PAUL A. BONIN, Judge.
The trial court granted a partial summary judgment on only one of the three claims asserted by the plaintiffs, John Ramirez, Jr. and Iokon, LLC, against the defendants, Evonir, LLC, Evonir Network, LLC, and John Bagot III. The two remaining claims, for conversion and assault, were unaffected by the judgment. The trial judge did not designate the partial summary judgment as final and appealable. Nonetheless, about sixty days after the judgment was signed, Mr. Ramirez and Iokon filed a motion for devolutive appeal, which was granted.
After the appeal was lodged in our court, we issued on our own motion an order to the parties to show cause why the appeal should not be dismissed because there was no right to appeal the undesignated partial summary judgment.
We explain our decision in greater detail below.
Mr. Ramirez and Iokon jointly filed suit against Mr. Bagot and the Evonir entities. The petition explicitly sets forth three distinct "claims": (1) a demand for payment of certain identified invoices under La. R.S. 9:2781, Louisiana's open accounts law; (2) a demand for damages for conversion of property; and, (3) a demand for damages for personal injuries resulting from an assault. After some pretrial jostling, Mr. Bagot and the Evonir entities filed a motion for partial summary judgment to dispose of the first of the three claims. This motion is contemplated and authorized by La. C.C.P. art. 966 E, which provides that "[a] summary judgment may be rendered dispositive of a particular issue, theory of recovery, cause of action, or defense, in favor of one or more parties, even though the granting of the summary judgment does not dispose of the entire case as to that party or parties."
After the contradictory hearing, the trial judge granted summary judgment "as it pertains to Plaintiffs' Claim regarding invoices." Notably, however, the judgment did not contain any decretal language setting forth with particularity the relief that was being granted. See Palumbo v. Shapiro, 11-0769, p. 5 (La.App. 4 Cir. 12/14/11), 81 So.3d 923, 927. And when a court renders a partial summary judgment "as to one or more but less than all of the claims, demands, issues, or theories against a party, . . . 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." La. C.C.P. art. 1915 B(1) (emphasis added). Here, there was no such designation by the trial judge.
Importantly for our purposes, "[n]o appeal may be taken from a partial final judgment under Article 1915(B) until the judgment has been designated a final judgment under Article 1915(B)." La. C.C.P. art. 1911. Thus, without the jurisdictional designation of finality, it is not an appealable judgment. See Lalla v. Calamar, N.V., 08-0952, p. 6 (La.App. 4 Cir. 2/11/09), 5 So.3d 927, 931. That is to say, Mr. Ramirez and Iokon do not have the right to appeal this judgment. See La. C.C.P. art. 2082 ("Appeal is the exercise of the right to have a judgment of a trial court revised, modified, set aside, or reversed by an appellate court.").
An appeal can be dismissed at any time when "there is no right to appeal." La. C.C.P. art. 2162. See also Egle v. Egle, 05-0531, p. 3 (La.App. 3 Cir. 2/8/06), 923 So.2d 780, 782 ("The appellate court may dismiss an appeal on its own motion where there is no right to appeal."). Accordingly we dismiss this appeal.
We turn now to address the request of the appellees, set forth in their response to our rule to show cause why the appeal should not be dismissed, that in the event that we dismiss the appeal we nevertheless exercise our supervisory jurisdiction to review the judgment. We, however, decline to exercise our supervisory jurisdiction in this matter.
The Louisiana Constitution of 1974 provides for our appellate jurisdiction and our supervisory jurisdiction. See La. Const. Art. 5, § 10(A). "Appeal is the
The proper procedural vehicle to seek immediate review of such an undesignated partial summary judgment rendered under Article 966 E is by application for supervisory relief. See La. C.C.P. art. 2201; Delahoussaye v. Tulane University Hospital, 12-0906, p. 4 (La.App. 4 Cir. 2/20/13), 155 So.3d 560, 562. And, under appropriate circumstances, we will exercise our discretion to convert a motion for appeal to an application for supervisory writ. Id. Here, however, we do not find such circumstances and do not convert the motion for appeal to an application for supervisory writ.
The standard gateway criterion for exercising our discretion to convert the appeal of an interlocutory judgment to an application for supervisory review is that the motion for appeal was filed within the thirty-day delay allowed under Rule 4-3 of the Uniform Rules—Courts of Appeal for the filing of an application for supervisory writs. See Delahoussaye, 12-0906, p. 5, 155 So.3d at 563 ("we do so only when the motion for appeal has been filed within the thirty-day time period allowed for the filing of an application for supervisory writs"), and cases collected therein. Here, the judgment was rendered on June 17, 2014, but the motion for devolutive appeal was not filed until August 25, 2014, more than sixty days later and well beyond the thirty-day limit. Thus, the first criterion is not met.
Another important criterion we use in guiding our discretion is whether or not exercising our supervisory jurisdiction is impelled by the Herlitz factors.
Another criterion is that immediate review is essential in order to avoid mooting
Guided by these criteria, none of which are satisfied here, we conclude that it would not be appropriate to convert the motion for appeal to an application for supervisory writs.
The appeal by John Ramirez, Jr. and Iokon, LLC, of the partial summary judgment rendered on June 17, 2014 in these proceedings is dismissed.