Strother v. Continental Cas. Co.

917 So. 2d 551, 5 La.App. 3 Cir. 1094, 2005 La. App. LEXIS 2451, 2005 WL 3056503
CourtLouisiana Court of Appeal
DecidedNovember 16, 2005
Docket05-1094
StatusPublished
Cited by1 cases

This text of 917 So. 2d 551 (Strother v. Continental Cas. Co.) 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.

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Strother v. Continental Cas. Co., 917 So. 2d 551, 5 La.App. 3 Cir. 1094, 2005 La. App. LEXIS 2451, 2005 WL 3056503 (La. Ct. App. 2005).

Opinion

917 So.2d 551 (2005)

Blaine STROTHER, et al.
v.
CONTINENTAL CASUALTY COMPANY, et al.

No. 05-1094.

Court of Appeal of Louisiana, Third Circuit.

November 16, 2005.
Rehearing Denied January 11, 2006.

Andre F. Toce, Aaron J. Allen, Attorney at Law, Lafayette, LA, for Plaintiffs, Blaine Strother, Connie Strother.

*552 Bruce David Beach, Ungarino & Eckert, LLC, Lafayette, LA, for Defendants, Continental Casualty Insurance Co., Southern Food Groups, Inc., Foremost Dairies, Inc., Freddie Lynn Fair.

Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR, and MARC T. AMY, Judges.

SAUNDERS, Judge.

This court, sua sponte, issued a rule for the plaintiffs, Blaine and Connie Strother, to show cause by brief only why their appeal should not be dismissed as untimely. While this rule was pending, the defendants, Continental Casualty Insurance Company; Southern Foods Group, L.P. d/b/a Foremost Dairy; Dean Foods Product Company and Freddie Lynn Fair (the defendants), filed a Motion to Dismiss Appeal also arguing that the plaintiffs' appeal should be dismissed as untimely. For the reasons discussed below, the plaintiffs' appeal is dismissed, the trial court's amended judgment is set aside as null, the original judgment is hereby reinstated, the defendants' answer to the appeal is dismissed, and this appeal is maintained with the defendants as appellants.

The instant litigation arises out of a vehicular collision. As a result of the collision, the plaintiffs claim that they sustained personal injuries and property damage to their vehicle. Therefore, the plaintiffs sued the above named defendants claiming that they were responsible for the damages arising out of the wreck.

However, the plaintiffs also named another defendant to the suit, Hollis Mancil d/b/a H & M Motors, seeking recovery for damages arising out of Mancil's repair work done on the plaintiffs' vehicle following the accident. In the course of the proceedings in the trial court, the parties agreed to sever the trial of the plaintiffs' claims against Mancil from the other defendants.

Thus, the plaintiffs proceeded to have a jury trial as to the defendants other than Mancil. At the conclusion of the trial, the jury rendered a verdict finding that the defendants were answerable to the plaintiffs in damages. The trial court signed a written judgment on September 30, 2003, which judgment was purportedly in conformity with the jury's findings. Notice of the signing of this judgment was mailed by the clerk's office on October 1, 2003.

The record in this case reveals that on October 30, 2003, the defendants filed a Petition for Suspensive Appeal seeking to appeal the judgment on the jury's verdict which had been signed on September 30. The trial court signed the order granting this appeal on October 27, 2003. Thus, the motion and order for appeal had to have been presented to the trial judge prior to the filing of the motion into the court record.

Despite the foregoing, on October 30, 2003, the defendants filed a pleading entitled Defendants' Motion to Amend Judgment Pursuant to La.Code Civ.P. art. 1915(B). In this motion, citing the fact that at the time of the judgment on the jury's verdict, no judgment had been rendered on the merits of the plaintiffs' claims against Mancil, the defendants asked that the trial court sign an amended judgment designating the judgment on the jury's verdict as appealable pursuant to La.Code Civ.P. art. 1915(B). However, the motion also proceeded to request that the trial court grant certain other amendments to the earlier judgment which amendments were alleged to be in accordance with an oral agreement entered into between the parties and the trial court.

The other amendments to the earlier judgment were listed in correspondence attached to the motion and read as follows:

*553 1) Item number 6 on the judgment on jury verdict shall include the word "suffer" between the word "Strother" and the word "any";
2) The amount listed in item number 7(d) on the judgment on jury verdict will be changed from $47,986.75 to $44,986.75;
3) The $4,000.00 award for loss of consortium made to plaintiff, Connie Strother, will be added to the amount awarded to increase it from $47,353.17 to the amount of $51,353.17;
4) The language in the judgment on jury verdict will be revised with respect to interest from "plus pre-judgment interest as allowed by law;" to "plus judicial interest from the date of demand until paid as allowed by law.

In addition, the parties had also filed pleadings concerning the assessment of court costs. Therefore, the trial court signed an amended judgment on November 10, 2003, which included making the four alterations mentioned in the motion to amend the judgment, assessing certain court costs, and designating the amended judgment as immediately appealable pursuant to La.Code Civ.P. art. 1915(B). Notice of the signing of this judgment was mailed by the clerk's office on November 10, 2003.

On November 19, 2003, the defendants filed a motion for judgment notwithstanding the verdict as to their liability. Additionally, on January 6, 2004, the defendants filed a motion for leave of court to furnish part of the security for the appeal pursuant to La.Code Civ.P. art. 5121 and to fix the amount of the suspensive appeal bond. On March 8, 2004, the trial court signed a judgment denying the defendants' motion for JNOV, setting the amount of the suspensive appeal bond, and permitting the defendants to post the bond partially in cash and partially by surety. Meanwhile, on January 29, 2004, the trial court had also signed a written judgment dismissing the plaintiffs' claims against Mancil due to compromise by these parties.

Following entry of the trial court's judgment denying the motion for JNOV, the plaintiffs filed a motion for a devolutive appeal on April 14, 2004. The trial court signed the order granting this appeal on this same date.

On April 11, 2005, the defendants filed a Motion to Dismiss Unlodged Appeal in this court. In this motion, the defendants argued that this court should dismiss the plaintiffs' devolutive appeal because the delay in the filing of the record in the appellate court had been unreasonable and was imputable to the plaintiffs. This court issued its opinion denying the motion on May 4, 2005.

The record in this appeal was lodged in this court on August 18, 2005. On this same date, this court issued its rule for the appellants to show cause, by brief only, why their appeal should not be dismissed as untimely. On August 23, 2005, the defendants filed an answer to the appeal in this court. Then, on September 2, 2005, the defendants filed their motion to dismiss the plaintiffs' appeal as untimely. The plaintiffs have filed memoranda in response to these filings.

The plaintiffs argue to this court that the judgment signed by the trial court on September 30, 2003, was not immediately appealable being a partial judgment which had not yet been designated as appealable by the trial court. The plaintiffs rely on La.Code Civ.P. art. 1915(B) as support for this proposition. Thus, since no judgment had been rendered as to the plaintiffs' claims against Mancil at the time *554 of the signing of the September 30 judgment, the plaintiffs contend that the judgment as to the other defendants was not appealable.

In 1997 La. Acts 483, § 2, the Louisiana legislature revised La.Code Civ.P. art.1915 regarding partial judgments.

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917 So. 2d 551, 5 La.App. 3 Cir. 1094, 2005 La. App. LEXIS 2451, 2005 WL 3056503, Counsel Stack Legal Research, https://law.counselstack.com/opinion/strother-v-continental-cas-co-lactapp-2005.