Martin v. Johnson

445 So. 2d 780, 1984 La. App. LEXIS 8126

• Court: Louisiana Court of Appeal
• Decided: February 9, 1984
• Docket: No. 83-1099
• Status: Published

Opinion

YELVERTON, Judge.

MOTION TO DISMISS

Plaintiff-appellee, Eric J. Martin, moves to dismiss the appeal of the defendant-appellant, State Farm Mutual Automobile Insurance Co., contending that the trial court ruling is a non-appealable interlocutory judgment. We dismiss the appeal.

Martin filed suit against Sue B. Johnson, Allstate Insurance Company, and State Farm for damages resulting from an automobile accident. State Farm is Martin’s uninsured motorist carrier. Martin subsequently executed a release and judgment of dismissal as to some or all of the parties to this suit. State Farm filed peremptory exceptions of No Right of Action and Res judicata which exceptions were overruled by the trial court. From this judgment, State Farm has taken this appeal.

An appeal may be taken from a final judgment or an interlocutory judgment which may cause irreparable injury. LSA-C.C.P. Art. 2083. A final judgment is one that determines the merits in whole or in part. A judgment that only determines preliminary matters in the course of an action is an interlocutory judgment. LSA-C.C.P. 1841.

A judgment overruling peremptory exceptions of no cause of action and res judicata is an interlocutory rather than a final judgment and thus not appealable absent a showing of irreparable harm. Wallace v. Pan American Fire & Casualty Company, 386 So.2d 158 (La.App. 3rd Cir.1980).

State Farm contends that it will suffer irreparable harm because it will be compelled to absorb the costs incident to a hearing on the merits. The necessity for increased expense and labor resulting from trial on the merits does not constitute irreparable harm. Wallace v. Pan American Fire & Casualty Company, supra.

The standard for determining whether an interlocutory judgment may cause irreparable injury is whether any error in the judgment may be corrected as a practical matter on an appeal following the determination of the merits. Sylvester v. St. Landry Parish Police Jury, 401 So.2d 689 (La.App. 3rd Cir.1981). There is no showing of irreparable injury in this case.

For the above and foregoing reasons, the appeal is dismissed at defendant-appellant’s, State Farm Mutual Automobile Insurance Co., cost.

APPEAL DISMISSED.