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FOR IMMEDIATE NEWS RELEASE NEWS RELEASE # 14 FROM: CLERK OF SUPREME COURT OF LOUISIANA The Opinions handed down on the 2nd day of March, 2005 , are as follows:

BY KNOLL, J .: 2004-OC-1664

R. J. MESSINGER, INC. v. CARL D. ROSENBLUM AND KATHRYN L. KNAUSS-ROSENBLUM C/W CARL D. ROSENBLUM AND KATHRYN L. KNAUSS-ROSENBLUM v. R. J. MESSINGER, INC. (Parish of Orleans) For the above and foregoing reasons, the judgment of the court of appeal dismissing relators' appeal is vacated and set aside. This matter is remanded to the court of appeal for further proceedings consistent with the views expressed herein. VACATED AND REMANDED. JOHNSON, J., concurs.

03/02/2005

SUPREME COURT OF LOUISIANA NO. 04-OC-1664 R.J. MESSINGER, INC. VERSUS CARL D. ROSENBLUM and KATHRYN L. KNAUSS-ROSENBLUM ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FOURTH CIRCUIT, PARISH OF ORLEANS

KNOLL, Justice This writ concerns an issue of civil procedure pertaining to the certification of partial judgments on appeal. At issue is La. Code Civ. Pro. art. 1915 which provides, inter alia, when a court renders a partial judgment or partial summary judgment or sustains an exception in part as to one or more but less than all of the claims, demands, issues or theories, the court may designate the judgment a final judgment after an express determination that there is no just reason for delay. There is a split in the circuit courts of appeal as to whether the appellate court has jurisdiction when the trial court designates a partial judgment as a final judgment with an express determination there is no just reason for delay, but does not give explicit reasons on the record as to why there is no just reason for delay. In the majority of the circuits, if the trial court fails to give explicit reasons for its determination, the court of appeal reviews de novo whether the certification was proper. The Fourth Circuit Court of Appeal, however, dismisses the appeal when the trial court fails to give explicit reasons for the certification. We granted the plaintiff's application to resolve this issue and the split among the circuits.1 After careful review of the issue, we conclude the appellate courts should review de novo certified judgments when the trial court

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R.J. Messinger, Inc. v. Rosenblum, 04-1664 (La. 10/15/04), 883 So.2d 1060.

fails to give explicit reasons on the record for its determination. FACTS AND PROCEDURAL HISTORY Carl and Kathryn Rosenblum entered into a contract with R.J. Messinger, Inc. ("Messinger") for the construction of a house. It was specified in the contract that Orkin would be used as the licensed applicator to provide chemical spray beneath the slab for termite control. While the house was under construction, the Rosenblums learned that Messinger used another exterminator to provide termite control. Subsequent to this discovery, the parties entered into a "Guarantee" dated September 24, 1994. The Guarantee states, in pertinent part: . . . in consideration of the release of any claims Rosenblum may have resulting from Messinger's failure to utilize the services of Orkin as required by the Project Specifications, Messinger has and does hereby warrant, guarantee and agree that in the event any termite damage is found to exist in the Residence during the life of the Residence, Messinger will repair and replace any said damage. Messinger further agrees to indemnify Rosenblum for any costs or inconvenience resulting from the existence of any such damage, including, without limitation, the loss of the use of the Residence due to the termite damage or the repair thereof. In May 2002, the Rosenblums discovered what they allege to be active termite damage in the house. Pursuant to the Guarantee, by a letter dated May 30, 2002, they gave Messinger written notice to repair the termite damage. On June 21, 2002, Messinger filed a Petition for Declaratory Judgment seeking to have the Guarantee declared invalid and unenforceable. On August 26, 2002, the Rosenblums filed a Petition for Breach of Guarantee against Messinger. On October 29, 2002, the Rosenblums filed their answer to Messinger's petition, along with affirmative defenses, exceptions and a reconventional demand. The reconventional demand essentially sought the same relief prayed for in their petition for breach. On February 4, 2003, the trial court consolidated the two matters.

