Joseph Louis St. Romain v. Delta Southern Co., Inc.

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2020 CA 1252
V

JOSEPH LOUIS ST. ROMAIN

VERSUS

DELTA SOUTHERN CO., INC., ET AL.

Judgment rendered: JUN 16 2021

On Appeal from the
Nineteenth Judicial District Court
In and for the Parish of East Baton Rouge, State of Louisiana
No. 679833

The Honorable Max N. Tobias, Jr.,' Judge Presiding

Mickey P. Landry Attorneys for Plaintiff/Appellant
Philip C. Hoffman Joseph Louis St. Romain
Matthew C. Clark
Jefferson B. Goldman
Frank J. Swarr
New Orleans, Louisiana

H. Minor Pipes, III Attorneys for Defendant/Appellee
Stephen L. Miles Liberty Mutual Insurance
Susan M. Rogge
New Orleans, Louisiana

BEFORE: MCDONALD, HOLDRIDGE, AND PENZATO, JJ.

1 The Honorable Max N. Tobias, Jr., is serving as judge ad hoc by special appointment of the
Louisiana Supreme Court.

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HOLDRIDGE, J.

This is an appeal from a trial court judgment granting in part and denying in

part the plaintiffs' partial motion for summary judgment and the defendant' s

motion for summary judgment. For the following reasons, we dismiss the appeal.

FACTS AND PROCEDURAL HISTORY

On February 20, 2019, the plaintiff, Joseph Louis St. Romain, filed a petition

for damages against several defendants,2 including Delta Southern, Co., Inc.
Delta) and its insurer, Liberty Mutual Insurance Company ( Liberty). In his

petition,
the plaintiff sought damages from the defendants alleging that he

contracted mesothelioma as a result of asbestos exposure
spanning from

approximately 1959- 1965 while employed as a welder or welder' s helper at

facilities owned and operated by Delta.

After the plaintiff filed his third supplemental and amended petition' for

damages, Liberty filed an answer and affirmative defenses generally denying all of
the plaintiff' s claims. On August 27, 2019, the plaintiff died and his heirs were

later substituted as the plaintiffs.4 On March 3, 2020, Liberty filed a motion for

summary judgment alleging that the plaintiffs' claims against Liberty should be

dismissed because the plaintiffs could not meet their burden of proving insurance

coverage under any Liberty policy. That same day, the plaintiffs filed a motion for

partial summary judgment regarding the policy type. Following a hearing on

August 18, 2020, the trial court signed a judgment on September 2, 2020 that

granted in part and denied in part the plaintiffs' motion for partial summary

2 Several other defendants were named in the plaintiff' s petition for damages, but they have been
dismissed or they are irrelevant to the instant matter.

3 We note that the plaintiff supplemented and amended his petition for damages six times. The
plaintiff' s fourth and fifth supplemental and amended petitions for damages did not involve
claims against Liberty.

4 Catherine Bowden St. Romain, Joseph Louis St. Romain, Jr., and Melinda Ann Marshall were
substituted as the plaintiffs in this case.
2

judgment regarding policy type and granted in part and denied in part Liberty' s

motion for summary judgment. The September 2, 2020 judgment contained the

following language:

JUDGMENT IS RENDERED AS FOLLOWS: ( 1) [ the]

Plaintiffs'
Partial Motion for Summary Judgment Regarding Policy
Type is hereby granted in part and denied in part, clarifying and
amending the court' s 2 July 2020 ruling, finding that the [ workers']
compensation/ employer' s liability policy issued by [ Liberty] to
Southwest Fabricating, LLC was an " occurrence policy," not a
claims -made" policy, and thus judgment is rendered in favor of the
defendant, [ Liberty], in that regard holding further ... all claims under

any comprehensive general liability policy are dismissed with
prejudice; [ 2] [ Liberty' s] motion for summary judgment filed on or

about 28 February 2020 is granted in part and denied in part, and
accordingly, no comprehensive general liability policy was issued by
Liberty ... to [ Mr.] St. Romain' s employer during the relevant time
frame that would apply to the claims of the plaintiffs or [ Mr.] St.
Romain; ( 3) Provision III ( c) of the [ Liberty' s workers']

compensation/ employer' s liability policy at issue is poorly drafted and
significantly] ambiguous, however, [ Mr.] St. Romain suffered bodily
injury by disease, namely mesothelioma, while working for
Liberty' s] insured, which is not bodily injury by accident; ( 4) Only
Liberty' s] workers' compensation/ employer' s liability policy that
might trigger coverage is that policy for years 1965- 66, and

accordingly [ the plaintiffs'] claim[ s] as to all other [ workers']

compensation/ employer liability policies of [Liberty] are dismissed;
and ( 5) Exclusion ( e) of [ Liberty' s] workers'

compensation/employer' s liability policy provides coverage B to
bodily injury by disease only if prior to 36 months after the end of the
policy period a written claim is made or suit is brought against
Liberty' s] insured for damages because of injury or death resulting
from a disease.

