Diep Pham and BC Food Mart, Inc. VS Thao V. Nguyen, Thanh H. Nguyen, Andy D. Nguyen and Jackie P. Do

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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT v N 2010 CA 0992 DI EP PRAM AND BC FOOD MART INC Ji la9 VERSUS THAO V NGUYEN THANH H NGUYEN ANDY D NGUYEN AND JACKIE P DO Judgment Rendered May 6 2011 On Appeal from the 19 Judicial District Court In and for the Parish of East Baton Rouge Docket No 554 861 Honorable R Michael Caldwell Judge Presiding Michael P Bienvenu Counsel for PlaintiffAppellant Baton Rouge LA BC Food Mart Inc Arthur R Thomas Counsel for DefendantsAppellees Baton Rouge LA Andy D Nguyen and Jackie P Do BEFORE PARRO GUIDRY AND HUGHES JJ HUGHES J This is an appeal from a district court partial grant of a motion to s enforce a settlement For the reasons that follow we dismiss the appeal and remand for further proceedings FACTS AND PROCEDURAL HISTORY This action arises out of a 2005 lease of immovable property located at 1200 North Ardenwood in Baton Rouge which allegedly contained a right of first refusal by the lessors Thao Nguyen and Thanh Nguyen Nguyens the in favor of the plaintiffslessees Diep Pham and BC Food Mart Inc who operated a convenience store on the premises In September or October of 2006 the Nguyens forwarded correspondence to the plaintiffs to notify them that a 240 purchase offer had been received from third 000 parties which the plaintiffs claimed was a false representation The plaintiffs declined to purchase the property at that price In January of 2007 the Nguyens sold the property to the defendants Andy Nguyen and his wife Jackie Do for 165 without first offering the property to the 000 plaintiffs The plaintiffs contended that they did not find out about the sale until Andy Nguyen and Jackie Do requested them to sign a new lease for their continued operation of the convenience store on the premises 1 Andy Nguyen testified that he was not related to Thao and Thanh Nguyen 2 A copy of an act of sale between the sellers Thao Nguyen and Thanh Nguyen and the purchasers Andy Nguyen and Jackie Do was submitted into evidence and stated the sale price of the property was 165 however Andy Nguyen and Jackie Do contend that they paid a total 000 price of 240 for the property by paying 75 to the Nguyens purportedly by the 000 000 issuance of three personal checks to the Nguyens totaling 75 and financing the remaining 000 000 165 balance It was asserted that because the appraisal of the property was less than the 000 240 price the lender required the sale documents to have a stated purchase price of only 000 165 While the cash sale deed for 165 was filed into the conveyance records of Bast 000 Baton Rouge Parish and is thus effective as to third parties pursuant to the Public Records Doctrine the mortgage granted to the lender does not appear in the record before us and the copies of the three checks filed into the record are of the fronts only and do not appear to have been negotiated The plaintiffs filed the instant suit seeking to enforce the right of first refusal clause in their lease with the Nguyens Thereafter the Nguyens filed for bankruptcy but settlement negotiations continued between BC Food Mart Andy Nguyen and Jackie Do Allegedly Andy Nguyen and Jackie Do later agreed to settle the case and sell the property to BC Food Mart for 175 000 The purported compromise had been reached through the negotiations of counsel for the parties Upon being informed of the terms of the settlement Andy Nguyen and Jackie Do terminated their attorney services and hired new counsel s BC Food Mart was informed that Andy Nguyen and Jackie Do did not wish to proceed with the settlement Whereupon BC Food Mart filed a motion to enforce the settlement Following a hearing on the matter the district court rendered judgment in favor of BC Food Mart granting the motion to enforce in part against Andy Nguyen only decreeing there was a contract to sell between BC Food Mart and Andy Nguyen for the sale of 1200 N Ardenwood Baton Rouge Louisiana for 175 The judgment signed March 11 000 2010 was designated final for purposes of appeal in accordance with LSA P C art 1915 by order of the district court in July 2010 1 B BC Food Mart has appealed the judgment contending the district court erred in failing to fully enforce the settlement agreement and render judgment against Jackie Do and in decreeing only that a contract to sell A stipulated judgment was signed on July 13 2007 following the filing of exceptions of no right and no cause of action by the Nguyens which dismissed the claims of Diep Pham BC or Food Mart continued the suit as the sole plaintiff 4 In a subsequent motion filed by BC Food Mart it was alleged that the Nguyens had filed for bankruptcy protection in the United States Bankruptcy Court for the Middle District of Louisiana under case number 09 10434 however no official document or stay order to substantiate