Opinion
NUMBER 2014 CA 1378
04-24-2015
LOUISIANA WORKERS' COMPENSATION CORPORATION v. BRENDA SIMS D/B/A FINAL TOUCH CLEANING SERVICE
Paul-Michael Fryday Chad S. Berry Baton Rouge, LA Counsel for Plaintiff/Appellee, Louisiana Workers' Compensation Corporation Dele A. Adebamiji Felicia E. Adebamiji Baton Rouge, LA Counsel for Defendant/Appellant, Brenda Sims d/b/a Final Touch Cleaning Service
NOT DESIGNATED FOR PUBLICATION Appealed from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge, Louisiana
Docket Number C589336
Honorable R. Michael Caldwell, Judge Presiding Paul-Michael Fryday
Chad S. Berry
Baton Rouge, LA
Counsel for Plaintiff/Appellee,
Louisiana Workers' Compensation
Corporation
Dele A. Adebamiji
Felicia E. Adebamiji
Baton Rouge, LA
Counsel for Defendant/Appellant,
Brenda Sims d/b/a Final Touch Cleaning
Service
BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ. WHIPPLE, C.J.
This matter is before us on appeal by defendant, Brenda Sims, d/b/a Final Touch Cleaning Service, from the trial court's grant of summary judgment in favor of plaintiff, Louisiana Workers' Compensation Corporation. For the following reasons, we dismiss the appeal and remand this matter to the trial court.
FACTUAL AND PROCEDURAL BACKGROUND
Louisiana Workers' Compensation Corporation ("LWCC") provided a policy of workers' compensation insurance to Brenda Sims, d/b/a Final Touch Cleaning Service ("Final Touch"), through a purported "Continuous Annual Policy" bearing policy number 123450, effective March 20, 2007, and endorsement LWCC38B, which provides for late fees and attorney's fees, effective January 15, 2008. On April 8, 2010, LWCC filed a petition seeking to recover from Final Touch unpaid premiums and late fees in the amount of $86,722.41, as well as attorney's fees, legal interest, and costs, in accordance with the terms of the policy and endorsement.
In response, Final Touch filed an answer and reconventional demand, asserting affirmative defenses and averring that LWCC overcharged Final Touch for the premium payment, that LWCC's practices were contrary to the Fair Credit Act and other related laws, and that LWCC's "accounting style" was faulty. Final Touch further alleged that its reputation and credit reports have been damaged as a result of LWCC's actions and that it was forced to retain counsel to defend this matter. Accordingly, Final Touch sought compensation for damages it sustained, costs, and other "equitable remedies."
LWCC then filed a motion for summary judgment on its main demand, contending that it was entitled to judgment as a matter of law where Final Touch received the benefit of workers' compensation insurance from LWCC, but failed to either pay the premium owed for the subcontractors and/or employees it employed, or to provide Certificates of Insurance showing that these subcontractors and/or employees were covered by their own workers' compensation insurance as required under the terms of the policy. LWCC contended that Final Touch is liable to LWCC for the premium due for these subcontractors and/or employees, as LWCC would be liable for any workers' compensation claims made by the uninsured subcontractors and/or employees employed by Final Touch during the policy period.
Final Touch opposed the motion for summary judgment, denying that it owed the amount sought and contending that at no time did it have more than seventy individuals employed. Final Touch further denied that it ever hired any subcontractors or other independent contractors that were not accounted for during the period of coverage.
Following a hearing on November 25, 2013, the trial court issued oral reasons granting LWCC's motion for summary judgment. A judgment in favor of LWCC and against Final Touch in the amount of $86,722.41 together with legal interest, attorney's fees in the amount of 25%, and costs was signed by the trial court on December 18, 2013. Final Touch now appeals, contending that the trial court erred in granting LWCC's motion for summary judgment as a matter of law. For the reasons that follow, we dismiss the appeal.
DISCUSSION
Appellate courts have the duty to examine subject matter jurisdiction sua sponte, even when the parties do not raise the issue. Rush v. Rush, 2012-1502 (La. App. 1st Cir. 3/25/13), 115 So. 3d 508, 510, writ denied, 2013-0911 (La. 5/31/13), 118 So. 3d 398. The appellate jurisdiction of this court extends to "final judgments." While a final judgment is appealable, an interlocutory judgment is appealable only when expressly provided by law. LSA-C.C.P. art. 2083. A final judgment is one that determines the merits, in whole or in part, while an interlocutory judgment is one that does not determine the merits but only preliminary matters in the course of the action. LSA-C.C.P. art. 1841.
A judgment that only partially determines the merits of the action is a partial final judgment, and therefore appealable only if authorized by LSA-C.C.P. art. 1915. Rhodes v. Lewis, 2001-1989 (La. 5/14/021 817 So. 2d 64. 66. Paragraph A of Article 1915 sets forth six circumstances under which a trial court may render a partial final judgment (that is immediately appealable).
Louisiana Code of Civil Procedure article 1915(A) provides as follows:
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).
