Thomas R. Denton VS Pamela Vidrine, American Deposit Insurance Company, Louisiana Sheriff's Automobile Risk Program and State Farm Mutual Automobile Insurance Company (2006CA0143R Consolidated With 2006CA0144 2006CA0144)

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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2006 CA 0143R THOMAS R DENTON VERSUS J ytVf PAMELA A VIDRINE AMERICAN DEPOSIT INSURANCE COMPANY LA SHERIFFS AUTOMOBILE RISK PROGRAM AND STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY t I CONSOLIDATED WITH r 2006 CA 0144R NO PAMELA VIDRINE VERSUS THOMAS R DENTON RANDALL ANDRE IN HIS CAPACITY WEST AS SHERIFF FOR THE PARISH OF WEST BATON ROUGE BATON ROUGE PARISH SHERIFF S OFFICE LOUISIANA SHERIFFS AUTOMOBILE RISK PROGRAM AND XYZ INSURANCE COMPANY Judgment rendered lien L li Supreme Court of Louisiana Appeal from the On Remand from the i 1 2f J7 i on 18th Judicial District Court and for the Parish of West Baton Rouge Louisiana in Trial Court No 27 225 cjw No 27 167 Honorable James J LEWIS O Best Judge ATTORNEYS FOR UNGLESBY ROBERT M MARIONNEAUX PLAINTIFF APPELLANT HARRY L SHOEMAKER III THOMAS R DENTON JOHN P CALMES JR BATON ROUGE Cr fe LA l IJ tr p ItN N A I Mk StO ReA IV BURT K CARNAHAN ATTORNEYS FOR EDWARD F RUDIGER JR DEFENDANT APPELLEE NEW ORLEANS LA STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY SUZANNE WILLOUGHBY MILLER TERRYJ BUTCHER BATON ROUGE LA BEfORE WHIPPLE PETTIGREW DOWNING HUGHES AND WELCH JJ 2 DOWNING J These consolidated injuries arising out of the returned a Farm Automobile Insurance costs and interest from accordance with the Thereafter on said motion Denton the date of jury s findings For the Denton a awarding damages totaling uninsured underinsured motorist carrier State policy limits of 50 000 00 A final judicial demand until paid was lengthy trial the jury signed by the trial judgment court on November 3 in 2004 Motion To Introduce Additional seeking to have the trial court set the interest owed to him Mr filed court plus a January 6 2005 Mr Denton s to pay its Company Evidence And To Fix Interest by State Farm damages resulting from personal Following R plaintiff Thomas Mr ordering I vehicular collision same verdict in favor of 5 285 908 00 and involve claims for cases Denton appeals from the trial court s June 27 2005 judgment denying reasons that follow we reverse and remand PROCEDURAL HISTORY This case is before previous decision of this on Mr Denton s motion us now on court we Thus concluded the trial court La Louisiana was not App 1 Cir 12 28 06 was Supreme Court without 2005 See Denton judgment 947 S 2d 850 unpublished divested of jurisdiction from supreme court vacated this court consideration on the merits s ruling earlier Denton v n So ruling and remanded the case Vidrine 2007 0566 La 6 1 07 s Vidrine a to act appeal 2006 2007 the t he district court particular motion on this v On June 1 Supreme Court granted State Farm s writ application finding In jurisdiction pretermitted the issues raised in Mr Denton we and vacated the trial court s June 27 0143 remand from the Louisiana concluding the to our court for 957 So 2d 162 DISCUSSION The Louisiana court was art 2088 Supreme Court in granting State Farm s writ ordered that the district not divested of jurisdiction from At the outset we note there is says the district court is divested of ruling on nothing jurisdiction this particular matter citing La C C P in La or the 1 ccP art 2088 that authority to hear specifically evidence in The facts of this case were fully developed in an earlier opinion of this court wherein we addressed an appeal from the judgment on the merits See Denton v Vidrine 2006 0141 La App 1 Cir 12 28 06 951 So 2d 274 writ denied 2007 0172 La 5 18 07 957 So 2d 152 3 calculating interest Moreover La ccP art 2088 specifically provides that the trial continues to have when its execution jurisdiction or over effect is not evidence to calculate interest due the right to xecute e interpreted Article 2088 In State 94 2228 court found that See Valet express containing the pp 6 7 La App jurisdiction enumerated has are unaffected Halley La C C P art 2088 interest owed trial court has appeal thus even This matter is court was language court which a trial Under the 783 La in App 2 Or 1991 or La cc P art 2088 permissible to show a at a the amount of jurisdiction in this matter the the amount of interest defendant legally wrong in ruling that evidence hereby remanded over specifically listed Evidence is permissible as to not reviewable on continuing jurisdiction if the issue is not motion to fix costs a clarify its judgment the trial over 448 449 the App 2d Or 1991 cc P