Glenn Smith v. Jimmie Cutts

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

03-504

GLENN SMITH, ET AL.

VERSUS

JIMMIE CUTTS, ET AL.

************

APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT,
PARISH OF RAPIDES, NO. 181,818,
HONORABLE B. DEXTER RYLAND, DISTRICT JUDGE

************

MICHAEL G. SULLIVAN
JUDGE

************

Court composed of Billie Colombaro Woodard, Michael G. Sullivan, and Billy H.
Ezell, Judges.

REVERSED.

A. Bruce Perkins, II
Attorney at Law
1718 Lee Street
Alexandria, Louisiana 71301
(318) 445-3040
Counsel for Plaintiffs/Appellees:
Glenn Smith
Cynthia Smith

James E. Calhoun
Assistant Attorney General
Louisiana Department of Justice
Post Office Box 1710
Alexandria, Louisiana 71309-1710
(318) 487-5944
Counsel for Defendant/Appellant:
State of Louisiana, Department of Health & Hospitals

SULLIVAN, Judge.

The State of Louisiana, through the Department of Health and Hospitals (the

State), appeals a judgment declaring that it must pay 50% of the damages awarded to

Glenn and Cynthia Smith (the Smiths) in Smith v. Cutts, 99-253 (La.App. 3 Cir.

3/15/00), 759 So.2d 851, writ denied, 00-1081 (La. 6/2/00), 763 So.2d 598. For the

following reasons, we reverse.

Procedural History

On October 13, 1995, the Smiths filed suit for a preliminary injunction and

damages against (1) Jimmie and Brenda Cutts (the Cuttses), (2) the State, and (3) the

Rapides Parish Police Jury (the Police Jury), contending that Defendants were at fault

for the discharge of raw sewage from the Cuttses’ property onto theirs. The Smiths

later added as Defendants Richard Young, the installer of the Cuttses’ sewer treatment

system, and New Hampshire Insurance Company (New Hampshire), the Cuttses’

insurer. In addition to alleging the comparative fault of the Smiths, the State filed

cross-claims against the Cuttses and the Police Jury. The Cuttses also filed a

reconventional demand against the Smiths, as well as a cross-claim against the Police

Jury. After a bench trial, the trial court found the Cuttses to be 100% at fault and

awarded the Smiths a total of $91,990.00 in damages. On September 1, 1998, the trial

court signed a judgment in favor of the Smiths against the Cuttses and New

Hampshire. The judgment also dismissed the State, the Police Jury, and Mr. Young

from the lawsuit.

On September 16, 1998, the Cuttses and New Hampshire suspensively appealed

from the trial court judgment. No other party appealed or answered the appeal. On

March 15, 2000, this court rendered its decision in Smith, 759 So.2d 851, in which we

reallocated fault equally among the Cuttses, the State, and Mr. Young. Because the

Smiths’ cause of action arose in 1994, we also recognized that the Defendants were

solidarily liable under the version of La.Civ.Code art. 2324 in effect at that time,

which provided in part that “liability for damages caused by two or more persons shall

be solidary only to the extent necessary for the person suffering injury, death, or loss

to recover fifty percent of his recoverable damages . . . .” The supreme court denied

the State’s application for writs on June 2, 2000.

Subsequently, a dispute arose over payment of the judgment. The Cuttses and

New Hampshire filed a motion for tender and a third-party demand, arguing that they

were responsible for only one-third of the damages awarded or, alternatively, for one-

half of the damages with the right of contribution from the State and Mr. Young.

Upon the trial court’s agreement with the second argument, New Hampshire paid one-

half of the judgment. Thereafter, the Smiths filed this suit seeking a declaratory

judgment that they could collect the remaining one-half from the State, which had

refused any payment on the grounds that the trial court judgment dismissing it had

become final upon the Smiths’ failure to appeal or to answer the Cuttses’ appeal.1 The

trial court agreed with the Smiths, declaring that the State was responsible for one-half

of the judgment.

