ROBERT ANDREW SCHIFF AND N.O.W. PROPERTIES, LLC
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
Patrick Klotz KLOTZ & EARLY, Mark P. Glago Jatavian L.
Williams Katherine E. May THE GLAGO LAW FIRM, LLC COUNSEL FOR
composed of Chief Judge James F. McKay, III, Judge Terri F.
Love, Judge Sandra Cabrina Jenkins
CABRINA JENKINS, JUDGE
suit to annul a prior judgment, Robert Andrew Schiff and
N.O.W. Properties, L.L.C. (collectively "Schiff"),
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
AND PROCEDURAL BACKGROUND
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
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.
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.
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
filed an amended petition to annul on August 18,
2014. 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
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
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.
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.
filed a motion for appeal of the trial court's May 3,
2016 judgment on May 16, 2016.
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
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 ...