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The Rosenblums filed a Motion for Partial Summary Judgment seeking dismissal of Messinger's petition and special damages, with the amount of general damages to be reserved for trial. Messinger filed a Cross-Motion for Summary Judgment seeking to have the Guarantee declared invalid and unenforceable and dismissal of the Rosenblums' claim for damages. After a hearing, the trial court rendered a partial summary judgment in favor of the Rosenblums, (i) dismissing with prejudice all claims of Messinger in its petition for declaratory judgment; (ii)finding the Guarantee valid and enforceable; (iii) finding Messinger liable to the Rosenblums under the Guarantee for the termite damage discovered in May 2002; and (iv) reserving for trial the determination as to the amount of damages and other obligations owed by Messinger to the Rosenblums under the Guarantee resulting from such termite damage. The judgment further ordered "there is no just reason for delay and that this Partial Summary Judgment be and hereby is designated a final judgment pursuant to Louisiana Code of Civil Procedure Article 1915(B)(1)." Messinger then appealed the partial summary judgment to the court of appeal. The appellate court dismissed the appeal without prejudice because in interpreting article 1915, it "requires that for there to be a valid certification of a partial summary judgment as final, the trial court must give explicit reasons on the record as to why there is no just reason for delay; mere conclusory statements do not suffice." R.J. Messinger, Inc. v. Rosenblum, 03-2209, p. 3 (La. App. 4 Cir. 6/2/04), 876 So.2d 898, 900, citing inter alia, Jackson v. America's Favorite Chicken Co., 98-0605 (La. App. 4 Cir. 2/3/99), 729 So.2d 1060; Nalty v. D.H.Holmes Co., Ltd., 99-2826 (La. App. 4 Cir. 12/27/00), 775 So.2d 695, 697. DISCUSSION Prior to the passage of Act 483 of 1997, La. Code Civ. Pro. art. 1915 set forth

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an exclusive list of immediately appealable partial final judgments.2 The legislature's enactment of Acts 1997, No. 483, largely abandoned this uniform but inflexible approach in favor of one closely paralleling Federal Rule of Civil Procedure 54(b). Mark Tatum and William Norris, III, Summary Judgment and Partial Summary Judgment in Louisiana: The State We're In, 59 LA. L. REV. 131, 153 (1998). The revision to article 1915 provided that grants of partial judgments or partial summary judgments as to one or more but less than all of the claims, demands, issues or theories, do not constitute final judgments for purposes of an immediate appeal unless the trial judge designates the judgment as a final judgment after an express determination that there is no just reason for delay.3 It is now our task in this writ to determine whether such express determination requires the trial court to give specific reasons for designating a partial judgment as final, and resolve the conflict in the circuit courts on this limited procedural issue. Messinger argues the court of appeal erred in grafting onto La. Code Civ. Pro.

Prior to its revision in 1997, La. Code of Civ. Pro. art. 1915 provided: A. A final judgment may be rendered and signed by the court, even though it may not grant the successful party 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 plaintiffs, 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, except a summary judgment rendered pursuant to Article 966(D). (4) Signs a judgment on either the principal or incidental demand, when the two have been tried separately, as provided by Article 1083. (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. B. If an appeal is taken from such a judgment, the trial court nevertheless shall retain jurisdiction to adjudicate the remaining issues in the case. La. Code Civ. Pro. art. 1915 (West 1996). Acts 1997, No. 483 also amended article 1915 to provide these partial judgments could constitute final judgments if the parties specifically agreed that the judgment is a final judgment. The legislature amended article 1915 by Acts 1999, No. 1663 and deleted from the article the authority for the parties to agree that a partial final judgment will constitute a final judgment under the article. 4
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art. 1915B the additional requirement of "explicit reasons on the record as to why there is no reason for delay" and in failing to review the correctness of the trial court's certification of the judgment as final for immediate appeal as is done in every other Louisiana circuit court of appeal. The Rosenblums are in agreement with Messinger on this limited procedural issue. They submit the merits of Messinger's appeal should have been addressed. The Rosenblums aver that in advance of a trial on quantum, it makes logical sense and is in the interest of judicial economy to establish the validity of the Guarantee. Louisiana Code of Civil Procedure article 1915 provides, in pertinent part: B. (1) When a court renders a partial judgment or a partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands, issues, or theories, whether in an original demand, reconventional demand, cross-claim, third party claim, or intervention, the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination by the court that there is no just reason for delay. (2) In the absence of such a determination and designation, any order or decision which adjudicates fewer than all claims or the rights and liabilities of fewer than all the parties, shall not terminate the action as to any of the claims or parties and shall not constitute a final judgment for the purpose of an immediate appeal. . . . The limited and narrow issue before us is what constitutes an express determination by the court. Our appellate courts have struggled with this issue since the 1997 revision. One of the first decisions to address revised article 1915 was Banks v. State Farm Ins. Co., 30,868 (La. App. 2 Cir. 3/5/98), 708 So.2d 523. In that case the trial court granted a partial summary judgment on the issue of liability alone in favor of the plaintiff and rejected all claims of comparative negligence pled by the defendants. The attorneys for both sides agreed the partial judgment was a final judgment in accordance with La. Code Civ. Pro. art. 1915B(1).4 The order of appeal signed by the

