SHANTELL RUDOLF AND DEBRA BILLIOT VERSUS NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA LEMOINE INDUSTRIAL GROUP, LLC ADVANTAGE HUMAN RESOURCING, INC.D/B/A ADVANTAGE STAFFING AND LABORN WELLS
Annotate this Case
Download PDF
BENJAMIN J. MATHERNE AND HIS WIFE ANDREA MATHERNE NO. 14-CA-572 CIW 14-CA-573 VERSUS FIFTH CIRCUIT LEMOINE INDUSTRIAL GROUP, LLC AND LABORN WELLS COURT OF APPEAL STATE OF LOUISIANA C/W SHANTELL RUDOLF AND DEBRA BILLIOT VERSUS LEMOINE INDUSTRIAL GROUP, LLC AND LABORN WELLS ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 705-726 C/W 705-785, DIVISION "L" HONORABLE DONALD A. ROWAN, JR., JUDGE PRESIDING COURT OF APPEAL FIFTH cn«: U IT October 15,2014 FILED FREDERICKA ROMBERG WICKER OCT 1 52014 ~k~CLERK Cheryl Quirk La ndrlo u JUDGE Panel composed of Judges Fredericka Homberg Wicker, Marc E. Johnson, and Robert A. Chaisson ALAN J. YACOUBIAN NEAL J. FAVRET CYRIL G. LOWE, JR. ATTORNEYS AT LAW 701 Poydras Street Suite 4700 New Orleans, Louisiana 70139 COUNSEL FOR DEFENDANT/APPELLANT APPEAL DISMISSED j-~ 'I& ;-c9 \ Appellants appeal the trial court's granting of summary judgment in favor of a co-defendant on the issue of defense and indemnity. For the following reasons, we find this Court lacks appellate jurisdiction as the judgment appealed is not a final, appealable judgment. Accordingly, we dismiss this appeal and remand this matter to the trial court for further proceedings. FACTUAL AND PROCEDURAL BACKGROUND This litigation arises out of a September 23, 2010 rear-end accident involving three "UTV" or golf cart buggies. On August 31, 2011, plaintiffs, Benjamin and Andrea Matherne, instituted an action against Lemoine Industrial Group, LLC ("Lemoine Group") and defendant-driver, Mr. Labom Wells, for damages arising out of the accident, claiming that Mr. Wells was at fault and in the -2 course and scope of his employment with Lemoine Group at the time of the accident.' On January 4, 2012, plaintiffs amended their petition to name Advantage Human Resourcing, Inc. d/b/a Advantage Staffing. Plaintiffs claimed that, at the time of the accident, Mr. Wells was employed by both Lemoine Group and Advantage Staffing and, thus, that both are vicariously liable for plaintiffs' mjunes, Advantage Staffing answered plaintiffs' petition and also filed a cross-claim against Lemoine Group, asserting that Lemoine Group had a duty to defend and indemnify Advantage Staffing and Mr. Wells against plaintiffs' claims pursuant to contractual agreements (the "Temporary Staffing Agreement" and "Vehicle or Machinery Operator Release") executed between the parties and in effect at the time of the accident at issue. On July 1,2013, Lemoine Group filed a motion for summary judgment with respect to the issue of defense and indemnity raised in Advantage Staffing's and Mr. Wells' cross-claim. Thereafter, Advantage Staffing and Mr. Wells also filed a motion for summary judgment, seeking a ruling that Lemoine Group in fact owed a duty to defend and indemnify them against plaintiffs' claims. On May 15, 2014, the trial court denied Advantage Staffing's motion for summary judgment and granted summary judgment in favor of Lemoine Group, finding that Lemoine Group does not owe Advantage Staffing a duty to defend and indemnify against the claims at issue in this matter. Defendants, Advantage Staffing and Mr. Wells, filed a notice of intent to apply for supervisory writs to this Court, seeking review of the trial court's May 15,2014 judgment. On June 3, 2014, Advantage Staffing and Mr. Wells also filed I In September of2011, the trial court consolidated this matter with another matter in the Twenty-Fourth Judicial District Court arising out of the same accident, Shantell Rudolph and Debra Billiot v. Lemoine Industrial Group, LLC and Laborn Wells, case no. 705-785. -3 a Motion for Devolutive Appeal, seeking to appeal the trial court's May 15,2014 judgment. On June 11, 2014 the trial judge granted defendants' motion for devolutive appeal. In their brief to this Court, defendants, Advantage Staffing and Mr. Wells, assert that the trial court designated the May 15,2014 judgment as final pursuant to La. C.C.P. art. 1915(B) on August 5, 2014, and, thus, claim that appellate jurisdiction is proper. DISCUSSION The judgment at issue in this case is a partial judgment because it disposes only of the issue of defense and indemnity but does not address the issue of plaintiffs' damages. A partial judgment may be a final judgment even if it does not grant the successful party all of the relief prayed for or adjudicate all of the issues in the case. La. C.C.P. art. 1915(A). La. C.C.P. art. 1915(A) lists partial judgments that are final. That list includes a trial court grant of "a motion for summary judgment, as provided by [Louisiana Code of Civil Procedure] Articles 966 through 969, but not including a summary judgment granted pursuant to [Louisiana Code of Civil Procedure] Article 