Nugie Roy, Et Ux. v. Gerald Wayne Cormier, Et Ux.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

13-1304

NUGIE J. ROY, ET UX.

VERSUS

GERALD WAYNE CORMIER, ET UX.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF ACADIA, NO. 2010-10599
HONORABLE PATRICK LOUIS MICHOT, DISTRICT JUDGE

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JAMES T. GENOVESE
JUDGE

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Court composed of Marc. T. Amy, James T. Genovese, and John E. Conery,
Judges.

APPEAL DISMISSED.

Randall Lee Wilmore
Gregory B. Odom, II
Christie C. Wood
Gold, Weems, Bruser, Sues & Rundell
Post Office Box Box 6118
Alexandria, Louisiana 71307-6118
(318) 445-6471
COUNSEL FOR PLAINTIFFS/APPELLEES:
Nugie J. Roy
Sarah Meaux Roy
AND COUNSEL FOR THIRD-PARTY DEFENDANTS/APPELLEES:
Phillip L. Ruddock
Sara Ruddock
Emma Ruddock

Roger P. Hamilton, Jr.
Attorney at Law
Post Office Box 12625
New Iberia, Louisiana 70562
(337) 364-6085
COUNSEL FOR DEFENDANTS/APPELLANTS:
Gerald Wayne Cormier
Gwyn Everett Cormier

GENOVESE, Judge.

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

Gerald Wayne Cormier and Gwyn Everrett Cormier, to show cause, by brief only,

why the appeal in this case should not be dismissed for having been taken from a

partial judgment which has not been designated immediately appealable pursuant

to La.Code Civ.P. art. 1915(B). For the reasons assigned, we hereby dismiss the

appeal.

Defendants reside on property facing Highway 90 in Acadia Parish, and

Plaintiffs, Nugie J. Roy and Sarah Roy Meaux, are Defendants’ neighbors.

Allegedly, Defendants have falsely claimed an ownership interest in a right-of-way

on Highway 90, have refused to allow Plaintiffs to cross the portion of the right-of-

way fronting Defendants’ property, and have caused Plaintiff, Mr. Roy, to be cited

for criminal trespass as a result of his use of the right-of-way. Plaintiffs filed suit

against Defendants seeking a declaratory judgment recognizing Mr. Roy as the

owner of a portion of the Highway 90 right-of-way and holding that Defendants do

not have an ownership interest in the right-of-way. By their lawsuit, Plaintiffs also

seek damages for defamation and for intentional infliction of emotional distress.

Defendants filed a reconventional demand seeking damages from Plaintiffs for

defamation, harassment, and mental anguish, as well as a declaratory judgment

recognizing that the property which Defendants own extends to the center line of

Highway 90. Defendants also filed a third demand seeking damages from Third

Party Defendants, Phillip Ruddock, Sara Ruddock, and Emma Ruddock. Third

Party Defendants own property near Defendants’ property. Defendants have

accused them of allowing their animals to roam on Defendants’ property and of

engaging in various actions designed to harass Defendants.

Plaintiffs and Third Party Defendants filed a motion for partial summary

judgment seeking a judgment declaring that Plaintiff, Mr. Roy, has an ownership

interest in a portion of the Highway 90 right-of-way, that Defendants have no

ownership interest in the right-of-way, and that Defendants are prohibited from

interfering with the Plaintiffs’ and Third Party Defendants’ use of the Highway 90

right-of-way. The trial court granted the motion for partial summary judgment,

and a judgment to that effect was signed on June 24, 2013. The notice of judgment

was mailed on the same day.

Defendants filed a motion for appeal on July 29, 2013, and the trial court

signed the order of appeal on August 13, 2013. The appeal record was lodged in

this court on November 14, 2013. As stated above, upon the lodging of the record

in this appeal, this court issued a rule for the Defendants to show cause why the

appeal should not be dismissed as having been taken from a partial judgment

which has not been designated immediately appealable pursuant to La.Code Civ.P.

art. 1915(B).

In their response to this court’s rule to show cause order, Defendants assert

that the judgment granting Plaintiffs’ and Third Party Defendants’ motion for

partial summary judgment is a final judgment because it grants ownership rights.

However, Defendants do not cite any legal authority in support of that assertion.

