Vicki Hood,jeremy Hood, Jacob Hood, Amy Lopez, Amanda Keller and Joshua Hood v. Sasol Energy (Usa), LLC, Sasol (Usa) Corporation, Sasol Chemicals (Usa), LLC, and Calcasieu Parish Police Jury

• Court: Louisiana Court of Appeal
• Decided: September 6, 2023
• Docket: CM-0023-0504
• Status: Unknown

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

CM 23-504

VICKI HOOD, JEREMY HOOD, JACOB HOOD, AMY LOPEZ, AMANDA KELLER AND JOSHUA HOOD VERSUS SASOL ENERGY (USA), LLC, SASOL (USA) CORPORATION, SASOL CHEMICALS (USA), LLC AND CALCASIEU PARISH POLICE JURY

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APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 2019-0891 HONORABLE RONALD F. WARE, DISTRICT JUDGE

ELIZABETH A. PICKETT

CHIEF JUDGE

Court composed of Elizabeth A. Pickett, Van H. Kyzar, and Candyce G. Perret, Judges.

MOTION TO DISMISS UNLODGED APPEAL DENIED. Isaac M. Gregorie, Jr. Erich Phillip Rapp Gregory Michael Anding Kean Miller L.L.P. Post Office Box 3513 Baton Rouge, LA 70821-3513 (225) 387-0999 COUNSEL FOR DEFENDANTS/APPELLANTS: Sasol Chemicals (USA), LLC Edward “Butch” Lemelle Community InteractionConsulting, Inc.

Robert Emmett Kerrigan, Jr. Raymond C. Lewis Justine Ware Duetsch Kerrigan L.L.P. 755 Magazine Street New Orleans, LA 70130 (504) 593-0697 COUNSEL FOR DEFENDANTS/APPELLANTS: Edward “Butch” Lemelle Sasol Chemicals (USA), LLC Community InteractionConsulting, Inc.

Vernon Ed McGuire, III Plauché, Smith & Nieset Post Office Drawer 1705 Lake Charles, LA 70602 (337) 436-0522 COUNSEL FOR DEFENDANT/APPELLEE: Calcasieu Parish Police Jury

Phillip W. DeVilbiss Terrence D. McCay Kean Miller LLP 4865 Ihles Road Lake Charles, La 70605 (337) 430-0350 COUNSEL FOR DEFENDANTS/APPELLANTS: Edward “Butch” Lemelle Sasol Chemicals (USA), LLC Community InteractionConsulting, Inc. Jonathan Johnson Adam P. Johnson Kilburn S. Landry The Johnson Firm 1400 Ryan Street Lake Charles, LA 70601 (337) 433-1414 COUNSEL FOR PLAINTIFFS/APPELLEES: Jeremy Hood Jacob Hood Amy Lopez Vicki Hood Amanda Keller Joshua Hood

Erin Lutkewitte Kilgore Kean, Miller LLP 400 Convention St., Suite 700 Baton Rouge, LA 70802 (225) 387-0999 COUNSEL FOR DEFENDANTS/APPELLANTS: Edward “Butch” Lemelle Sasol Chemicals (USA), LLC Community InteractionConsulting, Inc. PICKETT, Judge.

Appellees-Plaintiffs, Vicky Hood, Jeremy Hood, Jacob Hood, Joshua Hood,

Amanda Keller, and Amy Lopez, filed a motion to dismiss the unlodged appeal

filed by Appellants-Defendants, Sasol Chemicals (USA), LLC, Community

Interaction Consulting, Inc., and Edward Lemelle, Jr. For the reasons set forth

herein, we deny the motion.

This case arises from the death of William Larry Hood when a tree fell over

and struck the cab of the vehicle in which he was riding. On February 20, 2019,

Plaintiffs filed suit against Sasol Energy (USA), LLC, Community Interactions

Consulting, Inc., and Edward Lemelle, Jr., Appellants-Defendants herein, and the

Calcasieu Parish Police Jury.

On February 23, 2023, Appellants filed a motion for summary judgment,

and on March 10, 2023, the Calcasieu Parish Police Jury filed a motion for

summary judgment. The motions were heard on April 14, 2023. Appellants’

motion was denied, and the Calcasieu Parish Police Jury’s motion was granted.

