Opinion
2020 CA 0669 2020 CA 0672
03-29-2021
DR. STEVEN RUSHING v. SOUTHEASTERN LOUISIANA UNIVERSITY, ET AL.
Loretta G. Mince Michael R. Dodson New Orleans, Louisiana Attorneys for Plaintiff/Appellant Dr. Steven Rushing Winston G. DeCuir Linda Law Clark Brandon J. DeCuir Kristy M. Brumfield Baton Rouge, Louisiana Diana L. Tonagel Mark D. Boyer Denham Springs, Louisiana Attorneys for Defendants/Appellees Southeastern Louisiana University, Southeastern Louisiana University Faculty Senate, Southeastern Louisiana University Faculty Senate Executive Committee, Erin Watson Horzelski, John Yeargain, Jerry Parker, Elizabeth Sander, Ed Nelson, and Gerlinde Beckers
NOT DESIGNATED FOR PUBLICATION On Appeal from the Twenty-First Judicial District Court In and for the Parish of Tangipahoa State of Louisiana
Trial Court No. 2018-0003690 The Honorable Charlotte H. Foster, Judge Presiding Loretta G. Mince
Michael R. Dodson
New Orleans, Louisiana Attorneys for Plaintiff/Appellant
Dr. Steven Rushing Winston G. DeCuir
Linda Law Clark
Brandon J. DeCuir
Kristy M. Brumfield
Baton Rouge, Louisiana Diana L. Tonagel
Mark D. Boyer
Denham Springs, Louisiana Attorneys for Defendants/Appellees
Southeastern Louisiana University,
Southeastern Louisiana University
Faculty Senate, Southeastern
Louisiana University Faculty Senate
Executive Committee, Erin Watson
Horzelski, John Yeargain, Jerry
Parker, Elizabeth Sander, Ed Nelson,
and Gerlinde Beckers BEFORE: McDONALD, HOLDRIDGE, AND PENZATO, JJ. PENZATO, J.
Appellant, Dr. Steven Rushing, filed these appeals contesting the trial court's finding in favor of Defendants and dismissing his claims with prejudice. Dr. Rushing filed a motion to consolidate the appeals, which this court granted. For the following reasons, we dismiss the appeals.
For the reasons discussed in this opinion, the "Defendants" are not ascertainable from the judgment at issue herein.
FACTS AND PROCEDURAL HISTORY
On November 26, 2018, Dr. Rushing, a Southeastern Louisiana University (SLU) professor and member of the SLU Faculty Senate, filed a Petition to Enforce Louisiana Open Meetings Law and for Civil Penalties, Attorney's Fees and Costs. Named as defendants were SLU; Tara S. Dupre; SLU Faculty Senate Executive Committee Members, Erin Watson Horzelsk,; John Yeargain, Jerry Parker, Elizabeth Sanders, Ed Nelson, and Gerlinde Beckers; the SLU Faculty Senate and its members; "[u]nidentified faculty and staff whose complaints were forwarded to the [SLU] Human Resources Department;" and the SLU Workplace Violence Committee. Dr. Rushing sought declaratory judgments that the Louisiana Open Meetings Law pertained to defendants and to void actions taken at certain meetings, writs of mandamus, injunctive relief, civil penalties, costs, and attorney's fees. SLU, Tara Dupre, Erin Horzelski, John Yeargain, Jerry Parker, Elizabeth Sanders, Ed Nelson, and Gerlinde Beckers filed exceptions raising the objections of improper cumulation and/or joinder, vagueness or ambiguity, and nonconformity of the petition. After a hearing, the trial court sustained the exceptions, and, on July 1, 2019, signed a judgment dismissing all of Dr. Rushing's tort claims without prejudice. Prior to the trial court signing the July 1, 2019 judgment, Dr. Rushing filed an amended petition on June 27, 2019, naming as defendants SLU, the same individual defendants, the SLU Faculty Senate, and the SLU Faculty Senate Executive Committee. Dr. Rushing again sought writs of mandamus, declaratory judgments, injunctive relief, civil penalties, costs, and attorney's fees. On September 23, 2019, the trial court conducted a hearing solely on the threshold issue of whether the SLU Faculty Senate was a public body pursuant to La. R.S. 42:4.2(A), and thereby, its meetings were subject to the Louisiana Open Meetings Law. On September 24, 2019, the trial court signed a judgment finding that the SLU Faculty Senate was a public body, and thereby, its meetings were subject to Louisiana Open Meetings Law.
The Louisiana Open Meetings Law is contained in La. R.S. 42:11, et seq.
