James Ronald Johnson v. Hamilton Medical Group

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

05-00204

JAMES RONALD JOHNSON
VERSUS
HAMILTON MEDICAL GROUP, ET AL.

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APPEAL FROM THE
15TH JUDICIAL DISTRICT COURT,
PARISH OF LAFAYETTE, NO. 2003-0434,
HONORABLE GLENNON P. EVERETT, DISTRICT JUDGE

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MARC T. AMY
JUDGE

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Court composed of John D. Saunders, Marc T. Amy, and Elizabeth A. Pickett,
Judges.

MOTION TO DISMISS DENIED.

Scott M. Hawkins
Chris Villemarette
Hawkins & Villemarette, LLC
102 Asma Boulevard
Saloom III, Suite 110
Lafayette, Louisiana 70508
COUNSEL FOR PLAINTIFF/APPELLEE:
James Ronald Johnson

Gary McGoffin
Shawn Carter
Durio, McGoffin, Stagg & Ackermann
220 Heymann Boulevard
Post Office Box 51308
Lafayette, Louisiana 70505
COUNSEL FOR DEFENDANT/APPELLEE:
Hamilton Medical Center, Inc. d/b/a Southwest Medical Center -
Lafayette

AMY, Judge.

Defendant-appellee, Hamilton Medical Center, Inc. d/b/a Southwest

Medical Center - Lafayette (hereinafter “SMC”), has filed a “Motion to

Dismiss Appeal in Part,” in regards to the appeal filed by plaintiff-appellant,

James Ronald Johnson (hereinafter “Johnson”). Johnson was awarded a

judgment against SMC in the amount of “$62,127.25, together with legal

interest from date of judicial demand until paid” and “$18,975.32, together

with legal interest from date of judgment, until paid.” SMC paid Johnson the

amounts as ordered by the judgment, including principal and interest on

August 16, 2004, and enclosed therewith, a “Partial Satisfaction of Judgment

and Cancellation of Mortgage” (hereinafter “Partial Satisfaction of Judgment”).

The document was executed by Johnson on August 16, 2004. It contained the

following reservation of rights: (1) to seek the interest awarded on the

$18,975.32 and (2) to recover the fees of Glenn Hebert as costs. In the Partial

Satisfaction of Judgment, Johnson also directed the partial cancellation from

the mortgage records the portion of the judgment that had been acknowledged

as paid, and also directed the subsequent full cancellation of said judicial

mortgage, when court costs were paid. The relevant language states:

Satisfaction of said Judgment, including all principle and
interest, but excluding all costs of court, is hereby acknowledged
by Petitioner, reserving unto Petitioner the right to seek interest
from date of judicial demand until date of judgment on the
$18,975.32 award hereinabove, and further reserving unto
Petitioner the right to recover fees of Glenn Hebert as costs, and
the Clerk of Court is hereby authorized and directed to cancel the
acknowledged portion of said Judgment recorded under File
Number 04-033671 in the Mortgage Records of the Clerk of
Court for the Parish of Lafayette.

SMC, consequently, has moved for the dismissal of all issues presented for

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review in Johnson’s pending appeal that were not specifically reserved by him

in the Partial Satisfaction of Judgment.

Generally, a party who successfully gains a judgment in his or her favor

may accept payment of the judgment, without forfeiting the right to an appeal.

See Eck v. O’Flarity, 498 So.2d 1210 (La.App. 4 Cir. 1986). This is because

appeals are favored and the forfeiture of a right to appeal through acquiescence

in a judgment, is never presumed. Kendrick v. Garrene, 91 So.2d 603

(La.1956); Theriot v. Castle, 343 So.2d 399 (La.App. 3 Cir. 1977). This state’s

jurisprudence has long made it clear that the party seeking the dismissal of an

appeal is required to establish the other party’s intention to acquiesce in the

judgment and abandon his or her right to appeal, with sufficient direct or

circumstantial evidence. Coleman Oldsmobile, Inc. v. Johnson, 474 So.2d 20

(La.App. 1 Cir. 1985) and cases cited therein. This acquiescence must be

clearly demonstrated. Id.

This court has in the past ruled that the execution of a valid release or

satisfaction of judgment constitutes a clear demonstration of the requisite

acquiescence in a judgment and signifies that the party’s abandonment of any

right to appeal, excluding those portions of the judgment for which there has

been asserted a reservation of rights. Theriot, 343 So.2d 399. Moreover, this

court held therein that when cancellation and erasure of the lower court

judgment accompanies the acceptance of payment of the judgment, the ability

to appeal that judgment no longer exists, since appeals cannot be taken from

cancelled and erased judgments. Theriot, 343 So.2d 399.

However, in Vincent v. State Farm Mut. Auto. Ins. Co., 95-1538

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(La.App. 3 Cir. 4/3/96), 671 So.2d 1127, this court later departed from

Theriot, 343 So.2d 399, finding that despite the execution of a satisfaction of

judgment, directing cancellation of the judgment, other factors can

simultaneously exist to serve as an indication of the appealing party’s intent to

maintain the right to appeal. We find Vincent, 671 So.2d 1127, more

analogous to the instant case.

In Vincent, this court distinguished Theriot, 343 So.2d 399, by pointing

out several factual distinctions, which prevented a finding of clear

acquiescence in a judgment. Vincent, 671 So.2d 1127. The court found that

despite the existence of a Satisfaction of Judgment which contained directions

to cancel same, the appealing party had also filed a Notice of Appeal with the

trial court prior to executing and filing the Satisfaction of Judgment at issue.

Vincent, 671 So.2d 1127. This court also found it relevant that the judgment

in that case, unlike Theriot, had not been cancelled by the time the appeal was

granted. Id. In addition, the first circuit’s decision in Henry Waters Truck &

Tractor Co., Inc. v. Relan, 277 So.2d 463 (La.App. 1 Cir.), writ denied, 279

So.2d 206 (La.1973), was considered by the Vincent court. Id. Therein it was

held that there could not be a finding of an unconditional acquiescence in a

judgment, even though the judgment was paid, where simultaneous notice of

an intention to appeal was also given. Vincent, 671 So.2d 1127.

Applying Vincent, 671 So.2d 1127, to the facts of this case, this court

does not find a clear indication of Johnson’s intention to acquiesce in the

judgment and abandon his right to appeal. Rather, the facts reveal that

although the Partial Satisfaction of Judgment was filed on September 23, 2004,

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Johnson’s request for an appeal was granted two weeks prior to that date.

Accordingly, the judgment was not cancelled prior to the appeal being taken.

In addition, Johnson submitted his Notice of Appeal to the trial court on the

same date that he returned the executed Partial Satisfaction of Judgment to

opposing counsel, further serving as an indication of his intent to retain his

appeal rights. See also, Strickland v. Tesoro Drilling Company, 419 So.2d

1281 (La.App. 1 Cir. 1982). We note also that Johnson contends in his brief

that his attorney advised opposing counsel on multiple occasions prior to the

execution of the Partial Satisfaction of Judgment of his intention to appeal.

Therefore, finding no clear indication of an acquiescence in the

judgment and abandonment of appeal rights on the part of Johnson, we find

that Johnson has retained his right to appeal.

MOTION TO DISMISS DENIED.

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