Bryan Reed v. Cowboy's Western Store and Trailer Sales, Inc.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 16-628

BRYAN REED

VERSUS

COWBOY'S WESTERN STORE AND TRAILER SALES, INC., ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 20132661
HONORABLE JULES DAVIS EDWARDS, DISTRICT JUDGE

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D. KENT SAVOIE

JUDGE

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Court composed of Jimmie C. Peters, John E. Conery, and D. Kent Savoie, Judges.

APPEAL DISMISSED.

Raymond C. Jackson, III
Allen & Gooch
Post Office Box 81129
Lafayette, LA 70598=1129
(337) 291-1000
COUNSEL FOR DEFENDANTS/APPELLEES:
Cowboy's Saloon, L.L.C.
Larry Bacque, Sr.

Jeffrey A. Rhoades
Swift & Rhoades
Post Office Box 53107
Lafayette, LA 70502-3107
(337) 572-9877
COUNSEL FOR DEFENDANTS/APPELLEES:
Cowboy's Saloon, L.L.C.
Larry Bacque, Sr.

James Allen Lochridge, Jr.
Voohies & Labbe
Post Office Box 3527
Lafayette, LA 70502-3527
(337) 232-9700
COUNSEL FOR DEFENDANTS/APPELLEES:
Larry Bacque, II
Bac Three, Inc.

D. Patrick Daniel, Jr.
Daniel & Associates
2409 Commerce St.
Houston, TX 77003
(713) 589-3539
COUNSEL FOR PLAINTIFF/APPELLANT:
Bryan Reed

Robert D. Felder
Davidson, Meaux, Sonnier
810 S. Buchanan Street
Lafayette, LA 70501
(337) 237-1660
COUNSEL FOR DEFENDANT/APPELLEE:
Founders Insurance Company

Blake W. Bourgeois
Galloway, Tompkins, Burr
701 Poydras St., 40th Fl.
New Orleans, LA 70139
(504) 525-6802
COUNSEL FOR DEFENDANT/APPELLEE:
Essex Insurance Company

SAVOIE, Judge.

Upon the lodging of the record in this matter, this court issued, on its own

motion, a rule for the plaintiff-appellant to show cause, by brief only, why the appeal

should not be dismissed as having been taken from a non-appealable, interlocutory

ruling. For the reasons assigned, we dismiss the appeal without prejudice.

This suit arises out of a vehicular collision. In the course of the litigation, the

defendants-appellees, Larry Bacque and Bac Three, Inc., doing business as Cowboys

Nightclub, filed a motion for summary judgment. Defendant-appellee, Cowboy‘s

Saloon, LLC, also filed a motion for summary judgment. By a written judgment

signed on March 7, 2016, the trial court granted the motions, thereby dismissing the

plaintiff‘s claims against these defendants. Afterwards, on June 2, 2016, the trial

court signed a new judgment dismissing these defendants and their insurers from the

suit.

Prior to the hearing on the motions for summary judgment, though, the plaintiff

sought to file a sur-reply in opposition to the motions of summary judgment. On the

date of the hearing on the motions for summary judgment, the trial court refused to

consider the motion for leave to file the sur-reply. The trial court signed an order on

April 10, 2016, with the handwritten notation, ―This was not on the docket and not

considered for that reason.‖ The plaintiff filed a motion to appeal this ruling.

As stated above, this court issued a rule for the plaintiff to show cause why the

appeal from the ruling refusing to consider the motion for leave to file the sur-reply

should not be dismissed as having been taken from a non-appealable, interlocutory

order. The plaintiff has filed a response to this court‘s rule, and the defendants have

filed memoranda, as well.

In the response filed by the plaintiff, the plaintiff asserts ―[a]s soon as the trial

court granted Defendants‘ Motion for Summary Judgment on March 7, 2016[,] any

judgments that preceded and/or followed were no longer interlocutory but became

part of a final judgment.‖ This is an incorrect statement of the law.

As explained recently by this court in Duckering v. Rapides Healthcare System,

15-1049, pp. 3-6 (La.App. 3 Cir. 3/2/16), 187 So.3d 548, 550-51:

The judgment from which the present appeal is taken is the trial
court‘s judgment denying Mrs. Duckering‘s Motion for New Trial.
However, as this court recently recognized, ―‗A judgment denying a
motion for new trial is an interlocutory order, not a final appealable
judgment. Shavers v. Shavers, 350 So.2d 912 (La.App. 3 Cir.1977).‘‖
Babineaux v. Univ. Med. Ctr., 15-292, p. 4 (La.App. 3 Cir. 11/4/15), 177
So.3d 1120, 1123 (quoting McClure v. City of Pineville, 05-1460, p. 3
(La.App. 3 Cir. 12/06/06), 944 So.2d 805, 807, writ denied, 07-43
(La.3/9/07), 949 So.2d 446). As this court explained in Babineaux, 177
So.3d at 1123:

Although the denial of a motion for new trial is generally a
non-appealable interlocutory judgment, the court may consider
interlocutory judgments as part of an unrestricted appeal from a
final judgment. Occidental Properties Ltd. v. Zufle, 14-494
(La.App. 5 Cir. 11/25/14), 165 So.3d 124, writ denied, 14-2685
(La.4/10/15), 163 So.3d 809. Thus, ―[w]hen an appeal is taken
from a final judgment, the appellant is entitled to seek review of all
adverse interlocutory judgments prejudicial to him in addition to
the review of the final judgment.‖ Robertson v. Doug Ashy Bldg.
Materials, Inc., 14-141 (La.App. 1 Cir. 12/23/14), 168 So.3d 556,
fn. 13 (unpublished opinion) (court considered the correctness of
interlocutory judgments in conjunction with the appeal of the final
and appealable judgment granting a motion for summary
judgment).