As we noted supra, article 1915 has been amended to remove the provision authorizing parties to agree that a partial judgment will constitute a final judgment. 5

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district court did not contain an express determination that there was no just reason for delay of an immediate appeal. The court of appeal determined the legislature did not intend for the parties to have ability to create a final judgment for the purpose of an immediate appeal because under the provisions of article 1915B(2), a judgment is final only after "a determination and designation" (certification) by the trial court, and not after specific agreement by the parties. Banks, 30,868 at p. 3, 708 So.2d at 525. That court held trial courts should give written reasons for certification to facilitate appellate review. Id. at p. 4, 708 So.2d at 525. Shortly after the Banks decision, the Fifth Circuit addressed the issue of a partial summary judgment certified as a final judgment where the trial judge gave no reasons to support this designation. Berman v. DeChazal, 98-91 (La. App. 5 Cir. 5/27/98), 717 So.2d 658. That court adopted the factors cited in Banks that had been applied in the federal courts to determine when partial judgments should be certified as immediately appealable,5 but did not follow Banks's holding that written reasons by the trial court were a requisite for appellate jurisdiction. Instead that court looked to federal jurisprudence where it is established that a district court's decision to

The Banks court adopted five factors it believed trial courts should be guided by in considering whether a partial judgment should be certified as immediately appealable, as follows: (1) The relationship between the adjudicated and unadjudicated claims; (2) The possibility that the need for review might or might not be mooted by future developments in the district court; (3) The possibility that the reviewing court might be obliged to consider the same issue a second time; (4) The presence or absence of a claim or counterclaim which could result in setoff against the judgment sought to be made final; and (5) Miscellaneous factors such as delay, economic and solvency considerations, shortening the time of trial, frivolity of competing claims, expense, and the like. Banks, 30,868 at p. 4, 708 So.2d at 525, citing Allis-Chalmers Corp. v. Philadelphia Elec. Co., 521 F.2d 360, 364 (3d Cir. 1975). Although we will discuss infra guidelines courts should utilize in determining whether a partial judgment should be certified as immediately appealable, we note here that the fourth AllisChalmers factor, pertaining to the significance of counterclaims, was rejected by the United States Supreme Court in Curtis-Wright Corp. v. General Elec. Co., 466 U.S. 1, 9, 100 S.Ct. 1460, 1465, 64 L.Ed.2d 1 (1980). 6