Opinion

The State contends that, between it and the Smiths, the trial court judgment is

final because it was never a party before the appellate court. The Smiths contend that,

as the prevailing parties at trial (albeit against a different Defendant), they did not

1
Louisiana Code of Civil Procedure Article 2082 provides: “Appeal is the exercise of the
right of a party to have a judgment of a trial court revised, modified, set aside, or reversed by an
appellate court.”

2

have to answer the Cuttses’ appeal.2 They further assert that the only final and

definitive judgment in this case is the opinion of this court, which acquired that status

upon the supreme court’s denial of writs.3

The State’s position is supported by the recent supreme court per curiam in

Nunez v. Commercial Union Insurance Co., 00-3062 (La. 2/16/01), 780 So.2d 348.

Nunez, which arose from an automobile accident, reached the supreme court on a

procedural path similar to that of the present case. In that case, the plaintiffs alleged

the negligence of three defendants, but the trial court found only one, the Louisiana

Department of Public Safety and Corrections (the DPSC), to be at fault. Upon the

DPSC’s appeal, which the plaintiffs did not answer (nor did they file their own

appeal), this court assigned some fault to the previously-dismissed defendants, the

Calcasieu Parish Sheriff’s Department (the CPSD) and another driver, Garret

Hoffpauir, and to the plaintiffs. All defendants filed writs to the supreme court, with

Hoffpauir and his insurer contending that “the judgment of the trial court dismissing

plaintiffs’ action against them acquired the authority of the thing adjudged when

plaintiffs failed to appeal from that judgment.” Id. at 349.4 The supreme court agreed,

explaining as follows:

When a judgment dismisses one of several cumulated claims by
the plaintiff, the plaintiff must appeal that adverse judgment to obtain
affirmative relief. St. Bernard Police Jury v. Murla, 00-0132 (La.
6/30/00), 761 So.2d 532. When plaintiffs failed to appeal the dismissal
of their action against the CPSD and Hoffpauir, that judgment of

2
Louisiana Code of Civil Procedure Article 2133(A) provides in part: “An appellee shall not
be obliged to answer the appeal unless he desires to have the judgment modified, revised, or
reversed in part or unless he demands damages against the appellant.”
3
Louisiana Code of Civil Procedure Article 2166(E) provides in part: “If an application for
certiorari to the supreme court is timely filed, a judgment of the court of appeal becomes final and
definitive when the supreme court denies the application for certiorari.”
4
While the writs were pending, the plaintiffs settled with the DPSC and the CPSD, but the
supreme court did not indicate that this fact affected its reasoning.

3

dismissal acquired the authority of the thing adjudged. The DPSC’s
filing of an appeal from the judgment of the trial court only brought up
on appeal the portions of the judgment that were adverse to the DPSC
and in favor of the appellees. The DPSC’s appeal did not bring up on
appeal the portions of the judgment that were adverse to plaintiffs, such
as the dismissal of plaintiffs’ action against Hoffpauir and his insurer.

The judgment of the court of appeal allocating ten percent fault to
Hoffpauir could only flow in favor of the party who appealed (the
DPSC) the judgment dismissing Hoffpauir, and could create no benefit
to plaintiffs, who did not appeal the judgment of the trial court
dismissing plaintiffs’ action against Hoffpauir.

Accordingly, the application is granted, that portion of the
judgment of the court of appeal in favor of plaintiffs and against
Hoffpauir and his insurer is reversed, and plaintiffs’ action against
Hoffpauir is dismissed.

Id.

The accident in Nunez occurred approximately one month after the effective

date of the amendment to La.Civ.Code art. 2324 abolishing solidarity among joint

tortfeasors except in the case of intentional torts. The Smiths’ cause of action,

however, arose when joint tortfeasors were solidarily bound, but only for 50% of the

victim’s recoverable damages. In light of jurisprudence cited by the Smiths

concerning the scope of an appeal by one solidary obligor, we must determine whether

this distinction in the substantive law is material to the present case.

