RJ Messinger, Inc. v. Rosenblum

• Decision Date: 02 March 2005
• Docket Number: No. 2004-OC-1664.,2004-OC-1664.
• Citation: 894 So.2d 1113
• Parties: R.J. MESSINGER, INC. v. Carl D. ROSENBLUM and Kathryn L. Knauss-Rosenblum.
• Court: Louisiana Supreme Court

894 So.2d 1113

R.J. MESSINGER, INC. v. Carl D. ROSENBLUM and Kathryn L. Knauss-Rosenblum.

No. 2004-OC-1664.

Supreme Court of Louisiana.

March 2, 2005.

Jack Edward Morris, for Applicant.

Jones, Walker, Waechter, Poitevent, Carrere & Denegre, L.L.P., Robin Daniel McGuire, Lafayette, for Respondent.

KNOLL, Justice.

This writ concerns an issue of civil procedure pertaining to the certification of partial judgments on appeal. At issue is La.Code Civ. Pro. art.1915 which provides, inter alia, 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, the court may designate the judgment a final judgment after an express determination that there is no just reason for delay. There is a split in the circuit courts of appeal as to whether the appellate court has jurisdiction when the trial court designates a partial judgment as a final judgment with an express determination there is no just reason for delay, but does not give explicit reasons on the record as to why there is no just reason for delay. In the majority of the circuits, if the trial court fails to give explicit reasons for its determination, the court of appeal reviews de novo whether the certification was proper. The Fourth Circuit Court of Appeal, however, dismisses the appeal when the trial court fails to give explicit reasons for the certification. We granted the plaintiff's application to resolve this issue and the split among the circuits.¹ After careful review of the issue, we conclude the appellate courts should review de novo certified judgments when the trial court fails to give explicit reasons on the record for its determination.

FACTS AND PROCEDURAL HISTORY

Carl and Kathryn Rosenblum entered into a contract with R.J. Messinger, Inc. ("Messinger") for the construction of a house. It was specified in the contract that Orkin would be used as the licensed applicator to provide chemical spray beneath the slab for termite control. While the house was under construction, the Rosenblums learned that Messinger used another exterminator to provide termite control.

Subsequent to this discovery, the parties entered into a "Guarantee" dated September 24, 1994. The Guarantee states, in pertinent part:

... in consideration of the release of any claims Rosenblum may have resulting from Messinger's failure to utilize the services of Orkin as required by the Project Specifications, Messinger has and does hereby warrant, guarantee and agree that in the event any termite damage is found to exist in the Residence during the life of the Residence, Messinger will repair and replace any said damage.

Messinger further agrees to indemnify Rosenblum for any costs or inconvenience resulting from the existence of any such damage, including, without limitation, the loss of the use of the Residence due to the termite damage or the repair thereof.

In May 2002, the Rosenblums discovered what they allege to be active termite damage in the house. Pursuant to the Guarantee, by a letter dated May 30, 2002, they gave Messinger written notice to repair the termite damage. On June 21, 2002, Messinger filed a Petition for Declaratory Judgment seeking to have the Guarantee declared invalid and unenforceable. On August 26, 2002, the Rosenblums filed a Petition for Breach of Guarantee against Messinger. On October 29, 2002, the Rosenblums filed their answer to Messinger's petition, along with affirmative defenses, exceptions and a reconventional demand. The reconventional demand essentially sought the same relief prayed for in their petition for breach. On February 4, 2003, the trial court consolidated the two matters.

The Rosenblums filed a Motion for Partial Summary Judgment seeking dismissal of Messinger's petition and special damages, with the amount of general damages to be reserved for trial. Messinger filed a Cross-Motion for Summary Judgment seeking to have the Guarantee declared invalid and unenforceable and dismissal of the Rosenblums' claim for damages. After a hearing, the trial court rendered a partial summary judgment in favor of the Rosenblums, (i) dismissing with prejudice all claims of Messinger in its petition for declaratory judgment; (ii) finding the Guarantee valid and enforceable; (iii) finding Messinger liable to the Rosenblums under the Guarantee for the termite damage discovered in May 2002; and (iv) reserving for trial the determination as to the amount of damages and other obligations owed by Messinger to the Rosenblums under the Guarantee resulting from such termite damage. The judgment further ordered "there is no just reason for delay and that this Partial Summary Judgment be and hereby is designated a final judgment pursuant to Louisiana Code of Civil Procedure Article 1915(B)(1)."

