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KELLY v. O'NEIL, 2011-CA-0232 (2011)

Court: Court of Appeals of Louisiana Number: inlaco20110929249 Visitors: 2
Filed: Sep. 28, 2011
Latest Update: Sep. 28, 2011
Summary: JAMES F. McKAY III, JUDGE. These four consolidated cases involve a contract for an amount due on a promissory note and three writs of mandamus concerning lis pendens. 1 The defendant, Thomas H. O'Neil d/b/a 3 rd Street Properties, LLC and Bienville 38, LLC, appeals the trial court's awarding of $75,000.00 plus interest to the plaintiff, Russell Kelly d/b/a Affordable Housing Contractors, LLC and Affordable Trucking Contractors, LLC. He also appeals the trial court's denial of his motion for
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JAMES F. McKAY III, JUDGE.

These four consolidated cases involve a contract for an amount due on a promissory note and three writs of mandamus concerning lis pendens.1 The defendant, Thomas H. O'Neil d/b/a 3rd Street Properties, LLC and Bienville 38, LLC, appeals the trial court's awarding of $75,000.00 plus interest to the plaintiff, Russell Kelly d/b/a Affordable Housing Contractors, LLC and Affordable Trucking Contractors, LLC. He also appeals the trial court's denial of his motion for summary judgment. We affirm.

FACTS AND PROCEDURAL HISTORY

Russell Kelly d/b/a Affordable Housing Contractors owned multiple properties in the Mid-City section of New Orleans. The properties were sold to Thomas O'Neil d/b/a 3rd Street Properties and Bienville 38. Homes were to be built on the sites. Six hundred thousand dollars ($600,000.00) was paid at the time of sale and Thomas O'Neil executed a promissory note in the amount of $75,000.00 due in two years or when the last home was built. Although the last home was completed, Affordable Housing and Mr. Kelly were never paid the remaining $75,000.00.

Mr. Kelly filed a petition in suit on the promissory note. After a trial on the merits, the trial court awarded $75,000.00 plus interest in favor of Mr. Kelly.

DISCUSSION

On appeal, the defendant raises the following assignments of error: 1) it is respectfully submitted that the court's judgment appealed from herein is manifestly erroneous and contrary to law in that despite the pleadings in Civil District Court for the Parish of Orleans Case No. 07-15890 clearly reflecting that the proper plaintiff was Affordable Housing Contractors, LLC, now Affordable Trucking, LLC and the proper defendant was 3rd Street Properties, LLC the judgment complained of was issued in favor of Russell Kelly d/b/a Affordable Housing Contractors, LLC and against no defendant. Kelly could not, as plaintiff in proper person, represent plaintiff, Affordable Housing Contractors, LLC in the proceedings at trial; 2) the judgment from which this appeal issues names no defendant. It is clearly necessary to name the defendant against whom the judgment has been rendered. It is reversible error to issue a judgment wherein there is no indication as to against whom the judgment has been rendered; and 3) the court erred in rejecting defendants/appellants' summary judgment out of hand in that the testimony and exhibits presented by movers were not controverted by the defendant in rule. The court committed reversible error in its declining to sustain the summary judgment motion without contravention.

In their first assignment of error, the defendants contend that the trial court erred because judgment in this case was entered in favor of Russell Kelly d/b/a Affordable Housing Contractors, LLC. The crux of defendants' argument is that Mr. Kelly, a non-attorney, represented another party in violation of Louisiana law. The defendants are correct that a non-attorney representing himself may not represent another party. See La. R.S. 37:212; see also Bankston v. Tasch, LLC, 2009-1573 (La.App. 4 Cir. 6/2/10), 40 So.3d 495. However, that is not what we have in the instant case. Although the captions of some of the pleadings and the judgment name plaintiffs in addition to Mr. Kelly, this may be attributed to Mr. Kelly's lack of formal legal training. In any event, it appears harmless in that it would have had no practical effect on the outcome of the case. The transcript from the trial clearly demonstrates that, after Judge Griffin informed Mr. Kelly that he could only represent himself, he affirmed that he was only representing himself. Based on the record before this Court, we find no error on the part of the trial court in regard to defendants' first assignment of error.

In their second assignment of error, the defendants contend that the judgment failed to name the defendant against whom the judgment was rendered. The defendants contend that this is reversible error. We must keep in mind that Mr. Kelly was representing himself and certain allowances must be made. The caption of the judgment clearly indicates that the defendant is Thomas H. O'Neil d/b/a 3rd Street Properties, LLC. An examination of the transcript also shows Judge Griffin's directions involving the judgment. The transcript states: "Mr. Russell, you have to prepare a judgment. Mr. Person needs to look at that judgment to verify that he is okay with the way this it is worded. If there are questions, Mr. Persons, just let us know and if ya'll can't agree on a judgment we will prepare one." Mr. Kelly did as the trial court instructed him to do and the trial court entered the judgment. There is no indication in the record that the defendant or his attorney objected to the judgment. In order to preserve an argument for appeal, a party must specifically object and state the reasons for the objection. Seal v. State Farm Fire & Cas. Ins. Co., 2001-2375, p. 3 (La.App. 4 Cir. 3/20/02), 816 So.2d 868, 871; In Re Asbestos v. Bordelon, Inc., 96-0525, p. 12 (La.App. 4 Cir. 10/21/98), 726 So.2d 926, 940. Accordingly, the defendant's second assignment of error is waived.

