Gregory William Tramontin VS Brenda Boyette Tramontin
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2010 CA 0060 GREGORY WILLIAM TRAMONTIN VERSUS BRENDA BOYETT TRAMONTIN Judgment Rendered DEC 2 2 2010 On Appeal from the Family Court In and for the Parish of East Baton Rouge State of Louisiana Docket No 128 498 Honorable Luke Lavergne Judge Presiding James R Swanson Jason W Burge New Orleans Louisiana Neil D Sweeney Baton Rouge Louisiana Counsel for PlaintiffAppellant Gregory William Tramontin Counsel for DefendantAppellee Brenda Keith BEFORE WHIPPLE McDONALD AND McCLENDON JJ McCLENDON J The plaintiff Gregory William Tramontin appeals several interlocutory rulings that the trial court designated as final pursuant to LSA C art P 6 1915 For the following reasons we dismiss the appeal and remand this matter for further proceedings in the trial court FACTS AND PROCEDURAL HISTORY Gregory William Tramontin and Brenda Boyett Keith were married on December 30 1994 On May 20 1998 Mr Tramontin filed a petition for divorce pursuant to LSAGC art 102 which contemplates a prospective sixmonth physical separation On December 9 1998 Mr Tramontin amended his petition alleging that he and Ms Keith had been living separate and apart without reconciliation in excess of six months and that he was therefore entitled to an absolute divorce based upon LSAC Article 103 C On December 16 1 998 Ms Keith filed an answer to the amended petition admitting that she and Mr Tramontin had lived separate and apart in excess of six months and that Mr Tramontin was entitled to a divorce pursuant to LSA C art 103 That same day the trial court signed a judgment of divorce based on the parties having lived separate and apart for a period in excess of six 6 months Throughout the latter half of 1998 Mr Tramontin and Ms Keith discussed and negotiated the partition of the couple community property One key issue s in those discussions was shares of stock and stock options in USAgencies Inc a company founded by Mr Tramontin On January 14 1999 Mr Tramontin and Ms Keith settled and divided their community property and agreed to fully and forever compromise discharge and release each party from any further accounting or claim demand or cause of action against the other party According to their partition 1 Mr Tramontin had previously filed an amended petition on November 18 1998 that sought the same relief requested in his December 9 1998 amended petition However apparently realizing that the requisite sixmonth time period had not lapsed at the time the November 18 1998 pleading was filed Mr Tramontin cured the possible defect by filing the latter amended petition agreement Ms Keith was to receive 100 shares of US Agencies Inc stock 000 while Mr Tramontin was to receive all remaining shares of US Agencies Inc stock as well as 1a interest and claim to all US Agencies Inc stock II options issued to or which may be in the future issued to Mr Tramontin On February 10 1999 the trial court signed a Judgment Homologating Community Property Agreement finding the parties agreement fair and equitable to both parties and making the agreement the judgment of the court On January 15 2002 Ms Keith filed a petition to rescind the partition agreement and to nullify the February 14 1999 judgment Therein she alleged that the agreement should be rescinded on grounds of lesion and fraud Specifically Ms Keith alleged that she was misled by Mr Tramontin and his attorney regarding the stock and stock options owned by Mr Tramontin She also alleged that she received less than onefourth of the total of the community property Ms Keith prayed that a judgment be rendered nullifying the February 14 1999 judgment and partitioning the community property equally Mr Tramontin filed an exception of peremption asserting that plaintiff s claim had been perempted under LSA C art 2004 because the action to P annul the judgment had not been brought within one year of the discovery by the plaintiff in the nullity action of the fraud or ill practices Following a hearing the trial court overruled the exception finding that GMs Keith testified that she did not discover the falsity of these representations more than a year prior to filing suit In response to motions for partial summary judgment filed by Ms Keith the trial court determined that the parties community terminated retroactively to the filing date of the amended petition for divorce pursuant to LSAC art 103 C z We note that there was no hearing in connection with the signing of the judgment 3 On January 8 2006 the trial court issued its written reasons for judgment denying Mr s Tramontin exception A written judgment denying the exception was signed on February 13 2006 3 that 500 shares of USAgencies stock were community property and that the 000 788 780 stock options were community property a Thereafter the parties proceeded to trial solely on the issue of fraud and ill practices On August 20 2008 following a fourday trial the trial court finding that Mr Tramontin and his attorney committed fraud against Ms Keith signed a judgment rescinding the partition agreement and annulling the Judgment of Homologation The judgment also denied Mr Tramontin reurged s exception of peremption and further ordered that each party provide a detailed descriptive list of all property debts and claims community and separate in accordance with LSA R 9 et seq S 2801 Following its denial of Mr Tramontin motion for new trial the court s found no just reason for delay and ordered its judgments rescinding the Partition of the Community Property Agreement nullifying the Judgment of Homologation overruling Mr s Tramontin exceptions of Prescription and Peremption granting the Plaintiff motions for partial summary judgment on s ownership of the stock and stock options in USAgencies Inc resetting the termination date of the community property regime and any other interlocutory rulings as final for purposes of appeal Mr Tramontin has appealed assigning the following as errors s family court denied Mr Tramontin exception of peremption on the basis that Ms Keith discovered the allegedly false statements within a year of filing