Paula Fortenberry v. Continental Casualty Company

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

14-953

PAULA FORTENBERRY

VERSUS

CONTINENTAL CASUALTY COMPANY, ET AL.

**********

APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALACASIEU, NO. 2005-560 HONORABLE RONALD F. WARE, DISTRICT JUDGE

********** JOHN E. CONERY JUDGE

Court composed of Jimmie C. Peters, James T. Genovese, and John E. Conery, Judges.

APPEAL DISMISSED AND REMANDED.

Roger Burgess Kilburn Landry Baggett, McCall, Burgess, Watson & Gaughan Post Office Drawer 7820 Lake Charles, LA 70606 COUNSEL FOR PLAINTIFF/APPELLEE: Paula Fortenberry

Emmett Sole Alan McCall Stockwell, Sievert, Viccellio, Clements & Shaddock Post Office Box 2900 Lake Charles, LA 70602 COUNSEL FOR DEFENDANTS/APPELLANTS: Continental Casualty Company and Edward K. Bauman CONERY, Judge.

This court issued a rule ordering Appellants, Continental Casualty Company

(Continental) and Edward K. Bauman (Bauman), to show cause, by brief only,

why the appeal should not be dismissed as having been taken from judgments

signed on June 24, 2010, and May 27, 2014, which lack proper decretal language.

See Thomas v. Lafayette Parish Sch. System, 13-91 (La.App. 3 Cir. 3/6/13), 128

So.3d 1055.

This case arises out of Paula Fortenberry‟s (Fortenberry) claim of legal

malpractice against Bauman and his insurer, Continental. In her original petition,

Fortenberry named only Continental as a defendant. Her motion for partial

summary judgment against Continental was granted, and a judgment was signed on

June 24, 2010. That judgment was not certified as a final judgment. Following

that grant of partial summary judgment, Fortenberry amended her petition to name

Bauman as a defendant. She then filed a motion for partial summary judgment

against Bauman. That motion was granted, and a judgment was signed on May 27,

2014. That judgment was certified as a final judgment and ordered that Bauman

would not be required to post a suspensive appeal bond since the judgment was not

for sums of money. On that same day, the parties entered a stipulation that the

judgment dated June 24, 2010, should be designated as a final judgment. Based on

that stipulation, the trial court signed an order designating it as a final judgment

and ordering that Continental would not be required to post a suspensive appeal

bond since the judgment was not for a sum of money.

However, with respect to the granting of the motion for partial summary

judgment against Continental, the judgment states that “for the reasons assigned”:

“IT IS ORDERED, ADJUDGED AND DECREED that Plaintiff‟s Motion for

Partial Summary Judgment is hereby granted.” With respect to the granting of the motion for partial summary judgment against Bauman, the judgment states that

“for the reasons assigned”: “IT IS ORDERED, ADJUDGED AND DECREED

that Plaintiff‟s Second Motion for Partial Summary Judgment is hereby granted.”

The record, however, contains no written reasons for judgment regarding either of

the motions for partial summary judgment.

In Thomas, 128 So.3d at 1056, this court stated:

“[a] valid judgment must be precise, definite, and certain. 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.” State v. White, 05-718 (La.App. 3 Cir. 2/1/06), 921 So.2d 1144, 1146. Moreover, a judgment cannot require reference to extrinsic documents or pleadings in order to discern the court's ruling. Vanderbrook v. Coachmen Industries, Inc., 2001-809 (La.App. 1 Cir. 5/10/02), 818 So.2d 906.

In their brief to this court as to why the appeal should not be dismissed as

premature, Continental and Bauman assert that Thomas is distinguishable because

it was a workers‟ compensation matter for which immediate appeal under La.Code

Civ.P. art. 1915 was not available and because the judgment in that case had not

been certified as a final judgment. Continental and Bauman also assert that the two

cases cited in Thomas are distinguishable because Vanderbrook dealt with a

judgment awarding damages “as prayed for” in the petition without indicating an

exact sum of money, and White dealt with a judgment stating that the defendant

was not in arrears for his child support obligation but did not state if any relief was

granted or denied. Continental and Bauman assert that in those cases, the court of

appeal was unable to ascertain whether it had jurisdiction over the appeals because

the judgments were unclear as to whether all issues in the case had been resolved.

Continental and Bauman argue that the jurisdiction of this court is clear in this case

because the relief granted in both judgments is clear, because both judgments have

been designated as final judgments, and because the judgments specifically state 2 that they are not for sums of money such that it is obvious that the relief granted

concerns liability and not damages.

In Brooks v. Sibille, 12-1093 (La.App. 3 Cir. 1/30/13), 107 So.3d 826, the

judgment stated “IT IS ORDERED, ADJUDGED AND DECREED that

Defendants‟ Motion for Summary Judgment is hereby granted.” This court

dismissed the appeal because it did not specify what that relief entailed; therefore,

“[i]n the absence of such decretal language, the judgment . . . is defective and

cannot be considered as a „final judgment.‟” Id. at 823, citing Gaten v. Tangipahoa

Parish School System, 11-1133 (La.App. 1 Cir. 3/23/12), 91 So.3d 1073. The

court in Gaten also noted that: “A final appealable judgment must contain decretal

language, and it must name the party in favor of whom the ruling is ordered, and

the relief that is granted or denied. These determinations should be evident from

the language of a judgment without reference to other documents in the record.”

Gaten, 91 So.3d at 1074 (citations omitted).

In this case, the judgments do not contain decretal language as to what relief

is granted. The trial court‟s designation of these judgments as final judgments is

not determinative of this court‟s jurisdiction. Phoenix Associates Land Syndicate,

Inc. v. E.H. Mitchell & Co., L.L.C., 07-0108 (La.App. 1 Cir. 9/14/07), 970 So.2d

605, writ denied, 07-2365 (La. 2/1/08), 976 So.2d 723. Determination of the relief

granted requires reference to either Fortenberry‟s motions for partial summary

judgment or the transcript of the hearings held in connection therewith. Therefore,

we dismiss the instant appeal and remand the matter to the trial court for further

proceedings in accordance with this opinion.

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