Opinion
NUMBER 2015 CA 0856
12-23-2015
MARLIN LAMBERT v. CRYSTAL LAMBERT FAIRBURN
Bridget R. Hebert Hammond, LA Attorney for Appellant Plaintiff - Marlin Lambert A. Bradley Berner Duncan S. Kemp, III Duncan S. Kemp, IV Hammond, LA Attorneys for Appellee Defendant - Crystal Lambert Fairburn
NOT DESIGNATED FOR PUBLICATION
Appealed from the 21st Judicial District Court In and for the Parish of Tangipahoa, Louisiana
Trial Court Number 2013-0001387 Honorable M. Douglas Hughes, Judge Bridget R. Hebert
Hammond, LA Attorney for Appellant
Plaintiff - Marlin Lambert A. Bradley Berner
Duncan S. Kemp, III
Duncan S. Kemp, IV
Hammond, LA Attorneys for Appellee
Defendant - Crystal Lambert Fairburn BEFORE: WHIPPLE, C.J., WELCH, AND DRAKE, JJ. WELCH, J.
In this action for revocation of a donation inter vivos on account of ingratitude, Marlin Lambert appeals a judgment sustaining a peremptory exception raising the objection of prescription and dismissing his claims with regard to alleged acts of ingratitude that occurred prior to May 6, 2012. For reasons that follow, we dismiss this appeal for lack of jurisdiction in compliance with Uniform Rule—Courts of Appeal, Rule 2-16.2(A)(1), (2), and (4) and remand this matter to the trial court for further proceedings.
On May 6, 2013, Marlin Lambert filed a Petition for Revocation of Donation, naming Crystal Lambert Fairburn (his daughter) as defendant. In the petition, Mr. Lambert alleged that on September 27, 2006, he donated a particular tract of land and mobile home to Ms. Fairburn, but since that time, she had been guilty of cruel treatment and other crimes towards her father, which warranted revocation of the donation on account of ingratitude. See La. C.C. arts. 1556 and 1557 (providing that a donation inter vivos may be revoked because of ingratitude of the donee if the donee has attempted to take the life of the donor or has been guilty of cruel treatment, crimes, or grievous injuries towards the donor). Specifically, Mr. Lambert alleged acts of ingratitude by Ms. Fairburn that occurred on June 22, 2010; June 23, 2010; June 25, 2010; August 2, 2010; October 18, 2010; December 24, 2010; January 18, 2011; February 17, 2011; January 16, 2012; January 31, 2012; and February 1, 2013. On August 6, 2014, Mr. Lambert filed a first amending petition to assert additional acts of ingratitude by Ms. Fairburn, which occurred on September 26, 2013, and May 12, 2014.
In response to the petitions, Ms. Fairburn filed an answer generally denying the allegations of Mr. Lambert's petition. Ms. Fairburn also filed a peremptory exception raising the objection of prescription, arguing that Mr. Lambert had alleged eleven acts of ingratitude that occurred more than one year before the date he filed suit, and as such, his claim to revoke the donation based on those acts had prescribed and should be dismissed. See La. C.C. art. 1558 (providing that "[a]n action of revocation for ingratitude shall be brought within one year from the day the donor knew or should have known of the act of ingratitude.")
Ms. Fairburn does not dispute that Mr. Lambert's amended petition alleged two acts of ingratitude occurring after May 6, 2012, which were not prescribed.
By judgment signed on February 9, 2015, the trial court sustained the peremptory exception raising the objection of prescription and dismissed Mr. Lambert's petition as to any and all alleged acts of ingratitude occurring prior to May 6, 2012. From this judgment, Mr. Lambert has appealed, essentially arguing that the trial court erred in failing to find that the alleged acts of ingratitude were analogous to delictual acts constituting a continuous tort such that his claims had not prescribed.
Appellate courts have the duty to examine subject matter jurisdiction sua sponte, even when the parties do not raise the issue. Rush v. Rush, 2012-1502 (La. App. 1st Cir. 3/25/13), 115 So.3d 508, 510, writ denied, 2013-0911 (La. 5/31/13), 118 So.3d 398. The appellate jurisdiction of this court extends to "final judgments." See La. C.C.P. arts. 1911, 1915, 2083. A final judgment is one that determines the merits in whole or in part, while an interlocutory judgment is one that does not determine the merits, but only preliminary matters in the course of the action. La. C.C.P. art. 1841. While a final judgment is appealable, an interlocutory judgment is appealable only when expressly provided by law. La. C.C.P. art. 2083. A judgment that only partially determines the merits of the action is a partial final judgment, and therefore only appealable if authorized by La. C.C.P. art. 1915. Rhodes v. Lewis, 2001-1989 (La. 5/14/02), 817 So.2d 64, 66.
