Ronnie Henry Cleary v. Kerry M. Owens

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

07-942

RONNIE CLEARY & FELTON HENRY
VERSUS
KERRY M. OWENS, ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 02-1428
HONORABLE KRISTIAN EARLES, DISTRICT JUDGE

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MARC T. AMY
JUDGE

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Court composed of Marc T. Amy, J. David Painter, and James T. Genovese,
Judges.

APPEAL DISMISSED. CASE REMANDED.

James Eric Johnson
Charles L. Cassaignac, IV
Christian T. Avery
Bryan J. Haydel
Porteous, Hainkel and Johnson, L.L.P.
343 3rd Street, Suite 202
Baton Rouge, LA 70801
(225) 383-8900
COUNSEL FOR DEFENDANTS/APPELLANTS:
Terry Meche and
Farm Bureau General Insurance of Michigan

Michael W. Cambell
Caffery, Oubre, Campbell & Garrison, L.L.P.
301 E. Kaliste Saloom Road, Suite 301
Lafayette, LA 70508
(337) 232-6581
COUNSEL FOR DEFENDANTS/APPELLANTS:
Terry Meche and
Farm Bureau General Insurance of Michigan

Kevin Paul Tauzin
Attorney at Law
1228 Camelia Blvd., Suite A
Lafayette, LA 70508
(337) 988-7588
COUNSEL FOR DEFENDANT/APPELLANT:
Terry Meche

Pride J. Doran
Jermaine D. Williams
Williams & Doran, P.L.L.C.
Post Office Box 2119
Opelousas, Louisiana 70571
(337) 235-3989
COUNSEL FOR PLAINTIFF/APPELLEE:
Ronnie Cleary

Kenneth W. Jones, Jr.
Oliver, Way & Jones, LLC
110 E. Kaliste Saloom
Post Office Box 80655
Lafayette, LA 70598-0655
(337) 235-2112
COUNSEL FOR INTERVENOR:
State Farm Mutual Automobile Insurance Company

Bob Broussard
D. Patrick Daniel, Jr.
Attorneys at Law
400 E. Kaliste Saloom Road, Suite 8200
Post Office Drawer 80827
Lafayette, LA 70501
(337) 232-3333
COUNSEL FOR INTERVENOR:
Bob Broussard

Valex Amos, Jr.
Amos & Garrett, L.L.C.
2014 West Pinhook Road, Suite 503
Lafayette, LA 70508
(337) 291-1875
COUNSEL FOR INTERVENOR:
Valex Amos, Jr.

AMY, Judge.

This court issued, sua sponte, a rule ordering the Defendants-Appellants,

Terry Meche and Farm Bureau General Insurance of Michigan (Farm Bureau),

to show cause, by brief only, why the appeals in this matter should not be

dismissed as premature. On August 22, 2007, this court received Appellants’

response to the rule. For the reasons given herein, we hereby dismiss the

appeals.

This case arises out of an automobile accident. Following a jury trial,

a verdict was rendered in favor of Plaintiff-Appellee, Ronnie Cleary. The

judgment was signed on July 18, 2006, and Notice of Judgment was sent on

July 26, 2006. On August 2, 2006, Appellants filed a Motion for New Trial

and, in the Alternative, Remittitur. On August 14, 2006, the trial court wrote

the word “denied” diagonally across the proposed order to show cause. No

hearing was held on the motion.

Appellant, Farm Bureau, filed its motion for suspensive appeal on

September 8, 2007, and the order granting the appeal was signed on September

13, 2006. A motion for appeal filed on behalf of Appellant, Terry Meche, was

filed and granted on September 12, 2006. The record in this case was lodged

in this court on August 3, 2007.

Louisiana Code of Civil Procedure Article 1918 provides, in pertinent

part, that “[a] final judgment shall be identified as such by appropriate

language.” In the case at bar, the only language on the purported judgement

is the word “denied” written across the rule to show cause order.

In response to this court’s order that appellants show cause why their

appeals should not be dismissed as premature, Appellants argue that the

provisions of the Louisiana Code of Civil Procedure do not require rigid

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application. To support their position, Appellants cite La.Code Civ.P. art.

5051 which provides that “[t]he articles of this Code are to be construed

liberally, and with due regard for the fact that rules of procedure implement the

substantive law and are not an end in themselves.” Appellants also cite Rainey

v. Entergy Gulf States, Inc., 01-2414 (La.App. 1 Cir. 11/18/02), 840 So.2d 586,

588 (quoting Maddens Cable Serv., Inc. v. Gator Wireline Services, Ltd. 509

So.2d 21, 23 (La.App. 1 Cir. 1987)), wherein the first circuit, in giving its

assessment of Article 5051that “[l]awsuits should be decided on their merits

and should not turn on arbitrary or technical rules of procedure.” Hence,

Appellants in the instant case argue that this court should not rigidly apply

La.Code Civ.P. art. 1918 in determining whether the trial court rendered a

valid judgment. Instead, Appellants argue that because the trial judge

implicitly manifested his intent to deny their motion for new trial, this court

should liberally apply Article 1918 and allow this appeal to stand. Further,

Appellants contend that the appeal should be maintained in the interest of

judicial efficiency.

In Egle v. Egle, 05-0531 (La.App. 3 Cir. 2/8/06), 923 So.2d 780, this

court previously considered the issue of whether the notation “Denied” written

across a rule to show cause order is sufficient to constitute a judgment on a

motion for new trial. The Egle case was factually similar to the instant case in

that no hearing had been held on the motion for new trial, and the trial judge

simply wrote the notation“Denied” diagonally across the face of the rule. The

court in Egle found such a notation to be insufficient to satisfy the statutory

requirement that a final judgment be “identified as such by appropriate

language.” See La.Code Civ.P. art. 1918. In Egle, the court looked to La.Code

Civ.P. art. 2087(D) which provides that “[a]n order for appeal is premature if

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granted before the court disposes of all timely filed motions for new trial or

judgment notwithstanding the verdict.” Since the trial court had not held a

hearing and no valid judgment had been rendered with regard to the motion for

new trial, this court held in Egle that the appeal order was premature. Having

found the appeal order to be premature, this court concluded that it lacked

jurisdiction over the appeal pursuant to La.Code Civ.P. art. 2088.

Likewise, in the instant case, we find that the notation “Denied” written

on the rule to show cause order does not constitute a valid judgment. Since the

trial court failed to conduct a hearing and properly dispose of the Motion for

New Trial and, in the Alternative, Remittitur, we find that the appeal order

signed on September 13, 2006, was premature and that the trial court was not

divested of its jurisdiction. Having concluded that we lack jurisdiction over

this appeal, we find that the appeal must be dismissed and remanded to the trial

court for consideration of Appellants’ Motion for New Trial and, in the

Alternative, Remittitur.

APPEAL DISMISSED. CASE REMANDED.

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