Family Worship Center Church, Inc. VS Health Science Park, L.L.C., Gary N. Solomon, Stephen H. Jones and Terry D. Jones
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NOT DESIGNATED FOR PUBILCATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2008CA2521 F AMIL Y WORSHIP CENTER CHURCH INC VERSUS HEALTH SCIENCE PARK LLC GARY N SOLOMON STEPHEN N JONES AND TERRY D JONES Judgment Ity Rendered June 12 2009 Appealed from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Suit Number 553 985 Honorable Janice Clark Presiding Stewart E Niles Jr Counsel for Plaintiff Appellant Bryan J Knight Family Worship Center Church Inc New Orleans LA Claude F Reynaud Scott Hensgens Jr Counsel for Defendants Health Science Jeanne C Comeaux Solomon Baton Park Appellees LLC Jones I Rouge LA I r Concu BEFORE es LV iTI1 Stephen H Jones Reds os KUHN GUIDRY AND GAIDRY n Gary and Terry N D GUIDRY J Family Worship Center Church trial court ordering collectively transferring District Court judgment and Gary HSP the FWCC that the judgment rendered L L C Science Park Inc N Solomon 14 February Stephen H a of the sustaining Health 2008 and Jones judgment Terry D Jones declinatory exception raising the objection of lis pendens and matter to suit number 537 353 in Section 23 of the Nineteenth Judicial be annulled and declared be entered sustaining FWCC dismissing appeals from s HSP s reasons and that nullity exception raising For the petition absolute an the objection that follow a substitute of lis we reverse pendens and remand FACTS AND PROCEDURAL HISTORY On November 5 2004 FWCC and HSP entered into purchase and lease of certain real Boulevard in Baton In Rouge Louisiana FWCC for FWCC against s agreement and FWCC filed failure a owned estate to by FWCC located September of with its comply option agreement an reconventional demand 2005 near The Bluebonnet HSP filed an under the obligations matter was for the action option assigned to Division D of the Nineteenth Judicial District Court before the Honorable Janice Clark However parties subsequently entered into the claims and all remaining a settlement agreement issues of both HSP and FWCC as to certain dismissed without were prejudice Thereafter October 21 on declaratory judgment and of no was assigned FWCC filed that the November 5 effect and that HSP had interests of FWCC matter 2005 FWCC also to no 2004 rights sought a or a petition against option agreement HSP was and a null and void interest in any of the property preliminary injunction seeking rights or This damages Section 23 of the Nineteenth Judicial District Court before the Honorable William A Morvant as suit number 537 353 answer and reconventional demand and FWCC s first prayer for relief a motion for In response 2 HSP partial FWCC filed responded by filing summary a first judgment as supplemental an to and amending petition the trial judgment motion and HSP filed a second second 8 2006 supplemental judgment judgments App 2006 08 In not On to FWCC April the trial file court claims remaining s 5 2006 FWCC signed a hearing a judgment s a 13 2 of the portion second on However while FWCC new v requested that to 8 2006 and s 2006 file a s Inc this Court vacated the May 15 2006 but only as nullity of the option agreement See 06 1261 appeal pending La App 1st Cir unpublished opinion was before this Court in the Section 23 petition for damages against HSP and termination of the declinatory exception raising the trial court February May 15 2006 judgment denying Solomon v La 976 So 2d 181 and 07 2448 08 supplemental and amending petition or May 15 Solomon 06 1261 rehearing misrepresentation a HSP 15 request in Division D of the Nineteenth Judicial District Court before the Honorable Janice Clark responded by filing court to on May on denying FWCC dismissed not leave of sought Following unpublished opinion involve rescission and 958 So 2d 1217 claims for fraud s amending petition Center Church a HSP and reconventional demand and also amending petition We also reversed the FWCC filed granting and affirmed in part and reversed in part the claims which did suit as answer claims with prejudice and 2d 183 to summary claims for annulment and rescission s Inc FWCC leave of court 11 15 07 partial 2006 February 976 So Family Worship 8 February on writs denied 07 2437 La judgment judgment motion for s Family Worship Center Church 1st Cir 6 8 07 15 2 HSP review in this Court of both the sought 2006 s and supplemental and on judgment amended judgment all ofFWCC FWCC to an hearing motion for summary judgment a dismissing 8 a ofFWCC subsequently filed motion for summary La a signed court dismissing all by the February file Following the asserting option agreement new HSP objection of lis pendens and grant the exception and dismiss FWCC s petition with Following transferring 537 353 the hearing a case Section 23 On C C P May to on The next transfer the