Perry v. City of Bogalusa

804 So. 2d 895, 2001 WL 1659234
CourtLouisiana Court of Appeal
DecidedDecember 28, 2001
Docket2000 CA 2281
StatusPublished
Cited by7 cases

This text of 804 So. 2d 895 (Perry v. City of Bogalusa) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Perry v. City of Bogalusa, 804 So. 2d 895, 2001 WL 1659234 (La. Ct. App. 2001).

Opinion

804 So.2d 895 (2001)

Archie PERRY
v.
CITY OF BOGALUSA, et al.

No. 2000 CA 2281.

Court of Appeal of Louisiana, First Circuit.

December 28, 2001.

*896 Archie Perry, Bogalusa, LA, plaintiff-appellant, in proper person.

Bradley C. Myers, John F. Jakuback, Lana D. Crump, Melissa A. Hemmans, Kean, Miller, Hawthorne, D'Armond McCowan & Jarman, L.L.P., Baton Rouge, LA, for defendants-appellees City of Bogalusa, et al.

BEFORE: CARTER, C.J., PARRO, and CLAIBORNE[1], JJ.

PARRO, J.

Archie Perry appeals a judgment that granted a motion for summary judgment in favor of the City of Bogalusa and its police chief, Jerry Agnew, and dismissed his property damage and mental anguish claims against them. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On February 4, 1998, suspecting a drug transaction had just taken place, a police officer in Bogalusa tried to pull over a vehicle driven by Arthur R. Mingo, Jr. Mingo stopped briefly, but when the officer got out of the police car, Mingo accelerated and tried to get away. With the officer in pursuit, Mingo was exceeding the speed limit and running stop signs for seven city blocks until he came to a "T" *897 intersection at Second Avenue and East 9th Street. Archie Perry is the owner and occupant of a house that sits just off that intersection at 630 East 9th Street. As Mingo braked and tried to make a left turn, he lost control of the vehicle. It crashed into the front of Perry's house, causing damage to the chain link fence, gate, front sidewalk, front steps, and front wall of the house. Perry was in the house at the time of the accident, but was not physically injured.

Perry, an attorney, filed suit against Mingo; Grace Foster, Mingo's grandmother, who owned the car he was driving; Allstate Insurance Company (Allstate), Foster's insurer; the City of Bogalusa (the City); Police Chief Jerry Agnew; and Bogalusa city police officers "A," "B," "C," and "D." Perry sought damages for the property damage to his house and the "extreme mental anguish" he allegedly suffered when he heard and felt the impact and witnessed the police conduct following it. Perry alleged the accident was caused by a high speed automobile chase initiated by Officer "A" and participated in by the other officers, all of whom he claimed were negligent in taking this action. He asserted the City was negligent in hiring Agnew, who was negligent in failing to provide adequate training and standards for his officers. Perry also alleged Mingo's negligence in causing the accident and Foster's negligence in allowing her grandson to drive her car without proper instructions.

The City and Agnew filed answers and later filed a motion for summary judgment, supported by the petition, their answer, Mingo's deposition, and the deposition of Sergeant Charles Helton. Perry responded by filing an opposition supported by his own affidavit, along with various attachments, and asking for summary judgment in his favor. After a hearing, the trial court stated that it appeared the damage to Perry's property was caused by the negligence of Mingo, and found no negligence on behalf of the City or Agnew. The trial court granted the defendants' motion and dismissed Perry's claims against the City and Agnew. This appeal followed.

FINAL JUDGMENT

Of the five named defendants in the suit, the judgment appealed from dismissed Perry's claims only as to the City and Agnew, leaving the claims against Mingo, Foster, and Allstate unresolved. Therefore, when the appeal was lodged, this court issued a rule to show cause why the appeal should not be dismissed, on the grounds that the summary judgment in favor of the City and Agnew appeared to be a partial non-appealable judgment, rather than a partial final judgment, in accordance with Louisiana Code of Civil Procedure article 1915(B).[2] The trial court allowed the City and Agnew to supplement the record with a certified copy of a dismissal showing Foster, Mingo, and Allstate had settled with Perry and had been dismissed from the suit. With this supplementation of the record, it is clear that all of the named defendants have been dismissed.

However, Perry also sued four unnamed police officers, but never amended *898 his petition to name them and did not serve them.[3] In his comments at trial, as well as in his brief and oral argument to this court, Perry indicated his intention to pursue his claims against these remaining defendants. While it appears these claims are prescribed, this court cannot supply the objection of prescription, which must be specially pleaded. LSA-C.C.P. art. 927(B). Accordingly, we must address the jurisdictional issue of whether, when unnamed and unserved defendants remain in the lawsuit after all the named defendants have been dismissed, the judgment dismissing the last of those named defendants is a final judgment under the applicable version of Louisiana Code of Civil Procedure article 1915(B).

The Louisiana Supreme Court has addressed the issue of finality of judgments under the applicable version of Article 1915 in two cases involving summary judgments rendered pursuant to Louisiana Code of Civil Procedure article 966(E). Article 966(E) states that a summary judgment may be rendered "dispositive of a particular issue, theory of recovery, cause of action, or defense, in favor of one or more parties, even though the granting of the summary judgment does not dispose of the entire case." In Alpaugh v. Continental Ins. Co., 01-0101 (La.6/29/01), 791 So.2d 71, 74 n. 2, the court noted that the partial judgment on the issue of insurance coverage was immediately appealable as a partial final judgment under Article 1915(A)(3), because summary judgment on the coverage issue was rendered pursuant to Article 966(E). That case, having been rendered under the provisions of Article 966(E), did not involve the dismissal of some, but not all, of the parties.

Similarly, in Shell Pipeline Corp. v. Kennedy, 00-3207 (La.10/16/01), 799 So.2d 475, the court addressed a partial summary judgment in favor of the taxpayer on the definition of a statutory term. Like in Alpaugh, the judgment was rendered pursuant to Article 966(E) and was dispositive of a particular issue; it did not involve the dismissal of some, but not all, of the parties. The appellate court had dismissed the appeal for failure to designate the judgment as final in compliance with Article 1915(B). The supreme court reinstated the appeal, noting the internal conflict within Article 1915 prior to its amendment. Under the pre-amendment version of Article 1915(B), when a partial summary judgment was rendered as to one or more, but less than all of the claims, demands, issues, theories, or parties, it had to be designated as a final judgment before it could be appealed. Yet Article 1915(A)(3) stated that a final judgment could be rendered when granted pursuant to Article 966(E), which specifically allowed a summary judgment dispositive of a particular issue, even though the entire case was not disposed of. Noting that appeals are favored and should not be dismissed unless the ground urged for dismissal is free from doubt, and finding that the language of Article 1915(B) produced doubt concerning the availability of appeal in cases under Article 1915(A)(3) involving summary judgment pursuant to Article 966(E), the court ruled that the appeal should not have been dismissed. Shell Pipeline Corp., 799 So.2d at 478.

However, those cases address only the situation under Article 966(E), in which a particular issue is disposed of by partial summary judgment.

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804 So. 2d 895, 2001 WL 1659234, Counsel Stack Legal Research, https://law.counselstack.com/opinion/perry-v-city-of-bogalusa-lactapp-2001.