Theresa Daigle Wife of/and Rodney Daigle VS Tallow Creek, LLC, Southern Homes, LLC, ASI Underwriters, ABC Insurance Company, MNO Insurance Company, John Doe Supply and John Doe Subcontractors
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NTMBF R2012 CA 1656 and 2012 CW 1926 THERESA DAIGLE WIFE OF RODNEY DAIGLE AND VERSUS I TALLOW CREEK LLC SOUTHERN HOMES LLC ASI UNDERWRITERS ABC INSURANCE COMPANY MNO INSURANCE COMPANY JOHN DOE SUPPLY AND JOHN DOE SUBCONTRACTORS Judgment Rendered June 7 2013 Appealed from the second Twenty Judicial District Court In and for the Parish of St Tammany Louisiana Docket Number 2009 17466 Honorable Richard A Swartz Judge Presiding x Counsel for Plaintiffs Scott G Wolfe Jr Douglas S Reiser Theresa Daigle and Rodney Daigle Seth J Smiley New Orleans LA James M Garner Counsel for Defendant Party Third Martha Y Curtis Appellant Plaintiff Tallow Creek LLC Matthew C Clark and Defendant Plaintiff Party Third New Southern Homes LLC Orleans LA Counsel for Third Defendant Party Appellee Western World Insurance Andre G Bourgeois T Dunlevy Terry Brent J Bourgeois Company Corinne M Blache Carlton Jones III Baton Rouge LA J j C U C m ar 1J t fh u r y r i I Thomas G Buck John C Henry Party Third Defendant First Financial Insurance Company Counsel for David B Parnell Jr Brett W I veedel Metairie LA Richard G Lambert Duplantier Jr J Hassiuger Jn Carlina C Eiselen Jeffrey P Green Counsel for Third Defendants Party Interior Exterior Building Supply LP Interior Exterior Enterprises LLC and South Cortez LLC Benjamin R Grau New Orleans LA Kirk A Patrick III Heather A Cross Counsel for Third Defendant Party s Grat Drywall LLC Holly Q Sides R Heath Savant Baton Rouge LA BEFORE WHIPPLE C McCLENDON AND HIGGINBOTHAM J JJ 2 WHIPPLE C J In this Chiriese lirigation the homebuilder appeals the trial drywall s court judgment granting the motion for summary judgment filed by the drywall sub insurer and dismissing the homebuilder claims for s contractor s indemnity and defense costs against the insurer The homebuilder also filed in this court a motion for leave to file an appendix attached to its reply brief Additionally the homebuilder filed an application for supervisory writs from the trial court ruling continuing without date cross for summary s motions judgment filed by the homebuilder and the drywall sub on the contractar issue of contractual dury to defend which writ application was referred to the panel considering the related appeal For the following reasons we deny the motion for leave to file the appendix deny the writ application vacate the judgment granting summary judgment and remand for further proceedings FACTS AND PROCEDURAL HISTORY In December 2009 Rodney and Theresa Daigle filed afor Petition Breach of Contract Warranty and for Damages in the trial court alleging that during construction Chinese drywall had been installed manufactured in their home which they purchased in October 2006 and it had caused physical damage to the property They named as defendants Tallow Creek LLC the alleged seller of the home Southern Homes LLC the alleged builder of the home ASI Underwriters the Daigles homeowner sinsurer ABC Insurance Company as Tallow Creek general liability insurer s Daiele v i Tallow Creek 2012 CW 1926 2unpublished writ acrion 13 28 Southern 2 Homes contended that it had been improperly named as a defendant and that it had in no way participated in the construction or design of the Daigles home Thus it raised exceptions of no cause of action and no right of action The Daigles claims against Southern Homes were ultimately dismissed with prejudice 3 XYZ Insurance Company as Southern Homes general liability insurer s John Doe Supply the drywall supplier Jolui Doe Subcontractors the drywall subcontractor and MNO Insurance Company the general liability insurer ofthe drywall suppiier or the drywall subcontractor On April 27 2010 Tallow Creek answered the petition aclrnowledging that it was the builder of the Daigles home and averring that all claims against it were limited to those available under the New Home Warranty Act NHWA LSA 9 et s Tallow Creek also filed S R 3141 party third demands against among others Graf Drywall LLC the s drywall subcontractor Western World Insurance Company the insurer of s Graf and Exterior Interior Building Supply LP InEx and InteriorBxterior Enterprises LLC the alleged suppliers of the Chinese manufactured drywall Tallow Creek contended that Graf Drywall had s installed the drywall in the Daigles home and also that Graf Drywall had s contractually agreed to indemnify and hold harmless Tallow Creek from any and all