Appeal from the 19th Judicial District Court In and for the
Parish of East Baton Rouge State of Louisiana Trial Court
Number 650, 704 Honorable Janice Clark, Judge Presiding.
Richard L. Crawford Baton Rouge, Louisiana Attorney for
Plaintiff/Appellee, Advanced Leveling & Concrete
N. Shields Andrew G. Vicknair Alana L. Riksheim New Orleans,
Louisiana Attorneys for Defendant/Appellant, The Lathan
BEFORE: WHIPPLE, C.J., "GUIDRY, PETTIGREW, McDONALD,
McCLENDON, WELCH, HIGGINBOTHAM, CRAIN, THERIQT, HOLBRIDGE,
CHUTZ, AND PENZATQ, JJ.
an appeal from a trial court judgment granting a motion for
summary judgment in favor of the plaintiff. For the following
reasons, we dismiss this appeal.
AND PROCEDURAL HISTORY
case involves the construction of the St. Roch Market in New
Orleans, Louisiana. The Lathan Company, Inc.
("Lathan") served as the primary contractor on the
project and selected Advanced Leveling & Concrete
Solutions ("Advanced Leveling") to furnish
materials and install concrete floor topping for the project.
Without executing a written subcontract, but with agreement
on a contract price of $52, 800.00, Advanced Leveling began
work on the project sometime around August of 2013. On or
about February 13, 2014, a representative for the owner of
the St. Roch Market accepted the work performed by Advanced
Leveling and authorized payment in full by Lathan.
August 11, 2016, Advanced Leveling filed a petition on open
account, alleging that it sold and delivered to Lathan, on
open account, goods, wares, merchandise, and/or services.
According to the petition, Lathan failed to pay the balance
due within thirty days after receipt of written demand, and
therefore Advanced Leveling was entitled to recover
reasonable attorney's fees in addition to the balance
due. Lathan filed an answer to the petition, after which
Advanced Leveling filed a motion for summary judgment. Lathan
opposed the summary judgment, arguing that there was no
evidence of an open account and that genuine issues of
material fact existed as to deficiencies in Advanced
Leveling's work and the costs Lathan incurred to correct
those deficiencies. The matter was heard by the trial court
on April 17, 2017, and judgment was rendered in favor of
Advanced Leveling. A judgment was signed on May 2, 2017,
IT IS ORDERED, ADJUDGED AND DECREED, judgment be rendered
herein in favor of plaintiff, Advanced Leveling &
Concrete Solutions, and against defendant, The Lathan
Company, Inc., in the full sum of $16, 420.00, together with
legal interest from date of judicial demand August 11, 2016
until paid in full, together with reasonable attorney's
fees under LSA R.S. 9:2781 and for all costs of these
appealed, asserting that the trial court erred in finding
that an open account existed between the parties, and in
granting summary judgment when there were factual issues
concerning the amount due to Advanced Leveling.
court subsequently issued an order advising that the matter
would be submitted on briefs for en banc
consideration by the court. The parties were granted leave to
file supplemental briefs specifically addressing the issue of
whether the awarding of "reasonable attorney's
fees" in the May 2, 2017 judgment rendered the judgment,
in whole or in part, non-appealable as uncertain and
indefinite in nature. In response to the order, the parties
filed a joint motion for limited remand, acknowledging
therein that the judgment at issue is nonappealable and
requesting that this court stay the appeal to remand the
matter for the limited purpose of having the trial court
amend the May 2, 2017 judgment to comply with the provisions
of La. C.C.P. Art. 1918. The joint motion for limited remand
was denied by an order of this court issued October 19, 2018.
courts have a duty to examine subject matter jurisdiction
sua sponte, even when the parties do not raise the
issue. Texas Gas Exploration Corp. v. Lafourche Realty
Co., Inc., 2011-0520 (La.App. 1 Cir. 11/9/11), 79 So.3d
1054, 1059, writ denied, 2012-0360 (La. 4/9/12), 85
So.3d 698. Appeal is the exercise of the right of a party to
have a judgment of a trial court revised, modified, set
aside, or reversed by an appellate court. La. C.C.P. art.
2082. Louisiana Code of Civil Procedure article 2083(A)
provides that a final judgment is appealable. A final
judgment is one that determines the merits in ...