In their final assignment of error, the defendants contend that the trial court erred in rejecting their motion for summary judgment out of hand. Appellate courts review summary judgments de novo under the same criteria that govern the district court's consideration of whether summary judgment is appropriate. Independent Fire Insurance Co. v. Sunbeam Corp., 99-2181, 99-2257, p. 7 (La. 2/29/00), 755 So.2d 226, 230; Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342, 345 (La. 1991). Summary judgments shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any, scrutinized equally, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966 (B). See also Grant v. American Sugar Refining, Inc., 2006-1180 (La.App. 4 Cir. 1/31/07), 952 So.2d 746. The defendants' argument on summary judgment is that the lis pendens filed by Mr. Kelly caused them to have to take a reduced price for some of the properties when they were ultimately sold. The defendants contend that they presented non-refuted documentation that supported their position. However, the issue of whether or not the activity of Mr. Kelly caused any diminution of value of the properties appears to be highly speculative and clearly an issue of disputed fact. Therefore, summary judgment would not be appropriate. Accordingly, we find no error in the trial court's denying summary judgment.

CONCLUSION

Although the circumstances of this case are quite convoluted, the trial court determined that a promissory note existed and that according to the terms of this note Mr. O'Neil owed $75,000.00 plus interest to Mr. Kelly. Accordingly, for the foregoing reasons, we affirm the judgment of the trial court.

AFFIRMED

TOBIAS, J., CONCURS IN PART IN THE RESULT, DISSENTS IN PART, AND ASSIGNS REASONS.

I respectfully concur in the majority's decision effectively determining that the trial court decision was neither manifestly erroneous nor clearly wrong. My view of the facts is that the defendant agreed to pay the plaintiff a total of $675,000.00, $75,000.00 of which was deferred, to be paid at a time certain or the occurrence of an event, by implication whichever of those event occurred first. Further, the record supports the proposition that all parties had elected to disregard the limited liability entities for purposes of this litigation. Such disregard of the limited liability entities is, however, not favored.

Further, that Mr. Kelly tried the case before the trial court representing an entity was not proper. La. R.S. 37:212. However, the trial court permitted Mr. Kelly to do so and the defendants did not previously bring the matter to this court on an application for supervisory review. Insofar as the appeal before us presently, the issue has been waived, subject only to the penalty in La. R.S. 37:213 if timely brought to the correct forum by the proper person.

I find no error in the denial of the motion for summary judgment based upon my de novo review of the record.

I respectfully dissent from the majority's failure to recast the judgment to reflect the intent of the trial court.

In pertinent part, the trial court's 15 October 2010 judgment states:

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of the plaintiff, Russell Kelly, d/b/a Affordable Housing Contractors, LLC, in the amount of Seventy-five Thousand and NO/100th ($75,000.00) Dollars, together with legal interest from December 17, 2007 (which currently totals $12,996.58 as of the date of judgment of October 12, 2010), and continuing until paid plus court costs in the amount of $452.50.1

I would recast the judgment to reflect the intent of the trial judge to read as follows:

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of the plaintiff, Russell Kelly, d/b/a Affordable Housing Contractors, LLC, and against the defendant, Thomas H. O'Neil d/b/a 3rd Street Properties, LLC, in the amount of Seventy-five Thousand and NO/100 ($75,000.00) Dollars, together with legal interest thereon, from December 17, 2007, until paid, plus court costs in the amount of $452.50.

A final appealable judgment must contain language that decrees a specific result. 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. Such a recasting of the judgment is mandated by La. C.C.P. art. 2164 and the jurisprudence, such as J.R.A. Inc. v. Essex Ins. Co., 10-0797 (La. App. 4 Cir. 5/27/11), ___ So.3d ___, 2011 WL 2137335; Input/Output Marine Systems, Inc. v. Wilson Greatbatch Technologies, Inc., 10-477 (La. App. 5 Cir. 10/29/10), 52 So.3d 909; Johnson v. Mt. Pilgrim Baptist Church, 05-0337 (La. App. 1 Cir. 3/24/06), 934 So.2d. 66; Vanderbrook v. Coachmen Indus., Inc., 01-0809 (La. App. 1 Cir. 5/10/02), 818 So.2d 906; Carter v. Williamson Eye Center, 01-2016 (La. App. 1 Cir. 11/27/02), 837 So.2d 43.

FootNotes


1. Some of the proceedings took place in Judge Piper Griffin's court; others took place in Judge Madeleine Landrieu's court.
1. The judgment is rendered against no person.
Source:  Leagle

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