JORKEN MCCARTER v. STATE OF LOUISIANA DEPARTMENT OF CHILDREN FAMILY SERVICES CHILD ENFORCEMENT SUPPORT (2025)

This matter is before us on appeal by the plaintiff, Jorken McCarter, who seeks review of a trial court judgment that sustained an exception of prescription and dismissed McCarter's tort claims against the defendant, State of Louisiana, through the Department of Children and Family Services/Child Support Enforcement Division (“the Department”). For the reasons that follow, we conclude this judgment is interlocutory and not immediately appealable, and we grant the Department's motion to dismiss this appeal. We also decline to exercise our supervisory jurisdiction to address whether the trial court erred in sustaining the exception.

FACTS AND PROCEDURAL HISTORY

On July 24, 2023, McCarter filed suit against the Department, claiming he overpaid child support on behalf of his minor child as a result of the Department's inaccurate position that he was in arrears. McCarter claims he suffered damages due to the Department's negligent actions. He seeks to recover compensation for his injuries, “reimbursement of the remaining overpayment” he made to the Department, attorneys’ fees, and costs.

The Department filed an exception raising the objection of prescription, asserting that McCarter's “tort claims for negligence have prescribed” and seeking dismissal of those claims.¹ The Department urged these claims were subject to a liberative prescriptive period of one year that lapsed prior to the date McCarter's suit was filed.

By judgment dated April 23, 2024, the trial court sustained the Department's exception of prescription and dismissed McCarter's “tort claims for negligence” against the Department with prejudice at McCarter's cost. On May 22, 2024, McCarter filed a pleading bearing the caption, “Notice of Appeal,” stating he “hereby appeal[s]” a March 18, 2024 judgment.² By order dated June 28, 2024, the trial court ordered the East Baton Rouge Parish Clerk of Court to “forward the entire Record on Appeal” to this court.³ The Clerk of Court issued a notice of appeal, stating, “an order of appeal was entered granting a DEVOLUTIVE appeal from the judgment of 4/23/24, which appeal is returnable to the FIRST CIRCUIT COURT OF APPEAL[ ], on 7/28/24[.]”

On appeal, McCarter asserts the trial court erred in granting the Department's peremptory exception of prescription and dismissing his suit with prejudice.

The Department responded by filing a motion to dismiss McCarter's appeal. The Department asserts that because the judgment on appeal dismisses only McCarter's negligence claims and his reimbursement claims remain outstanding, the judgment is a partial judgment that is not immediately appealable absent a designation of finality pursuant to La. C.C.P. art. 1915(B).

In its appellee brief, the Department further contends that McCarter's claims for damages are subject to a one-year prescriptive period, and the trial court correctly granted the Department's exception raising the objection of prescription. The Department asserts McCarter learned he had overpaid child support when a trial court made that finding during a May 10, 2021 hearing and that McCarter's current suit, filed more than two years later, was prescribed before it was filed.

ANALYSIS

Appellate courts have a duty to examine their subject matter jurisdiction sua sponte, even if the litigants do not raise the issue, and we are obligated to recognize any lack of jurisdiction if it exists. Slaughter v. Louisiana State Employees Retirement System, 2019-0977 (La. App. 1st Cir. 6/1/20), 305 So. 3d 358, 362. Louisiana Code of Civil Procedure article 2088 provides that the trial court's jurisdiction is divested and that of the appellate court attaches “on the granting of the order of appeal[.]” A party wishing to appeal an adverse judgment must obtain an order of appeal. Novel v. City of St. Gabriel, 2015-1890 (La. App. 1st Cir. 9/1/16), 202 So. 3d 1139, 1142, writ denied, 2016-1745 (La. 11/29/16), 213 So. 3d 392. There can be no appeal absent an order of appeal because the order is jurisdictional. El-Mumit v. Fogg, 1988-0356 (La. App. 1st Cir. 9/28/17), 232 So. 3d 590, 594.

Under La. C.C.P. art. 2121, an appeal requires a petition or motion for appeal, an order of appeal, and a notice of appeal.⁴ Whitney Bank v. Rayford, 2021-0407 (La. App. 1st Cir. 4/5/22), 341 So. 3d 741, 744; citing Belser v. St. Paul Fire and Marine Insurance Company, 542 So. 2d 163, 165 (La. App. 1st Cir. 1989). Even so, as appeals are favored, appellate courts should not be “overly technical” in the interpretation of these requirements. Whitney Bank, 341 So. 3d at 744. An appeal should not be dismissed unless the law clearly requires a dismissal, and an appeal is not to be dismissed for a mere technicality. Whitney Bank, 341 So. 3d at 744.

