Randy J. Gary v. Moncla Well Services, Inc.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-377

RANDY J. GARY

VERSUS

MONCLA WELL SERVICES, INC., ET AL.

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF ST. MARTIN, NO. 56627
HONORABLE WILLIAM D. HUNTER, DISTRICT JUDGE

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MICHAEL G. SULLIVAN
JUDGE

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Court composed of Jimmie C. Peters, Michael G. Sullivan, and Billy H. Ezell,
Judges.

MOTION TO DISMISS APPEAL DENIED.

J. Bryan Jones, III
Attorney at Law
Post Office Box 8841
Lake Charles, Louisiana 70606
(337) 598-2638
Counsel for Plaintiff/Appellant:
Randy J. Gary

David S. Bland
David A. Strauss
King, LeBlanc & Bland
201 St. Charles Avenue, Suite 3800
New Orleans, Louisiana 70170
(504) 582-3800
Counsel for Defendant/Appellee:
Moncla Well Services, Inc.

Whit McCrary Cook, II
Attorney at Law
7910 Wrenwood Blvd., Suite A
Baton Rouge, Louisiana 70809
(225) 923-3104
Counsel for Plaintiff/Appellant:
Randy J. Gary

Francis X. Neuner, Jr.
Laborde & Neuner
Post Office Box 52828
Lafayette, Louisiana 70505-2828
(337) 237-7000
Counsel for Defendant/Appellee:
Schlumberger Well Services

L. Lane Roy
Preis & Roy
Post Office Drawer 94-C
Lafayette, Louisiana 70509
(337) 237-6062
Counsel for Intervenor/Appellee:
Westbay Contracting Corporation

Charles M. Jarrell
Guglielmo, Lopez & Tuttle
Post Office Drawer 1329
Opelousas, Louisiana 70571-1329
(337) 948-8201
Counsel for Defendant/Appellee:
Marshall Petroleum

James J. Hautot, Jr.
Judice & Adley
Post Office Drawer 51769
Lafayette, Louisiana 70503
(337) 235-2405
Counsel for Intervenor/Appellee:
Westbay Contracting Corporation

SULLIVAN, Judge.

The defendant/appellee, Schlumberger Well Services (Schlumberger), moves

to dismiss the appeal of the plaintiff/appellant, Randy J. Gary, as untimely filed.

Finding that the procedural laws applicable at the time of the rendition of the

judgment dismissing the plaintiff’s claims against Schlumberger do not support the

motion to dismiss, we deny the motion.

The plaintiff filed this action for damages on May 7, 1996, naming several

defendants, including Schlumberger. The plaintiff averred that he was injured as a

result of an accident which occurred while he was working on May 7, 1995. During

the course of this action, the defendant, Moncla Well Service, Inc. (Moncla), filed a

pleading entitled “Third-Party Demand” against Westbay Contracting Corporation

(Westbay).

Over time, the claims in this suit were dismissed in separate judgments.

Pertinent to the situation presented at this time, a judgment was signed on June 7,

2001, dismissing all of the plaintiff’s claims against Schlumberger. Later,

Schlumberger also moved to dismiss its third-party demand against Marshall

Petroleum, which order was signed by the trial court on January 25, 2002.

On August 17, 2006, the plaintiff filed a motion and order to dismiss the third-

party demand by Moncla against Westbay, on the ground of abandonment. The

plaintiff stated in this motion that this was the last remaining claim by and between

the parties to this suit and that dismissal of this third-party claim was necessary in

order for him to be able to take an appeal from the earlier ruling dismissing

Schlumberger. The trial court signed the judgment dismissing this third-party

demand for indemnity, costs, and attorney fees on September 15, 2006. Then, on

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October 11, 2006, the plaintiff filed a motion for appeal. The trial court signed the

order granting the appeal on that same date.

Schlumberger filed a motion to dismiss this appeal as untimely in the trial

court. The plaintiff filed a memorandum in opposition to this motion. The record

does not reveal any action by the trial court on this motion. The record in this appeal

was lodged in this court on March 27, 2009. Schlumberger filed its motion to dismiss

the appeal in this court on April 3, 2009. The plaintiff has filed no response to the

motion to dismiss that was filed in this court.

