author: GRAVOIS, J.

text:
    Todd M. VILLARRUBIA v. Heather G. VILLARRUBIA
    NO. 18-CA-320
    Court of Appeal of Louisiana, Fifth Circuit.
    December 27, 2018
    COUNSEL FOR PLAINTIFF/APPELLANT, TODD M. VILLARRUBIA, APLC D/B/A/ WEALTH PLANNING LAW GROUP Jack A. Ricci, Michael S. Ricci, Jonathan L. Schultis, Brian G. LeBon, Jr.
    COUNSEL FOR DEFENDANT/APPELLEE, HEATHER G. VILLARRUBIA Steven J. Lane, John S. Creevy, Alexandra E. Faia, Christopher T. Grace, Jr.
    Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Marc E. Johnson
   GRAVOIS, J.

In this community property partition suit between former spouses Heather Grace Villarrubia and Todd Villarrubia, intervenor/appellant Todd M. Villarrubia, PLC d/b/a Wealth Planning Law Group ("the PLC"), appeals the trial court's judgment of January 22, 2018 (as amended on July 18, 2018), granting Heather's exceptions of no right of action and no cause of action, dismissing the PLC's intervention in the community property partition proceeding. Following the PLC's appeal to this Court, Heather filed a motion to dismiss the appeal, arguing that the PLC's appeal is moot as "the final judgments impose no obligation" on the PLC in this matter. For the following reasons, we deny the motion to dismiss the appeal and affirm the judgment that dismissed the PLC's intervention in the community property partition proceeding.

PROCEDURAL HISTORY AND FACTS

Todd M. Villarrubia, plaintiff, filed a petition for divorce against Heather Grace Villarrubia, defendant, on June 10, 2014. In 2001, prior to the parties' marriage in 2002, Todd, an attorney, formed a professional law corporation, a Subchapter S corporation ("the PLC"), for his law practice, of which he was 100 per cent owner, the sole member, and where he was employed throughout the marriage and after his filing of the petition for divorce. Following the BP Deepwater Horizon oil spill, the PLC entered into contingency fee contracts for the adjustment of BP claims of many of the PLC's clients. Todd performed work on the BP files both before and after the filing of the petition for divorce for which settlement proceeds were received after the petition for divorce was filed. In the community property partition proceeding, a dispute arose concerning the amount of Todd's compensation for the work he performed on the BP contracts during the time of the marriage, which Heather claimed was community property and for which she sought her statutory share from the BP settlement proceeds held by the PLC. Heather also claimed that the value of the PLC was enhanced, during the marriage, by the uncompensated or undercompensated labor of Todd, which could form the basis of a reimbursement claim in her favor pursuant to La. C.C. art. 2368. Todd claimed that he was compensated during the community by a salary and that all fees received from the contingency fee contracts were the property of the PLC. Heather propounded discovery upon Todd individually, seeking records and information from the PLC regarding the BP contracts, as well as other contingency fee contracts, and information relative to Todd's income and compensation during the marriage.

On December 8, 2014, the PLC intervened in the community property partition proceeding, claiming that intervention was necessary "to protect the PLC's rights and property," noting Heather's discovery requests. On April 2, 2015, the PLC filed a motion for summary judgment in the intervention, arguing that the BP contingency fee contracts were the property and assets of the PLC, a distinct legal entity separate from Todd, and were neither community property nor the separate property of Todd. Heather filed exceptions of unauthorized use of summary proceedings as per La. C.C.P. art. 969, no cause of action, and no right of action, reiterating that she did not claim an ownership interest in the BP contracts. Following a hearing, the trial court issued a written judgment on June 1, 2015 granting the exception of unauthorized use of summary proceedings, declaring the exceptions of no right of action and no cause of action moot, and denying the PLC's motion for summary judgment.

The appellate record reveals that the parties entered into a consent judgment on February 23, 2015, partially partitioning the community property, but reserving all rights to items not partitioned therein. The record further shows that in a March 29, 2016 Consent Judgment, the parties reached an agreement to partition the rest of the community property, but reserved determination of issues relating to the BP contracts, to wit:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that each party does expressly reserve any and all rights he or she has or may have with respect to
1. The valuation, enhancement and/or reimbursement claims affecting or relating to the Professional Law Corporation, including but not limited to any BP or Deepwater Horizon claims.

On November 17, 2017, Heather reurged her previous exceptions of no right of action and no cause of action relative to the PLC's intervention in the community property partition proceeding. She based her exceptions on recent deposition testimony of Todd individually, and of Antonio Cino, the PLC's La. C.C.P. art. 1442 representative, wherein neither deponent claimed to know the reason for the PLC's intervention. Both Todd and the PLC opposed the exceptions. Following a hearing on January 9, 2018, the trial court rendered a written judgment on January 22, 2018 in favor of Heather, granting her exceptions (and by amended judgment dated July 18, 2018, dismissing the PLC's intervention).

The trial of the remaining community property reimbursement issue went forward on January 29, 2018. The trial court rendered judgment on April 10, 2018, ruling that the BP fees were community property and awarding Heather the amount of $782,766.83 as her half share thereof. Meanwhile, on March 29, 2018, the PLC filed a motion for a devolutive appeal from the judgment of January 22, 2018 (as amended on July 18, 2018) dismissing its intervention, which appeal was granted.

MOTION TO DISMISS APPEAL

In her motion to dismiss the appeal, Heather argues that the PLC's appeal should be dismissed because in the subsequent community property partition judgment rendered on April 10, 2018 (as amended on June 18, 2018), the trial court did not render a judgment either for or against the PLC. Herein, however, the PLC appeals the judgment rendered on January 22, 2018 (as amended on July 18, 2018) which dismissed its intervention in the community property partition proceeding. Such judgment is clearly adverse to the PLC as per La. C.C.P. art. 2082 ; the fact that the April 10, 2018 judgment on the merits of the partition proceeding imposes "no obligation" on the PLC is not the pertinent criteria for determining the PLC's right to appeal the instant judgment. Accordingly, the motion to dismiss the appeal is denied.

ANALYSIS

Interventions are governed by La. C.C.P. art. 1091, which provides:

A third person having an interest therein may intervene in a pending action to enforce a right related to or connected with the object of the pending action against one or more of the parties thereto by:
(1) Joining with plaintiff in demanding the same or similar relief against the defendant;
(2) Uniting with defendant in resisting the plaintiff's demand; or
(3) Opposing both plaintiff and defendant.

There is a twofold requirement for third-party interventions. The intervenor must have a justiciable interest in, and a connexity to, the principal action. Atchley v. Atchley , 97-474 (La. App. 5 Cir. 1/14/98), 707 So.2d 458, 459. "Justiciable interest" is defined as the right of a party to seek redress or a remedy against either the plaintiff or the defendant in the original action, or both, and where those parties have a real interest in opposing it. Id. If a justiciable interest exists, it must be so related or connected to the facts or object of the principal action that a judgment on the principal action will have a direct impact on the intervenor's rights. Id.

In her appellee brief, Heather argues that La. R.S. 9:2801, which provides the exclusive procedure for community property partitions, provides no mechanism for a non-party third person to intervene, and thus the PLC had no right of action to intervene in this proceeding. However, we find that La. C.C.P. art. 1091 provides the mechanism for non-spouse third persons to intervene in a community property partition proceeding. Jurisprudence is clear that non-spouse third parties may intervene in community property partition proceedings, provided that they have stated a cause of action and have a right of action. See Atchley, supra ; Kimble v. Kimble , 552 So.2d 1343, 1344 (La. App. 5th Cir. 1989).

Exception of no cause of action

In Scheffler v. Adams & Reese, LLP , 06-1774 (La. 2/22/07), 950 So.2d 641, 646-47, the Supreme Court stated:

Louisiana retains a system of fact pleading, and mere conclusions of the plaintiff unsupported by facts will not set forth a cause or right of action. Montalvo v. Sondes , 93-2813 (La. 5/23/94), 637 So.2d 127, 131. The burden of demonstrating that a petition fails to state a cause of action is upon the mover. Ramey [v. DeCaire , 03-1299, p.] at 7 [ (La. 3/19/04) ], 869 So.2d [114], at 119 ; City of New Orleans [v. Board of Commissioners of Orleans Levee District, 93-0690, p.] at 28 [ (La.7/5/94) ], 640 So.2d [237] at 253. Because the exception of no cause of action raises a question of law and the district court's decision is based solely on the sufficiency of the petition, review of the district court's ruling on an exception of no cause of action is de novo . Fink [v. Bryant, 01-0987, p.] at 4 [ (La.11/28/01) ], 801 So.2d [346] at 349 ; City of New Orleans , at 28, 640 So.2d at 253. The pertinent inquiry is whether, in the light most favorable to the plaintiff, and with every doubt resolved in the plaintiff's favor, the petition states any valid cause of action for relief. Ramey , at 8, 869 So.2d at 119.

Louisiana does not have an exception of "no cause or right of action." The two are separate and distinct, each serving a particular and different purpose. Sajare Interests, Ltd. v. Esplanade Mgmt., Inc. , 459 So.2d 748, 749 (La. App. 4th Cir. 1984).

The "object" of a community property partition proceeding, the action herein, is the division of property belonging to the community of acquets and gains between former spouses. Community property comprises property acquired during the existence of the legal regime through the effort, skill, or industry of either spouse. La. C.C. art. 2338. In a partition suit, which is conducted pursuant to La. R.S. 9:2801, property is determined to be either community or separate, according to the provisions of Title VI of the Louisiana Civil Code entitled "Matrimonial Regimes," unless it is determined to be owned by a third party. Because determining the spouses' ownership interests in property is one of the objects of a community property partition proceeding, an intervenor who asserts an ownership interest in property being considered in the partition suit has a "justiciable interest" as defined above.