The trial court originally signed a judgment dismissing Dr. Rushing's claims "with prejudice" on June 21, 2019. However, after Dr. Rushing filed a motion for new trial, the trial court vacated this judgment and signed a third judgment dated October 14, 2019, indicating that the July 1, 2019 judgment was the operative judgment.
The amended petition did not name as defendants Tara Dupre, "[u]nidentified faculty and staff whose complaints were forwarded to [SLU] Human Resources Department" or the SLU Workplace Violence Committee.
On November 4, 2019, the trial court conducted the trial to determine if the SLU Faculty Senate and SLU Faculty Executive Committee violated the Louisiana Open Meetings Law. On November 26, 2019, the trial court issued written reasons, which first addressed the claims Dr. Rushing raised in his original petition. The trial court denied Dr. Rushing's request to void any action taken at any of the meetings at issue, declined to assess civil penalties, and denied his requests for a writ of mandamus, injunctive relief, attorney's fees, and costs. The trial court also addressed the amended petition, which alleged subsequent violations of the Louisiana Open Meetings Law at meeting dates between November 7, 2018, and April 24, 2019. The trial court found that the amended petition was not timely filed in accordance with La. R.S. 42:24, and that any claims arising from these meeting dates were perempted. The trial court reasoned that any claims arising from the meeting dates between November 7, 2018, and April 24, 2019, were dismissed.
The record reflects that the SLU Faculty Senate Executive Committee is referred to by the trial court as the SLU Faculty Senate Executive Council. We will refer to this defendant as the SLU Faculty Senate Executive Committee.
Dr. Rushing filed a motion for devolutive appeal from the trial court's written reasons, which the trial court granted on January 13, 2020. When the order of appeal was filed with this court, it was assigned docket number 2020 CA 0672. Subsequent to the entry of the order for appeal from the November 26, 2019 written reasons, Dr. Rushing submitted a judgment to the trial court, which the trial court signed on January 20, 2020, reflecting its ruling. The judgment was entered in favor of "Defendants" and against Dr. Rushing, dismissing all his claims with prejudice. Dr. Rushing also filed a motion for devolutive appeal from the January 20, 2020 judgment, which the trial court granted on February 3, 2020. The latter appeal was assigned docket number 2020 CA 0669 with this court. After Dr. Rushing filed both appeals, he filed a motion to consolidate, which this court granted on November 19, 2020.
LAW AND DISCUSSION
As an appellate court, we have the duty to examine our subject matter jurisdiction and to determine sua sponte whether such subject matter jurisdiction exists, even when the issue is not raised by the litigants. See Advanced Leveling & Concrete Solutions v. Lathan Company, Inc., 2017-1250 (La. App. 1st Cir. 12/20/18), 268 So. 3d 1044, 1046 (en banc). This court's appellate jurisdiction extends only to "final judgments." See La. C.C.P. art. 2083(A); Marrero v. I. Manheim Auctions, Inc., 2019-0365 (La. App. 1st Cir. 11/19/19), 291 So. 3d 236, 238. A valid judgment must be precise, definite, and certain. Laird v. St. Tammany Parish Safe Harbor, 2002-0045 (La. App. 1st Cir. 12/20/02), 836 So. 2d 364, 365. For a judgment to be a final judgment, it must contain appropriate decretal language. Matter of Succession of Weber, 2018-1337 (La. App. 1st Cir. 4/29/19), 276 So. 3d 1021, 1026. For the language to be considered decretal, 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. Id. at 1026-27. These determinations should be evident from the language of the judgment without reference to other documents in the record. Advanced Leveling, 268 So. 3d at 1046. In a case with multiple parties, the failure to name the plaintiff(s) or defendant(s) for or against whom the judgment is rendered makes the judgment fatally defective, since it cannot be discerned from the face of the judgment for or against whom the judgment may be enforced. See Marrero, 291 So. 3d at 239.
