Larry Muenzler and Deirdre Mather-Muenzler v. GBS Properties, LLC d/b/a Gardner Realtors

STATE OF LOUISIANA
COURT OF APPEAL, FIRST CIRCUIT

LARRY MUENZLER AND DETRDRE NO. 2022 CW 0353

MATHER-MUENZLER
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VERSUS

GBS PROPERTIES, LLC D/B/A JUNE 06, 2022
GARDNER REALTORS, ET AL

In Re: Seneca Specialty Insurance Company, applying for
supervisory writs, 19th Judicial District Court,
Parish of East Baton Rouge, No. 654150.

BEFORE : McCLENDON, WELCH, AND THERIOT, JJ.

WRIT NOT CONSIDERED. This writ application is untimely.
Relator’s notice of intent was filed on March 18, 2022, more
than thirty days after the trial court’s December 30, 2021
Signed judgment denying relator’s motion for summary judgment
and incorrectly designating it a final judgment. The trial
court’s rendition of judgment certifying the denial of the
motion for summary judgment as a final, appealable judgment was
ineffectual. Belanger v. Gabriel Chemicals, Inec., 2000-0747 (La.
App. 18st Cir. 5/23/01), 787 So.2d 559, 563, writ denied, 2001-
2289 (La. 11/16/01), 802 So.2d 612. Accordingly, relator’s
motion for new trial following entry of the interlocutory
judgment was procedurally improper. Most significantly, the
filing of a motion for new trial seeking reconsideration of an
interlocutory judgment cannot interrupt the thirty-day period
for filing an application for supervisory writs established by
Rule 4-3 of the Uniform Rules of Louisiana Courts of Appeal. We
note that relator does not seek review of the trial court’s
denial of the motion for new trial. Carter v. Rhea, 2001-0234
(La. App. 4th Cir. 4/25/01), 785 So.2d 1022, 1025. Finally, the
denial of a motion for summary judgment is an interlocutory
judgment which does not prohibit the relator’s subsequent filing
or the trial court’s subsequent consideration of a motion for
summary judgment.

JEW
MRT

McClendon, J., dissents. As to the portion of the trial
court’s December 30, 2021 judgment which denied Seneca Specialty
Insurance Company’s motion for summary judgment regarding Seneca
Specialty Insurance Company’ s liability for mold-related
damages, I would reverse the trial court’s ruling and grant the
writ. Having carefully examined the language of the contract, I
find that the “Fungi or Bacteria” exclusion is clear and
explicit and does not cover the mold-related damages claimed by
Larry Muenzler and Deirdre Mather-Muenzler in this case.
Ainsworth v. Tri Star Builders, LLC, 2012-0691 (La. App. lst
Cir. 4/22/13) 156 So.3d 71. Accordingly, I would grant summary
judgment in favor of Seneca Specialty Insurance Company with
respect to all mold-related damages claimed by Larry Muenzler
and Deirdre Mather-Muenzler, including: personal injury
resulting from the presence of mold; damages related to mold

STATE OF LOUISIANA
COURT OF APPEAL, FIRST CIRCUIT

NO. 2022 CW 0353

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identification, remediation, and/or monitoring; and any other
damages which occurred as a result of the presence of mold.

As to the portion of the trial court’s December 30, 2021
judgment which denied Seneca Specialty Insurance Company’s
motion for summary judgment regarding Seneca Specialty Insurance
Company’s liability for non-mold related damages, or damages
which would have occurred even in the absence of mold,
including: damages related to pain and suffering, inconvenience,
loss of use, emotional distress, and water intrusion
investigation and repair, I would deny the writ.

COURT OF APPEAL, FIRST CIRCUIT

ASm)

DEPUTY CLERK OF COURT
FOR THE COURT