The peremptory exception raising the objection of no cause of action questions whether the petition alleges grievances for which the law affords a remedy. Angelica v. Angelica , 608 So.2d 256, 259 (La. App. 5th Cir. 1992). For adjudication of the objection, the well-pleaded facts of the petition are accepted as true. Id. No evidence may be introduced at any time to support or controvert the objection. Id. La. C.C.P. art. 931.

The PLC's intervention asserted that Heather claimed an interest in the BP contracts, which it claimed were the assets and property of the PLC, not Todd individually. It claimed that its intervention was necessary to "present its own arguments" and to "safeguard" information given to it by its clients.

In no pleading at the point in the proceeding prior to the date of the filing of the petition for intervention did Heather assert an ownership interest in the BP contracts. Rather, up until the date of the filing of the petition for intervention, the pleadings contained only general references to each party desiring a termination of the community of acquets and gains, and a partition pursuant to La. R.S. 9:2801. The intervention was based upon Heather having propounded discovery upon Todd individually , a Notice of Records Only Deposition, seeking discovery from him of the PLC's records relative to the BP contracts, including but not limited to billing records, his hours worked, description of work, when the work was performed, and who performed the work. The notice also sought, from Todd individually, records of the PLC indicating all assets, liabilities, and net worth of the PLC.

While the notice of deposition clearly seeks records from the PLC including but not limited to information pertaining to the BP contracts and files, nowhere in the notice of deposition, or in any other pleading, did Heather claim an ownership interest in the BP contracts, nor did she claim an ownership interest in any asset purportedly belonging to the PLC. Heather had a right to discover information from Todd relative to his earnings and compensation attributable to work he performed during the marriage, as per La. C.C. arts. 2338 and 2369.2, including work for which he did not see payment until after termination of the community. Also, because it is undisputed that the PLC, a subchapter S corporation which was owned solely by Todd, is his separate property, Heather had a right to discover information related to any claim she may have for an increase in the PLC's value as a result of Todd's uncompensated labor or industry, as per La. C.C. art. 2368. The requested discovery was clearly related to those statutory claims.

A review of jurisprudence concerning community property partition proceedings shows that it is not uncommon for some spouses to own closely held companies as separate property, or own a separate property interest in a closely held company, where either the separate nature of the company was challenged or where a spouse made a reimbursement claim under La. C.C. art. 2368. Yet, a diligent search by this Court fails to show any case where a closely held company owned separately by a spouse has intervened in a community property partition proceeding under factual circumstances similar to those involved in this case.

Generally, courts allow non-spouse third parties to intervene in community property partitions where the non-spouse shows a justiciable interest and a claim with connexity to property claimed to be part of the community. For example, in Genola v. Genola , 409 So.2d 362, 363 (La. App. 1st Cir. 1981), the mother of the defendant husband intervened in his community property partition proceeding, seeking to be recognized as owner of a 6½ acre parcel claimed to be part of the community. The intervention was allowed without discussion; after trial on the merits, the property was found to be community and the mother's claims were dismissed. Id. at 364. In Kimble v. Kimble , supra , 552 So.2d at 1344, this Court found the father of the husband to be an indispensable party to the partition proceeding where the father claimed ownership of the parties' mobile home, which the parties claimed was community property. These cases can all be distinguished from the present case, where Heather has not made a claim to property belonging to the PLC.

Accordingly, the PLC's petition for intervention failed to state a cause of action, given that the PLC had no objectively rational basis to claim, upon Heather's discovery requests, that Heather claimed an ownership interest in property that belonged to the PLC, nor do we find that Heather actually asserted any ownership claims to property of the PLC through her discovery requests to Todd individually. This assignment of error is without merit.

Exception of no right of action

The exception of no right of action raises the issue of whether a particular plaintiff falls as a matter of law within the general class in whose favor the remedy may be asserted. Unlike the exception of no cause of action, on the trial of the exception of no right of action, evidence is admissible to support or controvert the issue of whether there is a right or interest in the particular plaintiff to institute the suit. A determination of whether a plaintiff has a right to bring an action raises a question of law. A question of law requires de novo review. Eagle Pipe & Supply, Inc. v. Amerada Hess Corp. , 10-2267 (La. 10/25/11), 79 So.3d 246, 252.

The sole remaining issue at the January 29, 2018 trial of the partition proceeding was whether the fees received by the PLC pursuant to the BP contracts were community property, in whole or in part, and if so, what amount thereof was earned by Todd attributable to his work performed during the marriage. The intervention, however, claimed that Heather sought either an ownership interest in the contracts or that she had asserted some "nebulous" interest in the contracts or fees, which the PLC claimed were the property of the PLC.

Heather, however, reiterated in pleadings that the partition dispute concerned not the ownership of the BP contracts, but rather Todd's compensation for work performed on the BP cases during the marriage, to-wit:

... she seeks "any and all attorney's fees earned, to be earned, paid, or to be paid to Todd Villarrubia, individually or through any law firm in which he has an ownership interest, for work performed during the existence of the community on any and all BP cases, regardless as to whether fees were paid either during the existence of the community or after the community terminated. "
Ms. Villarrubia is not trying to claim an ownership interest in [the PLC's] assets. Ms. Villarrubia is simply asserting that she is entitled to receive one half of the proceeds from the contingency fees received or to be received by her husband for work performed during the marriage. " (Emphasis in original.)

To the extent that a right to receive proceeds derives from a spouse's labor and industry during the existence of the community, that right is a community asset, even if the proceeds are received after dissolution of the community. See La. C.C. arts. 2338 and 2369.2 ; Delahaye v. Delahaye , 04-0310 (La. App. 1st Cir. 12/30/04), 936 So.2d 822, 827.

Because it is clear from the record that Heather did not claim an ownership interest in the BP contracts, or an ownership interest in any other asset or property of the PLC, we find that the PLC had no right of action to intervene in the partition proceeding. Todd's compensation for work performed during the existence of the community, whatever amount it may have been or should have been, was never an asset of the PLC, and was never a claim that the PLC had to defend.

In Atchley v. Atchley, supra , this Court affirmed the grant of an exception of no right of action as to the intervention of Mr. Atchley's sister in his community property partition proceeding, finding that the intervenor had no right of action since the evidence showed that bonds in which she claimed an ownership interest were her brother's separate property, and therefore the partition of the community would not impact the intervenor's claimed interest in the bonds. Likewise, a partition of the Villarrubias' community of acquets and gains does not legally impact the property of the PLC.

The PLC argues that it was deprived of the right to "defend" against Heather's "claim of interest" in the PLC's BP contracts and/or fees. The PLC advanced the argument that since the BP fees were being held in its IOLTA account, Heather had therefore asserted an ownership interest in that money, and that a judgment against Todd would impact the money held in its account. Thus, the PLC argues it had a "justiciable interest" and a "connexity" to the main demand justifying its intervention. The trial court disagreed, however, as do we. It was Todd's right, personally, to defend against any claims Heather made regarding the alleged community nature of the BP fees, not the PLC's. In the event the trial court were to later issue a judgment in Heather's favor, such judgment would be against Todd personally, not against the PLC. No judgment would or could be rendered against the PLC. The PLC's argument in this regard, that the money held in its IOLTA account would be impacted in the event of a judgment in Heather's favor, flies in the face of its vigorously held position that Todd and the PLC are separate entities. While the PLC appears to assume that Todd would use the money in the PLC's IOLTA account to satisfy a judgment in favor of Heather, such a course of action would be Todd's personal choice, as 100 per cent owner and sole member of the PLC, and not a requirement of a judgment rendered solely against Todd personally.

This assignment of error is without merit.

Accordingly, we find no error in the trial court's judgment granting the peremptory exceptions of no cause of action and no right of action as to the PLC's intervention, dismissing the intervention.

CONCLUSION

For the foregoing reasons, Heather's motion to dismiss the appeal is denied. Further, the trial court's judgment granting Heather's exceptions of no cause of action and no right of action, and dismissing the PLC's intervention in this community property partition, is affirmed. All costs of the appeal are taxed to appellant.

MOTION TO DISMISS APPEAL DENIED; AFFIRMED

      Previously, after the appeal was lodged, this Court found that the judgment of January 22, 2018 lacked the necessary decretal language to invoke this Court's appellate jurisdiction. Pursuant to this Court's order of July 17, 2018, the district court issued an amended judgment on July 18, 2018 to decree that the PLC's intervention was dismissed.

      In her motion to dismiss, Heather is referring to the final judgment later rendered in the community property partition proceeding, which is also on appeal in this Court as case number 18-CA-430.

      Heather does not dispute that the PLC is Todd's separate property.

      The PLC sought supervisory review of this judgment from this Court, arguing that La. C.C.P. art. 969 did not prohibit the PLC, a non-spouse, from seeking a summary determination of the classification of the BP contracts. This Court, however, denied the PLC's writ application, agreeing with the trial court that the use of summary proceedings in a community property partition was prohibited by La. C.C.P. art. 969. Villarrubia v. Villarrubia , 15-487 (La. App. 5 Cir. 10/19/15) (unpublished writ disposition).

      Todd also appealed the partition judgment of April 10, 2018, as amended on June 18, 2018, which appeal is being considered separately by this Court in case number 18-CA-430.

      La. C.C.P. art. 2082 provides: "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." Prior to the judgment dismissing their intervention, the PLC was a party to the proceeding.

      Assets owned by a corporate entity are the property of that entity and are not owned by the shareholders or partners, even if the spouses are owners of stock or are partners. McClanahan v. McClanahan , 03-1178 (La. App. 5 Cir. 2/23/04), 868 So.2d 844, writ denied , 882 So.2d 609 (La. 9/3/04).

      The discovery requests do not appear to seek confidential client information.

      La. C.C. art. 2369.2 provides: "Each spouse owns an undivided one-half interest in former community property and its fruits and products."