her claim This ruling 1 The was erroneous because the facts demonstrate Ms Keith either knew or should have known through the exercise of reasonable diligence sufficient facts to put her on reasonable notice of her claims no later than two years prior to bringing the instant suit 2 The family court annulled the prior judgment and rescinded the parties partition on the basis of fraud and ill practices This ruling was erroneous because the testimony and evidence establish that Ms Keith was aware of the factual issues relating to the community property and that she could have discovered the relevant facts without difficulty inconvenience or special 4 On January 16 2008 the trial court issued its written reasons granting Ms Keith motion for s partial summary judgment with regard to the termination date of the community and with regard On April 22 2008 the trial court issued its written reasons granting Ms Keith motion for partial summary judgment with regard to the classification of the s to the classification of the stock stock options G by among other ways following through discovery requests skill with her 3 The family court suggested that Thomas Gibbs Mr Tramontin s lawyer was Ms Keith trusted friend such that she could rely s on his representations to avoid her duty to investigate the facts This was erroneous because a party cannot have a relation of confidence with opposing counsel and Ms Keith did not actually rely on what Mr Gibbs told her 4 The family court ruled that the parties community property regime terminated on December 9 1998 This ruling was erroneous because the community should have terminated on May 20 1998 the date of filing of the Original Petition in the action in which the judgment of divorce is rendered 5 The family court ruled that all stock options granted to Mr September 1 1998 were community property This ruling was erroneous because it is undisputed that a substantial portion of the options vested after the termination of the community Tramontin effective DISCUSSION This appeal was taken from various interlocutory rulings which the trial court certified as final pursuant to LSA C art 1915 P 6 Louisiana Code of Civil Procedure art 1915 provides 6 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 claim third party claim or intervention the judgment shall not 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 all 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 a judgment adjudicating all the claims and the rights and liabilities of all the parties In order to assist the appellate courts in its review of designated final judgments the trial court should give explicit reasons either oral or written for its determination that there is no just reason for delay J R Messinger Inc v Rosenblum 041664 p 13 La 3 894 So 1113 1122 05 2 2d However if the trial court fails to do so the appellate court cannot summarily dismiss the appeal When no reasons are given but some justification is apparent from the 0 record the appellate court should make a de novo determination of whether the certification was proper If after examination of the record the propriety of the certification is not apparent the appellate court may request a per curiam from the trial court judge or issue a rule to show cause to the parties requiring them to show why the appeal should not be dismissed J R Messinger Inc 04 1664 pp 13 14 894 So 1122 2d Upon lodging of the record this court ex proprio motu issued a show cause order noting that it appears that the August 20 2008 judgment is not a final judgment The parties were directed to show cause by briefs on or before February 9 2010 whether the appeal should or should not be dismissed Although a duty panel made a preliminary determination to maintain the appeal we are empowered and elect to fully consider the propriety of the trial court s designation of finality in connection with our duty to review the merits of the appeal pursuant to LSAC art 2164 P C Although the trial court designated the judgment rescinding the community property agreement and nullifying the judgment of homologation along with prior interlocutory rulings on motions for partial summary judgment and the denial of Mr Tramontin exception of peremption as final judgments s no reasons were given for the designations Accordingly we review the propriety of the designations de nova considering the following criteria set forth by the Louisiana Supreme Court in R Messinger Inc J 1 The relationship between the adjudicated and unadjudicated claims 2 The possibility that the need for review might or might not be mooted by future developments in the trial court 3 The possibility that the reviewing court might be obliged to consider the same issue a second time and 4 Miscellaneous factors such as delay economic solvency considerations shortening the time of trial frivolity of competing claims expense and the like 041664 at p 14 894 So at 1122 2d 5 The rule to show cause did not refer to any other prior interlocutory ruling 1 Mr Tramontin urges that the trial court has resolved one of the key issues in this matter insofar as it has found that the judgment was secured through fraud or ill practices Mr Tramontin posits that it is unlikely that any future developments in the trial court will moot the need for review of this issue because the trial court has moved forward to repartition proceedings and is no longer addressing the fraud or ill practices which Mr Tramontin asserts is akin P 5 A to a finding of liability See LSA C art 1915 Mr Tramontin urges that if this court were to reverse this finding of liability it would terminate the litigation Moreover Mr Tramontin argues that the issue of peremption is directly related to liability and if Ms Keith claims are perempted her claims to s annul the homologated judgment fail and there is no need for a re partition We disagree Contrary to Mr Tramontin contention LSA C art s P A 1915 is not applicable in this case insofar as the issue of liability and damages have not been bifurcated for separate trials as contemplated by LSAC P C 5 A 1915 Rather there has been a single trial on the issue of fraud which resulted in the