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Advanced Leveling & Concrete Solutions v. The Lathan Company, Inc.

Court of Appeals of Louisiana, First Circuit

December 20, 2018


          On 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 Solutions

          Lloyd N. Shields Andrew G. Vicknair Alana L. Riksheim New Orleans, Louisiana Attorneys for Defendant/Appellant, The Lathan Company, Inc.


          PENZATO, J.

         This is 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.


         This 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.

         On 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, which provided:

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 proceedings.

         Lathan 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.

         This 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.


         Appellate 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 ...

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