In the instant case, the record reflects that on November 25, 2013, "[t]his matter came before the Court . . . on Hearing of Motion for Summary Judgment filed by Plaintiff, [LWCC]," the trial court granted LWCC's motion for summary judgment and judgment was rendered in favor of LWCC. However, there is no indication in the record that Final Touch's reconventional demand against LWCC was addressed or considered by the trial court. In its oral reasons, the trial court specifically stated that it was ruling "on a motion for summary judgment," and the reasons contain no mention of Final Touch's reconventional demand. While silence in a judgment is deemed to be a rejection of the claim, see Williams v. Dohm, 2014-0102 (La. App. 1st Cir. 10/14/14), 153 So. 3d 542, 549, this principle does not apply where the issue or claim was not then before the court for its consideration. Here, the judgment is completely silent as to the reconventional demand, which, considering the minute entry regarding the hearing and the trial court's oral reasons, is consistent with the trial court's statement that it was ruling on the plaintiff's motion for summary judgment. Because the merits of the claims asserted in the reconventional demand have not been joined or heard by the trial court, it still remains a viable action. See Costello v. Hardy, 2001-583 (La. App. 5th Cir. 1/15/02), 807 So. 2d 950, 952 and City of New Orleans v. Howenstine, 98-2157 (La. App. 4th Cir. 5/5/99), 737 So. 2d 197, 198-199.
We note that while the record on appeal contains a transcript of the trial court's oral reasons for ruling on the motion for summary judgment, the record does not contain a transcript of the hearing on the motion for summary judgment.
Although LSA-C.C.P. art. 1915(A) sets forth certain circumstances where a trial court may render a partial final judgment, we find none of those circumstances applicable herein. While Article 1915(A)(4) provides that a final judgment may be rendered and signed by the court when the court signs a judgment on either the principal or incidental demand when the two have been tried separately, as provided by Article 1038, there is nothing to show that a separate trial on any incidental action occurred herein. Moreover, Article 1915(A)(3) provides that while a final judgment may be rendered and signed by the court when the court grants a motion for summary judgment as provided by Articles 966 through 969, such final judgments do not include summary judgments granted pursuant to Article 966(E). While LSA-C.C.P. art. 966(E) provides that "[a] summary judgment may be rendered dispositive of a particular issue, theory of recovery, cause of action, or defense, in favor of one or more parties, even though the granting of the summary judgment does not dispose of the entire case as to that party or parties," statutorily, such a judgment does not constitute a "final judgment" otherwise subject to immediate appeal. See LSA-C.C.P. art. 1915(A)(3).
Louisiana Code of Civil Procedure article 1038 provides as follows:
The court may order the separate trial of the principal and incidental actions, either on exceptions or on the merits; and after adjudicating the action first tried, shall retain jurisdiction for the adjudication of the other.
When the principal and incidental actions are tried separately, the court may render and sign separate judgments thereon. When in the interests of justice, the court may withhold the signing of the judgment on the action first tried until the signing of the judgment on the other.
In the instant matter, the summary judgment granted clearly does not dispose of the entire case as to the parties. While such summary judgments may be rendered by a court pursuant to LSA-C.C.P. art. 966(E), the judgment is not a final judgment pursuant to LSA-C.C.P. art. 1915(A)(3). A summary judgment rendered pursuant to LSA-C.C.P. art. 966(E) does not fall under LSA-C.C.P. art. 1915(A), but is instead governed by LSA-C.C.P. art. 1915(B). See Carlo Pitta, Inc. v. J. Caldarera & Company, Inc., 2014-116 (La. App. 5th Cir. 4/9/14), 140 So. 3d 173, see also LSA-C.C.P. art. 1911(B).
At the time the trial court signed the December 18, 2013 judgment herein, the current versions of Section (E) of LSA-C.C.P. art. 966 and Section (B) of LSA-C.C.P. art. 1915, as amended by Acts 2013, No. 391, §1, approved on June 18, 2013, and effective on August 1, 2013, applied.
Louisiana Code of Civil Procedure article 1911(B) provides, in part, that "[n]o appeal may be taken from a partial final judgment under Article 1915(B) until the judgment has been designated a final judgment under Article 1915(B). An appeal may be taken from a final judgment under Article 1915(A) without the judgment being so designated."
Louisiana Code of Civil Procedure article 1915(B) provides:
(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.
The judgment granting plaintiff's motion for summary judgment on the main demand falls under LSA-C.C.P. art. 1915(B) in that it is a partial summary judgment not immediately appealable to this court where, as here, the defendant's reconventional demand remains viable. The judgment herein is a partial summary judgment, which decides only the main demand. The judgment did not dismiss either party from the litigation and is not designated as a final judgment for purposes of immediate appeal. Since the reconventional demand is still pending in the trial court, this court lacks jurisdiction to consider the appeal of the partial summary judgment. Costello v. Hardy, 807 So. 2d at 952.
Additionally, we decline to convert this matter to an application for supervisory writs, as the granting of the writ application will not terminate the litigation at this time and the parties have an adequate remedy by review on appeal after a final judgment is rendered. See Crown Oilfield Services, Inc. v. Louisiana Oilfield Contractors Association Insurance Fund, 2013-0394, p. 4 (La. App. 1st Cir. 2/19/14)(unpublished opinion).
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Accordingly, we dismiss the appeal for lack of jurisdiction.
CONCLUSION
For the above and foregoing reasons, the appeal of the December 18, 2013 judgment of the trial court is hereby dismissed and this matter is remanded to the trial court for further proceedings. Costs of this appeal are assessed to the appellant, Brenda Sims, d/b/a Final Touch Cleaning Service.
APPEAL DISMISSED. McCLENDON, J., concurs.
While it would appear that by granting LWCC's motion for summary judgment the trial court implicitly denied the claims made by Final Touch in its reconventional demand, the reconventional demand was not before the trial court at the hearing on LWCC's motion. Nor was there any cross motion for summary judgment filed by Final Touch. Therefore, finding the majority's decision to be procedurally correct, I concur with same.