Opinion
NO. 2011-CA-0232 NO. 2011-CA-0233 NO. 2011-CA-0234 NO. 2011-CA-0235
09-29-2011
RUSSELL KELLY D/B/A AFFORDABLE HOUSING CONTRACTORS, LLC v. THOMAS H. O'NEIL D/B/A 3RD STREET PROPERTIES, LLC
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
3RD STREET PROPERTIES, LLC
AND BIENVILLE 38, LLC
VERSUS
AFFORDABLE HOUSING
CONTRACTORS, LLC,
AFFORDABLE TRUCKING
CONTRACTORS, LLC AND
RUSSELL KELLY
THOMAS O'NEIL AND 3RD
STREET PROPERTIES, L.L.C.
VERSUS
THE HONORABLE CAROL
CARTER, ORLEANS PARISH
RECORDER OF MORTGAGES;
RUSSELL KELLY; RUSSELL
KELLY D/B/A AFFORDABLE
HOUSING CONTRACTORS
L.L.C.; AFFORDABLE HOUSING
CONTRACTORS L.L.C.
TOBIAS , J., CONCURS IN PART IN THE RESULT, DISSENTS IN PART, AND ASSIGNS REASONS.
I respectfully concur in the majority's decision effectively determining that the trial court decision was neither manifestly erroneous nor clearly wrong. My view of the facts is that the defendant agreed to pay the plaintiff a total of $675,000.00, $75,000.00 of which was deferred, to be paid at a time certain or the occurrence of an event, by implication whichever of those event occurred first. Further, the record supports the proposition that all parties had elected to disregard the limited liability entities for purposes of this litigation. Such disregard of the limited liability entities is, however, not favored.
Further, that Mr. Kelly tried the case before the trial court representing an entity was not proper. La. R.S. 37:212. However, the trial court permitted Mr. Kelly to do so and the defendants did not previously bring the matter to this court on an application for supervisory review. Insofar as the appeal before us presently, the issue has been waived, subject only to the penalty in La. R.S. 37:213 if timely brought to the correct forum by the proper person.
I find no error in the denial of the motion for summary judgment based upon my de novo review of the record.
I respectfully dissent from the majority's failure to recast the judgment to reflect the intent of the trial court.
In pertinent part, the trial court's 15 October 2010 judgment states:
IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of the plaintiff, Russell Kelly, d/b/a Affordable Housing Contractors, LLC, in the amount of Seventy-five Thousand and NO/100th ($75,000.00) Dollars, together with legal interest from December 17, 2007 (whichI would recast the judgment to reflect the intent of the trial judge to read as follows:
currently totals $12,996.58 as of the date of judgment of October 12, 2010), and continuing until paid plus court costs in the amount of $452.50.
IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of the plaintiff, Russell Kelly, d/b/a Affordable Housing Contractors, LLC, and against the defendant, Thomas H. O'Neil d/b/a 3rd Street Properties, LLC, in the amount of Seventy-five Thousand and NO/100 ($75,000.00) Dollars, together with legal interest thereon, from December 17, 2007, until paid, plus court costs in the amount of $452.50.A final appealable judgment must contain language that decrees a specific result. It must name the party in favor of whom the ruling is ordered, the party against whom the ruling is ordered, and the relief that is granted or denied. Such a recasting of the judgment is mandated by La. C.C.P. art. 2164 and the jurisprudence, such as J.R.A. Inc. v. Essex Ins. Co., 10-0797 (La. App. 4 Cir. 5/27/11), _So.3d _, 2011 WL 2137335; Input/Output Marine Systems, Inc. v. Wilson Greatbatch Technologies, Inc., 10-477 (La. App. 5 Cir. 10/29/10), 52 So.3d 909; Johnson v. Mt. Pilgrim Baptist Church, 05-0337 (La. App. 1 Cir. 3/24/06), 934 So.2d. 66; Vanderbrook v. Coachmen Indus., Inc., 01-0809 (La. App. 1 Cir. 5/10/02), 818 So.2d 906; Carter v. Williamson Eye Center, 01-2016 (La. App. 1 Cir. 11/27/02), 837 So.2d 43.
The judgment is rendered against no person.