Opinion
NO. 20-CA-362
12-11-2020
BARNETT & ASSOCIATES, LLC., Linda J. Nelson Wife of/and James S. Barnett v. Bates H. WHITESIDE, Individually, Bates H. Whiteside, LLC., Whiteside Simms, LLC., and ABC Insurance Company
COUNSEL FOR DEFENDANT/APPELLANT, BATES H. WHITESIDE, INDIVIDUALLY, BATES H. WHITESIDE, LLC, WHITESIDE SIMMS, LLC Madro Bandaries
COUNSEL FOR DEFENDANT/APPELLANT, BATES H. WHITESIDE, INDIVIDUALLY, BATES H. WHITESIDE, LLC, WHITESIDE SIMMS, LLC Madro Bandaries
Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Stephen J. Windhorst
WINDHORST, J. Appellants/defendants, Bates Whiteside, individually, Bates H. Whiteside, LLC, and Whiteside Simms LLC, appeal the trial court's June 18, 2020 judgment denying their exceptions of prescription and peremption. For the following reasons, we dismiss appellants’ devolutive appeal without prejudice because the judgment sought to be appealed is not a final judgment, and remand the case for further proceedings in the trial court.
PROCEDURAL HISTORY
On July 2, 2020, appellants filed a "Notice of Intent to File for Devolutive Appeal or in the Alternative Request for Supervisory Writ" seeking review of the trial court's judgment signed June 18, 2020 denying their exceptions of prescription and peremption. In the notice, appellants contend that the judgment "appears to be a final judgment" because the exceptions were "peremptory" and "thus immediately appealable." Alternatively, appellants requested an order to "apply for Supervisory Writs, with the Court allowing [appellants] time to have the record transcribed." On July 6, 2020, the trial court signed an order granting appellants’ devolutive appeal from the June 18, 2020 judgment, but also permitting appellants "... to take writs [sic ] to the Fifth Circuit Court of Appeal pending transcription of the record and twenty (20) days after [appellants] have a copy of the record."
On July 15, 2020, appellants hand delivered a letter to the Clerk of Court clarifying that they "gave the Judge the option of allowing a devolutive appeal or a writ as [they] felt there might be some disagreement as to whether the Judgment appealed was a final judgment, and thus not subject to appeal." The letter further asserted that this Court "has the authority to manage this if it has a different opinion, but regardless, [they] seek a devolutive appeal ." (Emphasis in original letter.) On October 16, 2020, the record in this case was lodged in this Court.
Had this appeal been filed as an application for a writ of supervisory review, the return date would have been not later than July 20, 2020. Prior to the record of this case being lodged on October 16, 2020, nothing was filed for us to review, or upon which we could have exercised our supervisory jurisdiction.
DISCUSSION
A trial court judgment which overrules an exception or denies a motion is inherently not an appealable final judgment, but is an interlocutory judgment which is subject only to discretionary review by the courts of appeal through their supervisory jurisdiction. The denial of an exception does not change the posture of the case; it does not adjudicate or determine the merits of a claim or claims in whole or in part, nor does it dismiss any party. A judgment overruling or denying an exception is unmistakably interlocutory, and is subject to review only by the appellate court's supervisory jurisdiction.
When, after giving time to amend where applicable, a trial court judgment sustains or grants a peremptory exception, or when the peremptory exception is granted in part and is certified as final pursuant to La. C.C.P. Art. 1915 B, that judgment is appealable. In this case, the exceptions were denied, with sound reasons given on the record.
An 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. A final judgment is appealable in all cases in which appeals are given by law, while an interlocutory judgment is appealable only when expressly provided by law. La. C.C.P. Art. 2083 ; Bank of New York v. Holden, 15-466 (La. App. 5 Cir. 12/23/15), 182 So.3d 1206, 1208 ; Holthausen v. DMartino, L.L.C., 11-561 (La. App. 5 Cir. 01/4/12), 86 So.3d 639, 642. An interlocutory judgment does not determine the merits, but only preliminary matters in the course of the action, while a final judgment determine the merits in whole or in part. La. C.C.P. Art. 1841 ; Bank of New York, 182 So.3d at 1208.