art 2088 7 evidence should be to jurisdiction 663 So 2d 443 This Since the trial court is not divested of its Therefore inadmissible 1621 La Guerriero 577 So 2d 781 v Southern v court is not considered divested of jurisdiction to by the appeal motion to fix interest is similar to motion to fix costs Behalf of Harden in La C C P art 2088 is not intended to be exclusive We conclude that either under La owes on generally been interpreted to give the trial all issues that jurisdiction the Supreme Court 4 Cir 10 12 95 not reviewable on consider any issue that is motion to hear exclusive list City of Hammond 577 So 2d 155 v a set forth in the list of law is clear that the list of circumstances case provisions of the article the trial appeal a non Through Dept of Social Services Baptist Hosp court retains as Although judgment is not specifically enumerated circumstances in which the trial court retains has give effect to the judgment or suspended by the appeal on a court to the trial court for the was taking of evidence DECREE For the above and foregoing the reasons we remand this case to judicial interest due Thomas R Denton evidentiary hearing on associated with this appeal against appellee REVERSED AND REMANDED 4 the trial court for We assess an all costs THOMAS R DENTON NUMBER 2006 CA 0143R VERSUS COURT OF APPEAL PAMELA A VIDRINE AMERICAN DEPOSIT FIRST CIRCUIT INSURANCE COMPANY LA SHERIFFS AUTOMOBILE RISK PROGRAM AND STATE STATE OF LOUISIANA FARM MUTUAL AUTOMOBILE INSURANCE COMPANY CONSOLIDATED WITH NUMBER 2006 CA 0144R PAMELA VIDRINE VERSUS THOMAS R DENTON RANDALL ANDRE IN HIS CAPACITY AS SHERIFF FOR THE PARISH OF WEST BATON ROUGE WEST BATON ROUGE PARISH SHERIFF S OFFICE LOUISIANA SHERIFFS AUTOMOBILE RISK PROGRAM AND XYZ INSURANCE COMPANY BEFORE WHIPPLE PElTIGREW DOWNING HUGHES AND WELCH JJ PElTIGREW J DISSENTS AND ASSIGNS REASONS PETTIGREW J dissenting I respectfully dissent from the majority In the instant Motion To Introduce Additional Evidence And To Fix Interest court set the interest owed to him State Farm altered and time in question in it owed under an or by State According Farm case seeking to Mr changed the policy language of Mr Denton attempt to limit State Farm the insurance policy Mr s Mr Denton filed to have the trial Denton s s s motion motion policy during the liability for the amount of the Denton set forth the interest following allegations 4 originally purchased liability insurance together with UM protection in approximately 1983 from State Farm Insurance which was continuously renewed and in full force and effect on the date of the accident that is the basis of this instant dispute Denton 5 originally purchased his insurance policy and the date of the accident State Farm altered and or changed the policy language under the Supplemental Payments provisions of the insurance policy During the time period that Denton a 6 The changes to the policy attempted to limit State Farm for the amount of the interest it owed under the insurance policy s liability 7 changes policy Denton was not given required by law and did not agree to the changes in the policy When the notice as were made to the language 8 Despite demand State Farm has refused and or failed to produce the original policy together with all amendments changes and notices thereto 9 to the of this Court s judgment State Farm has Subsequent signing tendered its policy limits together with interest only on the 50 000 00 policy However the plaintiffs have consistently maintained that State Farm is obligated to pay interest in accordance with the original insurance policy making State Farm liable for the amount of its policy limits together with interest on the entire judgment as a matter of law 10 At the trial of this matter State Farm introduced the insurance into evidence in its amended form which contained numerous amendments and alterations made to the policy changes inception policy after its 11 When the policy was introduced into evidence by State Farm it it was the policy that was in effect at the time of the accident but it did not notify the plaintiff that several changes amendments and alterations had been made to the policy represented that Pursuant to La cc P Arts 1631 and 1632 the petitioner seeks to determining the introduce additional evidence which will aid the Court in extent of State Farm State Farm 1974 liability to the plaintiff opposed Mr Denton s motion arguing that pursuant to La Code Civ P art the motion was asserted the trial court which s provides as untimely motion for an divested of jurisdiction was new trial pursuant 1 Alternatively State Farm to La Code Civ P art 2088 follows jurisdiction of the