On September 23, 2020, the plaintiffs devolutively appealed the trial court' s

judgment. After the record was lodged in this Court, we issued a rule, ex proprio

motu, ordering the parties to show cause by briefs why the instant appeal should

not be dismissed because it was taken from a non -final judgment. Specifically, the

rule stated that the September 2, 2020 judgment at issue on appeal appeared to lack

the appropriate decretal language disposing of and/or dismissing the plaintiffs'

claim(s) because it was not possible to determine, from the judgment alone, if the

judgment resolved all claims in their entirety. Thus, on its face, the judgment was

91

defective in that the specific relief granted was not determinable from the

judgment. See State by and through Caldwell v. Teva Pharmaceuticals Industries,

Ltd., 2017- 0448 ( La. App. 1 Cir. 2/ 8/ 18), 242 So. 3d 597, 602.

Thereafter, on March 10, 20215 the parties filed a " JOINT MOTION AND

INCORPORATED MEMORANDUM TO CLARIFY OR ALTERNATIVELY TO

AMEND JUDGMENT" in the trial court. In the motion, the parties acknowledged

that the trial court did not designate the September 2, 2020 judgment as a final

judgment and did not dismiss Liberty from the suit. Therefore, the parties

requested that the trial court amend the September 2, 2020 judgment in accordance

with La. C. C. P. art. 19515 and dismiss with prejudice all of the plaintiffs' claims

against Liberty. On March 15, 2021, the trial court executed an order6 stating the

following:

IT IS ORDERED that the Judgment of this Court, executed on
September 2" d, 2020, in the matter of the Motion for Summary
Judgment [ by]
Defendant Liberty ... and the Partial Motion for
Summary Judgment of the successors and survivors of [ Mr.] St.
Romain, was intended to be a final, appealable judgment dismissing
with prejudice all claims of [the] Plaintiffs against Liberty. Therefore,
the Judgment shall be amended to clarify the Court' s intent. This in
no way alters the substance of the [ Judgment.]

IT IS [ ORDERED] that the September 2, 2020 Judgment is
hereby amended to include ... the following language:

6) This [ Judgment] is FINAL, and all of Plaintiffs' claims

against Liberty are DISMISSED WITH PREJUDICE.

5 Louisiana Code of Civil Procedure article 1951 provides:

On motion of the court or any party, a final judgment may be amended at any
time to alter the phraseology of the judgment, but not its substance, or to correct
errors of calculation. The judgment may be amended only after a hearing with
notice to all parties, except that a hearing is not required if all parties consent or if
the court or the party submitting the amended judgment certifies that it was
provided to all parties at least five days before the amendment and that no
opposition has been received.

6 We note that Judge Trudy M. White was the presiding judge who issued the March 15, 2021
order.

4

Thereafter, the parties sought to supplement the record on appeal with the

subsequent amended judgment. See Marrero v. I. Manheim Auctions, Inc., 2019-

0365 ( La. App. 1 Cir. 11/ 19/ 19), 291 So. 3d 236, 239.

LAW AND DISCUSSION

As an appellate court, we have the duty to examine our subject matter

jurisdiction and to determine sua sponte whether such subject matter jurisdiction

exists,
even when the issue is not raised by the litigants. See La. C. C. P. art.

2083( A); Advanced Leveling & Concrete Solutions v. Lathan Company, Inc.,

2017- 1250 ( La. App. 1 Cir. 12/ 20/ 18), 268 So. 3d 1044, 1046 ( en Banc), holding

that this Court' s appellate jurisdiction extends only to " final judgments"; see also

Rose v. Twin River Development, LLC, 2017- 0319 ( La. App. 1 Cir. 11/ 1/ 17), 233

So. 3d 679, 683.

A valid judgment must be precise, definite, and certain. Laird v. St.

Tammany Parish Safe Harbor, 2002- 0045, 2002- 0046 ( La. App. 1 Cir. 12/ 20/ 02),

836 So. 2d. 364, 365. Moreover, a final appealable judgment must contain decretal

language and must name the party in favor of whom the ruling is ordered, the party

against whom the ruling is ordered, and the relief that is granted or denied.

DeVance v. Tucker, 2018- 1440 ( La. App. 1 Cir. 5/ 31/ 19), 278 So. 3d 380, 382.