this fact appears in the record of this case on appeal K3 exists rather than ordering that Jackie Do and Andy Nguyen proceed with the sale LAW AND ANALYSIS On appeal BC Food Mart contends that the correspondence between the parties attorneys constituted a binding and enforceable compromise agreement BC Food Mart further contends that counsel for Jackie Do and Andy Nguyen who negotiated the compromise on their behalf had the requisite legal authority to do so having received direct authorization from Andy Nguyen who in turn either had express authority from Jackie Do was clothed with the apparent authority of Jackie Do or was the managing spouse of the community obligation in accordance with LSAC art P C 735 BC Food Mart also asserts that counsel for Jackie Do and Andy Nguyen had apparent authority to settle the case on their behalf citing LSA C art 2989 Jackie Do maintains that she did not authorize her attorney to enter into a compromise on her behalf Prior to reaching the issues presented we first examine whether this matter is properly before this court on appeal It is the duty of a court to examine subject matter jurisdiction sua sponte even when the issue is not s Louisiana Code of Civil Procedure Article 735 provides Either spouse is the proper defendant during the existence of the marital community in an action to enforce an obligation against community property however if one spouse is the managing spouse with respect to the obligation sought to be enforced against the community property then that spouse is the proper defendant in an action to enforce the obligation When doubt exists whether the obligation sought to be enforced is a community obligation or the separate obligation of the defendant spouse that spouse may be sued in the alternative When only one spouse is sued to enforce an obligation against community property the other spouse is a necessary party Where the failure to join the other spouse may result in an injustice to that spouse the trial court may order the joinder of that spouse on its own motion Louisiana Civil Code Article 2989 provides A mandate is a contract by which a person the principal confers authority on another person the mandatary to transact one or more affairs for the principal 4 raised by the litigants McGehee v CityParish of East Baton Rouge 20001058 p 3 La App 1 Cir 9 809 So 258 260 01 12 2d See also LSA C art 2083 P In this case the judgment rendered by the district court declared only that a contract to sell existed between BC Food Mart and Andy Nguyen for the sale of 1200 N Ardenwood it did not award any further relief to BC Food Mart A judgment is the determination of the rights of the parties in an action and may award any relief to which the parties are entitled may be interlocutory or final It A judgment that does not determine the merits but only preliminary matters in the course of the action is an interlocutory judgment A judgment that determines the merits in whole or in part is a final judgment LSAC art 1841 P C Herein the judgment of the district court was either interlocutory in nature or a partial final judgment as the trial on the main demand i the e defendants liability with respect to the right of first refusal had not yet taken place If the judgment appealed herein is interlocutory it is not appealable See LSAC art 2083 and 1960 Revision Comments If P C C the judgment is a partial final judgment it may be appealable in accordance with LSAC art 1915 as discussed hereinafter We find it unnecessary P C to resolve the issue as the result is the same In the present case the district court judgment was designated final s for purposes of appeal pursuant to LSA C art 1915 upon the P B Louisiana Code of Civil Procedure Article 2083 provides in pertinent part A A final judgment is appealable in all causes in which appeals are given by law whether rendered after hearing by default or by reformation under Article 1814 C An interlocutory judgment is appealable only when expressly provided by law 61 motion of BC Food Mart In his order so designating the district court judge stated that he had expressly determined based on the reasons set forth in the foregoing motion that there was no just reason for delay BC Food Mart motion to designate the judgment as final asserted that because s no judgment was rendered against Jackie Do a trial would be required to determine her liability on the main demand and that such a trial would be obviated by an appellate determination that the motion to enforce settlement should have been granted as to Jackie Do Further BC Food Mart contended that if a trial on the merits were held as to Jackie Do and thereafter the March 11 2010 judgment against Andy Nguyen were appealed along with the final judgment rendered in connection with the trial on the merits the judgment against Andy Nguyen could be reversed and a trial on the merits would then be required as to him on remand BC Food Mart also cited