Amaleeta O'neal v. Foremost Insurance Company

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

18-599
consolidated with 18-510

AMALEETA O’NEAL, ET AL.

VERSUS

FOREMOST INSURANCE COMPANY, ET AL.

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 254,445
HONORABLE MONIQUE F. RAULS, DISTRICT JUDGE

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PHYLLIS M. KEATY
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and
Phyllis M. Keaty, Judges.

REVERSED AND REMANDED.

Michael L. Glass
Attorney at Law
1733 White Street
Alexandria, Louisiana 71301
(318) 484-2917
Counsel for Plaintiffs/Appellees:
Amaleeta O’Neal
Jeffery O’Neal

Daniel G. Brenner
Christina S. Slay
Bolen, Parker, Brenner, Lee & Engelsman, Ltd.
Post Office Box 11590
Alexandria, Louisiana 71315-1590
(318) 445-8236
Counsel for Defendant/Appellant:
RLN Investments, LLC

Randall B. Keiser
Matthew L. Nowlin
Keiser Law Firm, P.L.C.
Post Office Box 12358
Alexandria, Louisiana 71315-2358
(318) 443-6168
Counsel for Defendant/Appellee:
Don Van Cleef

Stacy Christopher Auzenne
Auzenne Law Firm, L.L.C.
Post Office Box 11817
Alexandria, Louisiana 71315-1817
(318) 880-0087
Counsel for Defendant/Appellee:
Messina Realty, LLC

Ashley E. Gilbert
CNA Coverage Litigation Group
One Galleria Boulevard, Suite 1502
Metairie, Louisiana 70001
(504) 841-5083
Counsel For Defendant/Appellee:
Continental Casualty Company

KEATY, Judge.

RLN Investments, LLC, appeals the trial court’s grant of a declaratory

judgment in favor of Don Van Cleef on the issue of defense and indemnity. For the

following reasons, the trial court’s judgment is reversed, and this matter is remanded

to the trial court for further proceedings.

FACTS AND PROCEDURAL HISTORY

This appeal involves the interpretation of a defense and indemnity clause in a

property management agreement. For brevity, we hereby incorporate and adopt the

facts and procedural history stated in the consolidated and companion case hereto,

O’Neal v. Foremost Insurance Co., 18-510 (La.App. 3 Cir. __/__/__), __ So.3d __.

In that case, we reversed and remanded the trial court’s grant of summary judgment

in favor of Messina Realty, L.L.C.

On appeal in this matter is the trial court’s grant of Van Cleef’s declaratory

judgment. The record herein reveals multiple judgments were rendered regarding

the trial court’s grant of Van Cleef’s declaratory judgment. Specifically, counsel for

Van Cleef filed a proposed judgment that included both RLN Investments and

Nation, individually. That judgment was signed by the trial court on February 20,

2018, and provides the following:

(1) During all times relevant to the above-referenced litigation, Don
Van Cleef was acting within the course and scope of his
employment with Messina Realty, LLC, in managing the
property located at 207 Nation Road, Deville, Louisiana;

(2) That Don Van Cleef is entitled to defense and indemnity from
RLN Investments, LLC and/or Ronald Nation pursuant to the
Property Management Agreement between RLN Investments,
LLC and Messina Realty, LLC, annexed as Exhibit “A” to this
Judgment; and

(3) That the declaratory judgment filed by Don Van Cleef against
Messina Realty, LLC is pretermitted as moot, based on the

Court’s ruling regarding indemnification and defense owed by
RLN Investments, LLC and/or Ronald Nation to Don Van Cleef.

Another proposed judgment submitted by RLN Investments’ counsel, which did not

include Nation and designated it final and appealable, was signed by the trial court

on February 23, 2018.

In light of the trial court’s signing of two conflicting judgments, RLN

Investments’ counsel filed a Motion to Vacate the February 20, 2018 judgment. The

hearing occurred on March 29, 2018, at which time the trial court, on its own motion,

moved to vacate and strike from the record the February 23, 2018 judgment.