These determinations should be evident from the language of the judgment without

reference to other documents in the record. See Advanced Leveling & Concrete

Solutions, 268 So. 3d at 1046.

The jurisdiction of the trial court over all matters reviewable under the

appeal is divested, and that of the appellate court attaches, upon the granting of the

order of appeal. La. C. C. P. art. 2088( A); Marrero, 291 So. 3d at 239. An appellate

court not only has an independent duty to consider whether it has subject matter

jurisdiction over the matter, but also has the sole authority to determine whether an

5

appeal is properly before it once the trial court' s jurisdiction has been divested.

Marrero, 291 So. 3d at 239; Hernandez v. Excel Contractors, Inc., 2018- 1091 ( La.

App. 1 Cir. 3/ 13/ 19), 275 So. 3d 278, 284 ( citing Gros v. STMG Lapeyre, LLC,

2014- 0848 ( La. App. 1 Cir. 5/ 6/ 15), 2015 WL 2169680, at * 3 ( unpublished) and

Downey v. Bellue, 178 So. 2d 778, 781 ( La. App. 1 Cir. 1965). Any order or

judgment rendered subsequent to the order granting an appeal is null if that order

or judgment purports to address a matter which is at the time reviewable under the

appeal. See La. C. C. P. art. 2088; Hernandez, 275 So. 3d at 283.

Although the trial court may still correct any misstatements, irregularities or

informalities, or omission of the trial record as provided in La. C. C. P. art. 2132,

there is no authority for a trial court to correct a judgment after it is divested of

jurisdiction .7 Marrero, 291 So.3d at 239; Costanza v. Snap- On Tools, 2013- 0332,

2013- 0333 ( La. App. 1 Cir. 3/ 5/ 14), 2014 WL 886021, at * 4 ( unpublished). Thus,

even when an appellate court ultimately determines that it lacks appellate

jurisdiction, jurisdiction over the issues and the parties is divested from the trial

court upon the signing of the order of appeal. Marrero, 291 So. 3d at 239;

Hernandez, 275 So. 3d at 283- 284.

After the record was lodged and this Court issued a rule, ex proprio motu,

the parties attempted to cure the defective September 2, 2020 judgment by

procuring an amended judgment dated March 15, 2021 from the trial court. The

March 15, 2021 judgment was obtained after the order of appeal was signed that

divested the trial court' s jurisdiction. However, this case was neither remanded by

this Court, nor did we issue an interim order vesting limited jurisdiction in the trial

7 Louisiana Code of Civil Procedure article 2132 provides:

A record on appeal which is incorrect or contains misstatements, irregularities or
informalities, or which omits a material part of the trial record, may be corrected
even after the record is transmitted to the appellate court, by the parties by
stipulation, by the trial court or by the order of the appellate court. All other
questions as to the content and form of the record shall be presented to the
appellate court.

6

court to amend the judgment and supplement the record on appeal.' Thus, because

there is no authority for the trial court to correct a judgment after it is divested of

jurisdiction, the March 15, 2021 amended judgment is not properly before this

Court. See Bond v. Louisiana Purchase Equestrian Estates, LLC, 2019- 0957 ( La.

App. 1 Cir. 2/ 21/ 20), 299 So. 3d 120, 125- 26, Hernandez, 275 So.3d at 283. 9

Accordingly, we find that the parties have failed to establish that the

September 2, 2020 judgment is a valid final judgment or that it dismissed all of the

claims against Liberty. See La. C. C. P. art. 1915( A). The judgment lacks sufficient

decretal language, its intent is not ascertainable from the four corners of the

judgment, and it is difficult to understand exactly what relief the trial court was

granting. Therefore, the judgment on which this appeal is based is not a final

appealable judgment. In the absence of appropriate decretal language, the

September 2, 2020 judgment is defective and cannot be considered a final

judgment for purposes of appeal. Thus, this Court lacks appellate jurisdiction to

review this matter and we must dismiss this appeal in view of this Court' s en Banc

decision in Advanced Leveling & Concrete Solutions, 268 So. 3d at 1046- 1047,

8 See Gros v. STMG Lapeyre, LLC, 2014- 0848 ( La. App. 1 Cir. 5/ 6/ 15), 2015 WL 2169680, at
4 ( unpublished) ( pursuant to this Court' s show cause order, which instructed that the appeal
record be supplemented with an amended judgment, the trial court obtained limited jurisdiction
to amend the judgment.) After this Court' s ruling in Advanced Leveling & Concrete Solutions,
268 So. 3d at 1046- 1047, it is doubtful that this Court has the authority to issue such an order.