In the instant matter, we note that McCarter's written notice of appeal does not expressly pray for the trial court to sign an order of appeal, and the trial court's June 28, 2024 order does not expressly grant an order of appeal.⁵ However, the June 28, 2024 order expressly ordered the trial court's clerk of court to forward the entire appeal record of this matter to this court, and the clerk of court issued the notice of appeal to all counsel of record. Even if we were to find that, based on these facts, the trial court's June 28, 2024 order was sufficient to transfer jurisdiction to this court, we must still conclude this court lacks appellate jurisdiction to review the trial court's judgment granting the Department's exception.

This court's appellate jurisdiction extends to final judgments and to interlocutory judgments when expressly provided by law. See La. C.C.P. arts. 1841 and 2083; Long v. Robichaux, 2024-0213 (La. App. 1st Cir. 9/20/24), 405 So. 3d 654, 656. A final judgment is one that determines the merits of a controversy, in whole or in part. La. C.C.P. art. 1841. In contrast, an interlocutory judgment does not determine the merits but only preliminary matters in the course of an action. La. C.C.P. art. 1841. Whether the judgment before us is appealable is determined by examining the requirements of La. C.C.P. art. 1915.

Louisiana Code of Civil Procedure article 1915(A) identifies those partial final judgments that are appealable as a matter of right. Long, 405 So. 3d at 656.⁶ Pursuant to La. C.C.P. art. 1915(B)(1)⁷ , when a court renders a partial judgment as to “one or more but less than all of the claims, demands, issues, or theories against a party” presented in an action, that judgment shall not constitute a final judgment and, thus, shall not be immediately appealable, “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); Long, 405 So. 3d at 656-657; Ballard v. State Farm Mutual Automobile Insurance Company, 2023-1344 (La. App. 1st Cir. 10/29/24), 2024 WL 4600296, *3 (unpublished). In the absence of such a determination and designation, any such order or decision shall not constitute a final judgment for the purpose of an immediate appeal and may be revised at any time prior to rendition of the judgment adjudicating all of the claims and the rights and liabilities of all the parties. La. C.C.P. art. 1915(B)(2).

A review of the April 23, 2024 judgment on appeal demonstrates that it does not fall into any of the categories of partial final judgments set forth in La. C.C.P. art. 1915(A). The judgment herein granted the Department's exception of prescription and dismissed only McCarter's tort claims for negligence. McCarter's reimbursement claim for overpaid child support remains pending. A judgment on an exception of prescription that deals with less than all the issues between the parties is a partial judgment, which is not appealable unless designated as final for purposes of an immediate appeal by the trial court. See Pottinger v. New Orleans Heating & Cooling Specialists, Inc., 2006-701 (La. App. 5th Cir. 1/30/07), 951 So. 2d 1224, 1225-1226; see also Baton Rouge General Medical Center v. Louisiana Restaurant Association, SIF, 2011-0610 (La. App. 1st Cir. 3/19/12), 91 So. 3d 1053, 1054 n.l. Because the April 23, 2024 judgment does not contain a designation that it is final for purposes of immediate appeal pursuant to La. C.C.P. art. 1915(B)(1), it is not final and appealable. Long, 405 So. 3d at 657; Ballard, 2024 WL 4600296 at *4. Therefore, this Court is precluded from exercising its appellate jurisdiction to review this judgment.

Although this court has discretion to convert an appeal to an application for supervisory writs, we decline to convert the appeal of this non-final judgment to an application for a supervisory writ as a reversal of the trial court's judgment would not terminate the litigation in whole or in part.⁸ See Herlitz Construction Company, Inc. v. Hotel Investors of New Iberia, Inc., 396 So. 2d 878 (La. 1981) (per curiam).

CONCLUSION

For these reasons, the Department's motion to dismiss this appeal is granted.

MOTION TO DISMISS GRANTED; APPEAL DISMISSED.