In Vidrine v. Simoneaux, 145 So.2d 400 (La.App. 3 Cir.), writ denied

(La.1962), the trial court rendered judgment in favor of the plaintiffs against two

defendants, but dismissed a third. Finding error in the dismissal of that defendant, this

court had to determine how the plaintiffs’ failure to appeal that dismissal would affect

the outcome of the case. After considering changes in the law concerning contribution

among solidary obligors, we stated:

[W]e hold that where two persons are sued as solidary obligors, and the
plaintiff takes no appeal from a judgment which dismisses the suit as to
one defendant and condemns the other, an appeal by the latter brings the

4

discharged defendant before the appellate court, and the litigation may
be continued against him as though an appeal from the judgment of
dismissal had been taken by plaintiff.

Id. at 406. Accordingly, we amended the judgment in favor of the plaintiffs to include

the previously-dismissed defendant. In Lomenick v. Hartford Accident and Indemnity

Co., 189 So.2d 731, 733 (La.App. 3 Cir. 1966) (emphasis added), however, we

appeared to limit Vidrine as follows:

Under the Emmons [v. Agricultural Insurance Co., 245 La. 411,
158 So.2d 594 (La.1963)] and Vidrine decisions cited above, the appeal
of an appellant defendant brings up before the reviewing court the
question of the solidary liability with it of any appellee defendants.
However, in the absence of an appeal or perhaps (see below) of an
answer to the appeal by him, the plaintiff himself has no right to urge
that these codefendant-appellees be held liable additional to or instead
of the appellant defendant. This is because the appeal of the defendant-
appellant has brought up the question of the liability of the appellee
defendants only insofar as the appellant is concerned, that is, only
insofar as the appellees’ solidary liability might minimize the award
against the appellant.

An example of this principle is found in Theriot v. Commercial Union

Insurance Co., 478 So.2d 741 (La.App. 3 Cir. 1985), in which the plaintiff sued his

automobile insurer in contract and the seller of a defective engine in redhibition. The

trial court found in favor of the plaintiff as to the insurer, but against him as to the

seller, and only the insurer appealed. Finding that the trial court erred in rejecting the

redhibition claim and that the insurer and the seller were solidary obligors, we

recognized the insurer’s right of contribution against the seller, but we refused to

amend the judgment in favor of the plaintiff to include the seller. Writing for the

court, Judge Guidry explained:

When an unsuccessful co-defendant appeals from a judgment, his
appeal can bring up for review his right to enforce contribution against
other defendants. The unsuccessful co-defendant may demand the
reversal of that part of the judgment which rejects plaintiff’s demands
against other defendants, so that the appellant may minimize his loss
through the enforcement of contribution against the other defendants.

5

Id. at 745. However, he also recognized, “[W]e cannot render a judgment against [the

seller] directly in favor of plaintiff since his failure to perfect a separate appeal

against [the seller] has allowed the trial court judgment dismissing [the seller] to

become final.” Id. at 746 (emphasis added). Thus, although the appellate court

opinion recognized the solidarity between the insurer and the seller, this court was

without authority to cast the seller in judgment to the plaintiff.

Based upon the above, we conclude that Nunez, 780 So.2d 348, is controlling,

even though the defendants in that case were not solidary obligors. Accordingly, we

find that the Smiths’ failure to appeal the dismissal of the State resulted in the finality

of that judgment as to them. Once the judgment dismissing the Smiths’ claim against

the State “acquired the authority of the thing adjudged,” Nunez, 780 So.2d at 349, we

were without jurisdiction to modify, revise, or reverse it, except as was done in

Theriot. See Tolis v. Bd. of Sup’rs of La. State Univ., 95-1529 (La. 10/16/95), 660

So.2d 1206. Although our opinion in Smith, 759 So.2d 851, recognized the solidarity

of the Defendants, that finding could benefit only the parties who appealed, the

Cuttses and New Hampshire, in minimizing their liability through their right of

contribution. Accordingly, we find that the trial court erred in holding that the State

is liable to the Smiths for 50% of the judgment.

Decree

For the above reasons, the judgment of the trial court is reversed. Costs of this

appeal are assessed to Glenn and Cynthia Smith.

REVERSED.

6