FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2015-07594,
DIVISION "F" Honorable Christopher J. Bruno, Judge
M. Williams Inemesit U. O'Boyle Patrick R. Follette
CHEHARDY, SHERMAN, WILLIAMS, MURRAY, RECILE, STAKELUM &
HAYES, LLP COUNSEL FOR PLAINTIFF/APPELLEE
Marc Vezina Kelli M. Khalaf VEZINA AND GATTUSO, L.L.C.
COUNSEL FOR DEFENDANT/APPELLANT
composed of Judge Daniel L. Dysart, Judge Tiffany G. Chase,
Judge Dale N. Atkins
N. ATKINS, JUDGE.
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
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.
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.
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.
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.
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).
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 ...