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certify a judgment as appealable, when supported by reasons, is reviewable under the abuse of discretion standard, Berman, 98-81 at p. 4, 717 So.2d at 660, citing CurtissWright Corp., 466 U.S. at 10, and has been held that when no reasons are given by the trial court judge, the appellate court reviews the certification de novo. Berman, 98-81 at p. 4, 717 So.2d at 660, citing Consolidated Rail Corp. v. Fore River Ry. Co., 861 F.2d 322 (1st Cir. 1988). The court held the proper standard of review of certified judgments, when accompanied by reasons, is whether the trial judge abused his discretion, but when no reasons are given the appellate court should review the propriety of the certification de novo considering the Allis-Chalmers criteria. Berman, 98-81 at 5, 717 So.2d at 661. Then followed three en banc appellate opinions, with the result that the First and Second circuits adopted the policy of de novo review of certified final judgments unaccompanied by reasons from the trial court, and the Fourth Circuit requiring the trial court to give explicit reasons on the record in order for the certification to be valid.6 Sitting en banc in Jackson v. America's Favorite Chicken Co., 98-0605 (La. App. 4 Cir. 2/3/99), 729 So.2d 1060, the court found "the legislature intended to require that some reason be expressed for the determination that there is no just reason for delay, because Article 1915(B)(1) provides that the designation must be pursuant to `an express determination[,]' and clearly contemplates that more than a conclusory statement will be given as a justification for finality." Id. 98-0605 at p. 9, 729 So.2d at 1065, citing Montgomery v. Grosserand, 98-1966 (La. App. 4 Cir. 12/23/98), 725 So.2d 92, (emphasis in Jackson). The court held "a clear and concise
Following the en banc decisions of the Second and Fourth Circuits, a Third Circuit panel examined this issue. In Flatland Real Estate Co. v. Dugas Constr., Inc., 00-1794, p.3-4 (La. App. 3 Cir. 5/9/01), 784 So.2d 867, 870, the court held that for purposes of judicial efficiency and economy, the proper standard of review for an order certifying a judgment for appeal accompanied by reasons, is whether the trial judge abused his discretion. When no reasons are given the proper method of review is de novo determination of whether the certification was proper pursuant to the criteria enumerated in Allis-Chalmers. Id. 7
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statement of why there is no just reason for delay" is required and that without such express reasons, it would decline to certify the judgment at the appellate level, nor would it convert the appeal into a supervisory writ, but would dismiss the appeal without prejudice. Id. 98-0605 at p. 11-12, 729 So.2d at 1066-67. The Second Circuit, sitting en banc, acknowledging it stated in Banks a trial court should give reasons for the certification, concluded that the better policy when written reasons are not given is to review the certification de novo. Succession of Grimmett, 31,975, p. 7 (La. App. 2 Cir. 3/5/99), 738 So.2d 27, 32. That court expressly rejected the Fourth Circuit's decision to dismiss the appeal. More recently the First Circuit, sitting en banc, held when the trial court designates a partial judgment as final and the reasons are neither apparent nor provided, the appellate court will conduct a de novo review. Motorola, Inc. v. Associated Indem. Corp., 021351, p. 16 (La. App. 1 Cir. 10/22/03), 867 So.2d 723, 732. The court reached this holding after reviewing the Louisiana appellate courts' approaches to this issue, the federal circuits' practices, commentators' advice to amend article 1915B, and the legislature's response. We find the First Circuit's approach helpful and we shall also review these areas in order to determine whether the appellate court should consider the appeal if a trial court fails to give explicit reasons for designating a judgment as final pursuant to article 1915B. Under the general rules of statutory construction when ambiguity exists, courts begin their review with the premise that legislation is the solemn expression of legislative will and, therefore, the interpretation of a law is primarily the search for the legislature's intent. See La. Civ. Code art. 2; Anthony Crane Rental, L.P. v. Fruge, 03-0115, p. 4 (La. 10/21/03), 859 So.2d 631, 634; Smith v. Southern Holding, Inc., 02-1071, p. 7 (La. 1/28/03), 839 So.2d 5, 10. "When the language of the law is

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susceptible of different meanings, it must be interpreted as having the meaning that best conforms to the purpose of the law." La. Civ. Code art. 10; See SWAT 24 Shreveport Bossier, Inc. v. Bond, 2000-1695, p. 11 (La. 6/29/01), 808 So.2d 294, 302. It is evident from the split in the circuits the codal language of "an express determination that there is no just reason for delay" is susceptible of more than one meaning. Therefore we must apply and interpret it in a manner that is logical and consistent with the legislature's presumed fair purpose and intention in enacting it. We therefore begin with an examination of the pertinent legislative history. The 1997 revision to article 1915 effected a very different approach to determining the finality and immediate appealability of partial judgments. Tatum and Norris at 132. The new approach was patterned after Federal Rule of Civil Procedure 54(b) under which the trial court's discretion essentially governs the finality and immediate appealability of partial adjudications. Id. at 132-33. "This procedure allows most actions to proceed swiftly and efficiently after a partial summary judgment, without the vexation of piecemeal appeals, and all of the claims and issues can be presented in one appeal from the judgment disposing of the entirety of the merits of the case." 1 Frank L. Maraist & Harry T. Lemmon, Louisiana Civil Law Treatise

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