165 So. 3d 260
La. Ct. App.2015Background
- Plaintiffs John Ramirez, Jr. and Iokon, LLC sued defendants Evonir, LLC; Evonir Network, LLC; and John Bagot III asserting three claims: open-accounts recovery for identified invoices (La. R.S. 9:2781), conversion, and assault.
- Defendants moved for partial summary judgment under La. C.C.P. art. 966(E) seeking dismissal of only the open-accounts claim.
- The trial court granted summary judgment “as it pertains to Plaintiffs’ Claim regarding invoices,” but did not include decretal particulars or designate the partial judgment as a final, appealable judgment under La. C.C.P. art. 1915(B).
- Plaintiffs filed a devolutive appeal about 60 days after the judgment; the appellate court issued a show-cause order sua sponte questioning appealability.
- The court concluded the judgment was an undesignated partial summary judgment under art. 966(E) with no art. 1915(B) finality designation, so plaintiffs had no right to appeal and the appeal was dismissed.
- The court also declined to exercise supervisory jurisdiction to convert the late-filed appeal into a writ application, finding the motion was filed beyond the 30-day rule and that Herlitz factors did not support conversion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiffs had a right to appeal the partial summary judgment | The grant of summary judgment on invoices is appealable | Judgment lacked art. 1915(B) finality designation and so is not appealable | No right to appeal; appeal dismissed |
| Whether the judgment was a partial final judgment under art. 1915(B) | The ruling disposed of a discrete cause of action (invoices) and should be treated as final | Trial court did not designate it final per art. 1915(B) | Not a final appealable judgment without court designation |
| Whether the court should convert the untimely motion for appeal into a supervisory-writ application | Plaintiffs sought review despite filing delay | Defendants opposed conversion; argued procedural rules and Herlitz factors not met | Court declined to convert because motion filed after 30-day writ period and criteria not met |
| Whether Herlitz factors required exercise of supervisory jurisdiction | Plaintiffs implied immediate review necessary | Defendants argued reversal/affirmation wouldn’t terminate litigation and no irreparable harm or mootness issue | Herlitz factors not satisfied; supervisory review denied |
Key Cases Cited
- Palumbo v. Shapiro, 81 So.3d 923 (La. App. 4th Cir. 2011) (partial-judgment decretal particulars requirement)
- Lalla v. Calamar, N.V., 5 So.3d 927 (La. App. 4th Cir. 2009) (undesignated partial judgments are not appealable)
- Delahoussaye v. Tulane University Hospital, 155 So.3d 560 (La. App. 4th Cir. 2013) (proper vehicle for review of undesignated art. 966(E) judgments is supervisory writ)
- Herlitz Constr. Co. v. Hotel Investors of New Iberia, 396 So.2d 878 (La. 1981) (factors guiding discretionary exercise of supervisory jurisdiction)
- Favrot v. Favrot, 68 So.3d 1099 (La. App. 4th Cir. 2011) (supervisory jurisdiction appropriate where review would terminate litigation)
- Egle v. Egle, 923 So.2d 780 (La. App. 3rd Cir. 2006) (appellate court may dismiss sua sponte when no right to appeal)
- Danny Weaver Logging, Inc. v. Norwel Equipment Co., 766 So.2d 701 (La. App. 2nd Cir. 2000) (immediate review warranted when error would be practically uncorrectable on appeal)