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Dieudonne Enterprises, Inc. v. Slade

Court of Appeals of Louisiana, Fifth Circuit

December 27, 2018

DIEUDONNE ENTERPRISES, INC.
v.
BELAH RICHARD SLADE, DBA RICHARD SLADE CONSTRUCTION AND RICHARD SLADE, LLC

          ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 715-641, DIVISION "F" HONORABLE MICHAEL P. MENTZ, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, DIEUDONNE ENTERPRISES, INC. Steven J. Rando Gerald Wasserman

          COUNSEL FOR DEFENDANT/APPELLANT, BELAH RICHARD SLADE, DBA RICHARD SLADE CONSTRUCTION AND RICHARD SLADE, LLC Willard O. "Trey" Lape, III

          Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Stephen J. Windhorst

          STEPHEN J. WINDHORST JUDGE

         Appellants/defendants, Belah Richard Slade and Richard Slade, LLC d/b/a Richard Slade Construction, appeal the trial court's March 28, 2018 judgment denying the motion for new trial. For the reasons that follow, we find this Court lacks appellate jurisdiction to consider the merits of appellants' appeal.

         Facts and Procedural History

         On June 6 2012, appellee/plaintiff, Dieudonne Enterprises, Inc., filed a "Petition for Damages, Breach of Contract, Civil Conversion, Fraud, and Attorney Fees" against appellants, Belah Richard Slade d/b/a Richard Slade Construction and Richard Slade, LLC. The petition alleged that appellants wrongfully converted $73, 500.00 in deposits made by appellee to appellants regarding an Atmos Entergy construction project at 101 Airline Highway, in Metairie, commencing in January 2011. The petition asserted claims against appellants for unjust enrichment, conversion, breach of contract, open account, and civil fraud. On July 2, 2012, Richard Slade LLC d/b/a Richard Slade Construction filed an answer and exceptions of no right and no cause of action as to Belah Richard Slade, individually. In response, appellee filed a motion to strike the exceptions. On September 20, 2012, counsel for Richard Slade LLC d/b/a Richard Slade Construction withdrew the exceptions of no right and no cause of action, rendering appellee's motion to strike moot. The trial court ordered counsel to file an answer within ten days on behalf of Mr. Slade, individually, which was filed by counsel on September 24, 2012.

         On February 26, 2013, the parties entered into a consent judgment (hereinafter "2013 Consent Judgment"). The 2013 Consent Judgment provided, in pertinent part:

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that there be judgment rendered herein in favor of plaintiff, Dieudonne Enterprises, Inc. in the amount of $40, 00.00, forty-thousand dollars ($40, 000.00), inclusive of all claims set forth in case number 715-641, Div. "F."
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that in the event this $40, 000.00 is not paid in full within nine months of the signing of this consent judgment, this judgment will accellerate [sic] to $50, 000.00 payable on or before the twelve month anniversary of the signing of this consent judgment.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that in the event said consent judgment is not paid in full on or before the twenty four month anniversary of this consent judgment, the unpaid principal balance will double and continue to double on each anniversary of this consent judgment thereafter until paid in full. (Emphasis added.)

         On February 27, 2018, five years after the 2013 Consent Judgment, appellants filed a motion for new trial contending: (1) the motion for new trial was timely under La. C.C.P. art. 1974 because the notice of judgment was never mailed by the clerk of court to counsel for appellants under La. C.C.P. art. 1913; and (2) the "doubling" provision amounts to prohibited usurious interest under La. R.S. 9:3500, et seq., [1] rendering the consent judgment an absolute nullity. In the motion, appellants stated that Mr. Slade made the first payment in the amount of $15, 000.00 on March 12, 2014. Appellants contended that on August 27, 2014, counsel for appellee sent a letter stating that appellants now owed appellee $50, 000.00 plus thirty-five percent (35%) attorney's fees, less a credit for his one $15, 000.00 payment. Appellants claimed that additional discussions were held with appellee over the course of several months about appellants paying off the judgment. Appellants contended that two more checks for $15, 000.00 each, totaling $30, 000.00 were delivered to appellee. Appellants argued that $45, 000.00 has been paid towards the judgment. In the motion, appellants contended that according to appellee, they currently owed appellee $320, 000.00 exclusive of attorney's fees, judicial interest, and costs. Based on the alleged usurious term of the consent judgment, appellants requested that the motion for new trial be granted for re-argument only with respect to the "doubling" provision of the consent judgment under La. R.S. 9:3500, et seq., or alternatively requested the trial court to grant the motion for new trial.

         Appellee filed an opposition to the motion for new trial arguing: (1) that a party to a consent judgment cannot directly appeal the judgment; rather the party must first invalidate his consent; (2) since there is no appeal from a consent judgment, the clerk of court was not obligated to issue notices of judgment to initiate delays for a motion for new trial or appeal; (3) motion for new trial is not applicable because there was no trial or considered decree; and (4) even if motion for new trial is procedurally ...


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