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Schiff v. Pollard

Court of Appeals of Louisiana, Fourth Circuit

June 28, 2017

ROBERT ANDREW SCHIFF AND N.O.W. PROPERTIES, LLC
v.
LIDIA POLLARD

         APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2014-06056, DIVISION "L-6" Honorable Kern A. Reese, Judge

          Randall A. Smith J. Geoffrey Ormsby SMITH & FAWER, L.L.C. COUNSEL FOR PLAINTIFF/APPELLANT

          W. Patrick Klotz KLOTZ & EARLY, Mark P. Glago Jatavian L. Williams Katherine E. May THE GLAGO LAW FIRM, LLC COUNSEL FOR DEFENDANT/APPELLEE

          Court composed of Chief Judge James F. McKay, III, Judge Terri F. Love, Judge Sandra Cabrina Jenkins

          SANDRA CABRINA JENKINS, JUDGE

         In this suit to annul a prior judgment, Robert Andrew Schiff and N.O.W. Properties, L.L.C. (collectively "Schiff"), [1] appeal the trial court's May 3, 2016 judgment granting the exception of res judicata filed by defendant, Lidia Pollard, and dismissing plaintiffs' claims with prejudice. For the reasons that follow, we convert the appeal to a supervisory writ, we grant the writ and affirm the trial court's judgment.

         FACTUAL AND PROCEDURAL BACKGROUND

         This is the third appeal involving these parties before this Court. See Pollard v. Schiff, 13-1682, 14-0853 (La.App. 4 Cir. 2/4/15), 161 So.3d 48; Schiff v. Pollard, 15-0340 (La.App. 4 Cir. 10/7/15), 177 So.3d 719 ("Schiff I "). The original suit and first appeal involving these parties, Pollard, supra, arose out of a failed business venture between Mr. Schiff and Ms. Pollard in which they entered into an agreement to purchase, renovate, and resell properties under the business name of N.O.W. Properties, L.L.C. During the duration of their business partnership, between March 2007 and September 2009, twelve properties were purchased and renovated. "[A]t some point early in the venture, Mr. Schiff unilaterally decided to rent the completed houses rather than sell them" and "expected Ms. Pollard to manage the rental properties by securing tenants, collecting rent, and making repairs to the properties." Pollard, 13-1682, 14-0853, p. 3, 161 So.3d at 51. By September 2009, the parties' business partnership had soured; they agreed to end the partnership and attempted to divide the assets by obtaining a comparative market analysis ("CMA") for each of the twelve properties. In 2010, Ms. Pollard found a buyer for one of the properties, but when the property was sold Mr. Schiff retained all profits from that sale rather than sharing the profits with Ms. Pollard. As a result, Ms. Pollard filed suit against Schiff for breach of contract, an accounting, and judicial dissolution of the partnership.

         Following a three-day bench trial in April 2013, Schiff filed numerous post-trial motions, including a motion to admit approximately 100 exhibits and additional testimony, a motion to admit newly discovered evidence, and a motion for new trial. After taking these matters under advisement, the trial court rendered judgment on August 2, 2013, in favor of Ms. Pollard. The trial court found Schiff liable for breach of contract and bad faith damages and awarded Ms. Pollard $685, 176.52 in specified elements of damages.

         Schiff timely appealed the trial court's August 2, 2013 judgment and argued, inter alia, that the trial court erred by relying on a false and incomplete accounting prepared by CPA Marjorie Corcoran and erred in denying his motion for new trial based on newly discovered evidence that Ms. Pollard gave false testimony at trial. Pollard, 13-1682, 14-0853, p. 8, 161 So.3d at 54. Upon review of the entire record, this Court found no merit in any of Schiff s assignments of error and substantially affirmed the trial court's judgment but amended the total award to $684, 824.73 based on the record evidence of reimbursements owed and an error in the award of judicial interest. Id. 13-1682, 14-0853, p. 26, 161 So.3d at 61.

