Opinion
No. 2021 CA 1210.
09-16-2022
FIRST NBC BANK v. RIVER PARK DEVELOPMENT, LLC and John M. Clements.
THERIOT, J.
This appeal involves a summary judgment in favor of the plaintiff in a suit on promissory notes. For the reasons set forth herein, we vacate the judgments of the trial court on the motion for new trial and remand with instructions.
FACTS AND PROCEDURAL HISTORY
In 2016, First NBC Bank ("FNBC") filed a foreclosure action against River Park Development, LLC and John M. Clements (collectively, "River Park") on two promissory notes secured by a multiple indebtedness mortgage on immovable property in East Baton Rouge Parish. Luhr Bros., Inc. held a collateral mortgage on the same immovable property, but Luhr Bros. executed an Act of Subordination in 2008, in which it agreed that its mortgage "shall be subordinate and inferior in all respects to any mortgage (including a multiple indebtedness mortgage in favor of [FNBC]), in an amount not to exceed $11,000,000, plus interest and attorney fees...."
Girod LoanCo, LLC ("Girod") was later substituted as party plaintiff in FNBC's foreclosure action, based on evidence indicating it had acquired and was the current holder of the FNBC notes and mortgage. After River Park filed an answer, Girod filed a motion for summary judgment seeking a money judgment against River Park and recognition of its mortgage. The trial court signed a judgment granting Girod's motion for summary judgment on September 26, 2019. River Park filed a motion for new trial, which was denied, and thereafter appealed. Girod's appeal was dismissed by this court due to deficiencies in the judgment's decretal language. See First NBC Bank v. River Park Development, et al., 20-0808 (La.App. 1 Cir. 11/9/20) (unpublished action). The trial court later signed an amended judgment on December 17, 2020 in favor of Girod, correcting the decretal language. River Park filed a motion requesting written reasons for judgment in accordance with La. C.C.P. art. 1917, as well as a motion for new trial. After a hearing on the motion for new trial was held on March 29, 2021, the trial court requested that the parties submit proposed findings of fact, conclusions of law, and judgments. On May 14, 2021, the trial court signed a "Ruling" stating that the petition for intervention and the second motion for new trial are denied, that it adopts the findings of fact and conclusions of law submitted by Girod, and that it "will sign the judgment accordingly." Thereafter, on May 17, 2021, the trial court signed both proposed judgments submitted by the parties; i.e., the judgment denying the motion for new trial and the judgment granting the motion for new trial and vacating the summary judgment. Although both parties also submitted proposed findings of fact and conclusions of law to the trial court, both were filed in the record unsigned by the trial court.
Although Girod submitted proposed written reasons for judgment to the trial court, the record does not contain a signed copy of those or any other written reasons for judgment.
The judgment granting the motion for new trial and vacating the summary judgment is stamped with an "X" and "FILE AS IS," but is signed by the trial court and filed in the record without any indication of the meaning of the stamps, and there is no stamp covering the trial court's signature.
River Park appealed the granting of the motion for summary judgment and the denial of its motion for new trial. After River Park's appeal was lodged, Luhr Bros, filed an exception of nonjoinder of a party under La. C.C.P. art. 641 with this court on January 11, 2022, which was referred to the merits of the instant appeal.
On December 1, 2020, the trial court signed an order substituting Cosima Clements as party defendant for John M. Clements.
After the trial court signed the September 26, 2019 judgment in Girod's favor, but before it signed the December 17, 2020 amended judgment in Girod's favor, Luhr Bros. filed a petition to intervene in Girod's foreclosure action. The trial court denied the petition for intervention in a judgment signed on May 19, 2021. Luhr Bros. appealed the May 19, 2021 denial of its intervention, and a separate panel of this Court affirmed the judgment, noting that the intervention, which was filed after summary judgment on the main demand, would retard the progress of the principal action. See First NBC Bank v. River Park Development, L.L.C., 21-1209 (La. App. 1 Cir. 4/8/22), 341 So.3d 827.