judicial efficiency and economy along with noting the possibility of inconsistent rulings as to Andy Nguyen and Jackie Do as reasons for designating the March 11 2010 judgment final for appeal purposes The district court statement on granting BC Food Mart s s motion to designate the judgment as final essentially adopted these reasons as his own Even though a court designates a judgment as final under LSAC P C art 1915 that designation is not determinative of an appellate court B s jurisdiction The appellate court jurisdiction to decide an appeal hinges on s whether the certification was appropriate See Templet v State ex rel Department of Public Safety and Corrections 2005 1903 p 6 La App 1 Cir 1 1 951 So 182 185 The proper standard of review for an 06 3 2d order designating a judgment final as for appeal purposes when accompanied by explicit reasons is whether the trial court abused its C discretion J R Messinger Inc v Rosenblum 20041664 p 13 La 05 2 3 894 So 1113 1122 2d See also Motorola Inc v Associated Indemnity Corporation 20021351 p 13 La App 1 Cir 10 867 03 22 2d So 723 730 en banc Historically our courts have had a policy against multiple appeals and piecemeal litigation Article 1915 attempts to strike a balance between the undesirability of piecemeal appeals and the need for making review available at a time that best serves the needs of the parties Thus in considering whether a judgment is properly designated as final pursuant to Article 1915 a court must take into account judicial administrative interests as well as the equities involved Factors to be considered by a trial court although not exclusive when determining whether a partial judgment should be certified as appealable include 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 and solvency considerations shortening the time of trial frivolity of competing claims expense and the like Nevertheless the overriding inquiry for the trial court is whether there is no just reason for the delay Templet v State ex rel Department of Public Safety and 2d Corrections 2005 1903 at pp 67 951 So at 185 86 citing R J Messinger Inc v Rosenblum 20041664 at pp 13 14 894 So at 1122 2d 23 Our review of the matter leads us to conclude that while the eventualities suggested by BC Food Mart and adopted by the district court as reasons for designating the judgment against Andy Nguyen final for appeal 7 purposes are possible it is also possible that upon further proceedings prior to or in connection with the trial on the merits of the main demand which sought enforcement of BC Food Mart right of first refusal the matter s might be resolved without the necessity of appellate review We particularly observe as supportive of this conclusion the purposeful failure of the district court to order Andy Nguyen to take any affirmative action with respect to the court ruling that he entered into a contract to sell with BC s Food Mart in settlement of the underlying litigation between the parties The March 11 2010 judgment rendered against Andy Nguyen adjudicated only some aspects of his liability with respect to the purported settlement agreement and did not address the merits of the main demand Issues remain with respect to what type of relief may be granted for the breach of the alleged contract on the main demand see LSAC art 2485 and Revision C Comment b citing LSAC arts 19861988 1 C 9942012 and 2013 2024 whether the agreement denominated by the trial court as a contract to sell is enforceable since it affects community property and there was s The right to a specific performance is not absolute and may be denied in favor of damages particularly where the rights of others are affected See Thompson v Thompson 211 La 468 507 30 So 321 334 1947 Southern Savings Association v Langford Land Company 2d 372 So 713 La App 4 Cir writ denied 374 So 659 La 1979 See also Charter 2d 2d School of Pine Grove Inc v St Helena Parish School Board 20072238 La App 1 Cir 09 19 3d 2 9 So 209 9 We note that the fact that community property is at issue in the present case makes it distinguishable from the facts presented in Dozier v Rhodus 2008 1813 La App 1 Cir 09 5 17 So 402 writ denied 2009 1647 La 10 21 So 294 which BC Food 3d 09 30 3d Mart relied upon in its motion to enforce settlement Furthermore we question the continued viability of the Dozier v Rhodus holding in light of 2007 La Acts No 138 effective August 15 2007 see Roccaforte v Wing Zone Inc 20072451 p 4 n La App 1 Cir 8 994 2 08 21 2d So 126 129 n which added LSAC art 3073 providing When a compromise effects a 2 C transfer or renunciation of rights the parties shall have the capacity and the contract shall meet the requirement of form prescribed for the transfer or renunciation Because Dozier v Rhodus dealt with a July 2007 compromise agreement LSA C art 3073 was not applicable However the purported compromise agreement at issue in the present case was confected in April of 2009 therefore LSAC