      La. C.C. art. 2368 provides: "If the separate property of a spouse has increased in value as a result of the uncompensated common labor or industry of the spouses, the other spouse is entitled to be reimbursed from the spouse whose property has increased in value one-half of the increase attributed to the common labor."

      See , e.g. , McClanahan v. McClanahan , supra .

      Jurisprudence is replete with cases allowing creditors of the community and/or of spouses to intervene in community property partitions. See , e.g. , Krampe v. Krampe , 510 So.2d 1289, 1291 (La. App. 3rd Cir. 1987) (creditors of the wife, her former divorce attorneys, were allowed to intervene in community property partition proceeding). Here, it was not alleged that the PLC was a creditor of either spouse.

      The record shows that these contracts were between the PLC and the individual clients, and were signed by Todd in his representative capacity as owner of the PLC.

      See Heather's "Pre-Trial Memorandum of Law Regarding the Partition of Community Property BP Fees" filed on December 11, 2017.

      IOLTA stands for "Interest on Lawyers' Trust Accounts."


source: Caselaw Access Project

author: WINDHORST, J.

license: Public Domain

text:
    STATE of Louisiana v. Raul RAMOS
    NO. 18-CA-136
    Court of Appeal of Louisiana, Fifth Circuit.
    December 27, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Joel T. Chaisson, II, Baton Rouge, Louis G. Authement, Hahnville
    DEFENDANT/APPELLANT, RAUL RAMOS, In Proper Person
    Panel composed of Judges Fredericka Homberg Wicker, Stephen J. Windhorst, and Hans J. Liljeberg
   WINDHORST, J.

Appellant, Raul Alejandro Ramos, appeals the trial court's November 2, 2017 judgment denying and dismissing his motion to vacate. For the following reasons, we affirm.

Procedural History and Facts

On January 21, 2009, the State of Louisiana ("the State"), on behalf of Ebony Wright, filed a petition to establish paternity and child support against appellant. On October 3, 2013, the trial court held a hearing to determine paternity and child support. At the hearing, appellant acknowledged that he was the father of the minor child, and testified regarding his current income. The same day, the trial court rendered judgment ordering appellant to pay child support in the amount of $393.00 per month retroactive to the date of filing. The trial court further ordered appellant to pay an additional $7.00 per month towards his arrearage amount. The judgment was signed March 17, 2014. Appellant did not file a motion for new trial or appeal this judgment.

On January 20, 2016, the State filed a motion for contempt, contending that appellant failed to comply with the March 17, 2014 judgment and was in arrears. On April 7, 2016, after a contradictory hearing, the trial court found appellant in contempt and sentenced him to ninety days in jail. The trial court suspended this sentence conditioned upon appellant resuming his child support payments. Arrears in the amount of $28,092.50 were made executory. The trial court further informed appellant that if he had or experienced a reduction in income since the judgment, he could file a motion for modification of child support.

On July 28, 2017, the State filed a second motion for contempt contending that appellant failed to comply with the March 17, 2014 judgment and was in arrears. On September 7, 2017, after a contradictory hearing with appellant, the trial court found appellant in contempt and the cumulative arrearage amount of $34,611.70 was made executory.

On September 7, 2017, appellant filed a pro se motion to vacate appearing to attack the March 17, 2014 judgment ordering appellant to pay child support and alleging that he was denied due process because the State "failed to produce the necessary proof of claim to support anything." On November 2, 2017, the trial court denied the motion to vacate on procedural grounds finding that appellant could not use a summary proceeding to annul the March 17, 2014 judgment. This appeal followed.

Discussion

On appeal, appellant contends that the trial court erred in dismissing his motion to vacate the March 17, 2014 child support judgment.

A final judgment may be annulled for vices of either form or substance. La. C.C.P. art. 2001. Absolute nullities set forth in La. C.C.P. art. 2002 may be asserted at any time, in a collateral proceeding, and before any court. Champagne and Rodgers Realty Co., Inc. v. Guillot, 06-237 (La. App. 5 Cir. 11/14/06), 947 So.2d 39, 45, writ denied, 06-2920 (La. 3/9/07), 949 So.2d 440. Relative nullities set forth in La. C.C.P. art. 2004 may only be asserted in a direct action filed in the court that rendered the judgment, and the adverse party must be cited to appear as in ordinary suits. Id.; Calcasieu Parish School Bd. v. Parker, 02-339 (La. App. 3 Cir. 10/2/02), 827 So.2d 543, 545, writ denied, 02-2719 (La. 1/10/03), 834 So.2d 440.

La. C.C.P. art. 2004 does not specify the manner in which one can assert the grounds for nullity. La. C.C.P. at. 2004, in pertinent part, provides:

A. A final judgment obtained by fraud or ill practices may be annulled.
B. Action to annul a judgment on these grounds must be brought within one year of the discovery by the plaintiff in the nullity action of the fraud or ill practices.

The Official Revision Comment (d) to La. C.C.P. art. 2004 provides:

No specific provision has been made regarding the manner of asserting the grounds of nullity in the above article. This was thought unnecessary in view of the established jurisprudence to the effect that such grounds must be asserted in a direct action and cannot be raised collaterally. (Citations omitted.)

An action for nullity of a final judgment alleging fraud or ill practice pursuant to La. C.C.P. art. 2004 must be brought by ordinary proceeding, rather than in a summary proceeding. In re Successions of James, 09-25 (La. App. 5 Cir. 6/23/09), 19 So.3d 1200, 1202. There is no authority in law to bring such an action in a summary proceeding. Bonaventure v. Pourciau, 577 So.2d 742, 746 (La. App. 1 Cir. 1991) ; Johnson v. Vinson Guard Service, 577 So.2d 56, 59 (La. App. 1 Cir. 1990), writ denied, 578 So.2d 915 (La. 1991). An action for nullity alleging fraud or ill practice is a relative nullity that must be asserted in a direct action filed in the court that rendered the judgment, and the adverse party must be cited to appear as in ordinary suits. Champagne and Rodgers Realty Co., Inc. 947 So.2d at 45 ; Green v. Holmes, 10-880 (La. App. 5 Cir. 4/12/11), 68 So.3d 1, 3 ; Willis v. Travelers Insurance Company, 545 So.2d 721, 721 (La. App. 3 Cir. 1989).

Upon review of appellant's pro se motion to vacate, we find appellant seeks to annul the March 17, 2014 judgment under La. C.C.P. art. 2004. An action for nullity based on fraud or ill practice must be timely brought by a direct action (i.e. , a petition to annul), citing the appropriate adverse party to appear. Because appellant is prohibited from annulling the judgment under La. C.C.P. art. 2004 via summary proceeding (i.e. , a motion to vacate), the trial court did not err in denying and dismissing appellant's pro se motion to vacate the March 17, 2014 child support judgment.

Conclusion

For the above stated reasons, we affirm the trial court's November 2, 2017 judgment.

AFFIRMED

      La. C.C. art. 142 provides that a child support award may be modified if the circumstances of the child or of either parent materially change and shall be terminated upon proof that it has become unnecessary. La. R.S. 9:311 provides that a child support award may be modified when "the party seeking the modification shows a material change in circumstances of one of the parties between the time of the previous award and the time of the rule for modification of the award."

      The prior amount of arrears made executory on April 7, 2016 was incorporated into the current amount of arrears.

      In his pro se appellate brief, appellant alleged several assignments of error: (1) "The State and the Court withheld highly vital, highly pertinent, highly critical, highly crucial, highly empirical, highly imperial and highly supreme knowledge of the United States Constitutional mandates placed on the State, Court, and its actors;" (2) "The State and the Court withheld highly vital, highly pertinent, highly critical, highly crucial, highly empirical, highly imperial and highly supreme knowledge of the Unites States Supreme Court Rulings and mandates placed on the Court, the State, and its actors;" (3) "The State and the Court withheld highly vital, highly pertinent, highly critical, highly crucial, highly empirical, highly imperial and highly supreme knowledge of American Jurisprudence Book 16: Constitutional Law § and its interpretations;" (4) "The State and the Court withheld highly vital, highly pertinent, highly critical, highly crucial, highly empirical, highly imperial and highly supreme knowledge of the Louisiana Constitution and the mandates it places on the State, the Court, and its actors;" (5) "The State and the Court withheld highly vital, highly pertinent, highly critical, highly crucial, highly empirical, highly imperial and highly supreme knowledge of the UNIVERSAL DECLARATION OF HUMAN RIGHTS and the mandates it places on all participating Nations of the World; U.S., the States and the Courts of the Land." By argument in his pro se brief, it appears that appellant filed his motion to vacate the March 17, 2014 child support judgment.

      If, and to the extent that appellant is attempting to appeal the March 17, 2014 judgment awarding child support, our appellate jurisdiction has time limitations. Accordingly, an appeal from a judgment in excess of three years ago is untimely, and this Court now lacks jurisdiction to address that judgment.