9 This Court is constrained to follow the precedent established in the First Circuit cases that hold
there is no authority for the trial court to correct a defective judgment after the order of appeal is
signed by the trial court. See Bond v. Louisiana Purchase Equestrian Estates, LLC, 2019- 0957
La. App. 1 Cir. 2/ 21/ 20), 299 So. 3d 120, 125- 26; Marrero, 291 So. 3d at 239- 40; Hernandez, 275
So. 3d at 283- 284. These cases do not address the legal quagmire created when neither the Court
of Appeal nor the trial court has jurisdiction over a case when the proposed final judgment is
defective and the trial court has signed an order of appeal. In such cases, the parties and the trial
court must wait until the Court of Appeal acts to recognize that it lacks subject matter
jurisdiction before any further steps can be taken. The more reasoned approach would be to
follow the rationale of the Louisiana Supreme Court case, In re Interdiction of Gambino, 2020-
00312 ( La. 6/ 3/ 20), 296 So. 3d 1046 ( per curiam), wherein the Supreme Court held "[ i] n the
interest of justice and judicial economy, the court of appeal is directed to supplement the record
with the district court' s ( judgment] and to consider [ the] appeal on the merits." In Gambino, the
trial court issued an order after the subject judgments and orders of appeal were signed,
designating the judgment as final under La. C. C. P. art. 1915( B). If we were to follow Gambino,
this Court would not have to dismiss this appeal, but could consider the amended judgment and
render a decision on the merits.
7

which held that in the absence of a valid final judgment this Court lacks subject

matter jurisdiction and the appeal should be dismissed. Therefore, we dismiss this

appeal.' o

CONCLUSION

For the above reasons, we dismiss the appeal of the September 2, 2020

judgment. We further dismiss the answer to the appeal filed by the defendant,

Liberty Mutual Insurance Company, because it is based on a nonappealable

judgment. Due to our holding in this matter, we will not address the plaintiffs'

motion to file a supplemental brief. Costs of this appeal are assessed equally

between the parties.

APPEAL DISMISSED; ANSWER TO APPEAL DISMISSED.

io We recognize that this Court has discretion to convert an appeal of a non -appealable judgment
to an application for supervisory writs. See Stelluto v. Stelluto, 2005- 0074 ( La. 6/ 29/ 05), 914
So. 2d 34, 39. Nonetheless, we note that an appellate court will generally refrain from the
exercise of its supervisory jurisdiction when an adequate remedy exists by appeal, particularly
when an adequate remedy by appeal will exist upon the entry of the requisite precise, definite,
and certain decretal language necessary for appellate review. See Simon v. Ferguson., 2018- 0826
La. App. 1 Cir. 2/ 28/ 19), 274 So. 3d 10, 14. Accordingly, we decline to exercise our discretion
to convert this appeal of a judgment that is not final for lack of decretal language to an
application for supervisory writs. See Boyd Louisiana Racing, Inc. v. Bridges, 2015- 0393 ( La.
App. 1 Cir. 12/ 23/ 15), 2015 WL 9435285, * 4 ( unpublished).

STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT

2020 CA 1252

JOSEPH LOUIS ST. ROMAIN

VERSUS

DELTA SOUTHERN CO., INC., ET AL.

McDONALD, J., concurring.

In Footnote 9, the majority points out the legal quagmire created by this court's

current precedent under which a trial court has no jurisdiction to correct a judgment

after having signed the order of appeal, and under which this court also has no

jurisdiction over that same judgment, because that judgment does not qualify as a final,

appealable judgment.

I agree that, in the present case, the ' more reasoned approach" would be for

this court to consider the trial court's March 15, 2021 amended judgment and render a

decision on the merits.

STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2020 CA 1252

JOSEPH LOUIS ST. ROMAIN

VERSUS

DELTA SOUTHERN CO., INC, ET AL.

PENZATO, J., concurs.

I concur, and write separately to address the majority' s suggestion that the

more reasoned approach in this case would be to follow the rationale of the

Louisiana Supreme Court in In re Interdiction of Gambino, 2020- 00312 ( La.

6/ 3/ 20), 296 So. 3d 1046 ( per curiam), and consider the amended judgment and

render a decision on the merits. I find Gambino is distinguishable in that it

involved a certification order issued pursuant to La. C. C. P. art. 1915( B), and the

Louisiana Supreme Court reasoned that neither La. C. C. P. art. 1915( B) nor other

provision of Louisiana law establishes a time delay for filing a motion to certify a

judgment as final. This case involves the lack of decretal language, and thus, I do

not believe that the rationale of the Louisiana Supreme Court in Gambino should

be extended to this case.