Melody Smith v. Marcus Sam

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-80

MELODY SMITH, ET AL.

VERSUS

MARCUS SAM, ET AL.

**********

APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 20144879
HONORABLE MARILYN CARR CASTLE, DISTRICT JUDGE

**********

JOHN E. CONERY
JUDGE

**********

Court composed of Shannon J. Gremillion (S), John E. Conery, and David E.
Chatelain, Judges.

APPEAL DISMISSED. REMANDED FOR CLARIFICATION.

*Honorable David E. Chatelain participated in this decision by appointment of the
Louisiana Supreme Court as Judge Pro Tempore.

Gloria A. Angus
Angus Law Firm, LLC
Post Office Box 2337
Opelousas, Louisiana 70571
(337) 948-8800
COUNSEL FOR PLAINTIFF/APPELLANT:
Melody Smith

Lance Edward Harwell
Staines & Eppling
3500 North Causeway Blvd., Suite 820
Metairie, Louisiana 70002
(504) 838-0019
COUNSEL FOR DEFENDANT/APPELLEE:
Circle K Stores, Inc.

CONERY, Judge.

This court issued an Order on April 25, 2017 ordering Plaintiffs-Appellants,

Melody Smith and Henry Freeman as Natural Tutor of Keyana Freeman (The

Smith Plaintiffs), to show cause no later than May 10, 2017, by brief only, as to

why the appeal in the above captained case should not be dismissed for having

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

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

reasons that follow, we dismiss the appeal and remand this case for clarification.

FACTS AND PROCEDURAL HISTORY

The Smith Plaintiffs filed suit for personal injuries allegedly suffered by Ms.

Smith as the result of an armed robbery committed by Marcus Sam. Ms. Smith

was attempting to make a night bank deposit for her employer, Circle K Stores, Inc.

(Circle K). Before Ms. Smith could reach the bank, Mr. Sam crashed his truck into

the back of her car, shot twice at Ms. Smith’s vehicle, almost striking Ms. Smith,

smashed the window of her car, and then took the Circle K deposit bag from the

front seat of Ms. Smith’s car.1 Ms. Smith claimed she was injured in the collision

and suffered post tramatic stress resulting from the robbery. She sued Circle K for

damages based on intentional tort.

In the original petition, the Smith Plaintiffs named Mr. Sam, Capital One

Bank, APC, LLC, Circle K, and three unidentified insurance companies as

defendants. Ms. Smith specifically alledged that the robbery was the result of an

intentional tort on the part of Circle K, thus circumventing the provisions of the

Louisiana Worker’s Compensation Act, La.R.S. 23:1032 (LWCA). She claimed:

1
Mr. Sam later plead guilty to armed robbery and was sentenced to thirty years in prison.

6.

On or about September 21, 2013, Circle K’s supervisor told Petitioner
to remember to make the night deposit in the Circle K store in front of
several customers.

7.

On or about September 21, 2013, Petitioner was substantially certain
to get robbed after her supervisor announced to the Store that the
Petitioner would be making a deposit on that day.

After resolving claims not pertinent to this appeal, the trial court allowed Ms.

Smith to file an amended petition to attempt to more specifically state a cause of

action in tort against Circle K. Circle K’s original motion for summary judgment

to dismiss the Smith Plaintiffs’ intentional tort claim was denied, but the trial court

reserved to Circle K the right to reurge its motion for summary judgment at a later

date.

After allowing sufficient time for discovery, Circle K then re-urged its

motion for summary judgment. The record reflects that between the initial hearing

held on Circle K’s motion, the amendment of the Smith plaintiffs’ petition, and the

hearing on Circle K’s motion for summary, no discovery was initiated by the

Smith plaintiffs. At the hearing on Circle K’s motion for summary judgment, the

trial court carefully questioned the Smith Plaintiffs’ counsel in order to determine

if there was any support in the record for the claim of intentional tort against Circle

K other than the allegations contained in the Smith Plaintiffs’ petitions. Hearing

there was nothing filed in the record to controvert Circle K’s motion for summary

judgment dismissing the Smith plaintiff’s claims for intentional tort, the trial court

granted Circle K’s motion in open court.

On November 1, 2016 the trial court signed a judgment stating that, “IT IS

HEREBY ORDERED, ADJUDGED AND DECREED that defendant Circle K

2

Stores, Inc.’s Motion for Summary Judgment is hereby granted.” The Smith

Plaintiffs filed a timely appeal from the November 1, 2017 judgment of the trial

court, which was assigned to this panel. Upon review of the record on appeal, the

panel determined that the judgment lacked the proper decretal language. See

Thomas, 128 So.3d 1055. The Smith plaintiffs timely failed to reply to this court’s

April 25, 2017 order to show cause by May 10, 2017, as to why their appeal should

not be dismissed.

DISCUSSION

In Thomas, 128 So.3d at 1056, this court quoted State v. White, 05-718, p. 2

(La.App. 3 Cir. 2/1/06), 921 So.2d 1144, 1146: “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.”

While the judgment at issue states that it grants the summary judgment filed

on behalf of the defendant, Circle K, it does not indicate what relief is granted.

More specifically, the judgment does not state what claim is dismissed. In order to

determine what claim has been dismissed by summary judgment, it is necessary to

refer to Circle K’s motion for summary judgment and assume that the relief

granted by the judgment is that prayed for in motion, i.e., dismissal of the Smith

Plaintiffs’ “intentional tort claim on the grounds that plaintiff’s tort claim is barred

by the exclusive remedy provisions of the Louisiana Worker’s Compensation Act.”

“[A] judgment cannot require reference to extrinsic documents or pleadings in

order to discern the court’s ruling.” Thomas, 128 So.3d at 1056.

In the recent case of Holland v. Holland, 16-117, pp. 2-3 (La.App. 3 Cir

4/6/16), 188 So.3d 484, 485, a panel of this court stated:

3

In Brooks v. Sibille, 12-1093, 12-1094, p. 1 (La.App. 3 Cir.
1/30/13), 107 So.3d 826, 827, this court found that a judgment stating
“IT IS ORDERED, ADJUDGED AND DECREED that Defendants’
Motion for Summary Judgment is hereby granted” did not contain
sufficient decretal language. Thus “[i]n the absence of such decretal
language, the judgment . . . is defective and cannot be considered as a
‘final judgment.’” Id. at 828, quoting Gaten v. Tangipahoa Parish
Sch. System, 11-1133 (La.App. 1 Cir. 3/23/12), 91 So.3d 1073.

Thus, we dismiss the appeal of the Smith Plaintiffs for lack of decretal

language and remand this matter to the trial court for further proceedings

consistent with this ruling, including clarification of the judgment.

DECREE

For the foregoing reasons, we dismiss the appeal as having been taken from

a judgment lacking proper decretal language. The dismissal is without prejudice.

The matter is remanded to the trial court for further proceedings in accordance with

this opinion, including clarification of the judgment.

APPEAL DISMISSED. REMANDED FOR CLARIFICATION.

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

4