Opinion
NO. 2011-CA-0232
09-28-2011
RUSSELL KELLY D/B/A AFFORDABLE HOUSING CONTRACTORS, LLC v. THOMAS H. O'NEIL D/B/A 3RD STREET PROPERTIES, LLC
RUSSELL KELLY D/B/A AFFORDABLE HOUSING CONTRACTORS, LLC AND AFFORDABLE TRUCKING CONTRACTORS, LLC In Proper Person, Appellee ERIC OLIVER PERSON
THOMAS H. O'NEIL, BIENVILLE
38, LLC AND 3RD STREET
PROPERTIES, LLC
VERSUS
CAROL CARTER RECORDER OF
MORTGAGES FOR THE PARISH
OF ORLEANS, AND
AFFORDABLE HOUSING
CONTRACTORS, LLC
NO. 2011-CA-0233
3RD STREET PROPERTIES, LLC
AND BIENVILLE 38, LLC
VERSUS
AFFORDABLE HOUSING
CONTRACTORS, LLC,
AFFORDABLE TRUCKING
CONTRACTORS, LLC AND
RUSSELL KELLY
NO. 2011-CA-0234
THOMAS O'NEIL AND 3RD
STREET PROPERTIES, L.L.C.
VERSUS
THE HONORABLE CAROL
CARTER, ORLEANS PARISH
RECORDER OF MORTGAGES;
RUSSELL KELLY; RUSSELL
NO. 2011-CA-0235
KELLY D/B/A AFFORDABLE
HOUSING CONTRACTORS
L.L.C.; AFFORDABLE HOUSING
CONTRACTORS L.L.C.
APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NOS. 2007-15890 C/W 2008-5436 C/W 2008-11439 C/W 2008-11994,
DIVISION "I-14"
HONORABLE PIPER D. GRIFFIN, JUDGE
JAMES F. MCKAY III
JUDGE
(Court composed of Judge James F. McKay III, Judge Max N. Tobias, Jr., Judge Daniel L. Dysart)
TOBIAS, J., CONCURS IN PART IN THE RESULT, DISSENTS IN PART,
AND ASSIGNS REASONS.
RUSSELL KELLY
D/B/A AFFORDABLE HOUSING CONTRACTORS, LLC AND AFFORDABLE
TRUCKING CONTRACTORS, LLC
In Proper Person, Appellee
ERIC OLIVER PERSON
AFFIRMED
These four consolidated cases involve a contract for an amount due on a promissory note and three writs of mandamus concerning lis pendens. The defendant, Thomas H. O'Neil d/b/a 3rd Street Properties, LLC and Bienville 38, LLC, appeals the trial court's awarding of $75,000.00 plus interest to the plaintiff, Russell Kelly d/b/a Affordable Housing Contractors, LLC and Affordable Trucking Contractors, LLC. He also appeals the trial court's denial of his motion for summary judgment. We affirm.
Some of the proceedings took place in Judge Piper Griffin's court; others took place in Judge Madeleine Landrieu's court.
FACTS AND PROCEDURAL HISTORY
Russell Kelly d/b/a Affordable Housing Contractors owned multiple properties in the Mid-City section of New Orleans. The properties were sold to Thomas O'Neil d/b/a 3rd Street Properties and Bienville 38. Homes were to be built on the sites. Six hundred thousand dollars ($600,000.00) was paid at the time of sale and Thomas O'Neil executed a promissory note in the amount of $75,000.00 due in two years or when the last home was built. Although the last home was completed, Affordable Housing and Mr. Kelly were never paid the remaining $75,000.00.
Mr. Kelly filed a petition in suit on the promissory note. After a trial on the merits, the trial court awarded $75,000.00 plus interest in favor of Mr. Kelly.