Louisiana Code of Civil Procedure 1915 provides, in pertinent part, that:
A. A final judgment may be rendered and signed by the court, even though it may not grant the successful party or parties all of the relief prayed for, or may not adjudicate all of the issues in the case, when the court:
(1) Dismisses the suit as to less than all of the parties, defendants, third party plaintiffs, third party defendants, or intervenors.
(2) Grants a motion for judgment on the pleadings, as provided by Articles 965, 968, and 969.
(3) Grants a motion for summary judgment, as provided by Articles 966 through 969, but not including a summary judgment granted pursuant to Article 966(E).
(4) Signs a judgment on either the principal or incidental demand, when the two have been tried separately, as provided by Article 1038.
(5) Signs a judgment on the issue of liability when that issue has been tried separately by the court, or when, in a jury trial, the issue of liability has been tried before a jury and the issue of damages is to be tried before a different jury.
(6) Imposes sanctions or disciplinary action pursuant to Article 191, 863, or 864 or Code of Evidence Article 510(G).
B. (1) When a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands, issues, or theories against a party, whether in an original demand, reconventional demand, cross-claim, third-party claim, or intervention, the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.
(2) In the absence of such a determination and designation, any such order or decision shall not constitute a final judgment for the purpose of an immediate appeal and may be revised at any time prior to rendition of the judgment adjudicating all the claims and the rights and liabilities of all the parties.
Although La. C.C.P. art. 1915(A) sets forth six circumstances under which a trial court may render a partial final judgment (that is immediately appealable), we find none of those circumstances applicable herein. As noted above, the February 9, 2015 judgment of the trial court judgment sustained the peremptory exception raising the objection of prescription and dismissed Mr. Lambert's petition as to any and all alleged acts of ingratitude occurring prior to May 6, 2012. However, Mr. Lambert's action also alleged acts of ingratitude by Ms. Fairburn that occurred after May 6, 2012, i.e., on February 1, 2013, September 26, 2013, and May 12, 2014, which were not dismissed. Thus, Mr. Lambert's action to revoke the donation to Ms. Fairburn on account of ingratitude remains pending. Therefore, the judgment sustaining the peremptory exception of prescription and dismissing particular acts by Ms. Fairburn falls under La. C.C.P. art. 1915(B), because it is a judgment that sustains an exception in part, as to one or more but less than all of the claims asserted by Mr. Lambert against Ms. Fairburn. As such, the judgment does not constitute a final judgment unless designated as a final judgment by the court after an express determination that there is no just reasons for delay. See La. C.C.P. art. 1915(B). Without such a determination and designation, the judgment shall not constitute a final judgment for the purpose of an immediate appeal. La. C.C.P. art. 1915(B).
In this case, there was no such designation in the trial court's judgment. Therefore, this appeal must be dismissed. See La. C.C.P. art. 1911 and 2083(A). Accordingly, the appeal of the February 9, 2015 judgment of the trial court is hereby dismissed for lack of jurisdiction and this matter is remanded to the trial court for further proceedings. All costs of this appeal are assessed to the appellant, Marlin Lambert.
Additionally, we are unable to exercise our discretion to convert Mr. Lambert's appeal to an application for supervisory writs and consider the merits of the appeal under our supervisory jurisdiction because Mr. Lambert failed to file his motion to appeal within the thirty-day delay applicable to supervisory writs contained in Uniform Rules—Courts of Appeal, Rule 4-3. See Wooley v. Amcare Health Plans of Louisiana, Inc., 2005-2025 (La. App. 1st Cir. 10/25/06), 944 So.2d 668, 674 n.4; see also Stelluto v. Stelluto, 2005-0074 (La. 6/29/05), 914 So.2d 34, 39 (noting that the decision to convert an appeal to an application for supervisory writs is within the discretion of the appellate courts). --------
APPEAL DISMISSED.