I concur with the reasons and decision to dismiss this appeal set forth in the opinion. I write separately to underscore the fact that Mr. McCarter's claim for reimbursement remains pending in the district court. Once a judgment is rendered as to Mr. McCarter's remaining reimbursement claim, an appeal may be taken of not only that final judgment, but also of any adverse and prejudicial interlocutory judgments made by the district court. See Pontchartrain Natural Gas System v. Texas Brine Company, LLC, 2018-1249 (La. App. 1st Cr. 12/30/20), 317 So.3d 715, 742, writs denied, 2021-00382 & 2021-00386 (La. 6/8/21), 317 So.3d 323. (Generally, when an unrestricted appeal is taken from a final judgment determinative of the merits, the appellant is entitled to seek review of all adverse and prejudicial interlocutory judgments, in addition to the review of the final judgment. (Internal citation omitted)).

FOOTNOTES

1.   The Department raised other objections that are not relevant to this appeal.

2.   The April 23, 2024 judgment states the “matter came before the court on March 18th, 2024,” but it does not expressly state whether the court ruled on the exception at the conclusion of that hearing. The appellate record does not contain a transcript of the healing on the exception. Tn its appellate brief, the Department acknowledges that McCarter filed a motion with the trial court to supplement the appellate record with the March 18, 2024 hearing transcript, but maintains the appellate record has not yet been supplemented due to outstanding appeal costs.

3.   The express wording of the trial court's order did not specifically order that an appeal was granted, although the trial court set a return date of July 28, 2024.

4.   Louisiana Code of Civil Procedure article 2121 provides, in pertinent part:An appeal is taken by obtaining an order therefor, within the delay allowed, from the court which rendered the judgment.An order of appeal may be granted on oral motion in open court, on written motion, or on petition. This order shall show the return day of the appeal in the appellate court ․ .When the order is granted, the clerk of court shall mail a notice of appeal to counsel of record of all other parties, to the respective appellate court, and to other parties not represented by counsel ․ .

5.   Because the appellate record does not contain a transcript of the hearing on the exception, we cannot determine whether an oral motion for appeal or an order of appeal was made in open court. See La. C.C.P. art. 2121.

6.   Louisiana Code of Civil Procedure article 1915(A) provides that a final judgment may be rendered, even though it may not grant all of the relief prayed for, or may not adjudicate all of the issues in the case, when the court: (1) dismisses the suit as to less than all of the parties, defendants, third party plaintiffs, third party defendants, or intervenors; (2) grants a motion for judgment on the pleadings, as provided by Articles 965, 968, and 969; (3) grants a motion for summary judgment, as provided by Articles 966 through 969, but not including a summary judgment granted pursuant to Article 966(E); (4) signs a judgment on either the principal or incidental demand, when the two have been tried separately, as provided by Article 1038; (5) signs a judgment on the issue of liability when that issue has been tried separately by the court, or when, in a jury trial, the issue of liability has been tried before a jury and the issue of damages is to be tried before a different jury; or (6) imposes sanctions or disciplinary action pursuant to Articles 191, 863, or 864 or La. C.E. art. 510(G).

7.   La. Acts 2025, No. 250, § 3 amended La. C.C.P. art. 1915, but these amendments do not apply to appeals and supervisory writs filed prior to August 1, 2025, the effective date of this Act. La. Const. Art. 3, § 19; La. Acts 2025, No. 250, § 6 (providing Section 3 of this Act “shall have prospective application only”). The amendments removed from Article 1915(B) the authority of the trial court to designate a judgment as final and appealable after an express determination that there is no just reason for delay. See COMMENTS - 2025, Comment (a) to La. C.C.P. art. 1915. These amendments do not apply to the matter before us, which was filed well before August 1, 2025.

8.   The proper procedural vehicle to contest an interlocutory judgment is by an application for a supervisory writ filed within thirty days from the date of notice of the interlocutory judgment. See La. C.C.P. art. 2201; Myers v. Diaz, 2022-0445 (La. App. 1st Cir. 11/4/22), 354 So. 3d 78, 81; Uniform Rules, Courts of Appeal, Rules 4-2 and 4-3. It is not clear from the appellate record whether the trial court issued an oral ruling on March 18, 2024, and, if so, whether the trial court ordered that a written judgment be prepared. As such, we cannot determine whether McCarter's “Notice of Appeal” filed on May 22, 2024, would have been timely had it been filed as a supervisory writ application. Thus, our analysis pretermits a determination regarding that issue.

MILLER, J.

Fields, J. concurs with reasons.