APRIL MARKIEWICZ WIFE OF AND MARK MARKIEWICZ v. SUN CONSTRUCTION PENN MILL LAKES AND COOPER ENGINEERING INC PROFESSIONAL ENGINEERING CORPORATION (2026)

“The Louisiana Code of Civil Procedure forms a foundation for the civil practice of law. The deviation from its legislatively established rules can result in a pandemonium of negative consequences such as the case here.” Jones v. Metropolitan Council for Parish of East Baton Rouge, 2024-1309 (La. App. 1 Cir. 7/31/25), 2025 WL 2166249, *1 (unpublished).

After a review of the record in this appeal and considerable effort to organize the confusion therein, we find there is no judgment properly on appeal before this court. Therefore, the plaintiffs’ appeal is dismissed.

FACTS AND PROCEDURAL HISTORY

This putative class action arises out of three consolidated lawsuits brought by homeowners in Penn Mill Lakes Subdivision (“the Subdivision”), alleging defects in the design and construction of the drainage system of the Subdivision and seeking to recover damages from flooding allegedly caused by these defects. In the original class petition, filed in 2008, and four subsequent amended petitions, the plaintiffs pertinently named as defendants Sun Construction, L.L.C., the general contractor/builder of the Subdivision; Penn Mill Lakes, L.L.C., one of the developers of the Subdivision; and Lawrence Kornman, the manager of Sun Construction and Penn Mill Lakes (collectively, the “developer defendants”). See Markiewicz v. Sun Construction, L.L.C, 2021-1535 (La. App. 1 Cir. 6/14/22), 343 So.3d 758, 760. After nearly twenty years and numerous appearances before this court, the parties continue to litigate the plaintiffs’ claims. We focus only on the procedural history and pleadings pertinent to this appeal.

Motion in Limine, Exceptions of Peremption and No Cause of Action

In May 2022, the plaintiffs filed “Plaintiffs’ Motion in Limine for Court-Appointed Expert Surveyor” wherein they alleged that some of their homes were built below base flood elevation. The plaintiffs urged the trial court to ascertain the relevant elevations through a court-appointed surveyor so that the plaintiffs may be awarded damages in an amount equal to the cost to raise each home out of the floodplain. The plaintiffs relied on Nunez v. Pinnacle Homes, L.L.C., 2013-1302 (La. App. 3 Cir. 4/2/14), 135 So.3d 1283, which concerned claims under the New Home Warranty Act (“NHWA”). See La. R.S. 9:3141, et seq. The developer defendants opposed the motion and filed an exception of peremption, based on the peremptive period in the NHWA, and an exception of no cause of action.

Kornman's Motion for Summary Judgment

In November 2022, Kornman filed a motion for summary judgment, seeking dismissal of the remaining claims against him. Kornman asserted that he was entitled to the limited liability protection afforded to members of LLCs under Louisiana law or, alternatively, that any claims against him were perempted by La. R.S. 9:5607 (applicable to real estate developers) and/or La. R.S. 9:2772 (applicable to contractors/builders).

Petition to Annul December 21, 2021 Judgment; Exception of Peremption

In December 2022, the plaintiffs filed a petition to annul a judgment rendered on December 21, 2011, which granted a motion for summary judgment filed by then-defendant, Sunrise Construction and Development, L.L.C. The plaintiffs alleged the judgment was obtained by fraud or ill practice, i.e., Kornman's intentional misrepresentation that Sun Construction, not Sunrise Construction, built the plaintiffs’ homes. The plaintiffs relied on building permits produced by the developer defendants, which identified Sunrise Construction as the builder.

In response, the developer defendants filed an exception of peremption, urging the plaintiffs were in possession of the referenced building permits for more than one year prior to filing the petition to annul. Thus, the developer defendants asserted the plaintiffs’ action to annul for alleged fraud or ill practice was perempted pursuant to La. C.C.P. art. 2004(B).²

Judgments

On February 21, 2024, the trial court signed a judgment, which pertinently stated:

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the Peremptory Exceptions of Peremption filed by defendants Sun Construction, LLC[;] Penn Mill Lakes, LLC[;] and Lawrence Kornman are SUSTAINED.