damages rendered against it Additionally Tallow Creek averred that s Graf Drywall was to have procured insurance naming Tallow Creek as an additional insured and that b upon the issuance of said policies ased s Graf Drywall and its insurers are obligated to provide Tallow Creek indemnity coverage and defense in this matter Emphasis added Meanwhile the United States District Court for the Eastern District of Louisiana was handling preliminary settlement proceedings in multidistrict litigation involving Chinese claims and on May 13 2011 the drywall federal district court in In re Chinese Drywall Products Manufactured 4 Liability Liti MDL No 2047 entered an order conditionally ation certifying a nationwide class consisting of a persons or entities with ll claims against the Settling Defendants arising from or otherwise related in any way to Chinese Drywall sold marketed distributed and supplied by or InEx and preliminarily approving a class action settlement agreement reached by the Plaintiffs Steering Committee InEx and InEx primary s insurers Arch Insurance Co and Liberty Mutual Insurance Ca referred to by the federal district court as the InEx SettlemenY According to the federal district court May 13 2011 Order the InEx Settlement provided s for settlement of the claims against InEx its primary insurers and certain entities downstream in the chain from InEx commerce of In furtherance of its preliminary approval of the InEx Settlement the federal district court further issued a stay in its May 13 2011 arder as follows Prosecution of the Related Actions including but not limited to those listed in Exhibit 1 to the InEx Settlement against InEx the 25 Insurers and the other Settling Defendants shall be stayed pending the settlement proceedings and further Orders of the Court Emphasis added The instant state court suit Daigle v Tallow Creek LLC bearing docket number 2009 in the 22 JDC is listed in Exhibit 1 as a 17466 25 Related Action referenced in the federal s court May 13 2011 Order The 3 Order xelated to the following federal suits Wiltz v Beijin New Building Materials Public Limited Co No 10 Pavton v Knauf Gips KG No 09 Silva 361 7628 v Arch Insurance Co No 09 Silva v Interior Exterior BuildinQ Supplv LP No 8034 8030 09 Gross v Knauf Gips KG No 09 RoQers v Knauf Gips KG No 10 6690 362 Amato v Libertv Mutual Insurance Co No 10 Abel v Taishan Gwsum Co 932 Ltd No 11 and Abreu v Gebrueder Knauf Verwaltungs KG No 11 80 esellschafr 252 The 4 InEx Settlement document is not contained in the record on appeal With regard to the entities downstream in the chain from InEx referenced in commerce of the May 13 2011 Order the Order cites to R Doc 8628 However that cited document is also not contained in the record before us in this state court suit 5 staying those related actions Accordingly by its May 13 2011 Order the federal district court stayed prosecution ofthe instant action against InEx the Insurers and the other Settling Defendants pending the settlement proceedings in the federal district court and further Orders of the Court On June 16 2011 InEx then filed in the instant state court action a Notice of Conditional Certification of a Nationwide Class Action Preliminary Approval of a Class Settlement and Suggestion of a Stay of these Proceedings Pursuant to 28 U 1651 informing the trial court C S below of the federal court May 13 2011 Order and asserting that pursuant s to 28 U 1651 upon issuance of the May 13 2011 Order a stay went C S into immediate effect with respect to further prosecution of any claims against InEx and the Settling Parties After considering the Notice filed by InEx the trial court below issued an order on June 17 2011 ordering that this matter is stayed pending resolution of ciass settlement proceeding before the United States District Court for the Eastern District of Louisiana in the matter entitled In re Chinese Manufactured Drywall Products Liability Litigation MDL N 2047 or further orders of the United States o District Court Nonetheless despite the May 13 2011 Order of the federal district court staying prosecution of this action against InEx the Insurers and the other Settling Defendants pending settlement proceedings and further orders of the federal court and the June 17 2011 Order of the trial court below staying this matter pending resolution of class settlement proceeding in the federal district court the parties in the instant state court suit continued to prosecute this action below Specifically relevant herein on September 26 2011 Tallow Creek filed an exception of peremption contending that the Daigles claims against it were perempted