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Succession of Scheuermann v. Scheuermann & Jones LLC

Court of Appeals of Louisiana, Fourth Circuit

May 22, 2015

SUCCESSION OF ARTHEL J. SCHEUERMANN CONSOLIDATED WITH: SUCCESSION OF ARTHEL J. SCHEUERMANN, THROUGH ITS EXECUTOR, MARK GONZALEZ AND MARK GONZALEZ, INDIVIDUALLY
v.
SCHEUERMANN & JONES LLC, THROUGH ITS GENERAL MANAGER, LAWRENCE BLAKE JONES AND LAWRENCE BLAKE JONES, INDIVIDUALLY

Page 976

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH. NO. 2013-01620 C/W 2014-01690, DIVISION " D-16" . Honorable Lloyd J. Medley, Judge.

Miles G. Trapolin, TRAPOLIN LAW FIRM, New Orleans, LA, COUNSEL FOR PLAINTIFF/APPELLANT.

William D. Aaron, Jr., DeWayne L. Williams, AARON - GIANNA, P.L.C., New Orleans, LA, COUNSEL FOR DEFENDANT/APPELLEE.

(Court composed of Judge Terri F. Love, Judge Paul A. Bonin, Judge Madeleine M. Landrieu).

OPINION

Page 977

[2015-0040 La.App. 4 Cir. 1] PAUL A. BONIN, J.

Arthel Scheuermann, a prominent New Orleans attorney, died testate. She made a particular bequest of her ownership interest in her law practice, Scheuermann & Jones, LLC, to Mark Gonzalez. She also appointed Mr. Gonzalez to be an independent executor of her estate. Mr. Gonzalez, individually and in his capacity as executor, filed suit against the limited liability company and Lawrence Blake Jones, the company's surviving member and manager, seeking inter alia to discover information with which to value Ms. Scheuermann's interest in the company and to recover the value of her interest from the company and Mr. Jones.

Apparently as a result of pre-suit and off-of-the-record negotiations or actions, Mr. Gonzalez also demanded in his petition that two sections of the Limited Liability Company Law, specifically La. R.S. 12:1330 and 1333, be declared unconstitutional because, he alleged, they violate protections afforded by the Louisiana constitution. In order to obtain a judicial declaration that the specified sections of the law are constitutional, the company and Mr. Jones moved for partial summary judgment under La. C.C.P. art. 966 E. The district court [2015-0040 La.App. 4 Cir. 2] rendered a partial summary judgment in their favor and designated, without supporting reasons, the judgment as appealable under La. C.C.P. art. 1915 B. Mr. Gonzalez then appealed.

We, however, on our own motion issued a rule to show cause why the appeal should not be dismissed because the partial summary judgment was improperly designated as final. After affording the parties the opportunity to show cause, we find on our de novo review that the judgment was improperly designated as appealable and dismiss the appeal. We explain our decision to dismiss the appeal in greater detail below.

I

We begin our explanation by emphasizing the dual purposes behind making a gateway decision about whether or not a particular judgment is an appealable judgment. From the perspective of parties, and especially appellants, determining that a judgment is appealable means that the party who did not prevail in the trial court has a right to demand and receive appellate review of the judgment without further delay, but if the judgment is not appealable, the losing party must either immediately seek to invoke our supervisory jurisdiction, which is discretionary on our part, or await review of the judgment until such time that there is a final and appealable judgment. See Favrot v. Favrot, 10-0986, p. 2 (La.App. 4 Cir. 2/9/11), 68 So.3d 1099, 1102; see also La. C.C.P. arts. 2082 and 2201. And, from the perspective of the court, a gateway determination on the appealability of a judgment aids us in avoiding unnecessary and unproductive piecemeal [2015-0040 La.App. 4 Cir. 3] consideration of issues arising in litigation and protects against the distortion of our basic error-correcting function. See R.J. Messinger, Inc. v. Rosenblum, 04-1664, p. 13 (La. 3/2/05), 894 So.2d 1113, 1122 (" Historically, we have a policy against multiple appeals and piecemeal litigation. We also ensure that our courts operate under principles of sound judicial administration to promote judicial efficiency and economy." ); see also Everything On Wheels Subaru, Inc. v. Subaru South, Inc.,

Page 978

616 So.2d 1234, 1240-1241 (La. 1993)

II

Here, there is no question that the judgment declaring the two specified statutes or provisions " constitutional" is a judgment rendered under the provisions of Article 966 E of the Code of Civil Procedure, 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 whole case as to that party or parties."

Thus, even though a partial summary judgment may be considered " final" under the provisions of Article 968 of the Code of Civil Procedure for the purposes of signing and rendition of the judgment,[1] it is not by that fact alone appealable. A partial summary judgment such as the one rendered here is expressly excluded from the enumeration of those partial summary judgments which are deemed final [2015-0040 La.App. 4 Cir. 4] for the purposes of appeal under Articles 1911 B and 2083 of the Code of Civil Procedure. See La. C.C.P. art. 1915 A(3). Such a judgment " shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay." La. C.C.P. art. 1915 B(1) (emphasis added). Thus, we necessarily examine such an express determination because " [i]n the absence of such determination and designation, any such order or decision shall not constitute a final judgment for the purposes of an immediate appeal." La. C.C.P. art. 1915 B(2) (emphasis added).

Here, the written partial summary judgment included a statement that " this Judgment is a final judgment on the particular issue of the constitutionality of La. R.S. 12:1330 and La. R.S.12:1333 pursuant to Acts [sic] 966 and 968 of the La. Code of Civil Procedure." [2] Before adjourning court the trial judge had authorized the designation of finality at the ...


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