966(£)." La. C.C.P. art. 1915(A)(3). La. C.C.P. art. 966(£) provides for the grant of summary judgments in favor of anyone or more of the parties to the litigation that are "dispositive of a particular issue, theory of recovery, cause of action, or defense" even if the grant of "the summary judgment does not dispose of the entire case." Nevertheless, even if a partial summary judgment does not qualify as a final judgment under La. C.C.P. art. 1915(A)(3), it may still constitute a final judgment for the purpose of an immediate appeal if it is designated as a final judgment by the trial court after an express determination that there is no just reason for delay. La. C.C.P. art. 1915(B)(1). However, in the absence of such a designation, such a -4 judgment "shall not constitute a final judgment for the purpose of an immediate appeal." La. C.C.P. art. 1915(B)(2); see also Pontchartrain Tavern, Inc. v. Johnson, 07-115 (La. App. 5 Cir. 8/28/07),966 So.2d 1062,1063-64. The partial summary judgment at issue in this case does not dispose of the entire litigation, but only resolves the issue of defense and indemnity between co defendants. Therefore, it is not a partial final judgment as contemplated by La. C.C.P. art. 1915(A).2 However, even if a judgment does not dispose of all matters at issue in a litigation, the trial court may designate a partial judgment final pursuant to La. C.C.P. art. 1915(B).3 In their appellate brief, defendants, Advantage Staffing and Mr. Wells, assert that on August 5,2014, the trial court did in fact designate the May 15,2014 judgment at issue a final, appealable judgment pursuant to La. C.C.P. art. 1915(B). However, the appellate record does not contain the August 5,2014 judgment designating the May 15,2014 judgment as final pursuant to La. C.C.P. art. 1915(B). Because defendants-appellants herein failed to supplement the appellate La. C.C.P. art. 1915(A) provides: 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: (I) 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 51O(G). 3 La. C.C.P. art. 1915(B) provides: (I) 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. 2 -5 record to include the August 5, 2014 judgment, it cannot be considered by this Accordingly, the record before us reflects that the judgment appealed is not a final, appealable judgment and, thus, this Court lacks appellate jurisdiction to consider the merits of defendants' appeal. Furthermore, we additionally point out that this Court has previously considered, on a de novo review, the May 15,2014 judgment at issue in this appeal. On July 16,2014, this Court considered defendant's writ application and, in denying defendants' writ, stated: "[a]fter a de novo review of the writ application and attachments, we find the trial court did not err in its rulings on the cross-motions for summary judgment." We, therefore, dismiss this appeal and remand this matter to the trial court for further proceedings. APPEAL DISMISSED 4 Defendant's appellate brief further lists the August 5, 2014 judgment as an exhibit attached to their brief; however, the exhibit was not actually attached to their brief. Nonetheless, an appellate court cannot consider documents attached to briefs that have not been formally introduced into evidence or made part of the appellate record. Boes Iron Works, Inc. v. Travelers Cas. & Sur. Co. ofAm., 05-782 (La. App. 5 CiT. 3/28/06),927 So.2d 553, 556. -6 SUSAN M. CHEHARDY CHERYL Q. LANDRIEU CHIEF JUDGE CLERK OF COURT MARY E. LEGNON FREDERICKA H. WICKER JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON ROBERT M. MURPHY STEPHEN J. WINDHORST HANS J. UUEBERG CHIEF DEPUTY CLERK SUSAN BUCHHOLZ FIRST DEPUTY CLERK FIFTH CIRCUIT MEUSSA C. LEDET 101 DERBIGNY STREET (70053) JUDGES DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400 (504) 376-1498 FAX www.fifthcircuit.org NOTICE OF JUDGMENT AND CERTIFICATE QF DELIVERY I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED IN ACCORDANCE WITH Uniform Rules - Court of Appeal, Rule 2-20 THIS DAY OCTOBER 15.2014 TO THE TRIAL ruDGE, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW: 0~ \} cEJCQ:C'ANDRIEU CLERK OF COURT 14-CA-572 CIW 14-CA-573 E-NOTIFIED NO ATTORNEYS WERE ENOTIFIED MAILED CHRISTOPHER M. SMITH ATTORNEY AT LAW POST OFFICE BOX 1004 KENNER, LA 70063 DONALD F. DEBOISBLANC, JR. DONALD F. DEBOISBLANC ATTORNEY AT LAW 410 SOUTH RAMPART STREET NEW ORLEANS, LA 70112 JENNIFER L. SIMMONS RICHARD E. KING ATTORNEY AT LAW 701 POYDRAS STREET ONE SHELL SQUARE, SUITE 4040 NEW ORLEANS, LA 70139 TERRENCEJ.LESTELLE ANDREA S. LESTELLE RICHARD M. MORGAIN ATTORNEY AT LAW 3421 NORTH CAUSEWAY BOULEYARD SUITE 602 METAIRIE, LA 70002 LISA M. AFRICK ALEX P. ROTHENBERG ATTORNEY AT LAW 650 POYDRAS STREET SUITE 2200 NEW ORLEANS, LA 70130 ALAN J. YACOUBIAN NEAL J. FAYRET CYRIL G. LOWE, JR. ATTORNEY AT LAW 701 POYDRAS STREET SUITE 4700 NEW ORLEANS, LA 70139
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