This court issued a rule to show cause on August 28, 2020, asking the parties to explain why the appeal from the written reasons should not be dismissed. See La. C.C.P. art. 1918; Wooley v. Lucksinger, 2009-0571 (La. 4/1/11), 61 So. 3d 507, 572 (appeals are taken from judgments, not the reasons for judgment). SLU, Tara Dupre, Erin Horzelski, John Yeargain, Jerry Parker, Elizabeth Sanders, Ed Nelson, and Gerlinde Beckers responded, asserting Dr. Rushing's appeal should indeed be dismissed. Dr. Rushing responded, asserting that the written reasons contain sufficient decretal language to constitute a final judgment. We disagree. The written reasons do not name the party in favor of whom the ruling is ordered or the party against whom the ruling is ordered. There are multiple defendants in the present case. The only defendants mentioned by name in the written reasons are the SLU Faculty Senate and the SLU Executive Committee. The trial court stated it was not assessing civil penalties against "the Defendants," but we cannot ascertain as to which defendants the trial court is referencing. While the written reasons contain the statement, "For these reasons, any claims regarding the meeting dates from November 7, 2018-April 24, 2019 are dismissed," the written reasons do not indicate that the lawsuit is dismissed in its entirety or that all of Dr. Rushing's claims are dismissed as to all defendants. Although the relief sought by Dr. Rushing is denied, the written reasons do not contain appropriate decretal language, ascertainable from the four corners of the document. See Succession of Simms, 2019-0936 (La. App. 1st Cir. 2/21/20), 297 So. 3d 110, 115. A judgment that does not contain appropriate decretal language cannot be considered as a final judgment for the purpose of an appeal, and this court lacks jurisdiction to review such a judgment. See Johnson v. Mount Pilgrim Baptist Church, 2005-0337 (La. App. 1st Cir. 3/24/06), 934 So.2d 66, 67. Dr. Rushing has failed to show that the written reasons are a valid final judgment.
We note that the trial court included in the written reasons the following statement, "A judgment conforming to this ruling will be signed upon submission."
Dr. Rushing contends that the defect of appealing prematurely from the written reasons was cured once the final judgment was signed on January 20, 2020. "[O]nce the final judgment has been signed, any previously existing defect has been cured, and there is no useful purpose in dismissing the otherwise valid appeal." Overmier v. Traylor, 475 So. 2d 1094, 1094-95 (La. 1985) (per curiam) (reinstating an appeal taken from the trial court's reasons for judgment, when a final judgment was thereafter signed); see Chauvin v. Chauvin, 2010-1055 (La. App. 1st Cir. 10/29/10), 49 So. 3d 565, 568 n.1 (finding that defect arising from premature motion for appeal, prior to final judgment being signed, is cured once the final judgment has been signed); City of Denham Springs v. Perkins, 2008-1937 (La. App. 1st Cir. 3/27/09), 10 So. 3d 311, 317 n.5, writ denied, 2009-0871 (La. 5/13/09), 8 So. 3d 568. For the principle of Overmier to apply, the January 20, 2020 judgment must be a valid final judgment. See Fowlkes v. Fowlkes, 2018-1563 (La. App. 1st Cir. 3/12/19), 2019 WL 1147216, at *2-4, writ denied, 2019-0556 (La. 5/28/19), 273 So. 3d 310 (although finding premature appeal cured by signed judgment, dismissing appeal because judgment was not final).
The January 20, 2020 judgment provides, in pertinent part:
IT IS HEREBY ORDERED, ADJUDGED AND DECREED that final judgment be and is hereby entered in favor of Defendants and against Petitioner on all of Petitioner's claims and that all of Petitioner's claims are hereby DISMISSED WITH PREJUDICE. This is a final judgment subject to review on appeal.As we stated earlier, in cases with multiple parties, the failure to name the plaintiff(s) or defendant(s) for or against whom the judgment is rendered makes the judgment fatally defective because one cannot discern from its face for or against whom it may be enforced. Marrero, 291 So. 2d at 239; Mizell v. Willis, 2019-0141 (La. App. 1st Cir. 11/15/19), 290 So. 3d 247, 250 (citing Jenkins v. Recovery Technology Investors, 2002-1788 (La. App. 1st Cir. 6/27/03), 858 So. 2d 598, 600). The January 20, 2020 judgment does not identify the defendants in whose favor the judgment is rendered. We recognize that in certain circumstances, even if the plaintiffs or defendants are not specifically named but are ascertainable from the face of the judgment, such as when the judgment lists the appearance of defendants at trial, courts have found a judgment to be sufficient to constitute a final judgment. Settoon v. Morales, 2019-0122 (La. App. 1st Cir. 9/27/19), 288 So. 3d 126, 131 n.2 (citing Welch v. Planning and Zoning Commission of East Baton Rouge Parish, 2018-0197 (La. App. 1st Cir. 5/9/19), 280 So. 3d 204, 210, writ denied, 2019-01276 (La. 10/21/19), 280 So. 3d 1169; Conley v. Plantation Management Company, L.L.C., 2012-1510 (La. App. 1st Cir. 5/6/13), 117 So. 3d 542, 547, writ denied, 2013-1300 (La. 9/20/13), 123 So. 3d 178). However, in the present case, reading the judgment as a whole, we are unable to discern the parties in whose favor the ruling is ordered. The ruling of the court only refers to "Defendants." The caption of the judgment lists defendants only as "SOUTHEASTERN LOUISIANA UNIVERSITY, ET AL." Thereafter, the judgment only lists the counsel of record as appearing "for Defendants" without specifically naming them. Thus, because the judgment lacks sufficient decretal language, ascertainable from the four corners of the judgment, the ruling on which this appeal is based is not a final appealable judgment.
