EXPERT MECHANICAL SERVICES INC v. SAFE AIR TECHNOLOGY LLC (2025)

The trial court granted partial summary judgment annulling a previous default judgment and ordering the return of funds seized pursuant to said default judgment. For the reasons that follow, we dismiss the appeal.

FACTS AND PROCEDURAL HISTORY

In May 2021, Safe Air Technology, LLC, a Louisiana Limited Liability Company (the Seller), filed suit against Expert Mechanical Services, Inc., a Michigan corporation (the Purchaser), in the 21st Judicial District Court (breach of contract suit). The Seller alleged that the Purchaser failed to pay the entire balance due under the parties’ contract, despite amicable demand. Thus, the Seller sought the remaining principal balance allegedly owed in the amount of $16,829.00; contractual interest; attorney fees; and costs.

Pertinent to this appeal, the Seller requested service of the breach of contract suit on the Purchaser pursuant to the Louisiana Long Arm Statute, LSA-R.S. 13:3201-3207. An Affidavit of Long Arm Service and a return receipt were filed into the record of the breach of contract suit on June 22, 2021.¹ The Purchaser did not answer or otherwise respond to the Seller's breach of contract suit. The trial court entered default judgment against the Purchaser on August 31, 2022. The Seller then initiated collection proceedings and seized a total of $87,531.40 from a bank account belonging to the Purchaser.

The Purchaser filed the instant suit on March 23, 2023, seeking annulment of the default judgment, reimbursement of the seized funds, and damages pursuant to Louisiana's Unfair Trade Practices and Consumer Protection Law (LUTPA), LSA-R.S. 51:1401, et seq. (nullity suit).² The Purchaser alleged that the default judgment was null pursuant to LSA-C.C.P. art. 2002 because, despite the Affidavit of Long Arm Service filed in the Seller's breach of contract suit, service of the breach of contract suit was never perfected. The Purchaser further argued that the default judgment was null pursuant to LSA-C.C.P. art. 2004 because it was obtained through fraud or ill practices. The Purchaser contended that the parties had reached a compromise as to the $16,829.00 balance at issue in the breach of contract suit before the Seller initiated the breach of contract suit; that the Seller was aware the breach of contract suit was not properly served and the Purchaser was not subject to personal jurisdiction of Louisiana courts, but sought the default judgment “[n]otwithstanding the lack of service and the lack of personal jurisdiction[;]” that the Seller was not authorized to seize the Purchaser's funds, and thus, the Seller wrongfully converted said funds; and that David Ratcliff, the most senior manager and sole owner of the Seller, was personally liable along with the Seller. Further, the Purchaser asserted that the Seller “[had] taken steps that are unfair or deceptive in connection to its commercial relation with [the Purchaser]” and, thus, the Seller violated LUTPA in obtaining the default judgment and seizing the Purchaser's funds “without proper service and by other ill practice[.]’The Seller answered the Purchaser's petition, generally denying the allegations of nullity and the LUTPA violations.

On June 11, 2024, the Purchaser filed a motion seeking partial summary judgment nullifying the default judgment.³ The Seller opposed the Purchaser's summary judgment motion.

The Purchaser's partial summary judgment motion in the nullity suit was heard on August 12, 2024. Following arguments of the parties, the trial court granted partial summary judgment on the issue of service in favor of the Purchaser. The trial court signed a written judgment on October 4, 2024, which provided, in pertinent part:

IT IS HEREBY ORDERED[,] ADJUDGED[,] AND DECREED that with respect to the Motion for Partial Summary Judgment filed by [the Purchaser], and after considering the law, the arguments of counsel, and the exhibits presented, offered, and received in support of said motion, the Motion is GRANTED, with the court specifying that the prior Default Judgment is nullified.

IT IS HEREBY ORDERED[,] ADJUDGED[,] AND DECREED that the funds seized from [the Purchaser], by [the Seller] (or any of its agents, including but not limited to, PNC Bank) shall be returned such that judgment is GRANTED in favor of [the Purchaser], against [the Seller] in the amount of $87,531.40 together with judicial interest from the date of judicial demand.

IT IS HEREBY ORDERED[,] ADJUDGED[,] AND DECREED that all costs in conjunction with this Motion for Partial Summary Judgment are assessed to [the Seller].

IT IS HEREBY ORDERED[,] ADJUDGED[,] AND DECREED that this judgment be designated a partial final judgment.

The Seller has appealed.⁴ In its first assignment of error, the Seller contends that the trial court erred in granting summary judgment nullifying the default judgment, because the breach of contract suit was properly served on the Purchaser. In its second assignment of error, the Seller argues that the trial court erred in ordering the return of the seized funds to the Purchaser, because the Purchaser did not request a money judgment in its summary judgment motion.

