Terry Gotch v. Scooby's Asap Towing, LLC

• Court: Louisiana Court of Appeal
• Decided: June 6, 2018
• Docket: CA-0018-0355
• Status: Unknown

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

CA 18-355

TERRY GOTCH

VERSUS

SCOOBY'S ASAP TOWING, LLC, ET AL.

**********

APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. 20140495 HONORABLE THOMAS R. DUPLANTIER, DISTRICT JUDGE

JOHN D. SAUNDERS

JUDGE

Court composed of John D. Saunders, Marc T. Amy, and Candyce G. Perret, Judges.

APPEAL DISMISSED WITHOUT PREJUDICE. REMANDED WITH INSTRUCTIONS.

Lawrence Joseph Centola, Jr. Blake Jones Law Firm 701 Poydras Street, Suite 4100 New Orleans, LA 70139 (504) 525-4361 COUNSEL FOR PLAINTIFF/APPELLANT: Terry Gotch Nicole M. Boyer Ryan M. Malone Duplass, Zwain, Bourgeois, Pfister, Weinstock & Bogart 3838 North Causeway Boulevard, Suite 2900 Metairie, LA 70002 (504) 832-3700 COUNSEL FOR DEFENDANT/APPELLEE: Scooby's ASAP Towing, LLC SAUNDERS, Judge.

This court issued a rule ordering Appellant, Terry Gotch, to show cause, by

brief only, why his appeal should not be dismissed for having been taken from a

judgment lacking proper decretal language. Input/Output Marine Sys., Inc. v. Wilson

Greatbatch Techs., Inc., 10-477 (La.App. 5 Cir. 10/29/10), 52 So.3d 909; see also

Mouton v. AAA Cooper Transp., 17-666, 17-667 (La.App. 3 Cir. 1/10/18), 237 So.3d

594. For the reasons that follow, we dismiss the appeal.

FACTS AND PROCEDURAL HISTORY

Terry Gotch (Plaintiff), filed suit against Scooby’s ASAP Towing, LLC; John

Doe; and ABC Insurance, for injuries sustained as the result of a vehicular accident on

or about February 8, 2013. Plaintiff alleges that Joseph DeRousselle, an employee of

Scooby’s ASAP Towing, LLC (Defendant), backed out of a private driveway causing

Alydia Menard, the driver of the vehicle in which Plaintiff was a passenger, to make

an evasive maneuver to avoid a collision. Menard’s vehicle subsequently left the road

and struck a ditch.

Following a jury trial, the jury ruled in favor of Defendant, finding that its

employee, Joseph DeRousselle, was not negligent in causing the accident forming the

basis of Plaintiff’s lawsuit. After the jury was excused, Plaintiff orally moved for a

mistrial which was denied following a hearing on a September 18, 2017. A written

judgment adopting the findings of the jury—“[t]hat, by a preponderance of the

evidence, Scooby’s ASAP Towing, LLC, through the actions of its employee, Joseph

DeRousselle, was not negligent in regard to the February 6, 2013 accident”—was

signed on October 9, 2017.

On October 23, 2017, Plaintiff filed a Motion and Order for Devolutive appeal.

The order of appeal was signed on October 30, 2017. In due course, the record was

lodged in this court. When the record was lodged in this court, a rule was issued

ordering Plaintiff to show cause why the appeal should not be dismissed for the above-stated reason. Plaintiff timely filed his brief in response to the rule and agreed

that the October 9, 2017 judgment lacks proper decretal language.

DISCUSSION

In Landry v. Usie, 17-839, p. 3 (La.App. 3 Cir. 10/18/17), 229 So.3d 1012,

1014, this court cited Board of Supervisors of Louisiana State University &

Agricultural & Mechanical College v. Mid City Holdings, L.L.C., 14-506, pp. 2-3

(La.App. 4 Cir. 10/15/14), 151 So.3d 908, 910, with approval as follows:

We cannot determine the merits of an appeal unless our jurisdiction is properly invoked by a valid final judgment. See Input/Output Marine Sys., Inc. v. Wilson Greatbatch, Tech., Inc., 10-477, p. 12 (La.App. 5 Cir. 10/29/10); 52 So.3d 909, 915. “A judgment is the determination of the rights of the parties in an action and may award any relief to which the parties are entitled.” La. C.C.P. art. 1841. “A valid judgment must be precise, definite and certain.... The decree alone indicates the decision.... The result decreed must be spelled out in lucid, unmistakable language..... The quality of definiteness is essential to a proper judgment.” Input/Output Marine, 10-477, pp. 12-13; 52 So.3d at 915-16 (citations omitted).

… “The specific relief granted should be determinable from the judgment without reference to an extrinsic source such as pleadings or reasons for judgment.” Input/Output Marine, 10-477, p. 13; 52 So.3d at 916.

The trial court’s judgment indicates that a jury ruled in favor of Defendant,

finding that its employee, Joseph DeRousselle, was not negligent in causing the

accident forming the basis of the lawsuit. The judgment also reflects that Plaintiff’s

motion for mistrial was denied following a hearing. The judgment, however, does not

indicate the disposition of the matter.

In his brief to this court, Plaintiff agrees that this judgment lacks proper decretal

language. Plaintiff asks this court to dismiss this devolutive appeal and remand the

matter to the trial court for entry of a judgment containing proper decretal language

pursuant to Simple Enterprises, Inc. v. Texas Property, LLC, 17-222 (La.App. 3 Cir.

11/2/17) (an unpublished opinion). Plaintiff’s counsel certified that he contacted

counsel for Defendant, and Defendant “join[s] in the request that the record be

2 retained in this Court to allow the parties to supplement the record with [an] amended

judgment, and that a new briefing schedule be set thereafter.”

DECREE

For all the reasons given herein, this court lacks jurisdiction to consider the

merits of Plaintiff’s appeal because it is taken from a judgment that lacks proper

decretal language. We dismiss this appeal without prejudice and remand the matter to

the trial court for the signing of a judgment which sets forth both the ruling on

Defendant’s lack of negligence through the actions of its employee in causing the

accident and the disposition of Plaintiff’s claims in the matter. The trial court is

instructed that a judgment shall be rendered within thirty days of the issuance of this

opinion, i.e., July 6, 2018. According to Simple Enterprises, Inc., 17-222, p.1, this

record will “remain lodged in this court and the final judgment on remand may be

added to supplement this record.”

APPEAL DISMISSED WITHOUT PREJUDICE. REMANDED WITH INSTRUCTIONS.

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