Appeals are of right, and may be taken only when appellate jurisdiction exists. Appeals involve certain procedures, schedules, mandates and prohibitions specified by law, and by the uniform and local rules. Opinions on appeal are the published jurisprudence which establish binding or persuasive precedents on the proper application of law. Moreover, appeals divest the trial court of jurisdiction over all matters reviewable on appeal. La. C.C.P. Art. 2088.
In contrast, supervisory jurisdiction, exercised upon the filing of applications for writs and rarely otherwise, is discretionary with the courts of appeal. Supervisory review generally does not provide precedents (other than "law of the case"), and is ordinarily more efficient and expeditious than appeals. Moreover, a court of appeal's exercise of its supervisory jurisdiction does not divest the trial court of jurisdiction, or prevent the case from proceeding in the trial court, unless stayed.
The exercise of appellate jurisdiction and supervisory jurisdiction by a court of appeal are mutually exclusive. See La. C.C.P. Art. 2083 C and 2005 Comments. The procedures for appeals and writ applications are distinctively different, as are time limits, schedules, and the means of setting each. The procedures of appellate jurisdiction and supervisory jurisdiction are generally incompatible. Accordingly, the notice of intent filed by a party seeking review by a court of appeal may not be pled in the alternative.
Appellants filed a notice of intent and requested an order signed by the trial court permitting appellants "... to take writs to the Fifth Circuit Court of Appeal pending transcription of the record and twenty (20) days after [appellants] have a copy of the record." To the extent that this language purports to provide a writ application return date, it is not a specific date and does not comply with Uniform Rules for Louisiana Courts of Appeal, Rule 4–3.
This Court will not "convert" appeals to writ applications. In this case, we further conclude that the factors enumerated in Herlitz Const. Co., Inc. v. Hotel Investors of New Iberia, Inc., 81-C-0231, 396 So.2d 878 (La. 1981) do not require consideration of issuance of a supervisory writ. We do not find that the trial court's ruling on the exceptions of prescription and peremption to be arguably incorrect. Nor do we find that there are no disputed facts to be resolved. Further, there is no reason to conclude that irreparable injury may occur if we do not dispose of these assignments of error by supervisory review. Accordingly, we do not conclude that judicial efficiency and fundamental fairness require that we invoke our supervisory jurisdiction to avoid needless continued litigation and a possibly useless future trial on the merits and related time and expense.
On May 23, 2014, this Court at an en banc meeting adopted a policy to discontinue converting jurisdictionally defective appeals into writ applications, as it had previously.
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Additionally, appellants filed nothing in this Court for us to review and upon which we could have exercised our supervisory jurisdiction prior to lodging of the record of the case on October 16, 2020, which was long after the 30-day return date limit mandated by Uniform Rules for Louisiana Courts of Appeal, Rule 4–3.
The denial of an exception of prescription, as in the case before us, is an interlocutory judgment not subject to appeal. In re Succession of Linder, 05-640 (La. App. 5 Cir. 02/14/06), 924 So.2d 293 ; Whitney National Bank v. Landrieu, 18-357 (La. App 4 Cir. 06/27/18), 250 So.3d 322. Appellate jurisdiction, like any other jurisdiction, cannot be bestowed or created by a party or by agreement of the parties. Thus, this is not an appealable judgment.
A judgment which denies a peremptory exception is unmistakably not a final judgment in any respect, and is not appealable. Appeals filed in cases in which a reasonable analysis would have shown that there is no appellate jurisdiction needlessly impede the progress of the case in the trial court, and will not be encouraged. For this and the reasons stated above, we decline to invoke our supervisory jurisdiction.
Accordingly, we dismiss appellants’ devolutive appeal without prejudice because the judgment sought to be appealed is not a final judgment.
DECREE
For the reasons stated herein, appellees’ motion to dismiss this appeal is granted, and appellants’ devolutive appeal is dismissed without prejudice. This case is remanded for further proceedings in the trial court.