under the 6 NHWA because the suit was filed more than two years after the relevant peremptive period set forth in LSA 93144 Following a hearing S1 RA on the exception and a stipulation by counsel for the Daigles that the manufactured Chinese drywall installed in the Daigles home was installed over two years before the state court suit was filed the trial court signed a judgment on November 7 2011 maintaining Tallow Creek exception and s dismissing the Daigles claims against Tallow Creek and Southern Homes with prejudice Moreover after the dismissal of the Daigles claims against Tallow Creek Western Warld moved for summary judgment seeking dismissal of Tallow Creek third demand against it As mentioned above Western s party World is the general liability insurer of Gra Drywall the drywall s subcontractor that installed the drywall in the Daigles home In support of its motion Western World averred that there were no specific allegations against it in the third demand other than its status as an insurer of party Grafls Drywall and thus that Tallow Creek recovery on its third s pariy demands were for any damages which may be awarded to the plaintiffs against Tallow Creek and as such depend upon the success of the ed main demand Western World further averred that because the Daigles claims against Tallow Creek had been dismissed Tallow Creek would never be cast in judgment in this case Accordingly Western World asserted Tallow Creek action against Western World was nothing other s than a claim for indemnity on the main demand and with dismissal of the main demand against it there was nothing for which Tallow Creek may 7 seek indemnity from Graf s Drywall or Western World In opposition to the motion for summary judgment Tallow Creek asserted that Western World had failed to address Tallow Creek claim s against it for a defense Tallow Creek noted that in paragraph 12 of its third party demand it a that Graf Drywall and its insurers are erred s obligated to provide Tallow Creek indemnity coverage and defense in this matter Emphasis in original Tallow Creek argued that its demand for defense against Western Warld is based upon clear contract language in the contract between Tallow Creek and Graf Drywall and thus that s egardless of r whether Tallow Creek could be cast in judgment in this matter Tallow Creek has incurred and continues to incur defense costs far which Western World is obligated to pay In support of its opposition Tallow Creek filed 1 the addendum to the Tallow Creek Drywall subcontract obligating Grafls Drywall to s Graf defend Tallow Creek against including but not limited to any and all claims attorney fees and costs costs and expenses which arise or are in any way connected with the wark performed materials furnished or services provided by Graf Drywall and further obligating Graf Drywall s s to provide Tallow Creek with a Certificate of Insurance and additional insured endorsement naming Tallow Creek as an additional named insured and 2 a printout purporting to establish the attorney fees s incurred by Tallow Creek Neither Western World nor Tallow Creek filed the general liabiliry insurance policy issued by Western World to Graf s Drywall or any additional insured endorsement naming Tallow Creek as In S support of its motion Westem World filed as e 1 Tallow Creek ibits s answer and exceptions to the Daigles petition and third demand against Western party World and 2 the trial court November 7 2011 judgment dismissing the Daigles s claims against Tallow Creek 8 an insured under such policy Following a hearing on the motion the trial court by judgment dated June 6 2012 granted Western World motion for suininary judgment and s I s dismissed Tallow Creek party third demand against it In reasons for judgment the trial court noted that Tallow Creek sought indemnity as well as the cost of defense from Western World but concluded that a third party defendant is liable to the third plaintiff only if the third plaintiff party party is cast in judgment From this 7une 6 2012 judgment Tallow Creek has brought the instant appeal contending that the trial court erred in failing to recognize that its third demand included an independent claim for defense party against Western World pursuant to the contract between Tallow Creek and s Graf Drywall Tallow Creek contends on appeal that Western World as the insurer of Graf Drywall is liable far Graf Drywall s s sobligation to defend Tallow Creek that Graf Drywall undertook in the Tallow s s Graf Creek Drywall Contract Meanwhile on April 23 2012 Graf s Drywall also filed a motion for summary judgment seeking dismissal of