Michael D'Luca v. Kenique T. Kirkland, Safeway Insurance Company of Louisiana, Kathyrn M. Reed, Anpac Louisiana Insurance Company, and State Farm Mutual Automobile Insurance Company

• Court: Louisiana Court of Appeal
• Decided: February 19, 2021
• Docket: 2020CA0713, 2020CA0714
• Status: Unknown

Opinion

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2020 CA 0713

MICHAEL D' LUCA

VERSUS

KENIQUE T. KIRKLAND, SAFEWAY INSURANCE COMPANY OF LOUISIANA, KATHRYN M. REED, ANPAC LOUISIANA INSURANCE COMPANY, & STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Consolidated With

2020 CA 0714

KENIQUE KIRKLAND, KENIQUE KIRKLAND & ELLIS RHEAMS OBO KERRIGAN RHEAMS, KENIQUE KIRKLAND & WILLIAM HUNTER OBO KAMRYN HUNTER & SIERRA WICKER

KATHRYN REED, ANPAC LOUISIANA INSURANCE COMPANY, MICHAEL D' LUCA, & STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Judgment Rendered: FES 1 9 2021

On Appeal from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Numbers 643458 c/ w 650366

Honorable Timothy E. Kelley, Judge Presiding

John A. Venezia Counsel for Plaintiff/ Appellant Julie O' Shesky Michael D' Luca New Orleans, Louisiana

Charles L. Chassaignac, IV Counsel for Defendant/ Appellee Eleanor Weeks Wall ANPAC Louisiana Insurance Company Baton Rouge, Louisiana

BEFORE: GUIDRY, McCLENDON AND LANIER, JJ. McCLENDON, 7.

Following a trial on the merits, the trial court rendered judgment awarding

damages in favor of plaintiff and against defendants, apportioned fault between the

parties, and reduced the amount of damages recoverable by plaintiff in proportion to

the percentage of plaintiff's fault. Plaintiff appealed, challenging the trial court's

allocation of fault. For the reasons that follow, we dismiss the appeal.

FACTUAL AND PROCEDURAL HISTORY

This suit arises from a four -vehicle collision that occurred on College Drive in

Baton Rouge, Louisiana, on August 4, 2015. The lead vehicle was struck from behind by

the vehicle driven by plaintiff-appellant, Michael D' Luca; Mr. D' Luca' s vehicle was struck

from behind by the third vehicle, driven by Kenique Kirkland Steward; and Ms.

Steward' s vehicle was struck from behind by the fourth vehicle, driven by Kathryn Reed.

Mr. D' Luca filed a petition for damages on October 30, 2015, naming as

defendants Ms. Steward, as the driver of the third vehicle; Ms. Steward' s alleged

insurer, Safeway Insurance Company ( Safeway); Ms. Reed, as the driver of the fourth

vehicle; Ms. Reed' s alleged insurer, ANPAC Louisiana Insurance Company ( ANPAQ and

Mr. D' Luca' s uninsured/ underinsured motorist insurer, State Farm Mutual Automobile

Insurance Company ( State Farm). State Farm was dismissed on March 30, 2016.

Safeway and Ms. Steward were dismissed on March 14, 2017, and October 31, 2017,

respectively. Thus, Mr. D' Luca, Ms. Reed, and ANPAC remained as parties when the

matter proceeded to trial.

Following a September 10, 2019 bench trial, the trial court found " it is clear that

Mr. D' Luca] maneuvered onto College [ Drive] in an unsafe manner" that forced Ms.

Steward to make an unsafe stop. The trial court also found that Ms. Reed was unable to

stop because she was following too closely. Accordingly, the trial court allocated eighty

percent ( 80%) fault to Mr. D' Luca and twenty percent ( 20%) fault to Ms. Reed. The

trial court awarded Mr. D' Luca property damage in the amount of $ 6, 276. 91, medical

expenses in the amount of $ 5, 375, and general damages in the amount of $ 17, 500. 1 A

written judgment executed on September 23, 2019 awarded Mr. D' Luca $ 5, 830. 38,

1 Plaintiff stipulated to damages of fifty thousand dollars or less prior to trial. representing twenty percent of Mr. D' Luca' s total damages, for which Ms. Reed and

ANPAC were liable. Mr. D' Luca appealed, challenging the trial court's allocation of fault.

DISCUSSION

It is the duty of appellate courts to examine subject matter jurisdiction sua

sponte, even when the issue is not raised by the litigants. Duplessis Buick -GMC

Truck, Inc. v. Chauncey, 2019- 1304 ( La. App. 1 Cir. 5/ 11/ 20), 304 So. 3d 436, 440.

This court's appellate jurisdiction extends only to " final judgments." See LSA- C. C. P. art.

2083( A). Under Louisiana law, a final judgment is one that determines the merits of a

controversy in whole or in part. LSA- C. C. art. 1841.

A valid judgment must be precise, definite, and certain. Moreover, a final

appealable judgment must contain decretal language, and it must name the party in

favor of whom the ruling is ordered, the party against whom the ruling is ordered, and

the relief that is granted or denied. Advanced Leveling & Concrete Sols. v. Lathan

Co., Inc., 2017- 1250 ( La. App. 1 Cir. 12/ 20/ 18), 268 So. 3d 1044, 1046. These

determinations should be evident from the language of the judgment without reference

to other documents in the record. Id. The specific nature and amount of damages

should be determinable from a judgment so that a third person is able to determine

from a judgment the amount owed without reference to other documents in the record.

Advanced Leveling, 268 So. 3d at 1046, titin Vanderbrook v. Coachmen

Industries, Inc., 2001- 0809 ( La. App. 1 Cir. 5/ 10/ 02), 818 So. 2d 906, 913- 14. The

absence of the necessary decretal language results in a judgment that is not final and

appealable. Matter of Succession of Weber, 2018- 1337 ( La. App. 1 Cir. 4/ 29/ 19),

276 So. 3d 1021, 1027.

The September 23, 2019 judgment at issue in this appeal renders judgment in

favor of Mr. D' Luca " in the amount of FIVE -THOUSAND EIGHT -HUNDRED THIRTY AND

38/ 100 DOLLARS ($ 5, 830. 38), with judicial interest from date of demand and twenty

percent ( 20%) of the costs of this proceeding." This language does not specify the

amount of the costs of the proceeding, nor does it indicate whether the costs awarded

include court costs, attorney' s fees, expert witness fees, and/ or other expenses

3 incurred. 2 Consequently, the precise amounts of the costs awarded in the September

23, 2019 judgment cannot be determined from the judgment alone. This indefinite

award renders the entire judgment non -appealable. In the absence of a final appealable

judgment, this Court lacks subject matter jurisdiction to review the merits of Mr.

D' Luca' s appeal. See Advanced Leveling, 268 So. 3d at 1046; Baker v. Perret, 2018-

0812 ( La. App. 1 Cir. 12/ 28/ 18), 304 So. 3d 860, 861- 62. 3 Accordingly, the appeal is

dismissed.

CONCLUSION

For the foregoing reasons, we dismiss the appeal of the September 23, 2019

judgment. Costs of this appeal are assessed to Mr. D' Luca.

APPEAL DISMISSED.

2 Additionally, we note that although the judgment awards judicial interest beginning on the date of demand, the judgment does not indicate when judicial interest will cease to accrue.

3 The record is devoid of any evidence of a separate hearing to determine the amount of costs.

E