IT IS HEREBY FURTHER ORDERED, ADJUDGED, AND DECREED that the Peremptory Exception of No Cause of Action filed by Lawrence Komman[;] Penn Mill Lakes, LLC[;] and Sun Construction, LLC are SUSTAINED.

IT IS HEREBY FURTHER ORDERED, ADJUDGED, AND DECREED that the Peremptory Exception of Peremption in response to Plaintiffs[’] Petition to Annul Final Judgment on Sunrise Construction and Development, LLC's motion for summary judgment filed by defendants Lawrence Kornman, Penn Mill Lakes LLC[,] and Sun Construction LLC is SUSTAINED.

IT IS HEREBY FURTHER ORDERED, ADJUDGED, AND DECREED that the motion for summary judgment moved for by defendant Lawrence Kornman is moot.

This is a final and appealable Judgment pursuant to La. C.C.P. art. 1915.[3]

Notice of signing of the February 21, 2024 judgment was mailed on February 29, 2024.

The developer defendants filed a motion to amend the February 21, 2024 judgment to add decretal language specifying the claims that were dismissed. See La. C.C.P. arts. 1918(A)⁴ and 1951.⁵ The motion was granted and the February 21, 2024 judgment was amended by a judgment signed on August 21, 2024.

The August 21, 2024 amended judgment sustained the developer defendants’ exceptions of peremption and no cause of action and dismissed the plaintiffs’ “elevation claims regarding home slabs being built below base flood elevation” with prejudice. The amended judgment further sustained the developer defendants’ exception of peremption (incorrectly identified as an “exception of prescription”) and dismissed the plaintiffs’ petition to annul with prejudice. The amended judgment again decreed that Kornman's motion for summary judgment was moot and certified the judgment was final and appealable pursuant to La. C.C.P. art. 1915(B). The plaintiffs’ subsequent “Motion and Order for New Trial to Substantively Change [the August 21, 2024] Amended Judgment” was denied on November 13, 2024.⁶

On September 9, 2024, this court granted the developer defendants’ writ application and remanded to the trial court with instructions to rule on Kornman's motion for summary judgment. See Markiewicz v. Sun Construction, L.L.C., 2024-0602 (La. App. 1 Cir. 9/9/24) (unpublished writ action). On remand, the trial court granted Kornman's motion for summary judgment in a “Judgment with Incorporated Reasons” signed on April 11, 2025. The April 11, 2025 judgment pertinently stated:

IT IS HEREBY FURTHER ORDERED, ADJUDGED, AND DECREED that the motion for summary judgment filed by defendant Lawrence Kornman is GRANTED and the remaining claims against Defendant Lawrence Kornman are dismissed with prejudice.

This is a final and appealable Judgment pursuant to La. C.C.P. art. 1915.7

Notice of this judgment was mailed on April 14, 2025.

The plaintiffs timely filed a motion for new trial, pertinently asserting the April 11, 2025 judgment violated La. C.C.P. art. 1918(B)⁸ because it combined the trial court's written reasons and judgment. The plaintiffs’ motion for new trial was denied as moot, with reference to a judgment signed on April 29, 2025. The April 29, 2025 judgment contained the identical decretal language used in the April 11, 2025 judgment. Omitting the trial court's reasons, the April 29, 2025 judgment stated:

IT IS HEREBY FURTHER ORDERED, ADJUDGED, AND DECREED that the motion for summary judgment filed by defendant Lawrence Kornman is GRANTED and the remaining claims against Defendant Lawrence Kornman are dismissed with prejudice.

This is a final and appealable Judgment pursuant to La. C.C.P. art. 1915.

Notice of the April 29, 2025 judgment was mailed on April 30, 2025.

The plaintiffs filed another motion for new trial on May 9, 2025, attacking the April 29, 2025 judgment. The motion was denied as moot on June 3, 2025, with reference to an amended judgment signed on June 3, 2025. The June 3, 2025 amended judgment again stated,

IT IS HEREBY FURTHER ORDERED, ADJUDGED, AND DECREED that the motion for summary judgment filed by defendant Lawrence Kornman is GRANTED and the remaining claims against Defendant Lawrence Kornman are dismissed with prejudice.