Tallow Creek third demand s party against it on the basis that its alleged indemnity obligation to Tallow Creek never accrued where Tallow Creek ha been dismissed from the d main demand Tallow Creek then filed a cross for summary motion judgment against Gra Drywall on June 12 2012 contending that Grafs s s Drywall contractual obligations to Tallow Creek included paying for Tallow Creek defense in this matter and thus that Tallow Creek was s 9 entitled to judgment against Graf Drywall for those defense costs s incurred A hearing on the cross for summary judgment was scheduled motions for June 20 2012 However according to the minute entry far that date at the scheduled hearing counsel for InEx advised the Court ofthe Stay Order filed in this matter in June 2011 and objected to these matters going forward at this time The minute entry further notes that counsel for Tallow Creek and Graf Drywall argued that the Stay Order issue would not be raised s and that they wanted to proceed Nonetheless after reviewing the record the trial court ordered the motions for summary judgment are hereby continued without date pending a determination that the Stay Order does not apply It is from this ruling that Tallow Creek filed its writ application that was referred to this panel for consideration MOTION FOR LEAVE TO FILE APPENDIX At the outset we address Tallow Creek motion filed in this court for s leave to file an appendix attached to its reply brief containing certificates of liability insurance and the commercial general liability policy issued by Western World to Graf Drywall s Western World opposed the motion noting that the documents contained in the appendix and attached to Tallow In 6 support of its motion Tallow Creek filed the same two exhibits it filed in opposition to Western Warld motion for summary judgment 1 the addendum to the s Ta11ow Creek Drywall subcontract obligating GraPs Drywall to defend Tallow s Graf Creek against any attorney fees and and all costs claims costs and expenses including but not limited to which arise or are in any way connected with the work performed materials furnished or services provided by Graf Drywall and further s obligating Grafls Drywall to provide Tallow Creek with a Certificate of Insurance and additional insured endorsement naming Tallow Creek as an additional named insured and 2 a printout purporting to establish the attorney fees incurred by s Tallow Creek Later Tallow Creek faz on June 18 2012 a reply memorandum in support filed of its cross for summary judgment and supplemental opposition to GraFs motion smotion for sununary judgment in which it averred that GraPs Drywall had Drywall breached its subcontract with Tallow Creek when Grafls Drywall failed to make Tallow Creek an additional insured under the insurance policies it held while performing its drywall work on the Daigle house Emphasis in original 10 s Creek reply brief were not offered or admitted into evidence in connection with Western World motion for summary judgment and are not contained s in the record on appeal An appellate court shall render judgment upon the record on appeal P C LSA art 2164 Attachments to a brief that were not considered by the trial court and that do not constitute part of the appellate record will not be considered by this court on appeaL LSA art 2128 Dawson v P C Cintas Corparation 97 La App l Cir 6 715 So 2d 165 2275 98 29 167 Accordingly Tallow Creek motion for leave to file the appendix is s denied WRIT APPLICATION NUMBER 2012 CW 1926 In its writ application Tallow Creek seeks review of the trial court s refusal to hear the cross for summary judgment without first motions determining whether Graf Drywall was entitled to the protection of the s InEx Stay Order Tallow Creek argues that i is undisputed that Grafls t Drywall did not purchase the Chinese drywall it installed in manufactured the Daigle Plaintiffs home from InEx and thus that i tremains unclear how Grafls Drywall ar its insurer Western World could be entitled to the protection of the InEx Stay Order Tallow Creek further asserts that s Graf Drywall its insurer Western World and InEx waived whatever right they may have had to raise the InEx Stay Order as a defense to Tallow s motion Creek cross for summary judgment when Western World filed its own motion for summary judgment InEx did not raise the issue of the InEx stay order during the briefing or at the hearing on Western World motion s for summary judgment Graf Drywall filed its own proactive motion far s summary judgment against Tallow Creek and counsel for Graf Drywall s 11 informed counsel for Tallow Creek that Graf Drywall