Appellants now seek appellate review of the trial court’s granting of the Calcasieu

Parish Policy Jury’s motion.

Prior to the lodging of the appeal in this court, Plaintiffs filed a motion to

dismiss the appeal. In their motion, Plaintiffs argue that Appellants have no right

to appeal a judgment they confessed, citing La.Code Civ.P. art. 2085. Article 2085

prohibits a party who confesses judgment unconditionally and voluntarily from

appealing that judgment. Plaintiffs direct this court to Appellant’s “Response” to

the Calcasieu Parish Police Jury’s motion for summary judgment wherein they

stated:

Co-Defendants Sasol Chemicals (USA) LLC, Community Interaction Consultants, Inc., and Edward “Butch” Lemelle (collectively “Sasol”), do not oppose the Police jury’s motion for summary judgment. . . Accordingly, if the Police Jury is dismissed in this matter (as is should be), then as a matter of law all claims against Sasol must be dismissed as well.

Plaintiffs also state that Appellants filed a reservation of rights which they

maintain is not authorized by La.Code Civ.P. art. 966, and that it was filed after the

deadline agreed to by the parties. Plaintiffs contend that the pleading provided no

evidence in response to the motion for summary judgment but was a rant about the

unfairness of Plaintiffs’ opposition to the Calcasieu Parish Police Jury’s motion

and further argument about why Appellants’ own motion should be granted.

Plaintiffs add that Appellants’ reservation of rights ignored their own prior

pleading and their own responsibility to present evidence in opposition to

Calcasieu Parish Police Jury’s motion. Since Appellants pleaded comparative fault

of third parties, including the Calcasieu Parish Police Jury, Plaintiffs maintain that

Appellants had the obligation to present evidence in support of their assertion of

the Calcasieu Parish Police Jury’s fault or risk that the provisions of La.Code Civ.P.

art. 966(G) would preclude Appellants from presenting evidence in support of its

affirmative defense or asking for the Calcasieu Parish Police Jury to be on the

verdict form. Plaintiffs state that Appellants voluntarily chose to not oppose the

Calcasieu Parish Police Jury’s motion.

Next, Plaintiffs assert that the appeal is solely for the purpose of upsetting

the trial date. At the time the motions for summary judgment were pending, trial

was set for May 2023. Plaintiffs add that Appellants filed a motion to continue

trial which was initially denied until the trial court realized that another case was

set for trial in preference to this matter. The case was subsequently moved to

September 18, 2023, where it will be first on the docket. According to Plaintiffs,

Appellants then advised that they would be appealing the granting of the Calcasiu

2 Parish Police Jury’s motion, knowing that an appeal would result in the case being

continued again. Plaintiffs conclude that taking an appeal, without a right to do so,

should not be used to back-door a continuance in a case that has been pending for

four years when Appellants’ motion to continue was denied.

In opposition to Plaintiffs’ motion to dismiss the unlodged appeal,

Appellants argue that Plaintiffs’ motion to dismiss rests on the incorrect assertion

that Appellants had confessed to judgment by failing to oppose the Calcasieu

Parish Police Jury’s motion for summary judgment. Appellants assert that to

bolster their contention, Plaintiffs quoted language from Appellants’ response and

disingenuously used an ellipsis which erased the entire point Appellants made in

their response. In reality, their argument was that if the Calcasieu Parish Police

Jury, which has a higher affirmative duty than Appellants, was dismissed due to a

lack of duty owed, then Appellants must be dismissed also for they have an even

lower duty. Appellants stated in their brief as follows:

Co-Defendants Sasol Chemicals (USA) LLC, Community Interaction Consultants Inc., and Edward “Butch” Lemelle (collectively “Sasol”), do not oppose the Police jury’s motion for summary Judgment. Rather, they bring this response to point out that the duties owed by the Police Jury to the motoring public are higher as a matter of law than any such duty owed by Appellants. Accordingly, if the Police Jury is dismissed, in this matter (as it should be), Appellants urge that as a matter of law, all claims against Appellants must be dismissed as well.