         On June 19, 2014, while the appeal of the August 2, 2013 judgment was pending before this Court, Schiff filed a petition to annul the judgment on the grounds that it was obtained by fraud and ill practices. In response to Schiff s petition to annul, Ms. Pollard filed a peremptory exception of no right of action and a dilatory exception of lack of procedural capacity as to N.O. W. Properties, L.L.C., which the trial court granted and allowed Schiff thirty days to amend the petition.[2]

         Schiff filed an amended petition to annul on August 18, 2014.[3] In response, Ms. Pollard filed a peremptory exception of peremption, arguing that the petition to annul was filed more than a year after the August 2, 2013 judgment and more than a year after Schiff allegedly learned of the fraud and ill practice that served as the grounds for the petition to annul. Following a hearing, the trial court's November 7, 2014 judgment granted Ms. Pollard's exception of peremption and dismissed Schiff s amended petition to annul with prejudice. Schiff timely appealed the trial court's November 7, 2014 judgment.[4]

         In the appeal of Schiff I, the Court noted that the petition to annul "reveals an obvious attempt by Schiff to relitigate the trial court's decision that was affirmed" in Pollard. 15-0340, p. 3, 177 So.3d at 721. However, with regard to Ms. Pollard's exception of peremption, the Court found that the trial court erred in granting it and dismissing Schiff s petition to annul. The record reflected that Schiff s amended petition to annul related back to the date of filing of the original petition to annul on June 19, 2014, which was within one year of the alleged discovery of the fraud or ill practices and within one year of the August 2, 2013 judgment. Schiff I, 15-0340, pp. 4-5, 177 So.3d at 722. Finding that the amended petition to annul was timely, this Court reversed the trial court's November 7, 2014 judgment and remanded for further proceedings.

         On remand, Ms. Pollard filed exceptions of vagueness and ambiguity and res judicata. After a hearing on these exceptions, the trial court granted the exception of vagueness and ambiguity, ordered Schiff to amend the petition within thirty days, and further ordered that the exception of res judicata be held in abeyance until an amended petition was filed and reviewed. Schiff then timely filed a second amended petition to annul on January 12, 2015. In response, Ms. Pollard filed an exception of no cause of action and re-urged the exception of res judicata.

         On April 22, 2016, the trial court held a hearing on the exceptions of res judicata and no cause of action. Finding that all of the issues raised within Schiff's amended petition to annul had been previously litigated and ruled upon, the trial court granted the exception of res judicata. The trial court's May 3, 2016 judgment reads in pertinent part as follows:

IT IS HEREBY ORDERED that the Exception of Res Judicata be and hereby GRANTED; Plaintiffs' claims are accordingly dismissed with prejudice.
IT IS FURTHER ORDERED that the Exception of No Cause of Action is rendered MOOT by virtue of the Court's ruling on the Exception of Res Judicata.

         Schiff filed a motion for appeal of the trial court's May 3, 2016 judgment on May 16, 2016.

         JURISDICTION

         Before we proceed to the merits of the case, we must address a procedural matter concerning the lack of decretal language in the May 3, 2016 judgment. The trial court's May 3, 2016 judgment from which Schiff appeals does not name either the party in favor or against whom the exception of res judicata is granted. Although the judgment does decree unmistakably that plaintiffs' claims are dismissed with prejudice, we find that the May 3, 2016 judgment lacks components of definitive decretal language necessary to properly invoke our appellate jurisdiction.

         "We cannot determine the merits of an appeal unless our jurisdiction is properly invoked by a valid final judgment." Bd. of Supervisors of La. State Univ. and Agric. and Mech. College v. Mid City Holdings, L.L.C., 14-0506, p. 2 (La.App. 4 Cir. 10/15/14), 151 So.3d 908, 910. "A judgment is the determination of the rights of the parties in an action and may award any relief to which the parties are entitled." La. C.C.P. art. 1841. A final judgment is one that determines the merits in whole or in part and is identified as such by appropriate language. La. C.C.P. arts. 1841, 1918. For a judgment to be a valid, final, appealable judgment, it must contain decretal language, which has three necessary components: (1) it must name the party in favor of whom the ruling is ordered; (2) name the party against whom the ruling is ordered; and (3) specify the relief that is granted or denied. Tsegaye v. City of New Orleans, 15-0676, p. 3 (La.App. 4 Cir. 12/18/15), 183 So.3d 705, 710; Mid City Holdings, 14-0506, pp. 2-3, 151 So.3d at 910; Palumbo v. Shapiro, 11-0769, p. 5 (La.App. 4 Cir. 12/14/11), 81 ...


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