would not avail s itself of whatever protection the Stay Order may have provided it At the outset we note that the June 20 2012 minute entry does not indicate that the triai court refused to hear the cross for summary motions judgment as contended by Tallow Creek Instead the court continued the hearing on the motions A continuance may be granted in any case if there is P C good ground therefor LSA 1601 Moreover a trial judge has wide discretion in the control of his docket in case management and in determining whether a motion for continuance should be granted Wille yv Roberts 95 La App l Cir 12 664 So 2d 1371 1374 writ 1037 95 15 denied 96 La 3 669 So 2d 422 Thus the trial court ruling 0164 96 15 s will not be disturbed on appeal in the absence of a clear showing of abuse of that discretion Norwood v Winn Dixie 95 La App 1 Cir 2123 96 10 5 673 So 2d 360 362 Appellate courts interfere in such matters only with reluctance and in e cases Willev 664 So 2d at 1374 reme As stated above on the date of the scheduled hearing counsel far InEx reminded the court of the federal court May 13 2011 stay order s filed in this matter in June 2011 and objected to the motions going forward at that time Upon reviewing the record which contains the federal court s stay order the trial court below continued the motions without date pending a determination that the Stay Order does not apply Construing InEx objection to the motions being heard at that time s as a motion to continue the hearing see Perkins v Willie 2001 La 0821 App l Cir 2 818 So 2d 167 169 we find no abuse of the trial 02 27 s court discretion in this matter in continuing the hearing on the cross motions pending a determination as to the applicability of the federal court s Stay Order 12 The All Writs Act 28 U 1651 autharizes federal courts to C S issue all writs necessary ar appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law And while the Anti Act 28 U 2283 limits the federal courts authority Injunction C S to enjoin state court proceedings the Act authorizes a federal court to enjoin such proceedings when expressly authorized by statute where necessary in aid of the federal court jurisdiction or where necessary to protect or s effectuate the court sjudgments Chick Kam Choo v Exxon Corporation 486 U 140 145 108 S Ct 1684 1689 100 L Ed 2d 127 1988 In S 146 re Vio Products Liabilitv Litigation 869 F Supp 2d 719 723 E c 724 D La 2012 With respect to the in aid of jurisdiction exception federal injunctive relief may be necessary to prevent a state court from interfering with a federal court consideration or disposition of a case and thereby s impairing the federal court flexibility and authority to decide that case In s re Vioxx Products Liability Liti ation 869 F Supp 2d at 725 Moreover while the aid ofjurisdiction eXCeption has traditionally applied only where a res was at stalce some of the federal circuit courts of appeal have applied it in the context of complex multidistrict litigation to enjoin a concurrent state court in personam proceeding In re Vio Products Liabilitv Liti aUon 869 F Supp 2d at 725 See eg In re Diet Drues 282 F3d 220 233 726 239 3 Cir 2002 Hanlon v Cl CorQ 150 F3d 1011 1024 rvsler 1025 9 Cir 1998 and In re Corrugated Container Antitrust Liti 659 F ation 2d 1332 1334 5 Cir 1981 cert denied 456 U 936 102 S Ct 1993 1335 S 72 L Ed 2d 456 1982 Thus uan appropriate set of facts a federal nder court entertaining complex litigation especially when it involves a substantial class of persons from 13 multiple states or represents a consolidation of cases from multiple districts may appropriately enjoin state court proceedings in order to protect its jurisdiction a concern that is particularly significant where there are conditional class certifications and impending settlements in federal actions In re Diet Druas 282 F3d at 235 236 In the instant case the federal district court in In re Chinese Manufactured Drywall Products Liability Liti ation MDL No 2047 multidistrict litigation involving at least one defendant herein InEx the supplier of the Chinese drywall issued a stay order manufactured specifically staying prosecution of certain enumerated state court actions against InEx the Insurers and the other Settling Defendants An excerpt of the list of state court actions affected contained in Exhibit 1 to the 25 InEx Settlement was filed into the record of this state court action together with the federal court May 13 2011 Order demonstrating that the state s court matter before us is one of the Related Actions to which the federal s court May 13 2011 Order applies The federal court May 13 2011 