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Ramirez v. Evonir, LLC

Court of Appeals of Louisiana, Fourth Circuit

April 9, 2015

JOHN V. RAMIREZ, JR. AND IOKON, LLC
v.
EVONIR, LLC, EVONIR NETWORK, LLC AND JOHN K. BAGOT, III

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH. NO. 2012-09108, DIVISION " N-8" . Honorable Ethel Simms Julien, Judge.

Frank M. Buck, Jr., New Orleans, LA, COUNSEL FOR PLAINTIFF/APPELLANT.

Autumn Snyder Harrell, H2 LAW, LLC, New Orleans, LA, COUNSEL FOR DEFENDANT/APPELLEE.

(Court composed of Judge Paul A. Bonin, Judge Daniel L. Dysart, Judge Madeleine M. Landrieu).

OPINION

PAUL A. BONIN, J.

Page 261

[2014-1095 La.App. 4 Cir. 1] The trial court granted a partial summary judgment on only one of the three claims asserted by the plaintiffs, John Ramirez, Jr. and Iokon, LLC, against the defendants, Evonir, LLC, Evonir Network, LLC, and John Bagot III. The two remaining claims, for conversion and assault, were unaffected by the judgment. The trial judge did not designate the partial summary judgment as final and appealable. Nonetheless, about sixty days after the judgment was signed, Mr. Ramirez and Iokon filed a motion for devolutive appeal, which was granted.

After the appeal was lodged in our court, we issued on our own motion an order to the parties to show cause why the appeal should not be dismissed because there was no right to appeal the undesignated partial summary judgment.[1] Because there is no doubt that the partial summary judgment was rendered under La. C.C.P. art. 966(E) and there was no requisite designation of finality by the trial judge, we dismiss the appeal because there is no right to appeal the judgment. We

Page 262

also [2014-1095 La.App. 4 Cir. 2] decline to exercise our supervisory jurisdiction by converting the motion for devolutive appeal to an application for supervisory writs.

We explain our decision in greater detail below.

I

Mr. Ramirez and Iokon jointly filed suit against Mr. Bagot and the Evonir entities. The petition explicitly sets forth three distinct " claims" : (1) a demand for payment of certain identified invoices under La. R.S. 9:2781, Louisiana's open accounts law; (2) a demand for damages for conversion of property; and, (3) a demand for damages for personal injuries resulting from an assault. After some pretrial jostling, Mr. Bagot and the Evonir entities filed a motion for partial summary judgment to dispose of the first of the three claims. This motion is contemplated and authorized by La. C.C.P. art. 966(E), which provides that " [a] summary judgment may be rendered dispositive of a particular issue, theory of recovery, cause of action, or defense, in favor of one or more parties, even though the granting of the summary judgment does not dispose of the entire case as to that party or parties."

After the contradictory hearing, the trial judge granted summary judgment " as it pertains to Plaintiffs' Claim regarding invoices." Notably, however, the judgment did not contain any decretal language setting forth with particularity the relief that was being granted. See Palumbo v. Shapiro, 11-0769, p. 5 (La.App. 4 Cir. 12/14/11), 81 So.3d 923, 927. And when a court renders a partial summary judgment " as to one or more but less than all of the claims, demands, issues, or [2014-1095 La.App. 4 Cir. 3] theories against a party, ... the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express ...


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