CAPITAL MANAGEMENT CONSULTANTS, INC. v. DUHON

No. 2016 CA 0703, Consolidated With No. 2016 CA 0704.

CAPITAL MANAGEMENT CONSULTANTS, INC., LAURA LEE GUARISCO, VICTOR GUARISCO, MARIA CEDES GUARISCO, ELIZABETH MERCEDES GUARISCO AND LEAH K. McGRIFF, v. KAREN DUHON, DONNA PEVETO, NELSON TUCKER, LTD, ARMOND A. DUHON, JAMIE ELIZABETH TUCKER KOCHER TRUSTEE OF JS TUCKER REVOCABLE TRUST, MARCIE ANN TUCKER GREEN TRUSTEE OF MEN TUCKER REVOCABLE TRUST, JAMIE ELIZABETH TUCKER KOCHER, INDIVIDUALLY, JAMIE ELIZABETH TUCKER KOCHER CO-ADMINISTRATRIX OF THE SUCCESSION OF JAMES SCOTT TUCKER, MARCIE ANN TUCKER GREEN, INDIVIDUALLY, MARCIE ANN TUCKER GREEN CO-ADMINISTRATRIX OF THE SUCCESSION OF JAMES SCOTT TUCKER AND ABC SIDING COMPANY OF MORGAN CITY, INC. CAPITAL MANAGEMENT CONSULTANTS, INC. v. MICHAEL ALOISE, JR.

Court of Appeal of Louisiana, First Circuit.


On Application for Rehearing filed by Laura Guarisco, et al Rehearing DENIED. See attached reasons.

Guidry J. would grant the rehearing.

REHEARING DENIED; ALTERNATIVE REQUEST TO CONVERT TO SUPERVISORY WRIT DENIED.

Although appellants urge that a grant of prescription as to certain issues is a "final appealable judgment," most of the jurisprudence cited for that proposition was decided prior to the amendments to LSA-C.C.P. art. 1915B regarding certification.

While the Louisiana Supreme Court in a footnote in Arrant v. Wayne Acree PLS, Inc., 15-0905 (La. 1/27/16), 187 So.3d 417, 423 n. 23, cited a state Fifth Circuit case from 1986 for the proposition that "[a] judgment sustaining the exception of prescription is a final appealable judgment, even in cases where only a portion of the case is dismissed by the exception," the Fifth Circuit made that pronouncement prior to the certification amendments to 1915(B) being enacted. Further, the statement in the Louisiana Supreme Court opinion appears to be dicta.

Moreover, in recent First Circuit cases, including one decided after Arrant, this court recognizes that partial exceptions of prescription are not appealable of right under LSA-C.C.P. art. 1915(A). See Constantin Land Trust v. BP America Production Company, 15-1315 (La.App. 1 Cir. 6/3/16) 2016 WL 3128329 (unpublished); Lambert v. Fairburn, 15-0856 (La.App. 1 Cir. 12/23/15), 2015 WL 9466591 (unpublished).

Accordingly, the request for rehearing is denied. Also, we deny the alternative request to convert the appeal to an application for supervisory writs.


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