      Appellant's motion to vacate did not allege that the March 17, 2014 judgment was an absolute nullity due to insufficient service of process. Although appellant did not assert insufficient service of process as a basis for an absolute nullity in his appellate brief, he potentially alludes to this by alleging that (1) the initial petition to establish paternity and child support was not served on him; (2) there is no evidence he signed for the petition; (3) there is no evidence service of process was "perfected." While absolute nullities may be asserted any time under La. C.C.P. art. 2002, the record establishes that appellant appeared and testified at the hearing to establish paternity and child support. At no time during this hearing did appellant object to insufficient service of process. To the extent an issue with citation and service of process existed, under La. C.C.P. art. 925 C, appellant's failure to plead the declinatory exception of insufficiency of citation and service of process prior to the trial of the matter operates as a waiver of that objection. See Lepine v. Lepine, 17-568 (La. App. 5 Cir. 3/14/18), 243 So.3d 737, 742. The record further reveals that appellant has been held in contempt on two prior occasions for failure to make child support payments. At no time did appellant attempt to enjoin enforcement of the March 17, 2014 judgment. "A defendant who voluntarily acquiesced in the judgment, or who was present in the parish at the time of its execution and did not attempt to enjoin its enforcement, may not annul the judgment on the any of the grounds enumerated in Article 2002." La. C.C.P. art. 2003. Accordingly, to the extent appellant seeks to collaterally attack the March 17, 2014 judgment, he is barred under La. C.C.P. art. 2003.


author: WICKER, J.

text:
    Chris GRAVER & Vanessa Graver v. Olivia G. LEACH
    NO. 18-CA-582
    Court of Appeal of Louisiana, Fifth Circuit.
    December 28, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, CHRIS GRAVER AND VANESSA GRAVER Edward A. Ready, Metairie
    COUNSEL FOR DEFENDANT/APPELLANT, OLIVIA G. LEACH Pat M. Franz, Michael Baham
    COUNSEL FOR MINOR/APPELLEE, L.G. Cheryl P. Buchert, Maura K. Toups, Student Practioner, Meaghan A. Jeansonne, Student Practioner, Rowan O. Whitehurst, Student Practioner
    Panel composed of Judges Fredericka Homberg Wicker, Marc E. Johnson, and Stephen J. Windhorst
   WICKER, J.

Appellant-mother, Olivia Leach, appeals the trial court judgment granting paternal grandparents, Chris and Vanessa Graver, visitation with Olivia's minor child, London. For the following reasons, we affirm the trial court judgment.

FACTUAL AND PROCEDURAL HISTORY

The minor child in this litigation, London, was born on April 16, 2013, to her biological parents, Olivia Leach and Shanon Graver. Olivia and Shanon were never married but lived together in Gulfport, Mississippi for a brief period from March 2012 to September 2013, and separated when London was approximately 5 months old. Thereafter, they returned to Louisiana and shared joint custody of London, with Olivia designated the domiciliary parent by court order in district court case number 755-983 of the 24th Judicial District Court, and with Shanon granted supervised visitation twice weekly. The record reflects that Shanon, a military member, suffered PTSD after he returned home from deployment to Afghanistan, and struggled with substance abuse issues. On September 23, 2016, Shanon and Olivia executed a consent judgment whereby Shanon's visitation was suspended, without prejudice, pending further court proceedings. Shanon died shortly thereafter on January 28, 2017.

On June 22, 2017, Chris and Vanessa Graver-Shanon's parents and London's paternal grandparents-filed suit in the 24th Judicial District Court, seeking court-ordered visitation with London. Olivia filed an answer to the petition, objecting to the Gravers' requested visitation. The court appointed the Loyola Law Clinic to represent the interest of the minor child. At two pretrial hearings, the trial court determined that both statutes governing grandparent visitation, La. R.S. 9:344 and La. C.C. art. 136, applied in this case and, further, that the legal standard of proof the Gravers must meet to support their claim for grandparent visitation is preponderance of the evidence.

The matter proceeded to trial. At trial, Vanessa Graver testified that, prior to Olivia and Shanon's separation, she and her husband Chris would visit Olivia, Shanon, and London in Gulfport Mississippi every other weekend to see London as an infant. She further stated that Olivia and Shanon would return to New Orleans to visit fairly regularly, and that she would visit with them at either her home or Olivia's parents' home when they were in town. After Olivia and Shanon separated, Vanessa saw London less regularly but did spend holidays with her and celebrated London's first and second birthdays with her.

Vanessa testified that she did not feel comfortable visiting with London at Olivia's parents' home during Shanon's visitation because during a November 2015 visitation, Olivia's mother, Marcy Leach, instructed Vanessa that the visitation was between only Shanon and London and instructed Vanessa to wait on the front porch or in her car until the visitation ended. She acknowledged that, for the last 10 minutes of that visit, she was allowed to come off of the porch and into the house to visit with London. She testified that she and her husband did not attempt to seek separate visitation rights while Shanon was alive because they were advised by Shanon's attorney to "step back" and allow Shanon to first work on his visitation and relationship with London. Vanessa testified that, after her son's death, she and her family attempted to contact Olivia to visit with London but generally received no response.

Vanessa testified that she has three other grandchildren: her son, Casey, has two daughters (18 months old and a newborn), who live in Atlanta, and her son, Steven, has a fifteen-month-old son who lives locally. She testified that she loves spending time with her other grandchildren and that they bring her great joy. She testified that she would love for her grandchildren to meet London and for London to meet her cousins. Vanessa further testified that, if visitation were granted, she would respect Olivia's parenting decisions concerning everything for London - her diet, bedtime, etc. Vanessa admitted that Olivia is a fit parent, but testified that she is not a "nice person" because she has withheld London from two loving grandparents and the entire paternal side of London's family.

Olivia testified that London is five years old and attends preschool three days a week. She further testified that the Gravers have not seen London since November of 2015, because they have not attempted to contact her or see her since that time. Olivia stated that, other than one visit in July 2015, she never told the Gravers they were unwelcome during Shanon's visitation. She testified that she objects to any court-ordered visitation because she contends it violates her constitutional right to parent and to determine who visits with her child. Olivia asserts that the Gravers are racist and homophobic, and that Chris Graver has an alcohol abuse issue. She further testified that to her belief the Gravers approve of corporal punishment, which is against her beliefs. Both Olivia and her mother, Marcy, testified that they have never mentioned Shanon, the biological father, to London, nor have they ever discussed the fact that she has paternal grandparents. Olivia objects to the Gravers speaking about Shanon in front of London and requests that, if visitation is granted, the Gravers be introduced to London again as family friends.

Dr. Kristen Luscher, a clinical psychologist, testified that she evaluated Chris and Vanessa Graver to determine if they are fit for grandparent visitation with London. Dr. Luscher met with the Gravers, and also conducted multiple collateral interviews of the Gravers' other family members, friends, and co-workers. Dr. Luscher also conducted personality tests and other psychological testing on both Vanessa and Chris and found no concern for substance or alcohol abuse. She further found no indication, after collateral interviews and other evaluation, that either Chris or Vanessa was racist or homophobic.

Dr. Luscher also conferred with Dr. Karen Van Beyer, the psychologist appointed in the prior custody proceedings between Shanon and Olivia, who indicated her support for the Gravers to have grandparent visitation. Dr. Luscher testified that, since London was of such a young age when she had a relationship with the Gravers and since London has not seen the Gravers in some time, reunification and visitation should be done slowly and with the assistance of a mental health professional.

Following a three day trial, the court took the matter under advisement. On May 11, 2018, the trial judge granted the Gravers' petition for visitation. The trial judge further appointed Dr. Van Beyer to assist London and the Gravers to initiate visitation and ordered that the Gravers may not consume alcohol during visitation with London. This timely appeal follows.

LAW AND ANALYSIS

Olivia appeals the trial court's judgment, contending that the trial court erred in (1) failing to apply the amended version of La. C.C. art. 136 ; (2) applying a preponderance of the evidence standard of proof; and (3) awarding grandparent visitation with insufficient evidence to show that it is in London's best interest and over the objection of her only biological parent's wishes.

First, concerning the trial court's application of La. C.C. art. 136, we find that the trial judge correctly applied the version of La. C.C. art. 136 in effect at the time of trial and judgment. La. C.C. art. 136, at the time of trial and judgment, in pertinent part provided:

B. A grandparent may be granted reasonable visitation rights if the court finds that it is in the best interest of the child. Before making this determination, the court shall hold a contradictory hearing as provided for in R.S. 9:345 in order to determine whether the court should appoint an attorney to represent the child.
* * *
D. In determining the best interest of the child under Paragraphs B and C of this Article, the court shall consider:
(1) The length and quality of the prior relationship between the child and the relative.
(2) Whether the child is in need of guidance, enlightenment, or tutelage which can best be provided by the relative.
(3) The preference of the child if he is determined to be of sufficient maturity to express a preference.
(4) The willingness of the relative to encourage a close relationship between the child and his parent or parents.
(5) The mental and physical health of the child and the relative.

In 2018, the Louisiana legislature amended La. C.C. art. 136, effective August 1, 2018, adding an additional factor for the court's consideration and further instructing that the factors listed are the exclusive factors for the court to consider in determining whether to grant visitation. The amended version of La. C.C. art. 136, effective August 1, 2018, in pertinent part, provides:

B. In addition to the parents referred to in Paragraph A of this Article, the following persons may be granted visitation if the parents of the child are not married or cohabitating with a person in the manner of married persons or if the parents of the child have filed a petition for divorce:
(1) A grandparent if the court finds that it is in the best interest of the child.
* * *
D. In determining the best interest of the child under Subparagraph (B)(1) or (2) of this Article, the court shall consider only the following factors:
(1) A parent's fundamental constitutional right to make decisions concerning the care, custody, and control of their own children and the traditional presumption that a fit parent will act in the best interest of their children.
(2) The length and quality of the prior relationship between the child and the relative.
(3) Whether the child is in need of guidance, enlightenment, or tutelage which can best be provided by the relative.
(4) The preference of the child if he is determined to be of sufficient maturity to express a preference.
(5) The mental and physical health of the child and the relative.

[Emphasis added.]

The 2018 amendment not only added a factor concerning a parent's constitutional right to parent and removed a factor concerning the relative's encouragement of a close relationship with the parent, but also made the list of factors exclusive. Therefore, pursuant to the 2018 amendment, the court may no longer consider the general best interest factors or other considerations in determining a child's best interest in a visitation context. Rather, the trial court may only consider the five factors set forth in the amended version of La. C.C. art. 136.

