Rebecca Deville v. Progressive Security Ins. Co.

• Court: Louisiana Court of Appeal
• Decided: June 12, 2013
• Docket: CA-0013-0474
• Status: Unknown

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

CA 13-474

REBECCA DEVILLE, ET AL.

VERSUS

PROGRESSIVE SECURITY INS. CO., ET AL.

**********

APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF ACADIA, NO. 201011273 HONORABLE GLENNON P. EVERETT, DISTRICT JUDGE

BILLY H. EZELL

JUDGE

Court composed of Jimmie C. Peters, Billy H. Ezell, and J. David Painter, Judges.

APPEAL OF MARCH 14, 2013, JUDGMENT DISMISSED. APPELLANT PERMITTED TO FILE APPLICATION FOR SUPERVISORY WRITS FROM THIS JUDGMENT. APPEAL MAINTAINED AS TO JUDGMENT OF JANUARY 23, 2013.

Michael Benny Miller Jacqueline B. Manecke Miller & Miller Post Office Box 1630 Crowley, LA 70527-1630 (337) 785-9500 COUNSEL FOR PLAINTIFF/APPELLANT: Rebecca Deville William Howard Justice Castler, Bordelon & Lawler 11550 New Astle Ave., #200 Baton Rouge, LA 70816 (225) 663-5551 COUNSEL FOR DEFENDANT/APPELLEE: Progressive Security Ins. Co.

Kenneth Deville In Proper Person 917 S. Eastern Ave. Crowley, LA 70526 (000) 000-0000 PRO SE: Kenneth Deville

Lisa Kay Floyd Broussard In Proper Person 202 N. 11th St. Kinder, LA 70648 (000) 000-0000 PRO SE: Lisa Kay Floyd Broussard EZELL, Judge.

Upon the lodging of the record in this appeal, this court, on its own motion,

issued a rule for the plaintiff-appellant, Rebecca Deville, to show cause, by brief

only, why the appeal taken from the judgment signed on March 14, 2013, should

not be dismissed as having been taken from a non-appealable, interlocutory order.

The appellant has filed a brief in response to this court’s rule. For the reasons

which follow, we dismiss the appeal from the judgment of March 14, 2013, but we

maintain the appeal from the judgment of January 23, 2013.

The appellant and her husband, Kenneth Deville, filed this suit for damages

arising out of an accident in which the appellant, who was a pedestrian, was struck

by a vehicle allegedly being driven by the defendant-appellee, Lisa Kay Floyd

Broussard. In the course of this litigation, the defendant-appellee, Progressive

Security Insurance Company, filed a motion for summary judgment based on the

argument that it did not insure Ms. Broussard on the day of the accident. The

appellant also filed a motion for partial summary judgment, arguing that the court

should declare that Progressive did insure Ms. Broussard on the day of the accident.

The hearing on Progressive’s motion was held on November 26, 2012, and

the trial court orally granted the motion, stating that a written judgment would be

signed upon presentation. The appellant’s motion was not heard until January 22,

2013, at which time the trial court denied the appellant’s motion in open court and

stated that a written judgment would be signed upon presentation.

The trial court signed a judgment on January 23, 2013, granting

Progressive’s motion and dismissing Progressive from the suit. On March 14,

2013, the trial court signed a written judgment denying the appellant’s motion for

partial summary judgment. The appellant filed a motion for appeal from both the January 23 judgment and the March 14 judgment on March 20, 2013, and the trial

court signed the order of appeal the following day.

As stated above, upon the lodging of the record in this appeal, this court

issued a rule for the appellant to show cause why her appeal of the March 14

judgment should not be dismissed as having been taken from a non-appealable,

interlocutory order. In response, the appellant contends that this court should

permit her appeal to go forward as to both judgments. Although the appellant

admits that the judgment denying partial summary judgment does not constitute a

partial judgment pursuant to La.Code Civ.P. art. 1915, appellant nevertheless cites

this court to the factors set forth in R.J. Messinger, Inc. v. Rosenblum, 2004-1664

(La. 3/2/05), 894 So.2d 1113, for determining whether an immediate appeal should

be authorized.

The denial of a motion for summary judgment cannot be designated as

appealable pursuant to La.Code Civ.P. art. 1915(B). See Belanger v. Gabriel

Chemicals, Inc., 2000-747 (La.App. 1 Cir. 5/23/01), 787 So.2d 559, writ denied,

2001-2289 (La. 11/16/01), 802 So.2d 612. Therefore, we find the holding in R.J.

Messinger, Inc., 894 So.2d 1113, inapplicable to the instant case. Therefore,

review of the denial of the appellant’s motion for partial summary judgment should

have been sought through a timely filed application for supervisory writs.

However, we find that the appellant filed her motion for appeal of this

judgment within the time delay for seeking supervisory writs. Therefore, in the

interest of justice, although we dismiss the appeal of the March 14 judgment, we

permit the appellant to file a writ application with this court no later than July 12,

2013, pursuant to Uniform Rules—Courts of Appeal, Rule 4. We maintain this

2 appeal of the January 23 judgment. Appellant does not have to obtain a return date

from the trial court since this court has set the return date in this opinion.

APPEAL OF MARCH 14, 2013, JUDGMENT DISMISSED AND APPELLANT PERMITTED TO FILE APPLICATION FOR SUPERVISORY WRITS FROM THIS JUDGMENT. APPEAL MAINTAINED AS TO JUDGMENT OF JANUARY 23, 2013.

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