Rebecca Deville v. Progressive Security Ins. Co.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

CA 13-474

REBECCA DEVILLE, ET AL.

VERSUS

PROGRESSIVE SECURITY INS. CO., ET AL.

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APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF ACADIA, NO. 201011273 HONORABLE GLENNON P. EVERETT, DISTRICT JUDGE

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BILLY H. EZELL

JUDGE

********** Court composed of Jimmie C. Peters, Billy H. Ezell, and J. David Painter, Judges.

APPEAL OF MARCH 14, 2013, JUDGMENT DISMISSED. APPELLANT PERMITTED TO FILE APPLICATION FOR SUPERVISORY WRITS FROM THIS JUDGMENT. APPEAL MAINTAINED AS TO JUDGMENT OF JANUARY 23, 2013.

Michael Benny Miller Jacqueline B. Manecke Miller & Miller Post Office Box 1630 Crowley, LA 70527-1630 (337) 785-9500 COUNSEL FOR PLAINTIFF/APPELLANT: Rebecca Deville

William Howard Justice Castler, Bordelon & Lawler 11550 New Astle Ave., #200 Baton Rouge, LA 70816 (225) 663-5551 COUNSEL FOR DEFENDANT/APPELLEE: Progressive Security Ins. Co.

Kenneth Deville In Proper Person 917 S. Eastern Ave. Crowley, LA 70526 (000) 000-0000 PRO SE: Kenneth Deville

Lisa Kay Floyd Broussard In Proper Person 202 N. 11th St. Kinder, LA 70648 (000) 000-0000 PRO SE: Lisa Kay Floyd Broussard

EZELL, Judge.

Upon the lodging of the record in this appeal, this court, on its own motion, issued a rule for the plaintiff-appellant, Rebecca Deville, to show cause, by brief only, why the appeal taken from the judgment signed on March 14, 2013, should not be dismissed as having been taken from a non-appealable, interlocutory order. The appellant has filed a brief in response to this court’s rule. For the reasons which follow, we dismiss the appeal from the judgment of March 14, 2013, but we maintain the appeal from the judgment of January 23, 2013.

The appellant and her husband, Kenneth Deville, filed this suit for damages arising out of an accident in which the appellant, who was a pedestrian, was struck by a vehicle allegedly being driven by the defendant-appellee, Lisa Kay Floyd Broussard. In the course of this litigation, the defendant-appellee, Progressive Security Insurance Company, filed a motion for summary judgment based on the argument that it did not insure Ms. Broussard on the day of the accident. The appellant also filed a motion for partial summary judgment, arguing that the court should declare that Progressive did insure Ms. Broussard on the day of the accident.

The hearing on Progressive’s motion was held on November 26, 2012, and the trial court orally granted the motion, stating that a written judgment would be signed upon presentation. The appellant’s motion was not heard until January 22, 2013, at which time the trial court denied the appellant’s motion in open court and stated that a written judgment would be signed upon presentation.

The trial court signed a judgment on January 23, 2013, granting Progressive’s motion and dismissing Progressive from the suit. On March 14, 2013, the trial court signed a written judgment denying the appellant’s motion for partial summary judgment. The appellant filed a motion for appeal from both the *2 January 23 judgment and the March 14 judgment on March 20, 2013, and the trial court signed the order of appeal the following day.

As stated above, upon the lodging of the record in this appeal, this court issued a rule for the appellant to show cause why her appeal of the March 14 judgment should not be dismissed as having been taken from a non-appealable, interlocutory order. In response, the appellant contends that this court should permit her appeal to go forward as to both judgments. Although the appellant admits that the judgment denying partial summary judgment does not constitute a partial judgment pursuant to La.Code Civ.P. art. 1915, appellant nevertheless cites this court to the factors set forth in R.J. Messinger, Inc. v. Rosenblum, 2004-1664 (La. 3/2/05), 894 So.2d 1113, for determining whether an immediate appeal should be authorized.

The denial of a motion for summary judgment cannot be designated as appealable pursuant to La.Code Civ.P. art. 1915(B). See Belanger v. Gabriel Chemicals, Inc., 2000-747 (La.App. 1 Cir. 5/23/01), 787 So.2d 559, writ denied, 2001-2289 (La. 11/16/01), 802 So.2d 612. Therefore, we find the holding in R.J. Messinger, Inc., 894 So.2d 1113, inapplicable to the instant case. Therefore, review of the denial of the appellant’s motion for partial summary judgment should have been sought through a timely filed application for supervisory writs.

However, we find that the appellant filed her motion for appeal of this judgment within the time delay for seeking supervisory writs. Therefore, in the interest of justice, although we dismiss the appeal of the March 14 judgment, we permit the appellant to file a writ application with this court no later than July 12, 2013, pursuant to Uniform Rules—Courts of Appeal, Rule 4. We maintain this *3 appeal of the January 23 judgment. Appellant does not have to obtain a return date from the trial court since this court has set the return date in this opinion.

APPEAL OF MARCH 14, 2013, JUDGMENT DISMISSED AND APPELLANT PERMITTED TO FILE APPLICATION FOR SUPERVISORY WRITS FROM THIS JUDGMENT. APPEAL MAINTAINED AS TO JUDGMENT OF JANUARY 23, 2013.

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