Pursuant to Louisiana Code of Civil Procedure article 6, "in the absence of contrary legislative expression, substantive laws apply prospectively only. Procedural and interpretative laws apply both prospectively and retroactively, unless there is a legislative expression to the contrary." See Sawicki v. K/S Stavanger Prince , 01-0528 (La. 12/07/01), 802 So.2d 598, 603. We find that the 2018 amendment to La. C.C. art. 136, absent any expression by the legislature to the contrary, applies prospectively only. We note that the 2018 amendment was not in effect at the time of the trial or the May 11, 2018 judgment and, thus, the trial judge could not have applied the amended version in her judgment. We find that the trial judge correctly applied the version of La. C.C. art. 136 in effect at the time of trial and the May 11, 2018 judgment. This assignment of error is without merit.

Second, Olivia challenges the trial court's March 8, 2018 pretrial judgment, in which the court determined that a preponderance of the evidence legal standard of proof would apply to the Gravers' claim for visitation. Rather, Olivia contends that the higher standard of proof, requiring a showing of clear and convincing evidence, should be applied in this case because granting the Gravers' visitation with London infringes on her fundamental constitutional right to parent.

The Louisiana Supreme Court has stated generally that, "[i]n civil cases, a party who has the burden of proof must prove the fact in issue by a preponderance of the evidence, and not by some artificially created greater standard." Talbot v. Talbot , 03-0814 (La. 12/12/03), 864 So.2d 590, 598. The supreme court further stated that, "[o]nly in exceptional controversies is the clear and convincing standard applied in civil cases 'where there is thought to be special danger of deception, or where the court considers that the particular type of claim should be disfavored on policy.' " Id. Olivia contends that granting visitation to London's grandparents interferes with her constitutional right to parent and, thus, a higher standard of proof should apply.

This matter involves paternal grandparents requesting visitation with their granddaughter, following the death of their son, the minor child's biological father. The Gravers do not seek custody of the child. The facts of this case support the trial court's determination that Olivia has denied the Gravers any visitation with London, thereby depriving London of any knowledge of her father's family. Further, the testimony at trial supports the trial judge's conclusion that the Gravers have agreed to respect Olivia's parenting decisions and instructions concerning London's diet, routine, etc. during visitation, and do not seek custody in this case.

In determining which legal standard of proof applies, it is noteworthy that the Civil Code articles concerning other significant family matters, such as termination of parental rights or a change from joint custody to sole custody by only one parent, thereby depriving a biological parent of custody, expressly require a showing of clear and convincing evidence. See La. C.C. art. 132, 187, 192, and 197. However, the article at issue, La. C.C. art. 136, does not instruct that a clear and convincing standard of proof applies. Moreover, the First Circuit Court of Appeal has previously determined that preponderance of the evidence is the appropriate standard of proof in a grandparent visitation case. Babin v. Babin , 02-396 (La. App. 1 Cir. 7/30/03), 854 So.2d 403, 406, writ denied , 03-2460 (La. 9/24/03), 854 So.2d 338, cert denied , 540 U.S. 1182, 124 S.Ct. 1421, 158 L.Ed.2d 86 (2004). Accordingly, we find the trial court correctly applied the preponderance of the evidence standard in this case. This assignment is without merit.

Lastly, Olivia contends that the Gravers failed to prove at trial that visitation is in London's best interest and that the trial court erred in awarding visitation over her objection as the only living biological parent. Under La. C.C. art. 136, a grandparent-as a statutorily designated person permitted to seek visitation under the article-must "only show that the visitation sought is reasonable and in the child's best interest." McGovern v. McGovern , 15-737 (La. App. 5 Cir. 03/30/16), 189 So.3d 503, 507-08. The trial court has vast discretion in child visitation matters, and its determination on the issue is entitled to great weight and will not be disturbed on appeal unless an abuse of discretion is clearly shown. Id.

In her thorough written reasons for judgment, the trial judge considered each of the factors set forth in La. C.C. art. 136(B) and determined that visitation with the Gravers would be in London's best interest under the facts of this case. In reaching her determination that visitation is in London's best interest, the trial judge accepted the expert opinion of Dr. Luscher, who conferred with Dr. Van Beyer, and applied all of the testimony and evidence introduced at trial to each of the factors referenced in La. C.C. art. 136. Upon our review of the record in this matter, we cannot say that the trial judge abused her discretion in finding that visitation with the Gravers would be in London's best interest under the facts of this case. Accordingly, we affirm the trial court's judgment. However, although the trial court judgment awards visitation to Vanessa and Chris Graver and appoints Dr. Van Beyer to "oversee the introduction and establishment of a relationship between Plaintiffs and the minor child," the judgment does not set forth a visitation schedule nor does it provide the terms of visitation. Accordingly, we remand this matter to the trial court for a hearing to set a visitation schedule and to set forth the terms of visitation.

AFFIRMED; REMANDED

      Photographs were introduced into evidence reflecting the Graver family spending time with London as an infant and toddler.

      Vanessa testified that Shanon did not drive during that period of time and that she would drive Shanon to his visitation with London. Vanessa's friend, Susan Guidry, testified that she recalled having a phone conversation with Vanessa wherein Vanessa told her that Marcy Leach instructed her to wait in the car or on the front porch during Shanon's visitation.

      Joe Rochelle, Shanon's attorney during the custody proceedings, testified at trial that the Gravers supported Shanon and paid his legal fee for work performed in connection with the custody proceedings. He testified that he told the Gravers that he could not advise them about grandparents' rights. He did, however, testify to his understanding that Olivia and her parents did not allow Vanessa and Chris to visit with London during Shanon's visitation at the Leach's home. He further advised that the family could not afford the $97.00 per week for visitation with a supervised facility.

      Vanessa was a competitive swimmer and softball player and would love to share those activities with her grandchildren.

      The Gravers introduced into evidence a December 2016 text message to Olivia requesting photos or videos of London since the Gravers "can't visit" with her, as well as an April 2017 text message, wherein Olivia acknowledged that she received a voicemail requesting visitation with London but that she had "concerns" and would get back to them. Vanessa testified that the Gravers never received a response. Rita Graver, Chris Graver's 77-year-old mother and London's paternal great-grandmother, testified that she left a voicemail for Olivia in December 2016 inviting her and London to a holiday party, which they had attended the year prior, and the phone call was never returned.

      Olivia's mother testified that the visit occurred in November 2015, where she instructed Vanessa to wait on the front porch during Shanon's visitation time. Vanessa Graver, in her testimony, also recalled the last visit to be November 2015. Olivia maintained that her "visitation log" reflected that the July 2015 visit is the visit during which Vanessa was instructed to wait outside and that, thereafter, Vanessa attended three subsequent visits with Shanon until November 2015.

      Olivia read aloud a 36-point list of requests, should visitation be granted, including that the Gravers should not be allowed to take London to church or discuss their religious beliefs with her.

      The judgment does not set forth a visitation schedule but indicates [Missing text]

      The trial court judgment further ordered that neither party make disparaging comments concerning the other and further that the Gravers support Olivia's parenting decisions.

      In her appellant brief, Olivia also asserted that the trial judge erred in applying both La. C.C. art. 136 and La. R.S. 9:344 under the facts of this case. However, the subsequent written Reasons for Judgment issued by the trial court clearly reflects that the trial judge applied only La. C.C. art. 136 in rendering her judgment.

      The March 8, 2018 trial court judgment ruled on Olivia's previously filed Motion in Limine: Standard of Proof .

      Olivia cites the United States Supreme Court's decision in Troxel v. Granville , 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), to support her position that visitation interferes with her constitutional right to parent. Although in Troxel the Supreme Court emphasized a fit parent's constitutional right to parent, it further recognized that "nonparental visitation statutes are further supported by a recognition, which varies from State to State, that children should have the opportunity to benefit from relationships with statutorily specified persons - for example, their grandparents." Troxel , 120 S.Ct. at 2059.

      The trial judge sealed the written reasons for judgment in this matter.

      Although the trial court appointed Dr. Van Beyer in this case and indicated that a mental health professional should oversee visitation, it did not specifically order that Dr. Van Beyer supervise the visitation between London and the Gravers and did not specify where the visitation will take place.


text:
    HOUSEHOLD FINANCE CORP., II v. John Michael BORRY, Jr. and Kamie Hotard A/K/A Kamie Conrad Hotard Borry
    NO. 18-CA-209
    Court of Appeal of Louisiana, Fifth Circuit.
    December 28, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, U.S. BANK TRUST, N.A., AS TRUSTEE FOR LSF8 MASTER PARTICIPATION TRUST, Ashley E. Morris,
    DEFENDANT/APPELLANT, JOHN MICHAEL BORRY, JR. AND KAMIE HOTARD A/K/A KAMIE CONRAD HOTARD BORRY, John Michael Borry, Jr., In Proper Person, Kamie Conrad Hotard Borry, In Proper Person
    Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, Marc E. Johnson, Stephen J. Windhorst, and Hans J. Liljeberg
   WICKER, J.

Defendants, John Borry and Kamie Hotard, appeal the summary judgment granted in favor of Plaintiff-bank on its Petition to Enforce Security Interest. Defendants also seek review of an interlocutory judgment-the denial of a motion to dismiss on the ground of abandonment. For the following reasons, we find that the trial judge erred in denying Defendants' motion to dismiss on the ground of abandonment based upon the record before her and improperly considered evidence not in the record. We therefore reverse the trial court's denial of Defendants' motion to dismiss, grant Defendants' motion to dismiss, and dismiss Plaintiff's petition.

Factual and Procedural Background

On January 14, 2013, Plaintiff filed a "Petition to Enforce Security Interest" against Defendants in the Twenty-Fourth Judicial District Court, seeking to enforce a loan agreement and mortgage in the amount of $52,631.38. On March 5, 2013, Defendants answered the petition and filed a reconventional demand, asserting breach of contract claims related to Plaintiff's alleged failure to apply payments in a specific manner as provided for in the loan agreement and failure to release to Defendants certain insurance claim funds following Hurricane Gustav. Additionally, Defendants contended that Plaintiff violated the Fair Credit Reporting Act and improperly charged Defendants late fees for payments made but not applied properly to the loan balance. Plaintiff filed an "Answer and Affirmative Defenses" to Defendants' reconventional demand on August 8, 2013.