Pursuant to the trial court’s judgment rendered on April 11, 2018, it amended the

judgment signed on February 20, 2018 to remove any reference to “‘and/or Ronald

Nation.’”

Thereafter, RLN Investments filed an Application for Supervisory Writ

seeking relief from the February 20, 2018 judgment. On May 1, 2018, this court

denied the writ application, asserting that an adequate remedy exists by appeal as a

judgment rendered on a Petition for Declaratory Judgment has the force and effect

of a final judgment. O’Neal v. Foremost Ins. Co., 18-274 (La.App. 3 Cir. 5/1/18)

(unpublished writ). RLN Investments appealed.

On appeal, RLN Investments asserts the following assignments of error:

1. Whether the Honorable Lower Court abused its discretion in
granting the Petition for Declaratory Judgment finding that Don
Van Cleef, is entitled to defense and indemnity from RLN
Investments, LLC, when the record demonstrated that Messina
Realty, LLC, and/or its agent, Don Van Cleef, breached the
Property Management Agreement between RLN Investments,
LLC, and Messina Realty, LLC, thus rendering the indemnity
clause therein void.

2. Whether the Honorable Lower Court abused its discretion in
granting the Petition for Declaratory Judgment finding that Don
Van Cleef, is entitled to defense and indemnity from RLN

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Investments, LLC, when the record demonstrated that there are
questions concerning the knowledge of Messina Realty, LLC, or
its agent, Van Cleef, about the alleged defective condition of the
tree in question and their failure to take actions upon obtaining
this knowledge, thereby, breaching the terms of the Property
Management Agreement or acting negligently in the
management of the property owned by RLN Investments, LLC.

3. Whether the indemnity clause in the Property Management
Agreement encompasses the negligence of Messina Realty, LLC,
and/or Don Van Cleef.

Van Cleef filed an Answer to Appeal on August 9, 2018, asserting the

following: “If, and only if, the original Judgment is reversed, Van Cleef respectfully

requests the Declaratory Judgment against Messina be granted and Messina be cast

as vicariously liable for any and all actions of Van Cleef, in the event Judgment is

rendered in favor of Plaintiff O’Neal.” Both Van Cleef and RLN Investments filed

appellate briefs, with Messina Realty adopting Van Cleef’s appellate brief in

connection with the instant appeal.

STANDARD OF REVIEW

In Campbell v. Evangeline Parish Police Jury, 14-1301, pp. 3-4 (La.App. 3

Cir. 5/6/15), 164 So.3d 408, 412, writ denied, 15-1067 (La. 9/11/15), 176 So.3d 1043,

this court stated the following:

[T]he function of a declaratory judgment is to establish the rights of the
parties or to express the court’s opinion on a question of law without
ordering any relief. MAPP Constr., LLC v. Amerisure Mut. Ins. Co.,
13-1074 (La.App. 1 Cir. 3/24/14), 143 So.3d 520. “Trial courts are
vested with wide discretion in deciding whether or not to grant or refuse
declaratory relief.” In re Interment of LoCicero, 05-1051, p. 4 (La.App.
4 Cir. 5/31/06), 933 So.2d 883, 886. However, where the judgment
would terminate an uncertainty or controversy which gave rise to the
proceeding, the trial court must render a declaratory judgment. Id; See
also La.Code Civ.P. art. 1876. Accordingly, the appellate court is
limited to a determination of whether the trial court abused its discretion
in its grant of or refusal to render a declaratory judgment. Id.

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DISCUSSION

For the reasons set forth in the companion and consolidated case hereto,

O’Neal v. Foremost Insurance Company, 18-510 (La.App. 3 Cir. __/__/__), __

So.3d __, the trial court’s judgment granting Van Cleef’s Petition for Declaratory

Judgment is reversed, and this matter is remanded.

DECREE

For the above reasons, the trial court’s judgment in favor Don Van Cleef is

reversed. The matter is remanded to the trial court for further proceedings.

REVERSED AND REMANDED.

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