Tchefuncte Harbour Association, Inc. v. Thomas Branighan ( 2023 )

NOT FOR PUBLICATION
STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2022 CA 0404
TCHEFUNCTE HARBOUR ASSOCIATION, INC.
VERSUS
THOMAS BRANIGHAN
Judgment Rendered.
MAR 0 12023
Appealed from the 22nd Judicial District Court
In and for the Parish of St. Tammany
State of Louisiana
Case No. 2021- 11742
The Honorable Raymond Childress, Judge Presiding
Joshua D. Allison Counsel for Plaintiffs/Appellant
Covington, Louisiana Tchefuncte Harbour Association, Inc.
Wayne J. Jablonowski Counsel for Defendant/Appellee
Slidell, Louisiana Thomas Branighan
BEFORE: WELCH, PENZATO, AND LANIER, JJ.
LANIER, J.
In this appeal, plaintiff challenges a judgment of the district court that
sustained defendant' s exceptions raising the objections of res judicata, no cause of
action, and no right of action and awarded defendant $ 1, 500.00 in attorney fees.
Defendant answered the appeal, seeking an increase in the amount of attorney fees
awarded below, as well as an award of attorney fees for the work done on appeal.
For the reasons that follow, we dismiss both the appeal and the answer to the
appeal.
FACTS AND PROCEDURAL HISTORY
The matter before us involves a complicated procedural history between a
homeowner, Thomas Branighan, and his homeowners' association, the Tchefuncte
Harbour Association, Inc. (" THA"). On July 16, 2018, Mr. Branighan, the owner
of Unit E- 2 (" the townhome") in the Tchefuncte Harbour, A Planned Unit
Development, filed a petition for writ of mandamus against THA and its president,
Barbara Lewis, seeking an order for THA to perform certain modifications and
structural repairs in his townhome community pursuant to the declarations and by-
laws of the THA. The trial on the petition for writ of mandamus began on
September 19, 2018, and was set to resume on December 5, 2018. However,
according to the record, the parties began settlement negotiations and purportedly
reached a settlement agreement, whereby in exchange for THA completing the
work requested, Mr. Branighan would dismiss, with prejudice, the petition for writ
of mandamus he had filed against THA and Mrs. Lewis. The settlement agreement
also provided that THA would pay Mr. Branighan's attorney fees and costs in the
amount of $5, 256. 40 and would pay all expenses, attorney fees, and costs incurred
to enforce the settlement if any part of the agreement was not adhered to.
Thereafter, THA filed a " Motion to Enforce Settlement, Motion for Entry of
Protective Order, and Motion to Tax Attorney's Fees and Court Costs," arguing
K
that despite the parties' valid and enforceable settlement agreement, Mr. Branighan
continued to harass and disparage current and former THA board members and its
counsel. Following a hearing on December 5, 2018, the district court granted the
Motion to Enforce Settlement, attaching to the judgment a copy of the Receipt and
Release Agreement (" Receipt and Release") that the parties had confected but had
not yet signed. The court denied THA's remaining motions, including its motion
for attorney fees and costs. A judgment in accordance with these findings was
signed by the district court on January 3, 2019.
On March 16, 2020, Mr. Branighan filed a " Petition for Enforcement of
Judgment and Settlement, for Contempt, for Writ of Mandamus and for Attorney
Fees." Mr. Branighan argued that THA failed to comply with the requirements of
the court's January 3, 2019 judgment and the terms of the Receipt and Release.
In response, on June 2, 2020, THA filed a " Motion to Enforce Settlement
Agreement and Motion for Contempt," alleging that as THA had satisfied its
obligations under the Receipt and Release, the only remaining obligation was that
of Mr. Branighan to dismiss his petition for writ of mandamus. THA noted that
the Receipt and Release " purported to compromise and settle the entirety of the
dispute between the parties as set forth in the July 16, 2018 Writ ofMandamus and
therefore amounts to a settlement agreement." THA further acknowledged that by
virtue of the court's January 3, 2019 judgment, the Receipt and Release had
become a lawful court order. Thus, THA asserted, Mr. Branighan should be held
in contempt of court for willful violation of a court order.
The parties again began settlement negotiations in an effort to avoid further
litigation. As set forth in a December 11, 2020 letter from THA's counsel to Mr.
