attempt to reach an agreement on attorneys' fees, and then litigate the issue if needed. The parties subsequently filed memoranda and exhibits with the district court in support of their respective positions on fees. The amount of attorney's fees has not been adjudicated by the district court, and this issue between the parties remains to be resolved. Accordingly, the September 6, 2016 judgment is a partial judgment within the ambit of La. C.C.P. art. 1915(B).⁶ Therefore, it is not appealable absent designation as a final judgment by the district court. No such designation appears in the record, nor do the Rosenbergs assert that they have sought or obtained one. We therefore lack appellate jurisdiction to review the September 6, 2016 judgment. See Delahoussaye v. Tulane Univ. Hosp. & Clinic, 2012-0906, p. 4 (La. App. 4 Cir. 2/20/13), 155 So.3d 560, 562.

Next, considering the September 27, 2016 judgment, the district court's ruling, denying Lobell's motion to amend the August 22, 2013 judgment, is an interlocutory decree and is not part of an unrestricted appeal from a valid final judgment. See Dunker v. New Orleans Baptist Theological Seminary, 411 So.2d 71, 72 (La. App. 4th Cir. 1982) (holding that there was no right to appeal an order denying a motion for correction of judgment, which was filed after delays for applying for new trial and appeal expired). See also Input/Output Marine Sys., Inc. v. Wilson Greatbatch, Techs., Inc., 2010-477, p. 15 (La. App. 5 Cir. 10/29/10), 52 So.3d 909, 917 (declining to consider on appeal post-trial interlocutory rulings denying motion to reform...