Rodney C. Falgoust and Kathleen Dowty Falgoust VS A. Couvillion Construction, LLC
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIlZCUIT 2012 CA 2057 RODNEY C FALGOUST AND KATHLEEN DOWTY FALGOUST VERSUS A COUVILLION CONSTRUCTION LLC DATE OF JUDGMENT NOV 01 2013 N APPEAL FROM THE TWENTY JUDICIAL DISTRICT COURT SECOND NLJMBER 2011 DN G PARISH OF ST TAMMANY 13589 STATE OF LOUISIANA HONORABLE WILLIAM J CRAIN JUDGE John L Hulse IV Metairie Louisiana Counsel for Plaintiffs Appellants Rodney and Kathleen Falgoust Vincent F Wynne Jr Shannon K Lowry Counsel for Defendant Appellee A Couvillion Construction LLC Brad D Fenand Covington Louisiana a BEFORE KLIHN HIGGINBOTHAM AND THERIOT JJ Disposition APPEAL DISMISSED MOTION DEIVIED KIJIIN J appellants Plaintiffs Rodney and Kathleen Falgoust appeal the trial court s judgment sustaining in part an exception of prescription as to plaintiffs claims for damages arising from the HVAC system installed in their home purchased from A Couvillion Construction LLC Couvillion and dismissing those claims Because we conclude that the judgment is not immediately appealable we dismiss the appeal FACTUAL AND PROCEDURAL BACKGROUND In November 2007 the Falgousts purchased a house located in the Beau Chene Subdivision in Mandeville Louisiana from Couvillion The Falgousts alleged that after the purchase they learned of major structural defects in the house They averred that there were defects in the HVAC system the plumbing and tub structure the fireplace and chimney and in the roof and joist structwe and sealing Based on these defects and alleging that Couvillion was in bad faith in its sale of the house they filed suit in June 2011 to recover damages legal interest and reasonable attorneys fees and costs Alternatively the Falgousts seek recovery under the New Home Builders Warranty Act NHWA See La R 9 S 3141 3150 Couviilion filed an answer asserting that the house has no defects and alternatively that all deficiencies for which it was responsible have been repaired or resolved In May 2012 Couvillion filed a motion for summary judgment seeking the dismissal of the lawsuit suggesting that the NHWA applies exclusively to the Falgousts claims regarding major structural defects within their home and asserting that plaintiffs did not comply with its notice provisions Couvillion also filed a peremptory exception raising the objections of prescription and peremption urging that the Falgousts filed a suit to recover for non major structural defects in In an amending and supplemental petition the Falgousts added several subcontractors to Couvillion as additional defendants 2 their home well after the applicable prescriptive period had accrued and sought dismissal with prejudice of the Falgousts claims on this basis as well A hearing was held on the motion for summary judgment and the exception and the trial court signed a judgment on August 21 2012 expressly denying s Couvillion motion for summary judgment The trial court judgment also ordered s he T Exception of Prescription filed by Couvillion is denied in part and granted in part The Exception ofPrescription is granted as to any and all claims made by plaintiffs regarding defects with their HVAC system in their home and the HVAC claims are hereby dismissed with prejudice as they are prescribed as a matter of law For all other claims of deficiencies made by plaintiffs there are genuine issues of fact which exist as to the cause of those deficiencies Therefore all non HVAC claims are not prescribed and defendant s Exception ofPrescription is denied as to all other claims The Falgousts have appealed the dismissal of their claims regarding defects in the HVAC system After the appeal was lodged this court issued a rule to show cause that informed the parties the appealed judgment appeared to be a partial summary judgment that lacked the requisite designation of finality In response to this court order the appellate record was supplemented with a s judgment signed on Apri125 2013 The amended judgment states in pertinent part aving H reviewed the Judgment of the Trial Court from which the appeal was taken and having conferred with counsel for both parties to the appeal IT IS ORDERED that the 2012 from which the Judgment rendered on August 21 appeal was taken is hereby designated as a final judgment IT IS FURTHER ORDERED that there is no just reason for delay as to the appeal of that judgment and that for reasons of judicial economy the judgment is ripe for appeal The Falgousts also filed in this court a motion to supplement the appellate record with a document identified as the CASH SALE OF PROPERTY from Couvillion to the Falgousts which document they suggest