Branighan's counsel, the proposed settlement included the dismissal, with
prejudice, of all pending suits and motions, THA's agreement not to follow through
with a nuisance lawsuit against Mr. Branighan, and THA's agreement to " pay the
3
costs of the outstanding attorneys' fees" not to exceed $ 2, 000. 00. Thereafter, the
parties moved for voluntary dismissal of all matters with prejudice. On January 8,
2021, the court signed an order dismissing, with prejudice, Mr. Branighan' s
Petition for Enforcement of Judgment and Settlement, for Contempt, for Writ of
Mandamus and for Attorney Fees." On January 13, 2021, the court signed an order
dismissing, with prejudice, THA' s " Motion to Enforce Settlement Agreement and
Motion for Contempt."
On January 25, 2021, Mr. Branighan filed paperwork with the State of
Louisiana for 4421 Properties LLC. Thereafter, on February 2, 2021, Mr.
Branighan received a commitment from Metairie Bank for a loan in the amount of
485, 000.00 for the purchase of commercial property located at 942 North
Rampart Street, New Orleans, Louisiana.
Subsequently, on February 19, 2021, THA issued a Notice of Fine to Mr.
Branighan, seeking to recover $ 78, 344. 54 in attorney fees and legal costs pursuant
to Article VII, Section 9{ b} of the Amended and Restated Declaration of
Servitudes, Conditions and Restrictions of Tchefuncte Harbour, dated July 21,
2020, and Article VII, Section 8 of the Amended and Restated Declaration of
Servitudes, Conditions and Restrictions of Tchefuncte Harbour, dated January 5,
2018. Attached to THA's Notice of Fine was an itemized listing of the " TOTAL
ATTORNEY FEES AND LEGAL COSTS INCURRED BY THE BOARD ON
BEHALF OF [ THA] BECAUSE OF [ MR.] BRANIGHAN" setting forth the
following fees and costs:
1. Alker & Rather, LLC 7130118- 7131119
22, 712. 60- Branighan
2. Joshua D. Allison, A Professional Law Corporation 7/ 25/ 19- 1/ 26/ 21
1-$ 16, 838. 63- Branighan Litigation # 1 - July 16, 2018 Lawsuit against [ THA]
2 -$3, 087. 49 -General Advices
3-$ 10, 412. 02- Branighan Litigation # 2 -March 16, 2020 Lawsuit against
THA]
4
4-$ 9,922. 80- Branighan Litigation # 3 -April 23, 2020 Lawsuit against [ Mr.
Branighan]
5-$ 4, 352. 25- Branighan Litigation # 4 -Nuisance Lawsuit against [ Mr.
Branighan]
3. Breazeale, Sachse & Wilson, L.L.P. 5129/ 20- 7/ 21/ 20
11, 018. 75 -Amendments to Declaration
On April 19, 2021, THA filed a " Petition for Monies Due" against Mr.
Branighan, seeking to recover the fees and costs set forth in its previously issued
notice of fine. In response thereto, Mr. Branighan filed exceptions raising the
objections of res judicata, no cause of action, and no right of action. THA
subsequently filed a first amended petition, acknowledging that the January 3,
2019 judgment rendered that portion of the February 19, 2021 Notice of Fine
attributable to Alker & Rather, LLC " res judicata and therefore unenforceable."
THA asserted that all other portions of the fine, totaling $ 55, 631. 94, remained
enforceable.
On February 25, 2021, Mr. Branighan executed an act of conveyance,
wherein he conveyed the townhome to 4421 Properties, LLC. On October 13,
2021, THA filed a motion to annul, seeking to annul the February 25, 2021 act of
conveyance and to enjoin, restrain, or otherwise prohibit Mr. Branighan from
transferring his immovable property located within the development managed by
THA. Mr. Branighan's exceptions and THA's motion to annul were set for hearing
on November 5, 2021, at which time the matter was argued by the parties and
evidence was offered and introduced in support of the exceptions.
On November 16, 2021, the district court signed a judgment, providing, in
pertinent part:
IT IS ORDERED that the Exceptions of Res Judicata, No
Cause of Action and No Right of Action filed on behalf of Thomas
Branighan are hereby GRANTED.
IT IS FURTHER ORDERED that Tchefuncte Harbour
Association, Inc. shall pay to Tom Branighan the amount of $1, 500. 00
for attorney fees.
5
IT IS FURTHER ORDERED that the Motion to Annul Act of
Conveyance filed on behalf of Tchefuncte Harbour Association, Inc.
is rendered MOOT.
THA appealed.
APPELLATE JURISDICTION
On May 6, 2022, this court, ex proprio motu, issued a rule to show cause
finding an apparent defect in the November 16, 2021 judgment. Particularly, this
court noted that the judgment was " ambiguous as to the relief' awarded and that it
merely enters judgment granting the exceptions ... but lacks decretal language
disposing of and/ or dismissing plaintiffs claims."
