Diane Ferguson, Et Ux. v. Natchitoches Ford-Lincoln-Mercury,inc.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 13-714

DIANE FERGUSON, ET UX.

VERSUS

NATCHITOCHES FORD LINCOLN MERCURY, INC.

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APPEAL FROM THE
TENTH JUDICIAL DISTRICT COURT
PARISH OF NATCHITOCHES, NO. C-83,994, DIV. A
HONORABLE ERIC ROGER HARRINGTON, DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX

CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and
John D. Saunders, Judges.

APPEAL DISMISSED. APPELLANT PERMITTED TO FILE
APPLICATION FOR SUPERVISORY WRITS.

William Daniel Dyess
Dyess Law Firm, LLC
207 Church Street Suite
Natchitoches, LA 71457
(318) 352-5880
COUNSEL FOR PLAINTIFFS/APPELLEES:
Diane Ferguson
Chris Ferguson

Tracy Peter Curtis
Lewis Brisbois Bisgaard
100 E. Vermillion, Ste. 300
Lafayette, LA 70501
(337) 326-5777
COUNSEL FOR DEFENDANT/APPELLANT:
Natchitoches Ford Lincoln Mercury, Inc.

THIBODEAUX, Chief Judge.

This court issued a rule for Defendant-Appellant, Natchitoches Ford
Lincoln Mercury, Inc. (the Company), to show cause, by brief only, why its
appeal should not be dismissed as taken from a non-appealable judgment.
The Company filed a brief in response to this court’s rule arguing its appeal
is proper because the trial court found no just reason to delay the Company’s
appeal. For the reasons discussed below, we dismiss the appeal. Because
the Company’s motion for appeal was filed within the delay authorized to
seek review by a writ application, this court grants the Company leave to file
a writ application in compliance Uniform Rules—Courts of Appeal, Rule 4,
no later than August 30, 2013.
Plaintiffs, Diane and Chris Ferguson, are the surviving spouse and
child of Robert Ferguson who was killed in a motor vehicle accident in
February of 2010. On the night of the accident, Lawrence Mills, a driver of
a tractor-trailer, was delivering vehicles to the Company after dark. In
connection with the delivery, Mills backed out of the Company’s driveway
onto the highway. Robert Ferguson, who was driving on the highway,
apparently was unable to stop, and his vehicle collided with that of Mills.
The petition alleges that the Company was negligent in not providing
a safe ingress for the delivery trucks by having too many vehicles on the
premises. This, allegedly, forced Mills to undertake the actions he did on
the night in question. The Company alleges that the Fergusons settled with
all others involved in the suit. Thus, it is the only defendant left in this
litigation. The Company moved for summary judgment, alleging that the
Fergusons could not establish the element of duty in this action. The trial
court denied the Company’s summary judgment motion after a hearing, and
it issued a written judgment in March of 2013. Three weeks later, the trial
court issued an amended written judgment in which it denied the Company’s
motion and found “no just reason to delay any appeal of this ruling.”
“An appeal does not lie from the court’s refusal to render any
judgment on the pleading or summary judgment.” La.Code Civ.P. art. 968.
“The denial of a motion for summary judgment is an interlocutory judgment.
Thus, an appeal cannot be taken from a trial court’s denial of a motion for
summary judgment.” Burns v. Couvillion, 10-763 (La.App. 3 Cir. 12/8/10),
53 So.3d 540, 543 (citations omitted). “Although certification of a partial

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judgment granting a motion for summary judgment is allowed under Article
1915, this does not authorize the certification of a judgment denying a
motion for summary judgment.” S.S. v. State, 00-953 (La.App. 3 Cir.
9/20/00), 771 So.2d 187, 188 (citations omitted); see also Ascension Sch.
Employees Credit Union v. Provost Salter Harper & Alford, L.L.C., 06-992
(La.App. 1 Cir. 3/23/07), 960 So.2d 939; Clark v. Legion Ins. Co., 02-2487
(La.App. 4 Cir. 7/23/03), 853 So.2d 684 (holding that a denial of a motion
for summary judgment is an interlocutory judgment that is not appealable
and cannot be certified as such). Because a denial of summary judgment is
an interlocutory ruling, “the only remedy is to request the appellate court to
exercise its supervisory jurisdiction.” Louviere v. Byers, 526 So.2d 1253,
1255 (La.App. 3 Cir.), writ denied, 528 So.2d 153 (La.1988) (citation
omitted).
Here, the trial court did not issue any partial grants of the Company’s
motion for summary judgment. The Company’s motion was denied
completely. Under the plain meaning of La.Code Civ.P. art. 968, this
judgment is not appealable. As our jurisprudence has squarely addressed on
many previous occasions, the trial court may not designate such judgment to
be immediately appealable. In response to the rule to show cause, the
Company argues that it is entitled to appellate review because the trial
court’s judgment “contains the immediate appeal language.” Based on the
considerations above, this argument is meritless. Therefore, the Company’s
appeal is dismissed.

This court finds that the Company filed its motion for an appeal
within the time delays for seeking supervisory writs. Thus, justice demands
that we afford the Company time within which to file a supervisory writ
application with this court. Accordingly, the Company is permitted to file a
proper application for writs in compliance with Uniform Rules—Courts of
Appeal, Rule 4, no later than August 30, 2013. The Company is not
required to file a notice of intent to seek writs nor obtain an order setting a
return date pursuant to Uniform Rules—Courts of Appeal, Rule 4−3 as we
construe the motion for appeal as a timely notice of intent to seek a
supervisory writ.

APPEAL DISMISSED. APPELLANT PERMITTED TO FILE
APPLICATION FOR SUPERVISORY WRITS.

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THIS OPINION IS NOT DESIGNATED FOR PUBLICATION.
Rule 2-16.3 Uniform Rules, Court of Appeal.

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