art 3073 would apply When Article 3073 is read in C conjunction with LSAC art 2993 which requires that when the law prescribes a certain C the authorization from form for an act a mandate authorizing the act must be in that form Andy Nguyen and Jackie Do to their attorney to settle this case by transferring their rights in the immovable property at issue was required to have been in the form prescribed by LSAC arts C 2440 and 3073 i by authentic act or by act under private signature e N allegedly no concurrence by one spouse as required by LSAC art C A 2347 see also LSA C art 2353 and whether a separate enforceable contract may result from within the context of settlement negotiations when no compromise was reached see LSAC art 3081 C Consequently we find that the matters presented on appeal could be disposed of via further action by the parties and the district court or rendering an appeal unnecessary and we conclude the district court abused its discretion in designating the March 11 2010 judgment final for purposes of appeal Because we conclude the district court improperly designated the 10 Louisiana Civil Code Article 2347 provides in pertinent part The concurrence of both A spouses is required for the alienation encumbrance or lease of community immovables 11 Louisiana Civil Code Article 2353 provides in pertinent part When the concurrence of the spouses is required by law the alienation encumbrance or lease of community property by a spouse is relatively null unless the other spouse has renounced the right to concur 12 We also question the severability of the settlement agreement in its enforcement against one defendant Andy Nguyen when the consent of his co defendant and spouse Jackie Do could not be obtained Since the written correspondence that allegedly constituted the settlement agreement did not contain a severability provision which would give effect to any one or more provisions should another portion of the agreement be declared invalid the entire agreement might have been invalidated by the failure of all parties to agree to the negotiated settlement See State v Sprint Communications Company L 2003 1264 pp 910 La App 1 Cir 10 897 P 04 29 2d So 85 92 93 writs denied 2005 1180 2005 1190 La 12 916 So 1056 1057 05 9 2d wherein it was held that a negotiated settlement could not be enforced as to some parties where the consent of other parties to the agreement could not be obtained While we recognize that the Sprint case dealt with a settlement in a class action setting and that class actions are subject to specialized legislation and jurisprudence the underlying rationale that parties should not be required to accept a settlement that modifies the agreement they negotiated and agreed to see Evans v Jeff D 475 U 717 726 106 S 1531 1537 89 L 747 1986 is equally S Ct 2d Ed applicable to nonclass action settlements In the instant case Andy Nguyen ostensibly agreed to a settlement of the lawsuit that comprehended the inclusion of his wife in the agreement and would encompass a joint sale of the property at issue When the consent of Mr Nguyen wife s could not be obtained was his consent thereby affected The provisions of the alleged settlement agreement are contained in the April 24 2009 letter written by Andy Nguyen and Jackie Do s former counsel to BC Food Mart counsel which stated in pertinent part as follows s 1 BC Food Mart Inc would settle dismiss waive and release with prejudice all claims they may have against Thao Nguyen Thanh Nguyen Andy Nguyen and Jackie Do relating in any way to the property located at 1200 N Ardenwood Baton Rouge LA 2 In exchange for this settlement dismissal waiver and release Andy Nguyen and Jackie Do would sell the property located at 1200 N Ardenwood Baton Rouge Louisiana to BC Food Mart Inc for 175 000 If this settlement is only partially enforced as to Andy Nguyen would Thao Nguyen and Thanh Nguyen be dismissed What would the price for Andy Nguyen share of the property be s BC Food Mart would probably not consider half of 175 to be a fair price for Andy Nguyen 000 s share of the property since it would have to continue to litigate the action as to Jackie Do and if unsuccessful would have to deal with her as a potentially hostile coowner or file another action for partition of the property The creation of such questions militates against a finding of the severability of the settlement insofar as it applied to Jackie Do E March 11 2010 judgment at issue herein as a final judgment pursuant to LSA C art P B 1915 the appeal should be dismissed for lack of appellate jurisdiction CONCLUSION For the reasons assigned herein this appeal is hereby dismissed for lack of appellate jurisdiction and the case is remanded to the district court for further proceedings consistent with the foregoing Assessment of appeal costs shall await final disposition of this matter APPEAL DISMISSED REMANDED 10

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