It further denied the plaintiffs’ “Motion to Amend the Amended Judgment[,]” which appears to refer to the plaintiffs’ February 7, 2025 second motion to amend the August 21, 2024 judgment.⁹ The June 3, 2025 judgment was certified as final and appealable pursuant to La. C.C.P. art. 1915 and notice of judgment was mailed on June 6, 2025. The plaintiffs filed a motion for appeal on June 27, 2025, seeking a devolutive appeal from

the Amended Judgment of this Court dated June 3, 2025, which amended the previous Judgments of this Court dated April 29, 2025, and Amended Judgment of August 21, 2024, granting the Motion for Summary Judgment filed by defendant Lawrence Kornman and denying the plaintiffs-movers’ motions for new trial and motions to amend said Judgments, which the Trial Court certified as a Final and Appealable Judgment.

On July 5, 2025, the trial court signed an order granting plaintiffs “a DEVOLUTIVE APPEAL from the aforementioned final Amended Judgment of this Court dated June 3, 2025, which amended the previous judgments of this Court dated April 29, 2025, and Amended Judgment of August 21, 2024[.]”

The St. Tammany Parish Clerk of Court's Notice of Appeal specified: “NOTICE is hereby given that ․ an order granting the appeal was entered ․ from the judgment filed and signed on June 3, 2025[.]” However, the caption on the Notice of Appeal states: “Appeal # 8 - Judgment on Amended Judgment of August 21, 2024, granting Motion for Summary Judgment filed by defendant Lawrence Kornman[.]” The August 21, 2024 Amended Judgment did not grant Kornman's motion for summary judgment. Finally, this court's Notice of Lodging only references the judgments dated April 29, 2025 and June 3, 2025.

Without specifically identifying the particular judgments at issue on appeal, the plaintiffs seek reversal of the trial court's rulings that sustained the developer defendants’ exceptions of peremption and no cause of action concerning the plaintiffs’ slab elevation claims purportedly under the NHWA, sustained the developer defendants’ exception of peremption regarding the plaintiffs’ petition to annul, and granted Kornman's motion for summary judgment.¹⁰

JURISDICTION

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. McCarter v. Department of Child & Family Services/Child Enforcement Support, 2024-1140 (La. App. 1 Cir. 11/7/25), 424 So.3d 1124, 1127. An appeal requires a petition or motion for appeal, an order of appeal, and a notice of appeal. La. C.C.P. art. 2121.¹¹ There can be no appeal absent an order of appeal because the order is jurisdictional. La. C.C.P. art. 2088; McCarter, 424 So.3d at 1127. Even so, appeals are favored, and appellate courts should not be “overly technical” in the interpretation of these requirements. 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. McCarter, 424 So.3d at 1127-28.

February 21, 2024 Judgment and August 21, 2024 Amended Judgment

In this case, the incessant motions attacking the trial court's judgments, the issuance of duplicative “amended judgments,” and the unclear motion and order for appeal have created substantial confusion. What is clear, however, is that no order of appeal was obtained for the February 21, 2024 judgment, which was certified as final pursuant to La. C.C.P. art. 1915(B).¹² Consequently, this court has no jurisdiction to consider the February 21, 2024 judgment. See McCarter, 424 So.3d at 1127.

The August 21, 2024 amended judgment made non-substantive changes to the February 21, 2024 judgment to cure defects in the decretal language, namely, the absence of language expressing the relief awarded. See La. C.C.P art. 1918(A). It did not constitute a new final appealable judgment.¹³ See La. C.C.P. art. 1951. Therefore, appeal delays began to run from the February 21, 2024 judgment and did not restart with the August 21, 2024 judgment. See Bodenheimer v. Bodenheimer, 97-1118 (La. App. 5 Cir. 3/11/98), 709 So.2d 306, 308, writ denied, 98-1015 (La. 5/15/98), 719 So.2d 469 (finding a motion for new trial must be filed timely as to the original judgment when the amended judgment makes only a non-substantive change.) See also La. C.C.P art. 1918, Comments — 2021 (“A lack of proper decretal language in a judgment that is otherwise a final judgment does not divest the appellate court of jurisdiction. Instead, the final judgment shall be corrected to include proper decretal language by an amendment in accordance with [La. C.C.P. art.] 1951.”)