day was art transfer the to the judgment On the trial pendens and transferring the court case a motion HSP to 18 2008 to in Division D amend the February 14 2008 exception s of lis Section 23 and the dismissal of FWCC signed A hearing court took the 2008 19 because the trial 2002 3 HSP filed case once petition it had for the trial court be annulled and declared Monday September be annulled and declared an the granted 14 an 22 s court La motion was 2 annul the petition to absolute nullity under was an subject jurisdiction to HSP attached an matter that the February 14 2008 nullity the trial court to nullity and that the order signed judgment sustaining be transferred absolute a s no under advisement matter signature ordering 2008 2008 lacked HSP on exception of lis pendens absolute judgment only remedy available under petition s and the trial pendens and ordering that the matter HSP s ex parte exception of lis Section 23 suit number 537 353 a substitute sustaining the exception of lis pendens and dismissing the matter judgment FWCC be entered now appeals judgment Apparently Judge Morvant in Section 23 declined to accept the transfer and back to Judge Clark in Division D however the record does not reflect this the matter was The minute entry and transcript caption incorrectly refer to the hearing as having been However the petition to annul was not filed until the next day and clearly the motion to annul matter a matter to the trial court had pendens judgment asserting that the judgment ordering that the February from this 2007 Section 23 suit number to of lis Friday September on 14 2008 La C C P order pendens October 22 on 2008 14 exception sustaining September February s 8 2008 HSP filed upon 925 art held HSP judgment a 1 asserting that authority February on signed the exception of lis including However judgment sustaining the trial court before the court motion to amend the as reflected in the opening judgment 4 remarks of the hearing transcript was sent on a only HSP s DISCUSSION On to appeal FWCC first annul because the trial order transferring the appears that matter that the trial court was divested of matter to Section 23 court While the record is Judge Clark in Division the has been a case its October 22 2008 not clear on the issue it accept the transfer placing the to D Louisiana Code of Civil Procedure article 253 2 After erred in granting the judgment jurisdiction by Morvant in Section 23 declined Judge back before asserts assigned states particular to a in pertinent part section or division of it may not be transferred from one section or division to another section or division within the same court unless agreed to by all parties court unless it is or trial pursuant being transferred to to effect a consolidation for purposes of Article 1561 Further Louisiana Civil District Court Rule 9 2 states in pertinent part 3 253 all contested by La Code ofCiv Pro Art matters must be heard by the judge to whom the matter was allotted If all parties and the court receiving the matter consent a judge other than the one allotted the action may hear the matter Emphasis added Except as In the instant transfer of the transfer as ordered retained FWCC to Section 23 However 2007 by the October 22 the which the jurisdiction s the record evidences that the case matter to 253 2 and rule 9 2 division allowed matter case over the had had to Judge judgment be heard Morvant declined to 3 on by Judge Clark in Division Therefore despite her attempted transfer assignment of error in this regard is without merit The record does not contain accept the Accordingly based originally been assigned matter not contest the parties did to article D the Judge Clark Section 23 and 4 minute entry or any other notation that Judge Morvant declined to accept the transfer to Section 23 however the parties on appeal do not dispute that he in fact declined to accept the transfer 4 a Before the October 22 2007 judgment was signed the parties disagreed as to its form FWCC pending in Section 23 but HSP did not want any reference to consolidation as that was not decided by the trial The judgment signed on October 22 2007 did not contain any language regarding court consolidation However we note that even if FWCC asserts that such judgment effected a consolidation only the court in which the first filed case is pending can order such consolidation wanted the judgment which in this case to contain language would be Section 23 that the matter was consolidated with the matter See La C C P art 1561 5 However erred in ultimately annul the nullity we February find from 14 2008 s in the on any on any of the February 5 case judgment In filing not of lis an matter pendens citing absolute HSP is jurisdiction to its petition was an art nullity could be asserted precluded from to absolute transfer the La C C P court matter 2002 3 on such a seeking annulment of the