Cleveland Poncho v. Tanner Fontenot

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

14-902

CLEVELAND PONCHO

VERSUS

TANNER FONTENOT AND
PROGRESSIVE PALOVERDE
INSURANCE COMPANY

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APPEAL FROM THE
THIRTY-THIRD JUDICIAL DISTRICT COURT
PARISH OF ALLEN, NO. C-2012-167
HONORABLE PATRICIA C. COLE, DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of John D. Saunders, Marc T. Amy and J. David Painter, Judges.

APPEAL DISMISSED AND REMANDED.

Michael B. Holmes
Hebert, Holmes & Bertrand
Post Office Drawer 790
Kinder, LA 70648-0790
(337) 738-2568
COUNSEL FOR PLAINTIFF/APPELLANT:
Cleveland Poncho

Ian A. McDonald
Jones Walker
Post Office Drawer 3408
Lafayette, LA 70502
COUNSEL FOR DEFENDANTS/APPELLEES:
Tanner Fontenot
Progressive Paloverde Insurance Company

SAUNDERS, Judge.

This court issued a rule ordering Plaintiff-Appellant, Cleveland Poncho, to

show cause, by brief only, why his appeal should not be dismissed for having been

taken from a judgment lacking proper decretal language. See Thomas v. Lafayette

Parish Sch. System, 13-91 (La.App. 3 Cir. 3/6/13), 128 So.3d 1055. Plaintiff’s

attorney timely filed a brief admitting that the judgment did not contain the proper

decretal language and indicating that he was unable to show sufficient cause why

this appeal should not be dismissed. Plaintiff’s attorney asks this court to remand

the matter to the trial court to issue a judgment containing proper decretal language

or “otherwise designate this judgment as immediately appealable in accordance

with La.Code of Civ.P. Art. 1915 in the event the Trial Court determines that

some, but not all, of the claims of plaintiff-appellant have been disposed of through

it’s [sic] granting of defendants-appellees’ exceptions.” For the reasons assigned,

we dismiss the instant appeal and remand this matter to the trial court for further

proceedings in accordance with this court’s ruling.

This case arises out of an automobile accident which occurred on April 6,

2011. Suit was filed on March 30, 2012. In May 2014, Defendants filed

exceptions of no right of action and prescription alleging that Mr. Poncho had no

right of action because he died on April 14, 2012, and since no person had been

substituted in his place within one year after his death, the case had prescribed.

The exceptions were heard on June 25, 2014.

On July 3, 2014, the trial court signed a judgment which stated, in pertinent

part:

IT IS HEREBY ORDERED, ADJUDGED AND DECREED
that Progressive Paloverde Insurance Company and Tanner Fontenot’s
Exceptions of No Right of Action and Prescription be and are hereby
granted.

In Thomas, 128 So.3d at 1056, this court stated:

“[a] valid judgment must be precise, definite, and certain. A final
appealable judgment must contain decretal language, and it must
name the party in favor of whom the ruling is ordered, the party
against whom the ruling is ordered, and the relief that is granted or
denied.” State v. White, 05-718 (La.App. 3 Cir. 2/1/06), 921 So.2d
1144, 1146. Moreover, a judgment cannot require reference to
extrinsic documents or pleadings in order to discern the court's ruling.
Vanderbrook v. Coachmen Industries, Inc., 2001-809 (La.App. 1 Cir.
5/10/02), 818 So.2d 906.

Clearly, the judgment at issue herein does not meet these requirements. Plaintiff’s

attorney does not dispute this.

The judgment dated July 3, 2014, is ambiguous and lacks proper decretal

language. Therefore, we dismiss the instant appeal and remand the matter to the

trial court for further proceedings in accordance with this opinion.

APPEAL DISMISSED AND REMANDED.

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

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