Mildred E. Brister, Et Ux. v. Larry's Lube and Tire, LLC

• Court: Louisiana Court of Appeal
• Decided: September 7, 2016
• Docket: CA-0016-0481
• Status: Unknown

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

CA 16-481

MILDRED E. BRISTER, ET VIR

VERSUS

LARRY'S LUBE AND TIRE, L.L.C., ET AL.

**********

APPEAL FROM THE THIRTY-SIXTH JUDICIAL DISTRICT COURT PARISH OF BEAUREGARD, NO. C-2010-1182-B HONORABLE C. KERRY ANDERSON, DISTRICT JUDGE

ELIZABETH A. PICKETT

JUDGE

Court composed of Jimmie C. Peters, Elizabeth A. Pickett and John E. Conery, Judges.

APPEAL DISMISSED.

John O. Charrier, Jr. Attorney at Law 7809 Wrenwood Blvd. Baton Rouge, LA 70809 (225) 218-8599 COUNSEL FOR PLAINTIFFS/APPELLEES: Mildred E. Brister Gene Brister Charles K. Charrier Attorney at Law Post Office Box 1007 Alexandria, LA 71309 (318) 448-3952 COUNSEL FOR PLAINTIFFS/APPELLEES: Mildred E. Brister Gene Brister

James D'Arensbourg Hollier Jeffery K. Coreil NeunerPate Post Office Drawer 52828 Lafayette, LA 70505-2828 (337) 237-7000 COUNSEL FOR INTERVENORS/APPELLEES: Vernon Parish Police Jury Parish Government Risk Management Agency Self Insurers Fund

Joseph Richard Pousson, Jr. Plauche', Smith & Nieset, L.L.C Post Office Box 1705 Lake Charles, LA 70602 (337) 436-0522 COUNSEL FOR DEFENDANTS/APPELLANTS: Larry's Lube and Tire, LLC American Economy Insurance Co. PICKETT, Judge.

On July 2, 2016, the appellees, Mildred and Gene Brister, filed a Motion to

Dismiss Appeal, asserting therein that the judgment at issue herein, the denial of a

motion for summary judgment, is an interlocutory judgment which is not subject to

appeal. For the reasons which follow, we dismiss the appeal.

The instant matter arises from a slip and fall accident that occurred at

Larry’s Lube and Tire. Ms. Brister, a patron at Larry’s Lube and Tire, slipped and

fell after exiting her vehicle. The Bristers filed suit against Larry’s Lube and Tire

and its liability insurer, American Economy Insurance Co., the appellants herein.

In the course of this litigation, the appellants filed a motion for summary

judgment which was denied by the trial court following a hearing on March 26,

2015. The trial court subsequently asked whether the parties wished for the trial

court to certify the ruling as a final judgment for the purpose of appealing the

ruling. The appellees objected to the certification of the ruling. The trial court left

the matter open to allow for additional briefing on the issue of whether the denial

of summary judgment should be designated as a final, appealable judgment

pursuant to La.Code Civ.P. art. 1915(B).

On December 31, 2015, the trial court signed a written ruling stating, “In the

interest of judicial economy[,] the Court finds that there is no just cause for delay

in this matter, as this issue would likely be raised on appeal.” The trial court

subsequently denied the motion for summary judgment and certified it as a final,

appealable judgment. The trial court signed an order on March 1, 2016, granting

the appellants a devolutive appeal from the December 31, 2015 judgment. After

the record in this appeal was lodged in this court, the appellees filed a motion to dismiss the appeal as having been taken from a non-appealable, interlocutory

ruling.

We note that the trial court’s rendition of judgment, certifying the denial of

the motion for summary judgment as a final, appealable order, was ineffectual.

While certification of partial judgments which grant a motion for summary

judgment is allowed under Article 1915, this statute does not authorize the

certification of a judgment denying a motion for summary judgment. Further, this

court has expressly held that such a judgment cannot be designated immediately

appealable under 1915(B). See Owen v. PSC Phillips Services, 08-781 (La.App. 3

Cir. 7/23/08), 994 So.2d 545; Romero v. Charter Behavioral Health System of

Lake Charles, 00-1108 (La.App. 3 Cir. 1/31/01), 780 So.2d 530.

In the event we find that the ruling may only be reviewed on supervisory

writs, the appellants request that this court exercise its supervisory jurisdiction and

convert their motion for appeal into an application for supervisory writs. The

appellants acknowledge that the time within which to seek supervisory review had

already elapsed at the time they filed their motion for a devolutive appeal. The

appellants urge, however, that they did not act independently in choosing to appeal

the ruling, but acted in conformity with the trial court’s suggestions made at the

hearing on the motion for summary judgment and the subsequent order designating

the judgment as a final, appealable ruling. As such, the appellants respectfully

request that we extend the time period within which they may seek supervisory

review.

Since the judgment denying the appellants’ motion for summary judgment is

deemed non-appealable under La.Code Civ.P. art. 968, we find it was not

2 appropriate for the trial court to designate that judgment as appealable. Therefore,

we hereby dismiss the instant appeal at the appellants’ cost.

While the appellants contend that they filed the motion for appeal because

the trial court designated the judgment appealable, we find no procedural bar to

their also seeking supervisory relief in the event the appeal was dismissed.

Moreover, we find that had the motion for appeal been filed with the thirty day

period, this court could have construed the motion for appeal as a timely filed

notice to seek supervisory writs. Therefore, we cannot construe the motion for

appeal as a timely filed notice of intent to seek supervisory writs on the facts of the

instant case.

Additionally, we note that the appellees filed an answer to the appeal, raising

the same arguments set forth in their motion to dismiss the appeal. As this court is

granting the appellees the relief sought in their answer by granting the motion to

dismiss the appeal, we dismiss the answer as moot.

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