Winona Champagne and Kim Hebert v. Winmill Specialties,inc. and National Indemnity Insurance Company

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

CA 18-78

WINONA CHAMPAGNE AND KIM HEBERT

VERSUS

WINMILL SPECIALTIES, INC., ET AL.

**********

APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, NO. 127788
HONORABLE LEWIS H. PITMAN, JR., DISTRICT JUDGE

**********

ELIZABETH A. PICKETT

JUDGE

**********

Court composed of Sylvia R. Cooks, Elizabeth A. Pickett and Billy H. Ezell,
Judges.

APPEAL DISMISSED.

Cooks, J., dissents. The judgment appealed dismisses the principal action
originally filed by the Plaintiffs. Therefore, I find the judgment is immediately
appealable without designation pursuant to La.Code Civ.P. art. 1915 (A).

Kenneth Wayne Jones, Jr.
Morgan A. Druhan
NeunerPate
1001 W. Pinhook Road, Ste 200
Lafayette, LA 70503
(337) 237-7000
COUNSEL FOR DEFENDANTS/APPELLEES:
Winmill Specialties, Inc.
National Indemnity Insurance Company

Shytishia A. M. Flugence
Flugence Law Firm, LLC
620 S.E. Evangeline Thruway
Lafayette, LA 70509-0381
(337) 261-1099
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Winona Champagne
Kim Hebert

PICKETT, Judge.

Upon the lodging of the record in this appeal, this court, on its own motion,

issued a rule for the Plaintiffs-Appellants, Winona Champagne and Kim Hebert, to

show cause, by brief only, why the appeal should not be dismissed as having been

taken from a partial judgment which has not been designated final and appealable

pursuant to La.Code Civ.P. art. 1915(B). Plaintiffs have filed no response to this

court’s rule. For the reasons expressed herein, we dismiss the appeal.

Plaintiffs filed suit against the Defendants-Appellees, Winmill Specialties, Inc.,

and its insurer, National Indemnity Company, for damages allegedly caused by Mrs.

Champagne’s tripping and falling due to a bolt protruding from the pavement of a

raised sidewalk or porch in front of Defendants’ business. Defendants filed a motion

for summary judgment claiming that the subject bolt did not present an unreasonable

risk of harm. However, Plaintiffs filed a First Supplemental and Amended Petition

raising the additional claims that Defendants owed Plaintiffs damages for spoliation of

evidence and interference in a civil action in that the bolt had allegedly been removed

following Mrs. Champagne’s fall.

The trial court conducted a hearing on Defendants’ motion for summary

judgment, and on October 4, 2017, signed a written judgment which states in part, “IT

IS HEREBY ORDERED, ADJUDGED AND DECREED, Defendants’ Motion for

Summary Judgment is granted as to Plaintiffs’ claims under La. R.S. 9:2800.6.”

However, the court also wrote:

The current posture of this case presents a dilemma.
CHAMPAGNE asserts a claim for spoliation and interference in a civil
action, seemingly in part as a defense to summary judgment, but not
clearly without merit, since WINMILL denied the bolt ever existed.
However, the spoliation and interference issues are not properly before
the Court at this time.

Thus, the trial court’s judgment concludes, “IT IS FURTHER ORDERED,

ADJUDGED, AND DECREED, all costs of these proceedings are deferred to the

merits of the spoliation and interference in a civil action claims.”

Plaintiffs filed an appeal from this judgment. As noted above, this court issued

the rule sub judice for the Plaintiffs to show cause why their appeal should not be

dismissed for having been taken from a partial judgment which has not been

designated final and appealable pursuant to La.Code Civ.P. art. 1915(B).

Louisiana Code of Civil Procedure Article 1915 reads:

A. A final judgment may be rendered and signed by the court, even
though it may not grant the successful party or parties all of the relief
prayed for, or may not adjudicate all of the issues in the case, when the
court:
(1) Dismisses the suit as to less than all of the parties, defendants,
third party plaintiffs, third party defendants, or intervenors.
(2) Grants a motion for judgment on the pleadings, as provided by
Articles 965, 968, and 969.
(3) Grants a motion for summary judgment, as provided by Articles
966 through 969, but not including a summary judgment granted pursuant
to Article 966(E).
(4) Signs a judgment on either the principal or incidental demand,
when the two have been tried separately, as provided by Article 1038.
(5) Signs a judgment on the issue of liability when that issue has
been tried separately by the court, or when, in a jury trial, the issue of
liability has been tried before a jury and the issue of damages is to be tried
before a different jury.
(6) Imposes sanctions or disciplinary action pursuant to Article 191,
863, or 864 or Code of Evidence Article 510(G).
B. (1) When a court renders a partial judgment or partial summary
judgment or sustains an exception in part, as to one or more but less than
all of the claims, demands, issues, or theories against a party, whether in
an original demand, reconventional demand, cross-claim, third-party
claim, or intervention, the judgment shall not constitute a final judgment
unless it is designated as a final judgment by the court after an express
determination that there is no just reason for delay.
(2) In the absence of such a determination and designation, any
such order or decision shall not constitute a final judgment for the purpose
of an immediate appeal and may be revised at any time prior to rendition
of the judgment adjudicating all the claims and the rights and liabilities of
all the parties.
C. If an appeal is taken from any judgment rendered under the
provisions of this Article, the trial court shall retain jurisdiction to
adjudicate the remaining issues in the case.

2

In the instant case, the trial court has dismissed only one claim advanced by the

Plaintiffs against the Defendants. Since other claims remain to be resolved between

these same parties, the appealed judgment clearly falls within the provisions of

La.Code Civ.P. art. 1915(B). Since the trial court has not entered a judgment

declaring the partial judgment as final and appealable for express reasons, we hereby

dismiss this appeal, without prejudice, as premature.

APPEAL DISMISSED.

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

3