APPEALABILITY OF PARTIAL SUMMARY JUDGMENT

Appellate courts have a duty to examine their subject matter jurisdiction sua sponte, even if the litigants do not raise the issue. Advanced Leveling & Concrete Solutions v. Lathan Co., Inc., 2017-1250 (La.App. 1 Cir. 12/20/18), 268 So.3d 1044, 1046 (en banc). A partial summary judgment rendered pursuant to LSA-C.C.P. art. 966(E) may be immediately appealed during ongoing litigation only if it has been properly certified as final by the district court. See LSA-C.C.P. art. 1915(A)(3) & (B); OAT Trustee, LLC as Trustee for Girod Titling Trust v. Elite Investment Group, LLC, 2021-1402 (La.App. 1 Cir. 7/29/22), 347 So.3d 938, 946. Although the trial court designated the October 4, 2024 partial summary judgment as final, that designation is not determinative of this court's jurisdiction. Rather, this court's jurisdiction hinges on whether the certification was appropriate. OAT Trustee, 347 So.3d at 946. Moreover, because the trial court herein did not give reasons for the certification, this court must make a de novo determination of whether the certification was proper. See R.J. Messinger, Inc. v. Rosenblum, 2004-1664 (La. 3/2/05), 894 So.2d 1113, 1122.

Historically, our courts have adopted and followed a policy against multiple appeals and piecemeal litigation. Messinger, 894 So.2d at 1122. In determining whether the trial court properly certified the judgment before us on appeal as final, we consider the “overriding inquiry” of “whether there is no just reason for delay,” as well as the other non-exclusive criteria trial courts should use in making the determination of whether certification is appropriate. Gold Dust Graphics, Inc. v. Diez, 2006-0323 (La.App. 1 Cir. 12/28/06), 951 So.2d 270, 273, citing Messinger, 894 So.2d at 1122-1123. These include:

(1) The relationship between the adjudicated and the 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.

Gold Dust Graphics, 951 So.2d at 273, citing Messinger, 894 So.2d at 1122-1123.

In this matter, the motion for partial summary judgment was limited to the Purchaser's claim that the default judgment was null for lack of service pursuant to LSA- C.C.P. art. 2002. Following the trial court's grant of partial summary judgment on that basis, the Purchaser's remaining unadjudicated claims include, among other things, that the Seller is liable for conversion of the seized funds and that the Seller violated LUTPA. The intentional tort of conversion consists of any act of dominion over the property of another in denial of or inconsistent with the owner's rights; any wrongful exercise or assumption of authority over another's goods, depriving him of the possession, permanently or for an indefinite time, is a conversion. Jones v. Americas Insurance Company, 2016-0904 (La.App. 1 Cir. 8/16/17), 226 So.3d 537, 542. LUTPA prohibits any “unfair or deceptive acts or practices in the conduct of any trade or commerce[,]” such as fraud, misrepresentation, and similar conduct. See LSA-R.S. 51.1405(A); Quality Environmental Processes, Inc. v. I.P. Petroleum Co., Inc., 2013-1582 (La. 5/7/14), 144 So.3d 1011, 1025.

In determining whether the trial court properly certified the partial summary judgment as final for purposes of appeal, we first consider the relationship between the Purchaser's adjudicated claim – i.e., that the Seller's breach of contract suit was not properly served on the Purchaser – and the Purchaser's unadjudicated claims, i.e., the alleged conversion of the seized funds and the alleged violations of LUTPA. Here, the merits of the Purchaser's unadjudicated claims will hinge, at least in part, on the facts and circumstances underlying the trial court's finding that service of the Seller's breach of contract suit was not properly made, and whether the Seller reasonably believed service was properly completed. Thus, the trial court's adjudication of the Purchaser's claim that the Seller's breach of contract suit was not properly served on the Purchaser is inextricably intertwined with the Purchaser's unadjudicated claims.

Further, the nature of the relationship between the adjudicated and the remaining unadjudicated claims increases the possibility that the reviewing court may be obliged to consider the same issue a second time. For example, in considering whether the Seller converted the seized funds or violated LUTPA, the trial court may also be required to consider the facts and circumstances relevant to the service of the Seller's breach of the contract suit, such as whether service was properly completed, and if not, whether the Seller reasonably believed service was properly completed. Finally, there is also a high possibility that the need for review of the judgment now on appeal could be mooted by future developments in the trial court.

Moreover, even were we to consider this appeal and conclude that the default judgment is not null for lack of service pursuant to LSA-C.C.P. art. 2002, the question and possibility would remain that the default judgment is null on the basis of fraud or ill practices pursuant to LSA-C.C.P. art. 2004, which issue is presently moot due to the trial court's determination that the default judgment is null for lack of service. Thus, there is a possibility that this court may have to revisit the issue of whether the default judgment is null under a separate theory.