On October 14, 2016, Defendants filed an "Ex parte Motion to Dismiss Due to Abandonment,"

contending that Plaintiff took no formal step in the prosecution of the litigation in more than three years and, thus, pursuant to La. C.C.P. art. 561, Plaintiff's suit was abandoned as a matter of law. On November 4, 2016, the Honorable Tess Stromberg signed an ex parte judgment, denying the motion to dismiss. On the judgment, the trial judge included the hand-written language "Denied. [A]ction taken[.]"

Subsequently, on November 14, 2016, Plaintiff filed a motion to compel discovery allegedly propounded upon Defendants on June 2, 2016, in connection with Defendants' reconventional demand. Following a hearing, the trial judge issued a judgment compelling Defendants, who appeared pro se throughout the proceedings, to respond to discovery within thirty days of the January 23, 2017 hearing date. Notice of the written judgment, dated February 9, 2017, was issued on February 15, 2017-seven days prior to the discovery due date. The written February 9, 2017 judgment compelling discovery responses did not articulate the penalty for Defendants' failure to comply with the order.

On February 23, 2017, Plaintiff filed a "Motion to Dismiss for Failure to Comply with Discovery Order," which the trial court set for hearing. Defendants filed an opposition to Plaintiff's motion to dismiss, challenging Plaintiff's standing to bring suit against Defendants, and a motion for sanctions against Plaintiff's counsel, contending that counsel engaged in ex parte communication with the trial judge concerning Defendants' "Motion to Dismiss Due to Abandonment." On February 24, 2017, Defendants filed a motion for extension of time to respond to discovery, which the trial court also set to be heard on the same date as Plaintiff's motion to dismiss.

Defendants subsequently filed a motion to recuse Judge Stromberg, which she denied on March 23, 2017. However, on the same date, Judge Stromberg issued a separate judgment recusing herself from the litigation to "eliminate the appearance of partiality." The matter was reallotted to the Honorable Jesse LeBlanc.

On May 8, 2017, following a hearing, the trial judge granted Plaintiff's "Motion to Dismiss for Failure to Comply with Discovery Order," dismissing Defendants' reconventional demand, with prejudice, for failure to comply with the court's February 9, 2017 order. In the same judgment, the trial judge denied Defendants' pro se motion for extension of time to respond to the discovery requests and motion for sanctions against Plaintiff's counsel.

On September 18, 2017, Plaintiff filed a motion for summary judgment on its principal demand, attaching various exhibits including a copy of the loan agreement, mortgage, assignment of mortgage, as well as various affidavits attesting that the original note had been lost or destroyed and that Plaintiff had complied with the publication or notice requirements set forth in La. R.S. 13:341. Following a hearing on the motion for summary judgment, the trial judge granted summary judgment in favor of Plaintiff.

Defendants have appealed, assigning errors related to the trial court's granting of summary judgment on Plaintiff's principal demand as well as the November 4, 2017 denial of their "Motion to Dismiss Due to Abandonment."

Jurisdictional Issue

Plaintiff argues on appeal that this Court lacks jurisdiction to consider the trial court's denial of Defendants' "Motion to Dismiss Due to Abandonment." Plaintiff contends that the denial of a motion to dismiss on the ground of abandonment is a final, appealable judgment under La. C.C.P. art. 561(A), which provides that an action is abandoned when the parties fail to take any step in the prosecution or defense in the trial court for a period of three years. The Article further provides:

(3) This provision shall be operative without formal order, but, on ex parte motion of any party or other interested person by affidavit which provides that no step has been timely taken in the prosecution or defense of the action, the trial court shall enter a formal order of dismissal as of the date of its abandonment. The sheriff shall serve the order in the manner provided in Article 1314, and shall execute a return pursuant to Article 1292.
(4) A motion to set aside a dismissal may be made only within thirty days of the date of the sheriff's service of the order of dismissal. If the trial court denies a timely motion to set aside the dismissal, the clerk of court shall give notice of the order of denial pursuant to Article 1913(A) and shall file a certificate pursuant to Article 1913(D).
(5) An appeal of an order of dismissal may be taken only within sixty days of the date of the sheriff's service of the order of dismissal. An appeal of an order of denial may be taken only within sixty days of the date of the clerk's mailing of the order of denial.
(Emphasis added).

Plaintiff urges this Court to find that La. C.C.P. art. 561(A)(5) instructs that the denial of a motion to dismiss on the ground of abandonment is a final, appealable judgment and that Defendants in order to obtain review of the judgment, must have appealed the judgment at the time it was rendered. However, as discussed below, we find that the denial of a motion to dismiss on the ground of abandonment is an interlocutory judgment and, thus, this Court retains jurisdiction to review the judgment.

To support its argument that the denial of a motion to dismiss on the ground of abandonment is a final, appealable judgment, Plaintiff points to the isolated language in La. C.C.P. art. 561 (A)(5), which states, "[a]n appeal of an order of denial may be taken only within sixty days...." However, the comments to La. C.C.P. art. 561 clearly indicate that the "order of denial" referenced in that section is the denial of a motion to set aside a judgment of dismissal, not the denial of a motion to dismiss. The comments to the article specifically provide that, "[a]n appeal may be taken either following a formal order of dismissal, or following an order denying a timely motion to set aside the dismissal ."(emphasis added.) The comments to the article clearly reflect the intent of the legislature that the denial of a motion to set aside a judgment of dismissal-which results in the continued termination of the litigation-is a final, appealable judgment. However, the denial of a motion to dismiss, which maintains the suit, is an interlocutory judgment.

Louisiana appellate courts have found that the denial of a motion to dismiss on grounds of abandonment is an interlocutory judgment and that, generally, an interlocutory judgment is reviewable in connection with an unrestricted appeal. See Bezou v. Bezou , 15-1879 (La. App. 1 Cir. 9/16/16), 203 So.3d 488, 493 (the denial of a motion to dismiss for abandonment is interlocutory in nature and generally not appealable; however, when an unrestricted appeal is taken from a final judgment, the appellant is entitled to seek review of all adverse interlocutory rulings prejudicial to him, in addition to the review of the final judgment appealed); Sterling Doucette & Doucette & Associated Contractors, Inc. v. Guient , 15-1346 (La. App. 4 Cir. 12/29/16), 208 So.3d 444, 449 (similarly, the granting of a motion to set aside a judgment of dismissal, which maintains the litigation, is an interlocutory judgment) ; see also La. C.C.P. arts. 1841 and 2083 ; Sporl v. Sporl , 00-1321 (La. App. 5 Cir. 5/30/01), 788 So.2d 682, 684 ; Landry v. Leonard J. Chabert Med. Ctr. , 02-1559 (La. App. 1 Cir. 5/14/03), 858 So.2d 454, 461 n.4, writs denied , 03-1748, 03-1752 (La. 10/17/03), 855 So.2d 761.

Accordingly, we find that this Court has jurisdiction to consider Defendants' assignment of error seeking review of the interlocutory judgment denying their motion to dismiss on the ground of abandonment. Because we find this assignment of error has merit, we pretermit discussion of the remaining assignments of error related to the granting of summary judgment.

Discussion

On appeal, Defendants seek review of the denial of their motion to dismiss on the ground of abandonment. The controlling statutory provision in this case is La. C.C.P. art. 561. Article 561 provides that an action is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years. Claiborne Med. Corp. v. ABC Ins. Co. , 15-489 (La. App. 5 Cir. 1/27/16), 185 So.3d 216, 219.

La. C.C.P. art. 561(A)(3) further provides that, "on ex parte motion of any party or other interested person by affidavit which provides that no step has been timely taken in the prosecution or defense of the action, the trial court shall enter a formal order of dismissal as of the date of its abandonment." An ex parte judgment of dismissal may be rescinded by rule to vacate the judgment upon a showing that a cause outside the record prevented accrual of the time period required for abandonment. Bourg v. Entergy La., LLC , 12-829 (La. App. 5 Cir. 4/10/13), 115 So.3d 45. Whether an action has been abandoned is a question of law and is therefore subject to de novo review on appeal. Claiborne, supra ; Vaughan v. Swift Transp. Co. , 14-0208 (La. App. 5 Cir. 10/29/14), 164 So.3d 235, 237.

The record reflects that Plaintiff filed its "Petition to Enforce Security Interest" against Defendants on January 1, 2013. On March 5, 2013, Defendants answered the petition and filed a reconventional demand. Plaintiff filed an "Answer and Affirmative Defenses" to Defendants' reconventional demand on August 8, 2013. On October 14, 2016, more than three years from Plaintiff's August 8, 2013 Answer, Defendants filed an "Ex parte Motion to Dismiss Due to Abandonment." The trial judge, however, did not grant the motion but, rather, issued an ex parte judgment denying the motion with the handwritten language, "action taken" on the judgment.

Our review of the contents of this record as of October 14, 2016, when Defendants filed their motion to dismiss, and further as of November 4, 2016, when Judge Stromberg denied the motion to dismiss, reveals no evidence of action taken at any time between August 8, 2013, and November 4, 2016. Therefore, based upon the record before us, it appears that the trial judge considered evidence not properly before her and not then in the trial court record in rendering her judgment denying the motion to dismiss. Under La. C.C.P. art. 561, the trial judge was required to grant Defendants' ex parte motion to dismiss based upon the record before her and erred in denying the motion. Plaintiff could have subsequently filed a motion to set aside the dismissal, pursuant to the statutory procedure set forth in La. C.C.P. art. 561(4), and requested a contradictory hearing to prove that documents outside of the record demonstrated that the parties took a "step" in the prosecution or defense of the litigation sufficient to interrupt the abandonment period.