Messinger then appealed the partial summary judgment to the court of appeal. The appellate court dismissed the appeal without prejudice because in interpreting article 1915, it "requires that for there to be a valid certification of a partial summary judgment as final, the trial court must give explicit reasons on the record as to why there is no just reason for delay; mere conclusory statements do not suffice." R.J. Messinger, Inc. v. Rosenblum, 03-2209, p. 3 (La.App. 4 Cir. 6/2/04), 876 So.2d 898, 900, citing inter alia, Jackson v. America's Favorite Chicken Co., 98-0605 (La.App. 4 Cir. 2/3/99), 729 So.2d 1060

; Nalty v. D.H. Holmes Co., Ltd., 99-2826 (La.App. 4 Cir. 12/27/00), 775 So.2d 695, 697.

DISCUSSION

Prior to the passage of Act 483 of 1997, La.Code Civ. Pro. art.1915 set forth an exclusive list of immediately appealable partial final judgments.² The legislature's enactment of Acts 1997, No. 483, largely abandoned this uniform but inflexible approach in favor of one closely paralleling Federal Rule of Civil Procedure 54(b). Mark Tatum and William Norris, III, Summary Judgment and Partial Summary Judgment in Louisiana: The State We're In, 59 LA. L. REV. 131, 153 (1998). The revision to article 1915 provided that grants of partial judgments or partial summary judgments as to one or more but less than all of the claims, demands, issues or theories, do not constitute final judgments for purposes of an immediate appeal unless the trial judge designates the judgment as a final judgment after an express determination that there is no just reason for delay.³ It is now our task in this writ to determine whether such express determination requires the trial court to give specific reasons for designating a partial judgment as final, and resolve the conflict in the circuit courts on this limited procedural issue.

Messinger argues the court of appeal erred in grafting onto La.Code Civ. Pro. art. 1915 B the additional requirement of "explicit reasons on the record as to why there is no reason for delay" and in failing to review the correctness of the trial court's certification of the judgment as final for immediate appeal as is done in every other Louisiana circuit court of appeal. The Rosenblums are in agreement with Messinger on this limited procedural issue. They submit the merits of Messinger's appeal should have been addressed. The Rosenblums aver that in advance of a trial on quantum, it makes logical sense and is in the interest of judicial economy to establish the validity of the Guarantee.

Louisiana Code of Civil Procedure article 1915 provides, in pertinent part:

B. (1) When a court renders a partial judgment or a 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, 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 by the court that there is no just reason for delay.

(2) In the absence of such a determination and designation, any order or decision which adjudicates fewer than all claims or the rights and liabilities of fewer than all the parties, shall not terminate the action as to any of the claims or parties and shall not constitute a final judgment for the purpose of an immediate appeal....

The limited and narrow issue before us is what constitutes an express determination by the court. Our appellate courts have struggled with this issue since the 1997 revision. One of the first decisions to address revised article 1915 was Banks v. State Farm Ins. Co., 30,868 (La.App. 2 Cir. 3/5/98), 708 So.2d 523. In that case the trial court granted a partial summary judgment on the issue of liability alone in favor of the plaintiff and rejected all claims of comparative negligence pled by the defendants. The attorneys for both sides agreed the partial judgment was a final judgment in accordance with La.Code Civ. Pro. art. 1915 B(1).⁴ The order of appeal signed by the district court did not contain an express determination that there was no just reason for delay of an immediate appeal. The court of appeal determined the legislature did not intend for the parties to have ability to create a final judgment for the purpose of an immediate appeal because under the provisions of article 1915 B(2), a judgment is final only after "a determination and designation" (certification) by the trial court, and not after specific agreement by the parties. Banks, 30,868 at p. 3, 708 So.2d at 525. That court held trial courts should give written reasons for certification to facilitate appellate review. Id. at p. 4, 708 So.2d at 525.

Shortly after the Banks decision, the Fifth Circuit addressed the issue of a partial summary judgment certified as a final judgment where the trial judge gave no reasons to support this designation. Berman v. DeChazal, 98-91 (La.App. 5 Cir. 5/27/98), 717 So.2d 658. That court adopted the factors cited in Banks that had been applied in the federal courts...