Since the plaintiffs failed to obtain an order of appeal from the February 21, 2024 judgment, this court has no jurisdiction to consider whether the trial court properly sustained the developer defendants’ exceptions of peremption and no cause of action concerning the plaintiffs’ slab elevation claims purportedly under the NHWA, nor do we have jurisdiction to consider the ruling that sustained the developer defendants’ exception of peremption as to the plaintiffs’ petition to annul.

April 11, 2025 Judgment, April 29, 2025 Judgment, and June 3, 2025 Amended Judgment

A judgment that is complete in every respect is valid despite the inclusion of the trial court's written reasons contrary to La. C.C.P. art. 1918(B). See Hinchman v. International Brotherhood of Electrical Workers, Local Union No. 130, 292 So.2d 717, 720 (La. 1974); Percle v. Lafourche Parish Government, 2022-1276 (La. App. 1 Cir. 7/12/23), 371 So.3d 25, 28. The April 11, 2025 judgment sufficiently satisfied the requirements of La. C.C.P. arts. 1841, 1911, and 1918 and was a complete, final, and appealable judgment.¹⁴

As set forth above, the April 29, 2025 judgment and June 3, 2025 amended judgment awarded the identical relief granted in the April 11, 2025 judgment. Once a trial court has rendered a valid final judgment, it has no authority to render a second final judgment, which is practically identical to the first judgment and adjudicates the same issues. See Slaughter v. Louisiana State Employees Retirement System, 2019-0977 (La. App. 1 Cir. 6/1/20), 305 So.3d 358, 362 n.1. Additionally, the June 3, 2025 amended judgment made an impermissible substantive change to the April 11, 2025 judgment by denying the plaintiffs’ second motion to amend. See La. C.C.P. art. 1951; Locke v. Madcon Corp., 2021-0382 (La. App. 1 Cir. 12/30/21), 340 So.3d 946, 949. Accordingly, the April 29, 2025 judgment and the June 3, 2025 amended judgment are nullities and are without legal effect. See Slaughter, 305 So.3d at 362 n.1.

Therefore, to seek review of the trial court's grant of summary judgment in favor of Kornman, the plaintiffs were required to timely file a motion and order for appeal of the April 11, 2025 judgment. La. C.C.P. art. 2087(A)(2). The June 27, 2025 motion and order for appeal are silent as to the April 11, 2025 judgment. The trial court's Notice of Appeal and this court's Notice of Lodging likewise do not refer to the April 11, 2025 judgment. Therefore, the April 11, 2025 judgment is not properly before us for review. See Martin v. Board of Adjustment Through Chairman, 2023-0658 (La. App. 1 Cir. 2/23/24), 387 So.3d 17, 18 n.2, where the plaintiff timely sought and was granted an order for appeal for a February 2023 judgment, as well as a March 2023 judgment. However, the trial court clerk of court only issued a notice of appeal for the March 2023 judgment. Consequently, this court issued a notice of lodging for the March 2023 judgment only and limited its review to this judgment after concluding the February 2023 judgment was not properly before this court. Martin, 387 So.3d at 18 n.2

After thorough review of the record and substantial consultation with the Louisiana Code of Civil Procedure, we find there is no judgment properly on appeal before this court. More than a mere technicality, this court has no jurisdiction to consider this appeal.

MOTION FOR PARTIAL DISMISSAL; RULE TO SHOW CAUSE

The developer defendants filed a motion for partial dismissal with this court, seeking to dismiss the plaintiffs’ appeal concerning both exceptions of peremption and the exception of no cause of action. However, since the appeal is dismissed in its entirety, the developer defendants’ motion for partial dismissal is denied as moot. We further deny as moot the developer defendants’ request to suspend briefing urged in connection with the motion for partial dismissal. Finally, the rule to show cause order issued by this court on March 3, 2026 concerning the April 29, 2025 judgment is recalled.

CONCLUSION

For the foregoing reasons, this appeal is dismissed. All costs of this appeal are assessed against the plaintiffs.

RULE TO SHOW CAUSE ORDER RECALLED; MOTION FOR PARTIAL DISMISSAL AND REQUEST TO SUSPEND BRIEFING DELAYS DENIED AS MOOT; APPEAL DISMISSED.