DISCUSSION
Where a trial court signs a second judgment that makes substantive changes to its first judgment without following the proper procedure for doing so, the second judgment is absolutely null and without effect. See Matter of Succession of Buhler, 17-0049, pp. 5-6 (La.App. 1 Cir. 2/22/18), 243 So.3d 39, 44-45, writ not considered, 18-0478 (La. 5/11/18), 241 So.3d 1013. Because the two conflicting judgments signed by the trial court in this matter were signed on the same date, it is unclear which judgment is the second (absolutely null) judgment. As such, we vacate both judgments and remand this matter to the trial court for the rendition of a valid final judgment on River Park's motion for new trial.
The only allowable procedures for making a substantive change to a judgment are a contradictory motion for new trial filed by the parties or by the court on its own motion pursuant to La. C.C.P. art. 1971; amendment by consent of the parties; or a timely appeal. Matter of Succession of Buhler, 17-0049, p. 5 (La.App. 1 Cir. 2/22/18), 243 So.3d 39, 44, writ not considered, 18-0478 (La. 5/11/18), 241 So.3d 1013.
Regarding the trial court's failure to comply with River Park's request for written reasons for its summary judgment in accordance with La. C.C.P. art. 1917, the proper remedy for the aggrieved party in the event of such a failure is to apply for supervisory writs or move for a remand for the purpose of requiring or affording the trial court an opportunity to comply with the request. Yuma Petroleum Co. v. Thompson, 96-1840, p. 7 (La.App. 1 Cir. 2/20/98), 709 So.2d 824, 827, affirmed in part and reversed in part on other grounds, 98-1399 (La. 3/2/99), 731 So.2d 190. In this case, neither remedy was employed; however, since we are remanding this matter so that the trial court can issue a judgment on the motion for new trial, we also instruct the trial court to comply with River Park's request for written reasons for judgment.
Finally, in regards to Luhr Bros.'s peremptory exception of nonjoinder of a party, La. C.C.P. art. 641 provides that a person shall be joined as a party in the action when he claims an interest relating to the subject matter of the action and is so situated that the adjudication of the action in his absence may, as a practical matter, impair or impede his ability to protect that interest or may leave any of the persons already parties subject to a substantial risk of incurring multiple or inconsistent obligations. An adjudication made without making a person described in La. C.C.P. art. 641 a party to the litigation is an absolute nullity. Terrebonne Parish School Board v. Bass Enterprises Production Co., 02-2119, p. 5 (La.App. 1 Cir. 8/8/03), 852 So.2d 541, 544, writ denied, 03-2786 (La. 1/9/04), 862 So.2d 984, and writ denied, 03-2873 (La. 1/9/04), 862 So.2d 985. An appellate court may consider a peremptory exception filed for the first time in that court, if pleaded prior to submission of the case for decision, and if proof of the ground of the exception appears of record. La. C.C.P. art. 2163. However, consideration of such an exception is discretionary with the appellate court. June Medical Services, LLC v. Louisiana Department of Health, 19-0191, p. 4 (La.App. 1 Cir. 3/4/20), 302 So.3d 1161, 1164, n.5. Where an appellate court exercises its discretion to consider the exception and nonjoinder of a necessary party is recognized by the appellate court, the appropriate remedy is to set aside the judgment at issue, remand the matter for joinder of the absent party, and retrial. Lagraize v. Basler, 20-39, p. 14 (La.App. 5 Cir. 9/9/20), 304 So.3d 102, 112, writ denied, 20-01257 (La. 12/22/20), 307 So.3d 1038. Given our disposition of this case, i.e., the fact that the matter must be remanded to the trial court for further proceedings without reaching the merits, we decline to consider the exception. See Southern States Masonry, Inc. v. J.A. Jones Construction Co., 507 So.2d 198, 207 (La. 1987).
DECREE
For the reasons set forth herein, the May 17, 2021 judgments signed by the court on the motion for new trial are vacated, and this matter is remanded to the trial court for further proceedings as set forth herein. Each party to bear its own costs.
JUDGMENTS VACATED; REMANDED WITH INSTRUCTIONS.
Welch, J. concurs.
McClendon, J. concurs.