As noted above, our law disfavors piecemeal litigation. See Messinger, Inc., 894 So.2d at 1122. Given the nature of the claims and the procedural posture of this case, we find that addressing the issues on appeal at this time would promote piecemeal appeals. Accordingly, on our de novo review, we cannot conclude that there is no just reason for delay. Therefore, the designation of finality does not meet the Messinger requirements, and we dismiss the appeal.⁵ The Seller can seek appellate relief once a final judgment has been rendered and all issues are properly before this court on appeal.

CONCLUSION

For the foregoing reasons, we dismiss Safe Air Technology, LLC's appeal. Costs of this appeal are assessed to Safe Air Technology, LLC.

APPEAL DISMISSED.

I respectfully dissent in part from the portion of the majority opinion that dismisses Safe Air Technology, LLC's appeal. The motion and order for appeal was filed within the 30-day delay for seeking supervisory writs from the ruling of the trial court. See Rules 4-2 and 4-3 of the Uniform Rules of Louisiana Courts of Appeal. I would exercise this Court's discretion to convert the appeal to an application for supervisory writ and would address the merits of the case. See Stelluto v. Stelluto, 2005-0074 (La. 6/29/05), 914 So. 2d 34, 38.

FOOTNOTES

1.   According to the Affidavit of Long Arm Service, the Clerk of Court for the 21st Judicial District “issued a long arm citation to” the Purchaser on May 6, 2021; the Seller “sent correspondence” to the Purchaser, “Certified Mail Return Receipt Requested,” properly addressed and with postage prepaid, on May 10, 2021; and the copy of the “returned green card[,]” attached thereto, indicated that the Purchaser received “the letter, along with the Petition for Breach of Contract” on or about May 14, 2021. The section of the “green card” intended to be completed by the sender reflects that the correspondence was addressed to the Purchaser's address for service of process. The section of the “green card” intended to be completed upon delivery by the United States Postal Service reflects what appears to be a handwritten notation of “C19” on the signature line. Said section is otherwise blank.

2.   We note that, in addition to naming the Seller as a defendant, the Purchaser named David Ratcliff as a defendant, in his capacity as the sole member and/or manager of the Seller. The record reflects that Mr. Ratcliff joined with the Seller in answering the petition and in opposing the Purchaser's summary judgment motion. However, the judgment on appeal is silent as to Mr. Ratcliff; Mr. Ratcliff did not join in the Seller's motion for suspensive appeal; and Mr. Ratcliff is not identified as a party in the briefs filed on appeal by either the Seller or the Purchaser.

3.   Although captioned “Plaintiff's Motion for Summary Judgment[,]” the Purchaser's summary judgment motion sought less than all of the relief prayed for in the nullity suit, and therefore, constituted a motion for partial summary judgment. See Armstrong v. ARCCO Company Services, Inc., 2021-0131 (La.App. 1 Cir. 10/18/21), 331 So.3d 939, 945 (“The caption of a pleading does not control. Rather, courts are obligated to look through the caption of pleadings in order to ascertain their substance.”).

4.   In this matter, the Seller sought and was granted a suspensive appeal, but no bond was set or filed. The mandatory language of LSA-C.C.P. art. 2123 requires that the appellant in a suspensive appeal furnish the security within the delay allowed, and suggests that there is little room for exceptions. See Antwine v. Winfield, 2015-1850 (La.App. 1 Cir. 9/16/16), 203 So.3d 454, 460. However, the failure to timely file a suspensive appeal bond is not a jurisdictional defect. Antwine, 203 So.3d at 460. Here, because the Purchaser has not filed a motion to dismiss the appeal and the Seller met the requirements of a devolutive appeal, the Seller's appeal is properly before us as a devolutive appeal. See Carey v. United Property & Casualty Ins. Co., 2022-0831 (La.App. 1 Cir. 5/25/23), 369 So.3d 1, 4 n.2, writ denied, 2023-00973 (La. 10/31/23), 372 So.3d 810.

5.   Additionally, while this court has discretion to convert an appeal to an application for supervisory writs, we decline to do so. Here, the granting of a writ application will not terminate the litigation, and the parties have an adequate remedy by review on appeal after a final judgment is rendered. See 4 C's Land Corp, v. Columbia Gulf Transmission Co., 2021-0121 (La.App. 1 Cir. 10/21/21), 332 So.3d 123, 127-128, writ denied, 2021-01735 (La. 1/19/22), 331 So.3d 322; OAT Trustee, LLC as Trustee for Girod Titling Trust v. Elite Investment Group, LLC, 2021-1402 (La.App. 1 Cir. 7/29/22), 347 So.3d 938, 948; Hayward v. Hayward, 2012-0720 (La.App. 1 Cir. 3/18/13), 182 So.3d 966, 971.

McCLENDON, C.J.

KEB J., dissents in part with reasons