Order raises a question as to s whether the stay arder has the effect of staying prosecution of Related Actions such as the instant state court suit in their entirery as actions against InEx the Insurers and the other Settling Defendants or whether the federal court intended to stay the Related Actions only as to prosecution of those actions against InEx the Insurers and the other Settling Defendants To the extent that the federal court May 13 2011 Order can be read s to stay prosecution of the Related Actions only against InEx the Insurers and the other Settling Defendants an unresolved question then remains as to the identity of the other Settling Defendants and whether the parties involved in the proceedings below at issue in the writ application and appeal 14 before this panel are other Settling Defendants as provided in that Order With regard to the identity of the other Settling Defendants the federal s court May 13 2011 Order provides at one point therein that the term I Settling Defendants refers in part to the Downstream InEx Releasees including but not limited to those indentified in E 1 to the InEx ibit 10 except Settlement that any Builder listed on E 1 shall not be ibit 10 considered a Settling Defendant Emphasis added However E ibit 10 1 is not contained in the record before us to resolve and determine whether the parties before the court are Downstream InEx Releasees The federal court May 13 2011 s Order further states that apitalized c terms used in this Order shall have the same meaning as those defined in the Settlement Agreement Regarding Claims Against Interior Exterior in MDL 2047 dated April 25 2011 the InEx Settlement However while the terms Settling Defendants and InEx Releasees are capitalized in the May 13 2011 Order the InEx Settlement is also not contained in the record of this state court proceeding to allow for a determination of the intended meaning and scope of those terms Thus even if the federal court May 13 2011 Order were intended to s be narrowly construed as ordering a stay of the prosecution of this state court action only against InEx the Insurers and the other Settling Defendants a determination cannot be made from the record of this state court proceeding as to the identity of the other Settling Defendants and thus as to whether any action or ruling by the trial court on the cross for summary motions Addifionally 7 to the extent that the list provided in Exhibit 110 does not constitute a complete list of Downstream InEx Releasees that exhibit alone may not allow for a determination as to whether the May 13 2011 Stay Order applies to the parties involved in the proceedings below xelating to the writ application and appeal now before this panel 15 judgment of Tallow Creek and Graff Drywall would have violated the s federal court sMay 13 2011 Order For these reasons and without even addressing the June 17 2011 order of the trial court below staying this matter pending resolution of the class settlement proceeding in the federal district court we find no abuse of the trial court wide discretion in continuing the hearing on the cross s motions for summary judgment pending a determination as to the applicability of the federal court May 13 20ll Stay Order to these s particular proceedings Accordingly Tallow Creek writ application is s denied TALLOW CREEK SAPPEAL OF THE JUNE 6 2012 JUDGMENT DISMISSING TALLOW CREEK THIRD DEMAND S PARTY AGAINST WESTERN WORLD Turning now to Tallow Creek appeal of the dismissal of its third s party demand against Western Warld we note that the procedural posture of this matter as discussed at length above causes this court great concern as to the propriety of continued prosecution of this matter following the issuance of the May 13 2011 Stay Order by the federal court and the corresponding June 17 2011 Stay Order by the trial court below Notably both of these stay orders were issued prior to the trial court hearing and ruling upon Western World motion for summary judgment at issue in this s appeal Moreover B we reject Tallow Creek azgument that Graf Drywall through its s s actions in filing its own motion for summary judgment and in informing Tallow Creek that it would not avail itself of the federal court stay order somehow waived any s protections it may have had under the federal court May 13 2011 Order As noted s above the purpose of a federal court stay order in complex multidistrict litigation is to aid thefederal court in its jurfsdiction by preventing a state court from interfering with a federal court consideration or disposition of a case and thereby impairing the federal s s court flexibility