trial court over all matters in the case reviewable under the appeal is divested and that of the appellate court attaches on the granting of the order of appeal and the timely filing of the appeal bond in the case of a suspensive appeal or on the granting of the order of appeal in the case of a devolutive appeal Thereafter the trial court has jurisdiction in the case only over those matters not reviewable under the appeal including the right to 1 Allow the taking of a deposition as provided in Article 1433 2 Extend the return day of the appeal as provided in Article 2125 The 1 The delay for applying days for seven the the clerk has mailed day after The delay for applying for a new applying for a new trial commences to run on legal holidays delay 1913 or the sheriff has served the notice of judgment as required by Article a new trial is set forth in Article 1974 as follows exclusive of trial shall be The 2 for 3 Make permit the making of a written narrative of the facts of the case as provided in Article 2131 4 Correct any misstatement irregularity informality or omission of the trial record as provided in Article 2132 5 Test the solvency of the surety on the appeal bond as of the date of its filing or subsequently consider objections to the form substance and sufficiency of the appeal bond and permit the curing thereof as provided in or Articles 5123 5124 and 5126 6 Grant appeal to another party 7 Execute or give effect to the judgment when its execution or effect is not suspended by the appeal 8 Enter orders permitting the deposit of sums of money within the meaning of Article 4658 of this Code 9 Impose the penalties provided by Article 2126 or dismiss the appeal when the appellant fails to timely pay the estimated costs or the difference between the estimated costs and the actual costs of the appeal an or 10 Set and tax costs and Mr Denton without s during March 2 a previous ruling and ordered the parties owed its by State Farm ruling on pursuant as its judgment motion new summary Mr was a regarding the ie trial and that the trial court a motion for was amount of interest new for reasons stated in that the motion was divested of was in jurisdiction adopting State Farm s memoranda judgment accordingly on June 27 2005 court erred in trial rather than judgment and 2 that to motion s by State Farm The court added that it proceeding February 28 2005 hearing the trial court vacated its Denton appealed arguing that the trial enforcement of its a to the Motion The trial court signed own Mr Denton in Opposition to Article 2088 on considering the argument of the parties the trial court issued untimely motion for an 2005 to file briefs May 18 2005 wherein it denied the Memoranda in fact After witness fees initially denied by the trial court was However hearing a motion expert an it did not have finding 1 incidental matter jurisdiction that his post arising out of to decide his motion clarify and enforce the November 3 2004 judgment on the merits In a jurisdiction Denton s previous decision of this to act on Mr Denton s court motion we Thus concluded the trial court we pretermitted the was without issues raised in Mr appeal and vacated the trial court s June 27 2005 judgment See Denton La lOr 12 28 06 unpublished On June 1 Vidrine 2006 0143 Louisiana Supreme Court granted State Farm s writ application finding App 3 2007 v the t he district court not divested of jurisdiction from was court remanded this case Vidrine 2007 0566 La Denton s arguments on Denton s 6 1 07 presents incidental Noting that State Mr Denton argues that over question that can Farm was found liable for judgment was 2 not or simply seeking be resolved through damages and legal to La legal v merits of Mr Code Civ Mr rule to show cause 3 not be determined Mr its seeking to Denton asserts that substantive clarify art interest as a matter of law interest owed a P by State Farm he filed the instant motion to have the trial court enforce and spends much of his brief addressing alleged changes to his policy However a legal interest could evidence introduced at trial I note that Mr Denton Denton pursuant attempting to amend the judgment through inform him of the Denton judgment denying the amount of interest owed have the trial court set the dollar amount of was the merits on I would affirm the trial court s appeal Thus the supreme Having considered the Denton contends that because the amount of from the he particular motion 957 So 2d 162 post judgment dispute an this 2 motion this on for consideration our court to In brief to this court Mr 2592 ruling change rather he judgment Mr Denton the merits of his claim that State Farm did not as