In response to the rule to show cause, THA filed an " Ex -Parte Unopposed
Motion and Order for Execution of Amended Judgment and to Supplement Record
on Appeal" in the district court, along with an amended judgment for the district
court' s signature. The district signed the amended judgment on June 30, 2022,
providing, in pertinent part, as follows:
IT IS HERESY ORDERED, ADJUDGED, AND
DECREED that there be judgment in favor of DEFENDANT and
against PLAINTIFF sustaining Thomas Branighan's Peremptory
Exception of Res Judicata, Peremptory Exception of No Cause of
Action, and Peremptory Exception of No Right of Action, filed by
DEFENDANT, THOMAS BRANIGHAN, on or about August 4,
2021.
IT IS FURTHER ORDERED, ADJUDGED, AND
DECREED that there be judgment in favor of DEFENDANT and
against PLAINTIFF awarding DEFENDANT attorney fees in the
amount of $1, 500. 00.
IT IS FURTHER ORDERED, ADJUDGED, AND
DECREED that there be judgment in favor of DEFENDANT and
against PLAINTIFF dismissing Motion to Annul Act of Conveyance
Pursuant to Civil Code Article 2036 with Injunctive Relief and
Incorporated Memorandum in Support, filed by PLAINTIFF,
TCHEFUNCTE HARBOUR ASSOCIATION, INC., on or about
October 13, 2021 as moot.
IT IS FURTHER ORDERED, ADJUDGED, AND
DECREED that this judgment is a final judgment.
Before the appellate record was supplemented with these documents on July
20, 2022, this court issued an interim order on July 5, 2022, remanding the matter
to the district court with instructions to sign an amended judgment correcting the
deficiencies noted in the May 6, 2022 Show Cause Order. The July 5, 2022 order
provided as follows:
A valid judgment must be precise, definite, and certain.
D' Luca v. Kirkland, 2020- 0713, 2020- 0714 ( La. App. 1st Cir.
2119121), 321 So3d 411, 413. Moreover, a final appealable judgment
must contain decretal language, and it must name the party in favor of
whom the ruling is ordered, the party against whom the ruling is
ordered, and the relief that is granted or denied. Id. at 413- 14. These
determinations should be evident from the language of a judgment
without references to other documents in the record, such as pleadings
and reasons for judgment. Id. at 414. As noted in this court's May 6,
2022 Rule to Show Cause Order, "[ t] he November 16, 2021 judgment
at issue merely enters judgment granting the exceptions of res
judicata, no cause of action, and no right of action, but lacks decretal
language disposing of and/ or dismissing the plaintiffs claims." See
Johnson v. Mount Pilgrim Baptist Church, 2005- 0337 ( La. App.
1 st Cir. 3124106), 934 So. 2d 66.
Accordingly, we . REMAND THIS MATTER FOR THE
LIMITED PURPOSE of instructing the trial court to sign an
amended judgment that corrects the foregoing deficiencies and
complies with La. Code Civ. P. art. 1918, see La. Code Civ. P. arts.
1918 ( A), 1951, and 2088 ( A)( 12), as amended by 2021 La. Acts No.
259.
The rule to show cause was thereafter referred to the merits of the appeal.
Upon review of the June 30, 2022 amended judgment, this court found the
judgment still lacking in decretal language. Despite further language in the
judgment identifying the parties and the exceptions filed, including the statement
that the " judgment is a final judgment," the amended judgment remained unclear as
to whether all the claims asserted in the petition for monies due by THA against
Mr. Branighan were not dismissed.
Accordingly, this court issued a second interim order on January 12, 2023,
again noting the deficiencies and remanding the matter for the district court to sign
another amended judgment. Similar to the July 5, 2022 interim order, this court's
7
January 12, 2023 order was very detailed as to what was required for this court's
jurisdiction to attach:
As noted in this court's July 5, 2022 interim order, the initial
November 16, 2021 judgment at issue merely enters judgment
granting the exceptions of res judicata, no cause of action, and no
right of action, but lacks decretal language disposing of and/ or
dismissing the plaintiffs claims." See Johnson v. Mount Pilgrim
Baptist Church, 2005- 0337 ( La. App. 1st Cir. 3/ 24106), 934 So. 2d
66. Similarly, the amended judgment entered by the trial court on
June 30, 2022 grants the referenced exceptions, but does not dispose
of and/ or dismiss the plaintiff's claims. Cf. Robertson v. Sun Life
Financial, 2009- 2275 ( La. App. 1st Cir. 6111/ 10), 40 So. 3d 507, 510
wherein this court' s appellate jurisdiction attached to review a
judgment that granted an " exception of no cause of action and
dismissed with prejudice [ plaintiffs] claims against [ defendant]"
emphasis added]) and Misita v. St. Tammany Parish Government,
2018- 1595 ( La. App. 1st Cir. 9111119), 286 So. 3d 440, 442, writ
denied, 2019- 01877 ( La. 1/ 28/ 20), 291 So. 3d 1060 ( wherein this
court' s appellate jurisdiction attached to review a judgment that
sustained the defendant' s " exception of no cause of action and
dismissed plaintiffs' petition with prejudice" [ Emphasis added])."
