Opinion
No. 2008 CW0526.
December 4, 2008.
ON APPEAL FROM THE TWENTY-SECOND JUDICIAL DISTRICT COURT DOCKET NUMBER 2003-13634, DIVISION "C" PARISH OF ST. TAMMANY, STATE OF LOUISIANA THE HONORABLE PATRICIA T. HEDGES, JUDGE.
James E. Moorman, III, Kasi Brannan, Covington, Louisiana, Attorney for Plaintiff/ Appellant Peter Adam Duris.
Scott P. Gaspard, Jeremy N. Morrow, Tara M. Jacob-Cain, Baton Rouge, Louisiana, Attorneys for Defendant/ Appellee Inge Jepsen Duris.
BEFORE: PETTIGREW, McDONALD, AND HUGHES, JJ.
This is an appeal from a judgment that adopted the Special Master report regarding the community property belonging to Peter Adam Duris and Inge Jepsen Duris. The Durises were married on September 26, 1998, in Mandeville, Louisiana. A judgment of divorce was signed on December 8, 2004.
On November 20, 2003, the trial court signed a consent judgment entered into by the parties appointing Gregg Verges, CPA, as the trial court's Special Master to evaluate and summarize all financial issues in the case, including community property and spousal support. Both parties were ordered to cooperate fully with Mr. Verges and provide him with all documentation which he requested.
On September 7, 2007, the trial court ruled that the final report of Mr. Verges was adopted by the trial court. Mr. Duris appealed that judgment, asserting that the trial court committed manifest error by adopting an incomplete special master's report without conducting a contradictory hearing. Ms. Duris filed a motion to dismiss the appeal and a request for sanctions, asserting that Mr. Duris failed to object to the proceeding, and thus, his appeal should be dismissed pursuant to La.C.C.P. arts. 1635 and 2162. She asserts that Mr. Duris filed a frivolous appeal for the sole purpose of delaying the execution of the judgment.
THE MOTION TO DISMISS THE APPEAL
The motion to dismiss the appeal is denied. Appeals are favored, and penalties for frivolous appeal will not be imposed unless they are clearly due. We cannot say that Mr. Duris was not serious in the position he advocates, or that the appeal was taken solely for the purpose of delay. Thus, we decline to award damages for frivolous appeal.
THE MERITS OF THE CASE
The judgment lacks decretal language disposing of or dismissing the suit. See La.C.C.P. arts. 1911 and 1918. It is an interlocutory ruling by the court and is not subject to the provisions of La.C.C.P. art. 1915. The decision to convert an appeal to an application for supervisory writs is within the discretion of the appellate courts. Stelluto v. Stelluto, 05-0074, p. 7 (La. 6/29/05), 914 So.2d 34, 39. In the interest of judicial efficiency, we exercise our supervisory jurisdiction and grant a writ of certiorari to review this case.
After a thorough review of the record, we find no abuse of discretion or manifest error by the trial court in denying the objection of Mr. Duris to the final report and adopting the final report of Mr. Verges. However, we note that the actual division of the community property is not before us. Louisiana courts require that a valid final judgment be precise, definite and certain. Laird v. St. Tammany Parish Safe Harbor, 2002-0045, p. 3 (La.App. 1 Cir. 12/20/02), 836 So.2d 364, 365.) The specific nature and amount of an award should be determinable from a judgment without reference to an extrinsic source. Vanderbrook v. Coachmen Industries, Inc., 2001-0809, pp. 11-12 (La.App. 1 Cir. 5/10/02), 818 So.2d 906, 913. Additionally, a valid final judgment must also identify the party in whose favor the ruling was made and the party against whom the ruling was made. Laird v. St. Tammany Parish Safe Harbor, 2002-0045 at p. 3, 836 So.2d at 366. Furthermore, all final judgments which affect title to immovable property shall describe the immovable property affected with particularity. La.C.C.P. art. 1919.
Thus, for the foregoing reasons, the application for supervisory writs is granted and the trial court judgment denying the objection of Mr. Duris to the final report and adopting the final report of Mr. Verges is affirmed. Costs are assessed against Mr. Duris. This summary opinion is rendered in accordance with the Uniform Rules — Courts of Appeal, Rule 2-16.2.A(7), and (8).
APPEAL CONVERTED TO WRIT; JUDGMENT AFFIRMED.
I respectfully concur. There is not yet a final appealable judgment in this case.