previously Motion To Introduce Additional Evidence And To Fix Interest noted the trial court denied Mr procedural grounds and thus Accordingly properly before this court for review See La Code Civ P art 2164 Mr Denton also briefs the issue of the trial court s jurisdiction pursuant to Article 2088 arguing that the trial court s ruling that it lacked jurisdiction to enforce its own judgment was erroneous as a matter of law This court need not address this argument as it has been decided by the Louisiana Supreme Court See Denton v Vidrine 2007 0566 La 6 1 07 957 So 2d 162 wherein the court granted State Farm s writ application finding t he district court was not divested of jurisdiction from ruling on this particular motion 3 The use of summary proceedings is provided for in Article 2592 as follows Summary proceedings may be used for trial or disposition of the following matters only 1 An incidental question arising in the course of judicial proceedings including the never s addressed the merits of his claim on this issue is not award of and the determination of reasonableness of attorney s fees 2 An application for a new trial An issue which may be raised rule to show cause 3 4 An action against the principal the properly by an exception contradictory motion or the surety on a judicial bond after judgment has been obtained against both principal and surety when a summary proceeding against against or is principal permitted homologation of a judicial partition of a tableau of distribution or account filed by a legal representative or of a report submitted by an auditor accountant or other expert appointed by the court and an opposition to any of the foregoing 5 The to the appointment of legal representative 6 A habeas corpus a legal representative mandamus or to a petition or quo warranto proceeding rank of mortgages liens and for authority filed by a privileges on property judicially and of the order of distribution of the proceeds thereof 8 The original granting of subsequent change in or termination of custody visitation and support for a minor child support for a spouse injunctive relief support between ascendants and descendants use and occupancy of the family home or use of community movables or immovables or use of personal property 9 An action to annul a probated testament under Article 2931 10 An action to enforce the right to a written accounting provided for in R S 9 2776 11 All other matters in which the law permits summary proceedings to be used 7 The determination of the sold 4 maintains the questions surrounding the amount of legal interest should be decided through summary proceedings and involvement of this court because In to response although Mr Denton Mr would Denton attempts ancillary to the judgment appellate jurisdiction had s arguments to frame his on did not a could not or as seeking a new review of a to his twenty years of documents Noting that State Farm is asking the trial policy issue that should have been brought before the jury at the trial contends Mr seeking enforcement of the trial Denton is not judgment but trial court s rather he is Denton of the court to address a on the merits State Farm court s November 3 asking for a substantive change that new will significantly 2004 alter the judgment In Frisard 818 legal question substantive issue that showing that State Farm complied with Louisiana law in notifying Mr changes require Farm asserts that State appeal doing is raising necessarily involve witness testimony and legal questions that not attached post trial motion what he is in fact are writ denied methods for 7 La Autin 98 2637 2000 0126 La 3 17 00 a judgment v properly amending p App lOr 12 28 99 756 So 2d 1145 as this court outlined the follows Louisiana Code of Civil Procedure article 1951 allows amend 747 So 2d 813 a trial court to judgment on its own motion 1 to alter the phraseology judgment but not the substance or 2 to correct errors of calculation A judgment may be amended by the court where the amendment takes nothing from or adds nothing to the original judgment However an amendment to a judgment which adds to subtracts from or in any way affects the substance of the judgment is considered a substantive amendment Substantive amendments to judgments can be made only after a party has successfully litigated a timely application for new trial an action for nullity or a timely appeal The Louisiana Supreme Court has also recognized that on its own motion and with the consent of the parties the trial court may amend a judgment Emphasis added substantively Citations omitted a final of the None of these the App cases of Wheeler 4 Or 5 22 96 SO 2d 1363 944 