rescission of the community property partition and the annulment of the judgment homologating same The August 20 2008 judgment on appeal however is not determinative of the entirety of the merits of the claims between the parties because a community property partition has yet to be effected Notwithstanding that a re partition has not been effected we note that even if we were to conclude that the trial court finding of fraud was erroneous we s cannot address the action for lesion at this time and this matter would have to be remanded to the trial court to address same In the alternative if we were to affirm the trial court finding of fraud we s could not address the denial of Mr Tramontin exception pleading peremption s on that issue because it was improperly certified as a final judgment See LSA P C art 1915 and Peak Performance Physical Therapy 1 6 Fitness LLC v Hibernia Corp 07 2206 p 6 La 1 Cir 6 992 So 527 App 08 2d 530 writ denied 08 1478 La 10 992 So 1018 Despite a designation 08 3 2d by the trial court it is well settled that a judgment overruling a peremptory 7 exception of prescription is an interlocutory judgment and not appealable Rather Mr Tramontin is entitled to seek review of all adverse interlocutory judgments prejudicial to him when an unrestricted appeal is taken from a final judgment Peak Performance Physical Therapy Fitness LLC 072206 at p 6 992 So at 531 2d The trial court also certified as final its judgments granting Ms Keith s motions for partial summary judgment on ownership of the stock and stock options in USAgencies Inc and setting the termination date of the community property regime although these issues had been decided months prior to the trial court designation We note that there is no time delay for filing a motion s to certify a judgment as final and the delay for appealing an interlocutory judgment that has been certified begins to run from the day the notice of the certification order is mailed Fraternal Order of Police v City of New Orleans 021801 pp 35 La 11 831 So 897 899 900 Accordingly 02 8 2d the appeal on these issues appears timely insofar as the appeal was taken within the requisite delays from the date the notice of the certification order was Although mailed the referenced interlocutory rulings were specifically mentioned in the trial court order the trial court further ordered that any s other interlocutory rulings were also final for purposes of immediate appeal However we caution against such overly broad certifications because as noted above not all interlocutory rulings may be certified as final under LSAR S 6 1915 Rather the trial court should identify with particularity the specific rulings that are subject to the 1915 designation 6 Any ruling with regard to the termination date of the community does not necessarily resolve the issue of whether the entirety of the stock and stock options were community property Also although Mr Tramontin asserts in his appellate brief that the stock in USAgencies Inc was not community property Mr Tramontin did not assign that specific issue as error Rather the assignments only address the classification of the stock options Moreover although the written reasons with regard to the stock and stock options appear in the record the trial court written judgments do not Appeals lie from final s judgments not written reasons for judgment See Hains v Hains 091337 p 17 La 1 Or 3 36 So 289 301 Thus where there are only App 10 10 3d written reasons and no separate signed judgment there is no final judgment Assuming that we could consider whether the stock and stock options were properly classified as community to permit an appeal of these judgments would encourage multiple appeals and piecemeal litigation expeditious disposition of community property cases and would prohibit See St Pierre v St Pierre 08 2475 pp 67 La 1 Cir 2 35 So 369 372 writ not App 10 12 3d considered 10 0587 La 3 29 So 1243 10 17 3d In St Pierre this court dismissed an appeal which sought review of a trial court judgment finding that s a community property regime existed noting that a effective remedy is n available once the trial court renders a judgment partitioning the parties assets and liabilities St Pierre v St Pierre 082475 at p 6 35 So at 372 3d Accordingly based on our de novo review of this matter and consideration of the factors set forth in R Messinger Inc we find that the trial court J s designation of these interlocutory rulings as final was improper As such we dismiss Mr Tramontin appeal and remand this matter to the trial court for s further proceedings Additionally we note that Ms Keith filed a motion to strike improper content in Mr Tramontin brief insofar as she believed he made representations s that were not based upon anything in the record Ms Keith also filed a motion to supplement the appellate record with documents she indicated are missing 6 However we note that the Code of Civil Procedure does not require assignments of error in See LSAC art 2129 Also the appellate court is required to render any P C judgment which is just legal and proper upon the record on appeal See LSA C art 2164 P any appeal We also note that these orders or decisions may be revised by the trial court at any time prior to the rendition of the judgment adjudicating all the claims and the rights and liabilities of all the parties LSA C art 1915 P 2 6 9 from the appellate record Because we are dismissing the appeal and have not reached the merits we also dismiss the referenced motions as moot CONCLUSION For the foregoing reasons we dismiss the appeal taken from the August 20 2008 judgment and from the prior interlocutory rulings granting Ms Keith s motions for partial summary judgment with regard to the ownership of the stock and stock options and determining the termination date of the community property regime Moreover Ms s Keith motion to strike and motion to supplement the appellate record are dismissed as moot Costs of this appeal are assessed against Mr Tramontin APPEAL DISMISSED MOTION TO STRIKE AND MOTION TO SUPPLEMENT THE APPELLATE RECORD DISMISSED AS MOOT 10
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