and authority to decide that case Litiagtion 869 F Supp 2d at 725 726 16 In re Vioxx Products Liabilitv While the trial court arguably could have implicitiy vacated its own stay order by proceeding with the prosecution of various actions in this matter including the granting of Western World motion for summary s judgment the same argument cannot be made with regard to the federal s court May 13 2011 Stay Order As discussed above the record before us reveals that a federal stay order has been rendered affecting this matter However the extent and applicability of that order to the proceedings before us in this appeal cannot be determined on the record before us If the federal court May 13 2011 Stay Order were intended to stay s prosecution of this matter in its entirety then rendition of the judgment on appeal granting Western World motion for summary judgment after such s a stay was issued violated the May 13 2011 Stay Order of the federal court If on the other hand the May 13 2011 Stay Order were intended to apply only to InEx the Insurers and the other Settling Defendants then the trial s court judgment granting Western Warld motion for summary judgment s nonetheless would have been rendered in violation of the May 13 2011 Stay Order if indeed Western World were another purported InEx releasee under the InEx Settlement as suggested by Tallow Creek in its related writ application addressed herein by this panel Given the unresolved questions surrounding the propriety of the June 12 2012 trial court judgment on review in this appeal in light of the issuance of May 13 2011 Stay Order by the federal court as well as the s s state court own stay order previously issued we are constrained to Given 9the trial court decision to continue the subsequent hearing on the cross s motions for summary judgment filed by GraPs Drywall and Tallow Creek upon having the federal court Stay Order brought to its attenrion it is not clear from the record that s the trial court actually intended to vacate its own stay order issued in response to the federal court Stay Order in ruling on Western World motion in the June 6 2012 s s judgment before us on appeal 17 conclude that we must decline to review the merits of the June 12 2012 judgment Indeed to the extent the parties seek interpretation of or relief from the federal court May 13 2011 Stay Order such relief should be s obtained in the federal court prior to any action by the trial court herein See In re Chinese Drvwall Products Liabilit ation MDL Manufactured No 2047 E La 6 20ll WL 2313866 wherein Tallow Creek D 11 9 sought review or amendment of the precise May 13 2011 Stay Order at issue herein so that it could proceed with its motion for summary judgment in a suit it filed in Orleans Parish against InEx and Graf Drywall s The appellate court may render any judgment that is just legal and proper upon the record on appeaL LSA art 2164 The purpose of P C this article is to give the appellate courts freedom to do justice on the record irrespective of whether a particular legal point or theory was made argued or passed on by the trial court P C LSA art 2164 Official Revision 1960 Comments comment a Fidelit and Casualty Company of New y York v Clemmons 198 So 2d 695 698 writ refused 251 La 27 202 So 2d 649 1967 Given the issues regarding the trial court potentiai lack of s jurisdiction to render the judgment on appeal and the potential need for the parties to seek relief from the federal court May 13 2011 Stay Order in s federal court and in light of the fact that these issues were not considered by the parties or the trial court below we vacate the trial court 7une 12 2012 s judgment and remand this matter for further proceedings consistent with this opinion See egnerally National Linen Service v Citv of Monroe 40 241 La App 2 Cir 9 911 So 2d 913 916 concluding that remand of OS 21 the matter therein without decision required the existing judgment to be set aside 18 CONCLUSION For the above and foregoing reasons Tallow Geek LLC motion for s leave to file an appendix attached to its reply brief is denied Furthermore Tallow Creek application for supervisory writs bearing number 2012 CW s 1926 is likewise denied The June 12 2012 judgment on appeal is vacated and this matter is remanded for further proceedings consistent with the views expressed herein Costs of this appeal are assessed equally against Tallow Creek LLC and Western World Insurance Company MOTION FOR LEAVE TO FILE APPENDIX DENIED WRIT APPLICATION NUMBER 2012 CW 1926 DENIED JUNE 12 2012 JUDGMENT VACATED MATTER REMANDED 19
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