FOOTNOTES

2.   Louisiana Code of Civil Procedure article 2004(B) states, “An action to annul a judgment on these grounds must be brought within one year of the discovery by the plaintiff in the nullity action of the fraud or ill practices.”

3.   Prior to an amended effective August 1, 2025, La. C.C.P. art. 1915(B)(1) stated that a partial judgment that sustained an exception in part, as to one or more but less than all of the claims, demands, issues, or theories against a party, did not constitute a final judgment unless it was designated as a final judgment by the court after an express determination that there was no just reason for delay.

4.   Louisiana Code of Civil Procedure article 1918(A) pertinently states that a final judgment “shall be identified as such by appropriate language; shall be signed and dated; and shall, in its decree, identify the name of the party in whose favor the relief is awarded, the name of the party against whom the relief is awarded, and the relief that is awarded.”

5.   Louisiana Code of Civil Procedure article 1951 states,On motion of the court or any party, a final judgment may be amended at any time to alter the phraseology of the judgment or to correct deficiencies in the decretal language or errors of calculation. The judgment may be amended only after a hearing with notice to all parties, except that a hearing is not required if all parties consent or if the court or the party submitting the amended judgment certifies that it was provided to all parties at least five days before the amendment and that no opposition has been received. A final judgment may not be amended under this Article to change its substance.

6.   The trial court denied the motion for new trial, finding the August 21, 2024 Amended Judgment was a non-substantive amendment to the February 21, 2024 Judgment; therefore, the time delays for filing the motion for new trial ran from the original February 21, 2024 Judgment, making the motion for new trial untimely.

7.   The April 11, 2025 judgment was final and appealable pursuant to La. C.C.P. art. 1915(A)(3), without the need for certification pursuant to the pre-amendment version of La. C.C.P. art. 1915(B).

8.   Louisiana Code of Civil Procedure 1918(B) states that, when written reasons for judgment are assigned, they shall be set out in an opinion separate from the judgment.

9.   It appears the February 7, 2025 second motion to amend the August 21, 2024 judgment was taken under advisement on March 18, 2025. The plaintiffs urged the trial court to rule on this outstanding motion in their April 29 and May 9, 2025 motions for new trial.

10.   The plaintiffs also assign error to the trial court's failure to rule on their “Opposition of No Right of Action.” Finding no basis for appeal, we do not address this issue.

11.   Louisiana Code of Civil Procedure article 2121 provides that 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. 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. The failure of the clerk to mail the notice does not affect the validity of the appeal.

12.   This court is not bound by the trial court's Article 1915(B) certification; however, we find no error in the certification. See R. J Messinger, Inc. v. Rosenblum, 2004-1664 (La. 3/2/05), 894 So.2d 1113, 1122; Simmons v. Benny's Car Wash, L.L.C., 2025-0981 (La. App. 1 Cir. 3/17/26), — So.3d —, — (2026 WL 819343, *3).

13.   To the extent the plaintiffs sought to appeal (or could have appealed) the August 21, 2024 amended judgment via the June 27, 2025 motion and order for appeal, the filing was untimely. Notice of the August 21, 2024 amended judgment was mailed on September 4, 2024. See La. C.C.P. arts. 1974, 2087, and 2132. Appellate courts do not acquire jurisdiction of an appeal that is not timely perfected. Louka v. Board of Supervisors for University of Louisiana System, 2023-0076 (La. App. 1 Cir. 9/21/23), 376 So.3d 864, 867, writ denied, 2023-01410 (La. 1/10/24), 376 So.3d 131.

14.   Louisiana Code of Civil Procedure article 1841 pertinently provides that a judgment is the determination of the rights of the parties in an action and may award any relief to which the parties are entitled. It may be interlocutory or final. Louisiana Code of Civil Procedure article 1911 states, in part, that every final judgment shall contain the typewritten or printed name of the judge and be signed by the judge. Although the April 11, 2025 judgment does not specifically state against whom the relief was awarded, it is evident that relief was awarded against the plaintiffs. Additionally, to the extent the decretal language could be clarified, this does not prevent the April 11, 2025 judgment from being final and appealable. See La. C.C.P. arts. 1951 and 2088(11).

HAGGERTY, J.