Thus, in this case, had Mrs. Duckering appealed the trial court‘s
grant of summary judgment in favor of Rapides Regional, this court
could have also reviewed the trial court‘s denial of Mrs. Duckering‘s
Motion for New Trial. However, Mrs. Duckering did not appeal the
February 9, 2015 judgment of the trial court, which granted summary
judgment in favor of Rapides Regional.

Additionally, as recognized in Babineaux, ―[W]hen the pleadings
and briefs on appeal indicate that an appellant actually intended to appeal
from a final judgment on the merits, the appeal could be maintained as
being taken from the judgment on the merits.‖ Id. Expounding, in
Babineaux, 177 So.3d at 1123-24, this court stated:

In McClure v. City of Pineville, 944 So.2d at 807, we
dismissed the appeal and explained:

[I]n Fuqua v. Gulf Insurance Co., 525 So.2d 190 (La.App. 3
Cir.1988), writ denied, 546 So.2d 1216 (La.1989), this court
held that where the appellant‘s argument on appeal indicated

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that he intended to appeal the judgment on the merits, not
the judgment denying a motion for new trial, the
inadvertence of misstating the judgment being appealed did
not necessitate dismissal of the appellant‘s appeal, and ―the
appeal should be maintained as being taken from the
judgment on the merits.‖ Id. at 191-92, (quoting Dural v.
City of Morgan City, 449 So.2d 1047, 1048 (La.App. 1
Cir.1984)).

The record in this case does not indicate any such intention on the
part of Mrs. Duckering. To the contrary, her sole assignment of error and
the discussion in her appellate brief address only the trial court‘s denial
of her Motion for New Trial, and she did not simply mistakenly identify
the judgment being appealed. Therefore, we do not consider the present
appeal as an appeal of the trial court‘s February 9, 2015 judgment
granting Rapides Regional‘s Motion for Summary Judgment.

Although the judgment denying the Motion for New Trial is not
appealable, this court, as we did in Babineaux, has also considered the
possibility of converting the present appeal into a writ for our
consideration. ―[W]hile an order denying a new trial is not appealable, ‗it
is reviewable under the appellate courts‘ supervisory jurisdiction.‘ Miller
v. Chicago Ins. Co., 320 So.2d [134, 136 (La.1975)].‖ Id. at 1124.
―‗Supervisory writs may be applied for and granted in accordance with
the constitution and rules of the supreme court and other courts
exercising appellate jurisdiction.‘ La.Code Civ.P. art. 2201.‖ Id.
Additionally, ―It is within the discretion of the appellate courts to convert
an appeal to an application for supervisory writs in a civil case.
La.Const. art. 5, § 10; Stelluto v. Stelluto, 05-74 (La.6/29/05), 914 So.2d
34.‖ Id.

Although we recognize the foregoing, we are precluded from
converting the present appeal into an application by Mrs. Duckering for
supervisory writs, because it would also be untimely.

Appellate courts have exercised their discretion to convert
the appeal if the motion for appeal was filed within the thirty-day
time period allowed for the filing of an application for supervisory
writs under Uniform Rules—Courts of Appeal, Rule 4–3. See
Delahoussaye v. Tulane University Hosp. and Clinic, 12-906
(La.App. 4 Cir. 2/20/13), 155 So.3d 560. See also Rain CII
Carbon, LLC v. Turner Industries Group, LLC, 14-121 (La.App. 3
Cir. 3/19/14), 161 So.3d 688 (while the motion for appeal could be
construed to be a notice of intent to seek supervisory writs, it could
not be construed as a timely one where it was filed more than thirty
days from the court‘s ruling).

Id. at 1124-25.

In this case, the trial court denied Mrs. Duckering‘s Motion for
New Trial at the hearing on March 23, 2015, the concomitant judgment
was signed on March 30, 2015, and the notice of judgment was mailed to
the parties on April 7, 2015. Mrs. Duckering‘s Petition for Appeal was

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faxed to the trial court on May 29, 2015, and filed of record on June 2,
2015. Since her Petition for Appeal was not filed within the requisite
thirty-day time period for supervisory writs, even if we were to convert
her appeal to an application for supervisory writs, the writ application
would likewise require a dismissal for untimeliness.

In the instant appeal, the plaintiff has sought an appeal from a ruling which does

not determine the merits of this case, in whole or in part; therefore, the ruling is

interlocutory. La.Code Civ.P. art. 1841. The plaintiff has filed his brief on the merits

of this appeal, and the brief clearly shows that the plaintiff is seeking review of only

the denial of the motion for leave to file the sur-reply.

The plaintiff asserts in the brief filed in response to this court‘s rule that without

the right to appeal this judgment, the plaintiff will be left without an appellate remedy.

This is also incorrect. As set forth by this court in Duckering, the plaintiff can assign

the trial court‘s refusal to consider the motion for leave to file his sur-reply brief as

error in the unrestricted appeal from the final, appealable judgment granting summary

judgment. In fact, this court currently has appeals by plaintiff from the judgments

granting summary judgment pending in this court, and in one of these appeals, the

plaintiff assigned the denial of the motion for leave as error.

Finally, similar to the facts of Duckering, in the instant case, the plaintiff‘s

motion and order for appeal from the interlocutory ruling was filed beyond the time

period for seeking review by supervisory writs. Therefore, in addition to the fact that

the plaintiff has the available remedy of assigning the denial of the motion for leave as

error in the appeals from the granted summary judgments, we decline to convert this

appeal into an application for supervisory writs as the application would be dismissed

as untimely. Accordingly, we dismiss the instant appeal, without prejudice, at

plaintiff‘s cost.

APPEAL DISMISSED.

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