Therefore, for the reasons stated above, we find the trial judge erred in denying Defendants' motion to dismiss on the ground of abandonment. Accordingly, we reverse the trial court's November 4, 2017 judgment, grant Defendants' motion to dismiss, and dismiss Plaintiff's petition. Consequently, all judgments rendered subsequent to the November 4, 2017 denial of Defendants' motion to dismiss are hereby vacated and without effect.

JUDGMENT REVERSED; JUDGMENT RENDERED; PETITION DISMISSED

CONCURS IN PART AND DISSENTS IN PART WITH REASONS

CONCURS IN PART AND DISSENTS IN PART FOR THE REASONS ASSIGNED BY JUDGE LILJEBERG

LILJEBERG, J., CONCURS IN PART AND DISSENTS IN PART

I concur with the majority's finding that the November 4, 2016 denial of defendants' ex parte motion to dismiss on the ground of abandonment was an interlocutory ruling. Defendants' request for review of this ruling as part of their appeal of the November 29, 2017 final judgment is timely and properly before this Court.

I, however, dissent from the majority's decision to reverse the trial court's denial of defendant's ex parte motion to dismiss for abandonment and grant the motion to dismiss the Petition to Enforce Security Interest originally filed by plaintiff, Household Finance Corp. II ("Household"). On de novo review, the majority finds that pursuant to La. C.C.P. art. 561, the trial judge was required to grant the ex parte motion to dismiss and erred in denying the motion. La. C.C.P. art. 561(A)(3) explains that a trial court shall enter an order of dismissal for abandonment when a party or interested person files an ex parte motion with an affidavit affirming that no timely step has been taken in the prosecution or defense of the action:

This provision shall be operative without formal order, but, on ex parte motion of any party or other interested person by affidavit which provides that no step has been timely taken in the prosecution or defense of the action , the trial court shall enter a formal order of dismissal as of the date of abandonment. [Emphasis added.]

In Clark v. State Farm Mut. Auto. Ins. Co., 00-3010 (La. 5/15/01), 785 So.2d 779, 783, fn. 3, the Supreme Court noted that La. C.C.P. art. 561 uses the broad term "action" so as to encompass not only principal, but also incidental and reconventional demands. See also Young v. Laborde , 576 So.2d 551, 552 (La. App. 4th Cir. 1991) (when defendant actively prosecutes his reconventional demand plaintiff's failure to prosecute principal demand does not result in an abandonment); Weldon v. Weldon , 98-1173 (La. App. 3 Cir. 2/3/99), 737 So.2d 812, 816.

In their affidavit supporting their ex parte motion to dismiss, defendants failed to affirm that no party had taken a timely step in the prosecution or defense of the "action." Instead, defendants limited their statements to steps taken with respect to the plaintiff's principal demand and discovery conducted prior to March 5, 2016. The relevant portions of defendants' supporting affidavit provided as follows:

2. Defendants have not filed any other motion or taken any action before this Honorable Court after March 5, 2013, that pertains to Plaintiff's principal complaint.
3. Defendants have neither conducted any discovery with Plaintiff, nor received any discovery requests from Plaintiff, within the three years since March 5, 2013. Defendant's most recent action with regard to Plaintiff's complaint took place on March 5, 2013.
Plaintiff has not taken any timely action at all that is known to Defendants related to its complaint after the complaint was originally filed.
4. The above affirmations bear out the fact that neither party in this action has taken any action relating to the prosecution or defense of the principal action since March 5, 2013, and more than three years has now passed since that date.

Upon its review of the record, the trial court would have determined just as the majority opinion finds, that the last step taken by either party in 2013 was August 8, 2013, not March 5, 2013, as stated in defendants' affidavit. Furthermore, the trial court would have noticed that while the affidavit affirms that no steps were taken in the prosecution or defense of the principal action, it is silent as to any steps taken in the prosecution or defense of defendants' reconventional demand or the entirety of the action. The trial court would have seen from its review of the record that on April 8, 2013, defendants filed a motion for preliminary default on their reconventional demand and on August 9, 2013, Household filed an answer and affirmative defenses in response to the reconventional demand. Consequently, with respect to discovery, the affidavit should have affirmed whether any formal discovery occurred within three years after August 8, 2013, not March 5, 2013. I believe it is improper for this Court on de novo review, to grant an ex parte motion to dismiss for abandonment based on a deficient supporting affidavit.

In Wilson v. Koenig , 99-2979 (La. App 1 Cir. 3/31/00), 764 So.2d 1025, the First Circuit held that the trial court's grant of an ex parte motion to dismiss for abandonment was improper because the defendant failed to file the affidavit required by La. C.C.P. art. 561. See also Payton v. Lake Lawn Park, Inc. , 15-274 (La. App. 4 Cir. 11/10/15), 179 So.3d 809, 812 (trial court erred by signing order of dismissal for abandonment in the absence of the statutorily required affidavit). In Lion InvestBanc Corp. v. River Products, Inc. , 02-481 c/w 02-482 c/w 02-483 (La. App. 5 Cir. 10/29/02), 831 So.2d 500, 501-02, writ denied , 02-2905 (La. 3/14/03), 839 So.2d 36, this Court found that the failure to provide an affidavit with the motion did not require the reversal of a judgment granting an order of dismissal for abandonment. However, this case is distinguishable because defendants subsequently submitted the required affidavits and this Court further noted that the trial court held a contradictory hearing during which the plaintiff had the opportunity to present evidence to establish the matter was not abandoned, which negated the need for reversal.

In the present matter, defendants did not submit a corrected affidavit and the trial court did not conduct a contradictory hearing on defendants' ex parte motion to dismiss. The trial court had a deficient affidavit, which did not comply with La. C.C.P. art. 561(3) because it did not affirm for the trial court that no step had "been timely taken in the prosecution or defense of the action." I believe this situation is similar to the Wilson and Payton cases where defendants failed to submit the required affidavit. Consequently, I believe the trial court did not err by denying defendants' ex parte motion to dismiss for abandonment because the affidavit provided by defendants did not comply with La. C.C.P. art. 561(3) and was not sufficient to support a judgment granting an order of dismissal for abandonment. The trial court was not required to grant the ex parte motion to dismiss and I believe it is not proper for this Court to enter an order of dismissal for abandonment based on defendants' deficient affidavit.

I further disagree with the majority's decision to limit its de novo review of the record to filings between August 8, 2013 and November 4, 2016, when the trial court denied defendants' motion to dismiss. A de novo review of the entire subsequently developed record before this Court reveals that it contains a judicial admission by defendants that Household sent discovery requests to them on June 2, 2016. It appears defendants intentionally crafted the statements contained in their affidavit supporting their ex parte motion to dismiss for abandonment to avoid disclosing the June 2, 2016 discovery requests to the trial court. In fact, the record indicates that at the time defendants filed their ex parte motion, they were engaged in discussions with plaintiff's counsel regarding their failure to respond to the discovery requests.

In their appellate brief, defendants attempt to imply that the June 2, 2016 discovery requests did not qualify as a step in the prosecution of the matter because they did not pertain to the principal demand and only addressed the reconventional demand filed by defendants on March 5, 2013. As noted above in Clark , supra , the Louisiana Supreme Court confirmed that a step taken with respect to any principal or incidental demand constitutes a step as to the entire action. Therefore, defendants' implication is unsupported.

Furthermore, though they do not raise the issue on appeal, in the underlying proceedings, defendants suggested the discovery requests sent to them by Household should not count as a step because Household assigned their promissory note to U.S. Bank in December 2013, and therefore, Household did not have standing to act a party in the proceedings after that date. I would find this argument to be without merit based on La. C.C.P. art. 807, which permits a party who transfers its interests in the subject matter of the litigation to retain its status as a party until the court provides for the substitution of the party. See also Seale v. Abadie , 99-771 (La. App. 5 Cir 1/12/00), 752 So.2d 971. Certainly, if La. C.C.P. art. 807 permitted Household to remain as a party in the proceedings after it transferred its interests in defendants' promissory notes, any actions it took in furtherance of the prosecution or defense of the matter would constitute a step.

Therefore, in addition to finding the trial court was not required to grant the ex parte motion to dismiss, I believe that based on defendants' judicial admission, this Court can conclude this matter was never abandoned. Even if defendants submitted a sufficient affidavit to support their ex parte motion to dismiss, I do not believe it is in the interests of justice or judicial economy to limit our review of the record before us, ignore defendants' subsequent judicial admission, and require the parties to relitigate the abandonment issues in this matter, particularly since defendants failed to provide full disclosures to the trial court regarding all steps taken in the proceedings. Based on the foregoing, I believe this Court should proceed with a review of defendants' remaining assignments of error related to the granting of plaintiff's motion for summary judgment.

WINDHORST J., CONCURS IN PART AND DISSENTS IN PART FOR THE REASONS ASSIGNED BY JUDGE LILJEBERG

      The record reflects that Household Finance Corp. II filed a "Petition to Enforce Security Interest" against Defendants but subsequently assigned the note and mortgage at issue in this litigation to U.S. Bank Trust, N.A., as Trustee for LSF8 Master Participation Trust (U.S. Bank). The record reflects that U.S. Bank was substituted as party-plaintiff on October 26, 2017.

      Defendants attached a memorandum in support of their motion as well as an affidavit, signed by Defendants, attesting that "Defendants most recent action with regard to Plaintiff's complaint took place on March 5, 2013. Plaintiff has not taken any action at all that is known to Defendants related to its complaint after the complaint was originally filed.... The above affirmations bear out the fact that neither party in this action has taken any action relating to the prosecution or defense of the principal action since March 5, 2013, and more than three years has passed since that date."

      The transcript from the hearing on the motion to compel is not contained in the appellate record.