Although the amended judgment reflects that the " judgment is a final
judgment," it does not contain decretal language to indicate whether
any or all of the plaintiffs claims are dismissed.
Accordingly, we REMAND THIS MATTER FOR THE
LIMITED PURPOSE of requesting that the trial court, in accordance
with Article 1951, issue an amended judgment that specifically
indicates if any or all of the plaintiffs claims are dismissed and
complies with La. Code Civ. P. art. 1918, see La. Code Civ. P. arts.
1918( A), 1951, and 2088 ( A)( 12), as amended by 2021 La. Acts No.
259.
On January 25, 2023, the district court signed a second amended judgment,
which consists solely of the following sentence: " In Accordance with the Interim
Order of January 12, 2023, in Case Number 2022 CA 0404, this Court hereby
amends its judgment of July 5, 2022 to include the decretal language ' dismissing
all of the plaintiff's claims with prejudice."' The appellate record was
supplemented with this judgment on January 31, 2022.
A valid, appealable, final judgment must be precise, definite, and certain. It
must contain appropriate decretal language, and it must name the party in favor of
whom the ruling is ordered, the party against whom the ruling is ordered, and the
8
relief that is granted or denied. Advanced Leveling & Concrete Solutions v.
Lathan Company, Inc., 2017- 1250 ( La. App. 1 Cir. 12120118), 268 So. 3d 1044,
1046. These determinations should be evident from the language of the judgment
without reference to other documents in the record. Id.The district court' s January 25, 2023 amended judgment is clearly not a
valid, appealable, final judgment. As noted, the judgment references a prior
judgment of July 5, 2022" and purports to amend same by including decretal
language " dismissing all of the plaintiffs claims with prejudice." However, there
is no July 5, 2022 district court judgment in the record before us. Moreover, even
if there was such a judgment, the January 25, 2023 amended judgment would still
not be a valid, appealable, final judgment as it lacks sufficient decretal language,
ascertainable from the four corners of the judgment. See Rivault v. America
Homeland, LLC, 2019- 1468 ( La. App. 1 Cir. 9121120), 314 So. 3d 73, 77. In the
absence of appropriate decretal language, clearly stating the party in favor of
whom the ruling is ordered, the party against whom the ruling is ordered, and the
relief that is granted or denied, the January 25, 2023 amended judgment is
defective and cannot be considered a final judgment for purposes of appeal. Thus,
we are constrained to find that this court lacks appellate jurisdiction to review this
matter, and the appeal must be dismissed.' See Advanced Leveling & Concrete
We recognize that this court has discretion to convert an appeal of a non -appealable judgment
to an application for supervisory writs. See Stelluto v. Stelluto, 2005- 0074 ( La. 6/ 29/ 05), 914
So. 2d 34, 39. Nonetheless, we note that an appellate court will generally refrain from the
exercise of its supervisory jurisdiction when an adequate remedy exists by appeal, particularly
when an adequate remedy by appeal will exist upon the entry of the requisite precise, definite,
and certain decretal language necessary for appellate review. See Simon v. Ferguson, 2018-
0826 ( La. App. 1 Cir. 2/ 28119), 274 So. 3d 10, 14. Accordingly, we decline to exercise our
discretion to convert this appeal of a judgment that is not final for lack of decretal language to an
application for supervisory writs. See Boyd Louisiana Racing, Inc. v. Bridges, 2015- 0393 ( La.
App. 1 Cir. 12123/ 15), 2015 WL 9435285, * 4 ( unpublished).
9
Solutions, 268 So. 3d at 1046- 1047. {"[ I] n the absence of a valid final judgment
this court lacks subject matter jurisdiction and the appeal should be dismissed.")
DECREE
For the above reasons, we dismiss the appeal of the January 25, 2023
amended judgment. We further dismiss the answer to the appeal filed by the
defendant, Thomas Branighan, because it is based on a nonappealable judgment.
We decline to assess costs pending the rendition of a final judgment.
APPEAL DISMISSED; ANSWER TO APPEAL DISMISSED.
10