DISCUSSION
On appeal, the defendant raises the following assignments of error: 1) it is respectfully submitted that the court's judgment appealed from herein is manifestly erroneous and contrary to law in that despite the pleadings in Civil District Court for the Parish of Orleans Case No. 07-15890 clearly reflecting that the proper plaintiff was Affordable Housing Contractors, LLC, now Affordable Trucking, LLC and the proper defendant was 3rd Street Properties, LLC the judgment complained of was issued in favor of Russell Kelly d/b/a Affordable Housing Contractors, LLC and against no defendant. Kelly could not, as plaintiff in proper person, represent plaintiff, Affordable Housing Contractors, LLC in the proceedings at trial; 2) the judgment from which this appeal issues names no defendant. It is clearly necessary to name the defendant against whom the judgment has been rendered. It is reversible error to issue a judgment wherein there is no indication as to against whom the judgment has been rendered; and 3) the court erred in rejecting defendants/appellants' summary judgment out of hand in that the testimony and exhibits presented by movers were not controverted by the defendant in rule. The court committed reversible error in its declining to sustain the summary judgment motion without contravention.
In their first assignment of error, the defendants contend that the trial court erred because judgment in this case was entered in favor of Russell Kelly d/b/a Affordable Housing Contractors, LLC. The crux of defendants' argument is that Mr. Kelly, a non-attorney, represented another party in violation of Louisiana law. The defendants are correct that a non-attorney representing himself may not represent another party. See La. R.S. 37:212; see also Bankston v. Tasch, LLC, 2009-1573 (La.App. 4 Cir. 6/2/10), 40 So.3d 495. However, that is not what we have in the instant case. Although the captions of some of the pleadings and the judgment name plaintiffs in addition to Mr. Kelly, this may be attributed to Mr. Kelly's lack of formal legal training. In any event, it appears harmless in that it would have had no practical effect on the outcome of the case. The transcript from the trial clearly demonstrates that, after Judge Griffin informed Mr. Kelly that he could only represent himself, he affirmed that he was only representing himself. Based on the record before this Court, we find no error on the part of the trial court in regard to defendants' first assignment of error.
In their second assignment of error, the defendants contend that the judgment failed to name the defendant against whom the judgment was rendered. The defendants contend that this is reversible error. We must keep in mind that Mr. Kelly was representing himself and certain allowances must be made. The caption of the judgment clearly indicates that the defendant is Thomas H. O'Neil d/b/a 3rd Street Properties, LLC. An examination of the transcript also shows Judge Griffin's directions involving the judgment. The transcript states: "Mr. Russell, you have to prepare a judgment. Mr. Person needs to look at that judgment to verify that he is okay with the way this it is worded. If there are questions, Mr. Persons, just let us know and if ya'll can't agree on a judgment we will prepare one." Mr. Kelly did as the trial court instructed him to do and the trial court entered the judgment. There is no indication in the record that the defendant or his attorney objected to the judgment. In order to preserve an argument for appeal, a party must specifically object and state the reasons for the objection. Seal v. State Farm Fire & Cas. Ins. Co., 2001-2375, p. 3 (La.App. 4 Cir. 3/20/02), 816 So.2d 868, 871; In Re Asbestos v. Bordelon, Inc., 96-0525, p. 12 (La.App. 4 Cir. 10/21/98), 726 So.2d 926, 940. Accordingly, the defendant's second assignment of error is waived.
In their final assignment of error, the defendants contend that the trial court erred in rejecting their motion for summary judgment out of hand. Appellate courts review summary judgments de novo under the same criteria that govern the district court's consideration of whether summary judgment is appropriate. Independent Fire Insurance Co. v. Sunbeam Corp., 99-2181, 99-2257, p. 7 (La. 2/29/00), 755 So.2d 226, 230; Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342, 345 (La. 1991). Summary judgments shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any, scrutinized equally, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966 (B). See also Grant v. American Sugar Refining, Inc., 2006-1180 (La.App. 4 Cir. 1/31/07), 952 So.2d 746. The defendants' argument on summary judgment is that the lis pendens filed by Mr. Kelly caused them to have to take a reduced price for some of the properties when they were ultimately sold. The defendants contend that they presented non-refuted documentation that supported their position. However, the issue of whether or not the activity of Mr. Kelly caused any diminution of value of the properties appears to be highly speculative and clearly an issue of disputed fact. Therefore, summary judgment would not be appropriate. Accordingly, we find no error in the trial court's denying summary judgment.
CONCLUSION
Although the circumstances of this case are quite convoluted, the trial court determined that a promissory note existed and that according to the terms of this note Mr. O'Neil owed $75,000.00 plus interest to Mr. Kelly. Accordingly, for the foregoing reasons, we affirm the judgment of the trial court.