      In their opposition, Defendants contended that Plaintiff did not have standing to enforce the note at issue because it is impossible to determine who holds the note. Defendants point out the confusion concerning the holder of the note, contending ambiguously that a second suit was filed and later dismissed arising out of the same note. Defendants also filed a motion for sanctions against Plaintiff's counsel, alleging that she participated in ex parte communication with the trial judge after the filing of Defendants' motion to dismiss due to abandonment.

      The transcript from the May 8, 2017 hearing is not included in the appellate record.

      The affidavit of Alyssa Sylvers, an employee of Caliber Home Loans, Inc.-purportedly U.S. Bank's "attorney in fact"-was attached to the motion for summary judgment, as well as the 2012 affidavit of Jeffrey Korpecki, a Household Financial Corp. II Vice-President, who attested that the original note had been lost or destroyed. Additionally, Plaintiff attached the affidavit of Cynthia Rouyea, an employee of the News Examiner-Enterprise, a newspaper in St. James Parish, attesting that notice of the lost promissory note was published in the local newspaper on August 3, 2017. In support of its motion for summary judgment, Plaintiff contended that publication was completed within a "reasonable time" as required under La. R.S. 13:341.

      The November 29, 2017 judgment recognized the mortgage at issue as enforceable, with preference and priority, and issued judgment in favor of Plaintiff as follows: the amount of $44,044.60, with interest thereon at 10.55% per annum from June 28, 2011 until paid; the following amount accrued through July 28, 2017: advances of $3,602.29 for the payment of taxes and insurances, broker's price of $118.50, property inspections of $642.50, and any such additional amounts accruing thereafter through the date of sale; a credit of $625.41; all expenses incurred in enforcing the note and mortgage including reasonable attorney fees as provided by the note and mortgage; and all law charges, costs, fees, and expenses including sheriff's commission.

      We recognize that the Fourth Circuit has held that a party's failure to seek supervisory review of an interlocutory judgment related to abandonment constituted a waiver of the party's right to raise the issue of abandonment on appeal. See Sterling, supra . Because we are unable to find any statutory basis to hold that these pro se Defendants waived their right to seek review of an interlocutory judgment in this unrestricted appeal, we disagree with the Fourth Circuit's holding in Sterling, supra .

      Plaintiff may follow the procedure set forth in La. C.C.P. art. 561 by filing, in the trial court, a motion to set aside the dismissal.

      This statement is not accurate even as to steps taken with respect to plaintiff's petition as defendants filed a motion and order to dismiss plaintiff's petition on April 8, 2013.

      In their appellate brief, defendants now agree that the last step taken in 2013 was the plaintiff's answer to their reconventional demand filed on August 8, 2013.

      La. C.C.P. art. 561(B) provides that "[a]ny formal discovery as authorized by this Code and served on all parties whether or not filed of record, including the taking of a deposition with or without formal notice, shall be deemed to be a step in the prosecution or defense of an action." Formal discovery actions do not have to appear in the record to constitute a step. Clark , 785 So.2d at 784.

      The record indicates that the trial court's staff may have engaged in separate communications with both plaintiff's counsel and defendants regarding defendants' ex parte motion to dismiss. I understand that defendants' supporting affidavit would have raised questions and red flags for the trial court. However, the appropriate remedy would have been to set the motion for a contradictory hearing.

      In their motion for sanctions filed against plaintiff's counsel, defendants state that "[o]n June 2, 2016, Household Finance Corp, II, hereinafter known as "HFC", through counsel, sent discovery requests("Discovery') to defendants."

      La. C.C.P. art. 807 provides that "[w]hen a party to an action transfers an interest in the subject matter thereof, the action shall be continued by or against such party, unless the court directs that the transferee be substituted for or joined with the transferor."


author: CHAISSON, J.

text:
    MOREAU SERVICES, LLC; Quincy Moreau; and Delaina Moreau v. PILOT TRAVEL CENTERS, LLC; Scott Moore; A. Phelps Petroleum of Northwest Florida, Inc. ; and Alvin Phelps
    NO. 18-CA-174, 18-CA-340
    Court of Appeal of Louisiana, Fifth Circuit.
    January 04, 2019
    COUNSEL FOR PLAINTIFF/APPELLANT, MOREAU SERVICES, LLC; QUINCY MOREAU; AND DELAINA MOREAU, Joshua D. Allison, Robert B. Evans, III, Metairie, Nicholas A. Holton
    COUNSEL FOR DEFENDANT/APPELLEE, PILOT TRAVEL CENTERS, LLC; SCOTT MOORE, Monroe, Thomas J. Cortazzo, Karen M. Dicke, James V. King, III, New Orleans
    COUNSEL FOR DEFENDANT/APPELLEE, A. PHELPS PETROLEUM OF NORTHWEST FLORIDA, INC.; AND ALVIN PHELPS, Keely Y. Scott, Leigh F. Groves, Autumn M. Coe, Baton Rouge
    Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Robert A. Chaisson
   CHAISSON, J.

FACTS AND PROCEDURAL HISTORY

On December 5, 2016, Quincy and Delaina Moreau ("Mr. and Mrs. Moreau") and Moreau Services, LLC ("Moreau Services") filed a Petition for Damages Caused by Unfair Trade Practices, Conspiracy, and Fraud naming as defendants Pilot Travel Centers, LLC ("Pilot"), Scott Moore, A. Phelps Petroleum of Northwest Florida, Inc. ("Phelps Petroleum"), and Alvin Phelps. In their petition, plaintiffs alleged that defendants made misrepresentations to them in connection with hiring Moreau Services as a subcontractor to perform service-related work regulated by the Louisiana Department of Environmental Quality ("DEQ") from approximately August 2015 to February 2016.

On April 5, 2017, Pilot and Mr. Moore jointly filed peremptory exceptions of no cause of action and no right of action in which they argued, inter alia , that Mr. and Mrs. Moreau have no individual rights of action against them because all of the alleged conduct, including the contract for DEQ service work, was on behalf of their company, Moreau Services. On July 7, 2017, the trial court rendered judgment sustaining these exceptions, but allowed plaintiffs 15 days from the date of the judgment to file an amended petition.

On July 21, 2017, plaintiffs filed an amended petition. Pilot and Mr. Moore thereafter re-urged their peremptory exceptions of no cause of action and no right of action. Phelps Petroleum and Mr. Phelps also filed peremptory exceptions of no cause of action and no right of action in response to plaintiffs' amended petition.

On October 11, 2017, the trial court heard the peremptory exceptions filed by Pilot and Mr. Moore, but not the exceptions filed by Phelps Petroleum and Mr. Phelps. Thereafter, on October 24, 2017, the trial court issued a judgment overruling the exception of no cause of action, sustaining the exception of no right of action, and dismissing with prejudice all of the individual claims of Mr. and Mrs. Moreau against Pilot and Mr. Moore. Plaintiffs filed a timely motion for new trial which was denied by the trial court in a judgment issued January 26, 2018. It is from these judgments that plaintiffs filed their first appeal, which was docketed in this Court as No. 18-CA-174.

On November 17, 2017, Pilot and Mr. Moore filed an answer to plaintiffs' amended petition in which they denied plaintiffs' allegations, asserted affirmative defenses, and raised new exceptions. Additionally, more than a year after the alleged transactions in late 2015 and early 2016, and more than 90 days since service of the amended petition, Pilot and Mr. Moore asserted demands in reconvention against Mr. and Mrs. Moreau for fraudulent misrepresentation and against Moreau Services for breach of contract.

On April 9, 2018, the trial court heard the peremptory exceptions filed by Phelps Petroleum and Mr. Phelps. Thereafter, on May 9, 2018, the trial court issued a judgment overruling the exception of no cause of action, sustaining the exception of no right of action, and dismissing with prejudice all of the individual claims of Mr. and Mrs. Moreau against Phelps Petroleum and Mr. Phelps. It is from this judgment that plaintiffs filed their second appeal, which was docketed in this Court as No. 18-CA-340.

On July 2, 2018, appellants filed a motion to consolidate the appeals, which was granted by this Court on July 10, 2018.

DISCUSSION

Louisiana Code of Civil Procedure article 1915(B) states:

(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 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 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 the rendition of the judgment adjudicating all the claims and the rights and liabilities of all the parties.

Pursuant to La. C.C.P. art. 1911, no appeal may be taken from a partial final judgment under Article 1915(B) until the judgment has been designated a final judgment. See McClellan v. Premier Nissan L.L.C. , 18-376 (La. App. 5 Cir. 12/19/18), 262 So.3d 453, 2018 WL 6627287 ; Vince v. Koontz , 15-301 (La. App. 5 Cir. 12/9/15), 182 So.3d 333.

At the time that the October 24, 2017 judgment was issued, there remained outstanding claims by Moreau Services against all of the defendants, including Pilot and Mr. Moore. Furthermore, at that time, Mr. and Mrs. Moreau still had outstanding claims against Phelps Petroleum and Mr. Phelps. Because these outstanding claims remained and none of these parties were completely dismissed from this litigation, the October 24, 2017 judgment is a partial judgment under La. C.C.P. art. 1915(B).

At the time that the May 9, 2018 judgment was issued, there still remained outstanding claims by Moreau Services against all of the defendants, including Phelps Petroleum and Mr. Phelps. Furthermore, at that time, the reconventional demands filed by Pilot and Mr. Moore against Mr. and Mrs. Moreau individually were still outstanding. Because these outstanding claims remained and none of these parties were completely dismissed from this litigation, the May 9, 2018 judgment is also a partial judgment under La. C.C.P. art. 1915(B).

Upon the filing of their motions for appeal, appellants failed to request a determination and designation by the trial court pursuant to La. C.C.P. art. 1915(B), and the record before us reflects that there has been no such designation of either of these judgments by the trial court. Therefore, this Court lacks jurisdiction to consider either of these consolidated appeals.

DECREE

Having found that we lack jurisdiction, we dismiss these consolidated appeals. This matter is remanded to the trial court for further proceedings consistent with this opinion.

APPEALS DISMISSED