is undisputed and z The finality designation was made by a successor judge See La R 13 S 4209 3 I forms Exhibit H to answers to interrogatories and responses to requests for production of documents that they filed PROPRIETY OF THE APPEAL Even when a trial court has designated a partialjudgment as final under Article B 1915 that designation is not determinative of appellate jurisdiction Van ex rel White u Davis 2000 La App lst Cir 2 808 So 478 480 This 0206 O1 16 2d court must still ascertain whether it has jurisdiction to review the partial judgment from which the appeal was taken See R Messinger Inc v Rosenblu J n2004 1664 La 3 894 So 1113 1122 We cannot determine the merits of an OS 2 2d appeal unless our appellate jurisdiction is properly invoked by a valid final judgment Texas Gas Exploratian Corp x Lafourche Realty Co Inc 2011 La App 0520 lst Cir 11 79 So 1054 1061 writ denied 2012 La 4 85 So 11 9 3d 0360 12 9 3d 698 The appellate court is required to conduct a de novo determination of whether the designation was proper utilizing the following factors 1 the relationship between the adjudicated and the unadjudicated claims 2 the possibility that the need for review might or might not be mooted by future developments in the trial 3 At the time La C art 1915 provided P B 1 When a court renders a partial judgment or partial summary judgment or sustains an exception in part as to one or more but less than all of the claims demands issues or theories whether in an original demand reconventional demand cross third party claim or intervention the judgment shall not claim constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay 2 In the absence of such a determination and designation any order or decision which adjudicates fewer than all claims or the rights and liabilities of fewer than a11 the parties shall not terminate the action as to any of the claims or parties and shall not constitute a final judgment for the purpose of an immediate appeal Any such order or decision issued may be revised at any time prior to rendition of the judgment adjudicating a11 the claims and the rights and liabilities of all the parties 4 Subsequent to the trial court certification this court issued an interim order maintaining the s appeal but noted that the propriety of the La C art 1915 designation is ultimately reserved P B far tlus merit panel 4 court 3 the possibility that the reviewing court might be obliged to consider the same issue a second time and 4 miscellaneous facts such as delay economic and solvency considerations shortening the time of trial frivolity of competing claims expense and the like R Messinger Inc 894 So at 1122 J 2d 23 In light of these considerations and based on the record before us we find the trial court abused its discretion in designating the partial summary judgment as final and immediately appealable The trial court concluded there was no just reason far delaying the appeal of this judgment for reasons ofjudicial economy However dismissal of the HVAC claims does not substantially shorten the trial time in that it only dispenses with one category of the many defects the Falgousts have alleged Because Couvillion claims that it has repaired all deficiencies in the home of which it was properly notified by plaintiff apparently raising a defense that the Falgousts did not provide the required notice within one year after knowledge of the defects in accordance with La R 9 it is possible that S 3145 the need for review of the issue raised on appeal might be mooted by future developments in the trial court since the trial court has not addressed this defense Under these circumstances we conclude that allowing an immediate appeal of the partial summary judgment rendered on August 21 2012 only serves to encourage multiple appeals and piecemeal litigation that causes delay and judicial inefficiency Because we have determined that the partial summary judgment dismissing as prescribed one category of the Falgousts numerous claims is not immediately appealable the motion to supplement the record is moot and therefore denied 5 La R 9 provides Before undertaking any repair himself or instituting any action S 3145 A for breach of warranty the owner shall give the builder written notice by registered ar certified mail within one year after knowledge of the defect advising him of all defects and giving the builder a reasonable opportunity to comply with the provisions of the NHWA 5 DECREE For these reasons the appeal is dismissed All costs of this appeal are assessed against plaintiffs Rodney and Kathleen Falgoust appellants APPEAL DISMISSEA MOTION TO SUPPLEMENT DENIED 6
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