Delton Augustine, Jr. v. Johnny Griffin

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

07-561

DELTON AUGUSTINE, JR. VERSUS JOHNNY E. GRIFFIN, ET AL.

********** APPEAL FROM THE TWELFTH JUDICIAL DISTRICT COURT PARISH OF AVOYELLES, NO. 2004-6014-A HONORABLE MARK A. JEANSONNE, DISTRICT JUDGE

********** ULYSSES GENE THIBODEAUX CHIEF JUDGE

**********

Court composed of Ulysses Gene Thibodeaux, Sylvia R. Cooks, and J. David Painter, Judges.

APPEAL DISMISSED.

Michael Wayne Adley Judice and Adley Post Office Drawer 51769 Lafayette, LA 70505-1769 (337) 235-2405 COUNSEL FOR DEFENDANT/APPELLEE: M & C Ins. Co.

John Taylor Bennett Bennett Law Office Post Office Box 275 Marksville, LA 71351 (318) 253-4631 COUNSEL FOR PLAINTIFF/APPELLEE: Delton Augustine, Jr. Russell L. Potter Stafford, Stewart & Potter Post Office Box 1711 Alexandria, LA 71309 (318) 487-4910 COUNSEL FOR DEFENDANTS/APPELLEES: GEICO Johnny Griffin

Michael Joseph Juneau Kate B. Labue The Juneau Firm Post Office Drawer 51268 Lafayette, LA 70505-1268 (337) 269-0052 COUNSEL FOR DEFENDANT/APPELLEE: National Union Fire Ins. Co.

Stacy Christopher Auzenne Auzenne Law Firm 3600 Jackson Street, #121 Alexandria, LA 71303 (318) 880-0087 COUNSEL FOR DEFENDANT/APPELLANT: Republic Vanguard Insurance Company

S. Aaron Siebeneicher Johnson & Siebeneicher Post Office Box 648 Alexandria, LA 71309 (318) 484-3911 COUNSEL FOR DEFENDANT/APPELLANT: Republic Vanguard Insurance Company

Valerie M. Thompson Attorney at Law Post Office Box 648 Alexandria, LA 71309 (318) 484-3911 COUNSEL FOR DEFENDANT/APPELLANT: Republic Vanguard Insurance Company THIBODEAUX, Judge.

Upon the lodging of the record in the above captioned case, this court,

sua sponte, issued a rule for the defendant-appellant, Republic Vanguard

Insurance Company, to show cause, by brief only, why its appeal in this case

should not be dismissed as premature. Subsequently, the plaintiff-appellee,

Delton Augustine, Jr., filed a motion to dismiss this appeal based on the

argument that the judgment appealed is a partial, final judgment which has not

been designated by the trial court as immediately appealable pursuant to

La.Code Civ.P. art. 1915. For the reasons given, we dismiss the appeal.

This case arises out of an automobile accident wherein the plaintiff was

a passenger in a vehicle owned by a business contractor. The plaintiff sued

Johnny E. Griffin, the driver of the vehicle that struck him, and Griffin’s

liability insurer. The plaintiff also sought recovery under the uninsured

motorist provisions of the contractor’s liability policy. The contractor’s policy

was issued by the appellant.

The plaintiff filed a motion for partial summary judgment seeking a

finding that one million dollars in UM coverage was available due to the

appellant’s failure to include the policy number on the alleged selection of the

lower limit form. The trial court granted this motion for partial summary

judgment on January 26, 2007. The availability of the one million dollars in

UM coverage was found to be subject to credit for any amounts already

received by the plaintiff.

The appellant filed a motion for an appeal from this ruling on February

28, 2007, which was granted by the trial court on the same day. The appeal in

this case was lodged in this court on May 7, 2007, and on May 8, this court

1 issued the instant rule to show cause why the appeal should not be dismissed

as premature. On June 28, 2007, the plaintiff filed a motion to dismiss the

appeal. The appellant filed a brief in opposition to the motion to dismiss the

appeal in this court on May 17, 2007.

In the opposition brief filed in this court, the appellant readily admits

that the trial court’s ruling is a partial final judgment pursuant to La.Code

Civ.P. art. 1915(B). Moreover, the appellant recognizes that the trial court has

failed to designate this judgment as immediately appealable. However, the

appellant contends that this court should proceed to decide this matter on

appeal because a reversal of the trial court’s ruling could put this litigation at

an end and because the appellant argues that it has been denied appellate

review of this and other rulings throughout this litigation due to fact that these

have also been partial, final judgments.

We find that the appellant’s arguments are without merit. The judgment

appealed is clearly only a partial, final judgment pursuant to La.Code Civ.P.

art. 1915(B), which has not been designated as immediately appealable.

Moreover, the appellant obtained review of this judgment in its writ application

to this court in docket number 07-294, which application was denied by this

court in an unpublished writ disposition rendered on April 12, 2007.

Therefore, we hereby dismiss the instant appeal at appellant’s cost.

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION. Rule 2-16.3 Uniform Rules, Court of Appeal.