Frank Cushenberry and Robin Cushenberry, individually and on behalf of the minor children, Noah Cushenberry and Khloe Cushenberry v. Johnny Scott and Barber Brothers Contracting Company, LLC

Opinion

STATE OF LOUISIANA

COURT OF APPEAL, FIRST CIRCUIT

FRANK CUSHENBERRY AND ROBIN NO. 2021 CW 0003 CUSHENBERRY, INDIVIDUALLY AND ON BEHALF OF THE MINOR PAGE 1 of 2

CHILDREN, NOAH CUSHENBERRY AND KHLOE CUSHENBERRY

VERSUS

JOHNNY SCOTT AND BARBER BROTHERS CONTRACTING COMPANY, LLC LOUISIANA

CONSOLIDATED WITH

BARBER BROTHERS CONTRACTING COMPANY, LLC

CAPITOL CITY PRODUCE COMPANY, LLC, FRANK

CUSHENBERRY AND XYZ JANUARY 6, 2021 INSURANCE COMPANY

In Re: Barber Brothers Contracting Company, LLC, applying for supervisory writs, 19th Judicial District Court, Parish of East Baton Rouge, No. 674957 c/ w 672217.

BEFORE: MCDONALD, HOLDRIDGE, AND PENZATO, JJ.

WRIT DENIED.

AHP

McDonald and Holdridge, JJ., concur in the result. At this

stage of the proceedings, the proper procedural remedy would be for the defendant to request a motion for directed verdict, La. C. C. P. art. 181.0, after the close of the plaintiffs' case if the plaintiffs fail to prove any of their causes of action.

However, we disagree that a partial exception of no cause of

action cannot be granted. Prior to 1997, the cases did not

allow a judgment granting only a partial exception of no cause

of action. See Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So. 2d 1234, 1239 ( La. 1993). However, in 1997, the legislature authorized a partial judgment that " sustains an

exception in part, as to one or more but less than all of the claims, demands, issues, or theories against a party." La. C. C. P. art. 1915( B)( 1). " This amendment ... authorizes a

judgment granting a partial exception of no cause of action;

importantly, this amendment provides certainty as to the immediate appealability of such a judgment." Frank L. Maraist, Louisiana Civil Law Treatise; Civil Procedure, Vol. I, § 6. 7,

pp. 172- 173 ( 2d ed. 2008). We are aware that although La. C. C. P. art. 1915( 3)( 1) would appear to authorize a judgment granting only a partial exception of no cause of action, this court has not interpreted the clear and unambiguous language of

La. C. C. P. art. 1915( B)( 1) in this manner. See Expert Riser

Solutions, LLC v. Techcrane International, LLC, 2018- 0612 ( La. STATE OF LOUISIANA COURT OF APPEAL, FIRST CIRCUIT

App. 1 Cir. 12/ 28/ 18), 270 So. 3d 655, 663; State, by and through Caldwell v. Astra Zeneca AB, 2016- 1073 ( La. 1 App. Cir. 4/ 11/ 18), 249 So. 3d 38, 50- 51 ( Holdridge, J., concurring), writ denied, 2018- 00766 ( La. 9/ 21/ 18), 252 So. 3d 899, and writ denied sub nam. State, by and through Caldwell v. AstraZeneca AB, 2018- 0758 ( La. 9/ 21/ 18), 252 So. 3d 904. However, legislation, and not jurisprudence, is a solemn expression of legislative will. La. C. C. art. 2. Therefore, this court has the authority to grant a partial exception raising the objection of no cause of action.

DEPUTY CLERK OF COURT FOR THE COURT

PAGE 2 of 2