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Central Building Services, LLC v. St. Augustine High School, Inc.

Court of Appeals of Louisiana, Fourth Circuit

October 17, 2018

CENTRAL BUILDING SERVICES, LLC
v.
ST. AUGUSTINE HIGH SCHOOL, INC., NEW ORLEANS, LOUISIANA D/B/A ST. AUGUSTINE HIGH SCHOOL

          APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2015-07594, DIVISION "F" Honorable Christopher J. Bruno, Judge

          James M. Williams Inemesit U. O'Boyle Patrick R. Follette CHEHARDY, SHERMAN, WILLIAMS, MURRAY, RECILE, STAKELUM & HAYES, LLP COUNSEL FOR PLAINTIFF/APPELLEE

          J. Marc Vezina Kelli M. Khalaf VEZINA AND GATTUSO, L.L.C. COUNSEL FOR DEFENDANT/APPELLANT

          Court composed of Judge Daniel L. Dysart, Judge Tiffany G. Chase, Judge Dale N. Atkins

          DALE N. ATKINS, JUDGE.

         St. Augustine High School appeals a partial summary judgment granted in favor of Central Building Services, Inc. For the reasons set forth below, we dismiss the appeal and remand for further proceedings.

         BACKGROUND

         This case involves a contract dispute between St. Augustine High School ("St. Augustine") and Central Building Services, Inc. ("Central") arising from a janitorial services contract. Pursuant to the contractual language, termination of the contract for any reason other than non-performance must occur at least 30 days before the contract's automatic renewal date, and notice of termination must be mailed via the United States Postal Service ("USPS"), certified mail, return receipt requested. It is undisputed that St. Augustine mailed notice of termination in a timely fashion, yet the termination letter was mailed via Federal Express, not USPS. Central therefore filed a motion for summary judgment asserting breach of contract and requesting damages commensurate with the terms of the contract.

         At the September 8, 2017 hearing on Central's motion for summary judgment, the district court granted partial summary judgment in favor of Central and against St. Augustine High School for failure to provide notice of termination according to the explicit provisions outlined in the contract. However, the district court denied summary judgment on the issue of damages in open court.

         On October 5, 2017, within 30 days of the district court's September 8 ruling in open court, St. Augustine filed a Petition for Devolutive Appeal. The district court signed the Order granting the devolutive appeal the same day. [1]

         After the appellate record was lodged in this Court, Central filed a Motion to Dismiss Appeal for Lack of Jurisdiction. Central argues that the judgment being appealed is a partial summary judgment that was not designated as final and appealable under La. C.C.P. art. 1915 (B), nor did the district court express any reason why the issue should be immediately appealed. As such, the judgment on appeal is not a final judgment and cannot be considered on appeal. We agree.

         DISCUSSION

         "[A] judgment that only partially determines the merits of an action is a partial final judgment and, as such, is immediately appealable only if authorized by La. C.C.P. art. 1915." O'Bannon v. Moriah Tech., Inc., 2017-0728, p. 6 (La.App. 1 Cir. 3/28/18), 248 So.3d 392, 398 (citing Rhodes v. Lewis, 2001-1989, p. 3-4 (La. 5/14/02), 817 So.2d 64, 66).

         La. C.C.P. art. 1915 "divides partial judgments into two groups: (1) those under Article 1915 (A), which lists six specific types of partial final judgments that are appealable without being designated as final by the trial court; and (2) those covered by Art. 1915 (B), which provides that any other partial judgment (excluding those listed in Part A) is not deemed to be final, and not subject to appeal, unless the trial court designates it as such." Andre ...


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