ground enumerated in article 2002 because it voluntarily acquiesced judgment defendant who or 14 2008 subject exception aside whether basis under the facts of this judgment lacked review of the record that the trial HSP asserted that the judgment judgment court after it had sustained HSP leaving independent annulling the February because the trial However our Louisiana Code of Civil Procedure article 2003 that a may not annul the judgment voluntarily acquiesced in the judgment grounds states enumerated in Article 2002 In its motion to amend the 14 2008 judgment HSP stated By Minute Entry dated December HSP of Lis Pendens 10 2007 but then this Court granted transferred the above exception captioned matter to the Section 23 proceeding instead of dismissing Petition as prayed for by HSP in its exception of Lis Pendens s Pursuant to the Entry HSP and FWCC submitted a The Judgment was signed by this Court on the Minute Judgment to that effect February 14 2008 Emphasis added Accordingly by submitting Section 23 a judgment providing for transfer of the knowing that it had requested dismissal of the action matter to upon the trial court sustaining the exception of lis pendens HSP acquiesced in the trial court If HSP did not agree with the transfer motion to amend as asserted in its subsequent s judgment According to La C C P arts 2001 and 2002 only a final judgment can be annulled The February 14 2008 judgment granted the exception of lis pendens and transferred the matter to Section 23 A final judgment is one that determines the merits in whole or in part La C C P art 1841 However ajudgment that determines only preliminary matters is an interlocutory judgment La C C P art 1841 The judgment as it reads does not determine the merits but rather determines a preliminary issue ofwhere the case will be tried in Division D or Section 23 judgment is a final judgment there is no evidence that the trial court lacked subject matter jurisdiction to render that judgment Contrary to HSP s was argument the oction was not automatically dismissed when the trial court orally ruled that it The oral ruling has no effect but rather it is the written sustaining HSP s exception of lis pendens judgment that disposes of the matter See McGee v Wilkinson 03 1178 La App 1 st Cir 4 2 04 Further even 878 So 2d 552 554 if the see February also Marino 14 2008 v Marino 576 So 2d 1196 1198 La App 5th Cir 1991 6 and in petition to annul it should have submitted support of the form of the judgment giving the trial filed court See La C C P 2008 sought we its an find that HSP judgment sustaining the exception Section 23 and memorandum it did for the October 22 2007 to correct or proposed judgment HSP could have Alternatively error appeal or judgment supervisory writ with this 1974 2087 2123 and 2201 arts because Accordingly to opportunity motion for reconsideration a Court 14 an as a suit number 537 353 petition to annul the February of lis the trial 14 2008 acquiesced pendens and legally court judgment in the trial court s February transferring the erred in matter granting HSP s 6 CONCLUSION F or the that the that a foregoing February substitute dismissing 14 2008 s we reverse judgment petition sustaining HSP s an court absolute exception of lis ordering nullity and pendens and We remand this matter to the trial court for further consistent with this Health Science Park L L C the judgment of the trial be annulled and declared be entered judgment FWCC proceedings reasons opinion Gary All N Solomon costs of this Stephen H appeal are Jones and to be borne Terry D by Jones REVERSED AND REMANDED 6 Based absolute on our decision nullity of ajudgment on can the issue of pretermit discussion a summary proceeding acquiescence be raised and decided in we 7 of whether the We note that FWCC requests that HSP be assessed not only the costs on appeal but also the However costs in the trial court based on alleged ex parte communications with the trial court because we do not reach the issue of alleged ex parte communications on appeal we do not address whether FWCC would be entitled to costs for trial proceedings 7 on that basis FAMILY WORSHIP FIRST CIRCUIT CENTER CHURCH INC COURT OF APPEAL VERSUS HEAL TH SCIENCE PARK L L C STATE OF LOUISIANA GARY N SOLOMON STEPHEN N JONES AND TERRY D JONES UKUHN f L J concurring I agree with the that ordered the FWCC s a into the first filed suit s disposition reversing the trial 14 2008 judgment as well as HSP s the remand supervisory jurisdiction including all matters court s be annulled and declared judgment sustaining petition and should exercise its OpInIOn majority February nullity and substituted dismissing NUMBER 2008 CA 2521 to exception of lis judgment an absolute pendens and But I believe this court order these matters pending following can consolidated rendition of this
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