Dr. Rushing has failed to show that the written reasons constitute a valid final judgment. While the premature motion for appeal from the written reasons for judgment can be cured upon the filing of a final judgment, the January 20, 2020 judgment does not contain sufficient decretal language to constitute a valid final judgment. Thus, we are constrained to find that this court lacks appellate jurisdiction to review these matters, and the appeals must be dismissed. See Advanced Leveling, 268 So. 3d at 1046-47.
We recognize this court has discretion to convert an appeal of a non-appealable judgment to an application for supervisory writs. See Stelluto v. Stelluto, 2005-0074 (La. 6/29/05), 914 So. 2d 34, 39. However, when the jurisdictional defect lies in the non-finality of a judgment, an appellate court will generally refrain from the exercise of its supervisory jurisdiction when an adequate remedy exists by appeal, particularly when an adequate remedy by appeal will exist upon the entry of the requisite precise, definite, and certain decretal language necessary for appellate review. Markiewicz v. Sun Construction, LLC, 2019-0869 (La. App. 1st Cir. 5/28/20), 304 So. 3d 877, 880 n.3. Accordingly, we decline to exercise our discretion to convert these appeals of written reasons and a judgment that are not final for lack of precise, definite, and certain decretal language to applications for supervisory writs.
ANSWERS TO APPEAL
SLU, Tara S. Dupre, Erin S. Watson Horzelski, John Yeargain, Jerry Parker, Elizabeth Sanders, Ed Nelson, and Gerlinde Beckers answered both appeals seeking to recover costs and attorney's fees on the grounds that the appeals are frivolous. Dr. Rushing filed pleadings entitled "Appellant's Answer to Appellees' Answer to Appeal" in both appeals seeking damages, including reasonable attorney's fees, for "defending against the harassing and frivolous Answer to Plaintiff's Petition for Appeal." As we dismiss the present appeals, we decline to address either of these answers.
The SLU defendants' answers to the appeals were filed in the trial court, rather than with this court, but that this court has recognized that this court may address such answers. Succession of Poole, 2015-1317 (La. App. 1st Cir. 10/28/16), 213 So. 3d 18, 25.
CONCLUSION
Having found that we lack jurisdiction, we dismiss these consolidated appeals of the November 26, 2019 written reasons for judgment and the January 20, 2020 judgment. These matters are remanded to the trial court for further proceedings consistent with this opinion. All costs of these appeals are assessed against Dr. Steven Rushing.
APPEALS DISMISSED; REMANDED.
DR. STEVEN RUSHING
VERSUS
SOUTHEASTERN LOUISIANA UNIVERSITY
HOLDRIDGE, J., concurs and assigns reasons.
I respectfully concur. The judgment in this cases provides, in pertinent part;
IT IS HEREBY ORDERED, ADJUDGED AND DECREED that final judgment be and is hereby entered in favor of Defendants and against Petitioner on all of Petitioner's claims and that all of Petitioner's claims are hereby DISMISSED WITH PREJUDICE. This is a final judgment subject to review on appeal.
Louisiana Code of Civil Procedure article 1841 states that "[a] judgment that determines the merits in whole or in part is a final judgment." The above-referred to judgment, without question, determines the merits of the petitioner's claims in that the court ruled that "all of Petitioner's claims are hereby DISMISSED WITH PREJUDICE." While the judgment is a final judgment as to all of the petitioner's claims, the name of all defendants are not included in this judgment. However, this fact should not deprive this Court of jurisdiction to determine the merits of the final judgment rendered in this case. At the very least, this judgment should be considered a partial judgment under La. C.C.P. art. 1915(B) and would be appealable since the court designated it as a "final judgment subject to review on appeal." However, I am restrained to concur due to the First Circuit cases which have held that in similar cases this Court lacks jurisdiction to hear such appeals. See Marrero v. I. Manheim Auctions, Inc., 2019-0365 (La. App. 1 Cir. 11/19/19), 291 So.3d 236, 240; Hernandez v. Excel Contractors, Inc., 2018-1091 (La. App. 1 Cir. 3/13/19), 275 So.3d 278, 287; Advanced Leveling & Concrete Sols. v. Lathan Co., Inc., 2017-1250 (La. App. 1 Cir. 12/20/18), 268 So.3d 1044, 1046.