La interest procedures v were Louisiana 675 So 2d 788 employed present an incidental as Rather Mr Denton cites Dept of Transp and Development 95 1700 rev d on other and American Motorist Ins Co App 5 Or 1993 in this case v grounds 96 1608 La 10 4 96 American Rent All Inc can 5 be resolved through a 679 617 So 2d support for his position that post judgment disputes question that La rule to show over cause I have reviewed these and find them to be cases factually distinguishable and clearly inapposite In American plaintiffs Thereafter the defendant into the court s from the registry of the were withdrawn inapposite American an insurance automobile accident an 617 SO 2d at 947 In American interest policy such as run after a were 617 entitled to an deposit until the date the funds dispute was no have here we American The facts of American there court costs motion to withdraw the funds ultimately concluded that plaintiffs interest continued to legal a seeking additional interest from the date of the to the facts herein provisions of whether legal plaintiffs filed court and a rule The fifth circuit additional award of damages following deposited its policy limits plus accrued interest and Two years later registry So 2d at 945 awarded were Rather are over the the terms and parties disputed into the party deposited funds completely registry of the trial court In Wheeler interest to be paid and intervenor a post judgment dispute on an reserved their specify the rights to summary excepted to proceedings at 1 675 So 2d at 789 rate of 675 So 2d at 790 overruled the interest legal rendered in favor of In its However on Plaintiffs subsequently filed legal interest pursuant to La the grounds of vagueness venue and lack of Wheeler 95 1700 at 1 2 a Civ arising in the damages course was to of judicial be original judgment the plaintiffs specifically interest Wheeler 95 rule to show Code art paid pursuant to Article 2924 On 6 which use paid pursuant judgment legal interest was an of appeal the fourth incidental Thus the court held that the proceedings 2924 why The trial court interest was to be 675 So 2d at 789 cause unauthorized procedural capacity circuit concluded that whether the trial court intended that pre the award of plaintiffs Defendant forwarded the jurisdiction exceptions and ordered that pre judgment to Article 2924 was dispute the calculation of pre judgment defendant should not pay defendant Judgment judgment legal judgment with pre judgment interest computed pursuant to La C Wheeler 95 1700 trial court did not 1700 at 3 damages the rate of pre awarding interest from the date of judicial demand checks for satisfaction of 5 R 13 5112 award of arose over on question plaintiffs rule which really was more on La Civ Code art 2592 1 before a cause us now substantive incidental an Unlike the interest change in the trial court s was judgment the case in determine the extent of State Farm s concerning Rather Mr insurance a to his State Farm As liability Contrary s to Mr Denton argument these s motion would result in State Farm change these and any amended in State Farm were not attempted s rights a of the trial court to introduce out by State employed For the above and court Farm in some not matters that can be decided Moreover Mr if successful increase in the amount of interest owed significant effect a by substantive previously discussed this substantive amendment under not be allowed as the proper procedural to obtain such relief foregoing judgment denying Thomas are new procured insurance with State judgment following therefrom would As a It is clear from policy and have the trial correctly pointed to Article 2592 particular facts and circumstances would vehicles through necessarily involve witness testimony and documentary evidence through summary proceedings pursuant Denton policy clarification Denton of which may date back to 1983 when Mr Denton first Farm be resolved completely inapposite to the facts an merely seeking not concerning alleged changes brief this would can judgment the motion filed by Mr Denton below Wheeler evidence fell under dispute in Wheeler that would not ultimately result in the record that Mr Denton as was question that I find the Wheeler facts to be to address a new substantive issue sought motion for clarification of judgment Wheeler 95 1700 at 3 675 So 2d at 790 his motion concerned rule to show a Mr Denton would have this court believe that much like the issue in Although Wheeler the order of R reasons Denton s I would affirm the trial court s June 27 2005 Motion To Introduce Additional Evidence And To Fix Interest 7

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