In the trial court, the plaintiff opposed Schlumberger’s motion to dismiss,

arguing that he could not file an appeal from the judgment dismissing his claims

against Schlumberger until all claims against all parties to the action had been finally

adjudicated. Thus, he argued that the version of La.Code Civ.P. art. 1915 which is

applicable to the partial judgment dismissing his claims against Schlumberger did not

authorize an appeal from that partial judgment unless the trial court and/or the parties

agreed that the judgment should be immediately appealable. In its motion to dismiss

the appeal, Schlumberger contends that regardless of which version of La.Code Civ.P.

art. 1915 is applicable herein, the plaintiff’s appeal was not timely taken.

Louisiana Code of Civil Procedure Article 1915 was amended by 1999 La.

Acts No. 1263, in part, to remove the word “parties” from La.Code Civ.P. art.

1915(B), thereby making clear that no designation of finality need be made when a

party to a suit was dismissed in full. However, Section 3 of this same act specified

that the revisions made therein were to apply only to actions filed on or after

January 1, 2000. Prior to the 1999 amendment, Article 1915 read, in pertinent part,

as follows:

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A. A final judgment may be rendered and signed by the court,
even though it may not grant the successful party or parties all of the
relief prayed for, or may not adjudicate all of the issues in the case,
when the court:

(1) Dismisses the suit as to less than all of the parties, defendants,
third party plaintiffs, third party defendants, or intervenors.

(2) Grants a motion for judgment on the pleadings, as provided
by Articles 965, 968, and 969.

(3) Grants a motion for summary judgment, as provided by
Articles 966 through 969, including a summary judgment granted
pursuant to Article 966(E).

(4) Signs a judgment on either the principal or incidental demand,
when the two have been tried separately, as provided by Article 1038.

(5) Signs a judgment on the issue of liability when that issue has
been tried separately by the court, or when, in a jury trial, the issue of
liability has been tried before a jury and the issue of damages is to be
tried before a different jury.

B. (1) When a court renders a partial judgment or partial
summary judgment or sustains an exception in part, as to one or more
but less than all of the claims, demands, issues, theories, or parties,
whether in an original demand, reconventional demand, cross-claim,
third party claim, or intervention, the judgment shall not constitute a
final judgment unless specifically agreed to by the parties or unless
designated as a final judgment by the court after an express
determination that there is no just reason for delay.

(2) In the absence of such a determination and designation, any
order or decision which adjudicates fewer than all claims or the rights
and liabilities of fewer than all the parties, shall not terminate the action
as to any of the claims or parties and shall not constitute a final
judgment for the purpose of an immediate appeal. Any such order or
decision issued may be revised at any time prior to rendition of the
judgment adjudicating all the claims and the rights and liabilities of all
the parties.

Schlumberger posits that no designation of finality and appealability was

required when the judgment dismissing the plaintiff’s claims against it was rendered

in 2001. However, as stated above, the legislature specifically provided that the 1999

amendments to Article 1915 were not to be applied to cases, such as the instant one,

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which were filed prior to January 1, 2000. While Schlumberger contends that no

designation was required even if the wording of Article 1915 prior to the 1999

amendment is applied, this court must disagree. As pointed out by the plaintiff’s

opposition filed in the trial court, the jurisprudence has held that designations were

required if a judgment was rendered dismissing one party in full if not all parties were

dismissed. See Roberts v. Orpheum Corp., 98-1941 (La.App. 4 Cir. 2/2/00), 753

So.2d 916 (dismissing an appeal from a judgment which had dismissed only one of

several defendants due to the finding that even though Article 1915 had been

amended by the legislature prior to entry of the appealed judgment, the court was

prohibited from applying the amended statute since the suit had been filed prior to

January 1, 2000). See also Boullion v. PPG Indus., Inc., 98-25 (La.App. 3 Cir.

3/23/98), 709 So.2d 350, writ denied, 98-1102 (La. 6/19/98), 720 So.2d 1212. Thus,

an appeal by the plaintiff prior to the dismissal of all claims by all parties would have

been subject to a motion to dismiss the appeal as prematurely taken. In light of the

peculiar facts of the instant case and the law applicable to them, we find that

Schlumberger’s motion to dismiss this appeal must be denied.

MOTION TO DISMISS APPEAL DENIED.

This opinion is NOT DESIGNATED FOR PUBLICATION.
Uniform Rules—Courts of Appeal, Rule 2–16.3.

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