Contrary to defendants’ assertion, we do not find that the judgment at issue should

be deemed appealable simply by virtue of the fact that the judgment holds that

Plaintiff, Mr. Roy, has an ownership interest in the Highway 90 right-of-way.

Since the trial court’s ruling granting the motion for partial summary

judgment grants only some of the relief sought by Plaintiffs’ lawsuit, we find that

the judgment constitutes a partial judgment under La.Code Civ.P. art. 1915(B).

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Pursuant to La.Code Civ.P. art. 1915(B), a partial judgment is not a final judgment

unless the trial court designates the judgment as final after expressly determining

that no just reason exists for delay of an appeal. Although the judgment sought to

be appealed does not contain a designation of immediate appealability, Defendants

seek appellate review of that judgment at this time. Thus, we now turn to this

question of whether such a designation is warranted in this case.

In Setliff v. Slayter, 08-1337 (La.App. 3 Cir. 1/7/09), 1 So.3d 799, the

defendant sought to appeal a judgment granting a motion for partial summary

judgment as to less than all the claims in that case. To determine whether that

judgment should be certified immediately appealable, this court looked to Fakier v.

State, Bd. of Supervisors for Univ. of La. Sys., 08-111 (La.App. 3 Cir. 5/28/08),

983 So.2d 1024, which relied on the following factors which are set forth in R.J.

Messinger, Inc. v. Rosenblum, 04-1664 (La. 3/2/05), 894 So.2d 1113, 1122, citing

Allis–Chalmers Corp. v. Philadelphia Elec. Co., 521 F.2d 360, 364:

1) The relationship between the adjudicated and unadjudicated
claims;
2) The possibility that the need for review might or might not
be mooted by future developments in the trial court;
3) The possibility that the reviewing court might be obliged to
consider the same issue a second time; and
4) Miscellaneous factors such as delay, economic and solvency
considerations, shortening the time of trial, frivolity of competing
claims, expense, and the like.

In Setliff, 1 So.3d 799, this court concluded that the partial judgment in that

case was not ripe for an immediate appeal. In reaching this conclusion, this court

noted that a reversal of the partial judgment would not terminate the entire

litigation. The court also noted that La.Code Civ.P. art. 1915(B)(2) permits the

trial court to revise its ruling on the motion for partial summary judgment at any

time prior to a final judgment, thereby rendering moot the need for an immediate

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appeal of the partial judgment at issue. Additionally, the court in Setliff stated that

“[w]e find that judicial resources would be wasted by the appellate review of the

partial summary judgment at this time, considering the probability of a later appeal

involving the adjudication of the remaining claims.” Id. at 808. Thus, this court

concluded that review of the partial judgment at issue could be made after the final

adjudication of all the remaining issues.

Just like the partial judgment in Setliff, 1 So.3d 799, we find that the partial

judgment at issue in the instant case should not be designated as a final judgment

for purposes of an immediate appeal. We note that a reversal of the judgment

granting Plaintiffs’ and Third Party Defendants’ motion for partial summary

judgment will not terminate the litigation because the claims for such things as

mental anguish, defamation, and harassment will still be pending in the main

demand, the reconventional demand, and the third party demand. We also note

that pursuant to La.Code Civ.P. art. 1915(B)(2), the trial court can later revise its

ruling regarding the ownership interests in the Highway 90 right-of-way. Further,

we note that since this case is a highly contentious case, there is a strong likelihood

that an appeal will be sought with regard to the remaining claims in the case.

Therefore, we find that piecemeal appeals are not warranted in this case and that

Defendants should wait and seek an appeal after the entire case has been

adjudicated. For these reasons, we hereby order that the instant appeal be

dismissed at Defendants’ costs.

Additionally, we note that in their response to the rule to show cause order,

Defendants ask this court to address the issue of whether the trial court, after the

filing of the instant appeal, retained jurisdiction to rule on an exception of

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nonjoinder of a party. However, we find that our decision to dismiss the instant

appeal renders that jurisdictional issue moot.

APPEAL DISMISSED.

This opinion is NOT DESIGNATED FOR PUBLICATION.
Rules 2-16.2 and 2-16.3, Uniform Rules, Courts of Appeal.

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