Appellants maintain that they did not unconditionally confess or acquiesce

to Calcasieu Parish Police Jury’s motion for summary judgment. Appellants

contend that Plaintiffs attempt to show that Appellants acquiesced to the motion by

arguing that Appellants’ response and reservation of rights are not only confessions

of judgment but pleadings that are not recognized by the Louisiana Code of Civil

Procedure. Appellants assert, however, that courts consistently look beyond the

caption, style, and form of a pleading to determine its nature and substance. See 3 Broussard v. Blount, 20-544 (La.App. 3 Cir. 5/5/21), 319 So.3d 389. Appellants

urge that their response and reservation of rights are substantively oppositions to

the Calcasieu Parish Police Jury’s motion for summary judgment. Appellants add

that during oral arguments, the trial court and Plaintiffs’ counsel referred to

Appellants’ response as an opposition, recognizing that the response is in fact an

opposition, not an acquiescence to judgment.

Additionally, Appellants argue that Plaintiffs present no jurisprudence to

support their contention that Appellants have abandoned their right to an appeal by

acquiescing to or unconditionally confessing judgment in its response. Appellants

contend that while Plaintiffs are correct in that a confession of judgment must be

made unconditionally, voluntarily, and in pleadings or evidence, their application

of La.Code Civ.P. art. 2085 is inapplicable to the circumstances herein.

Appellants state that Plaintiffs failed to cite Andrus v. Police Jury of

Lafayette Parish, 266 So.2d 535 (La.App. 3 Cir. 1973), wherein this court held that

the plaintiff who waived his appearance at the hearing on a motion for summary

judgment by advising the court through his attorney that he had no interest in

opposing the motion did not thereby acquiesce in the judgment such that an appeal

from the judgment rendered against him could not be taken.1

In the instant case, Appellants urge that they never unconditionally

confessed or acquiesced to the judgment dismissing the Calcasieu Parish Police

Jury. Appellants explain that in their response, they indicated that the Calcasieu

Parish Police Jury could not be separately dismissed under the law and facts

controlling this case because the Calcasieu Parish Police Jury’s duty was higher or,

at the very least, the same as any duty owed by Appellants. Appellants state that

1 Appellants cite a second decision, Gatlin v. Kleinheitz, 09-828 (La.App. 1 Cir. 12/23/09), 34 So.3d 872, but the information in the headnote to which they refer is not found in the body of the case. 4 their use of the “if . . . then” conjunction in their response makes it clear that

Appellants were not unconditionally confessing or acquiescing to the judgment.

Appellants add that the “if . . . then” sentence is often referred to as a conditional

clause or conditional sentence in dictionaries or grammar texts and was used by

Appellants to reserve their right to appeal any decision to let the Calcasieu Parish

Police Jury out of the case while keeping Appellants as defendants. In other words,

Appellants state that they opposed the unilateral dismissal of the Calcasieu Parish

Police Jury without the subsequent and necessary dismissal of Appellants as the

two motions for summary judgment are inextricably intertwined. Appellants

conclude that they did not unequivocally and unconditionally confess to the

judgment when it opposed the Calcasieu Parish Police Jury’s motion for summary

judgment by piggybacking off of their arguments. Appellants state that the same

reasons that the Calcasieu Parish Policy Jury’s motion should have been granted

are the same reasons that Appellants’ motion should have been granted.

Appellants conclude that Plaintiffs’ motion to dismiss the unlodged appeal

should be denied as it improperly infringes on Appellants’ constitutional right to an

appeal and ignores the long-standing Louisiana jurisprudence that any doubt as to

the right of an appeal must be resolved in favor of the appeal. Amedee v.

Aimbridge Hosp. LLC, 21-1906 (La. 10/21/22), 351 So.3d 321. Appellants state

they are merely exercising their right to have the trial court’s judgment reviewed,

and an effort to deny their right should be resolved in favor of maintaining the

appeal.

We find that Appellants did not unconditionally confess or acquiesce to the

judgment granting the Calcasieu Parish Police Jury’s motion for summary

judgment. Appellants’ response and reservation of rights do not serve as

confessions of judgment. Further, we find no indication that the purpose of the 5 appeal is to upset the trial date. Accordingly, we deny Plaintiffs’ motion to dismiss

the unlodged appeal.

MOTION TO DISMISS UNLODGED APPEAL DENIED.

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