Opinion
CA 15-1188
03-02-2016
THOMAS NEARHOOD v. FITNESS PARTNERS OF PINEVILLE, ET AL.
Ernie Lynn Vallery Attorney at Law 526 Murray St. Alexandria, LA 71301 (318) 442-6565 COUNSEL FOR PLAINTIFF/APPELLANT: Thomas Nearhood Andrew David Weinstock Duplass, Zwain & Bourgeois 3838 N. Causeway Blvd Ste 2900 Metarie, LA 70002 (504) 832-3700 COUNSEL FOR DEFENDANT/APPELLEE: Precor, Inc. Ashley C. Wimberly Attorney at Law Post Office Box 1629 Baton Rouge, LA 70821 (255) 214-1908 COUNSEL FOR DEFENDANT/APPELLEE: Fitness Partners of Pineville
NOT DESIGNATED FOR PUBLICATION
APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 248,664
HONORABLE THOMAS MARTIN YEAGER, DISTRICT JUDGE
JOHN E. CONERY JUDGE
Court composed of, Judges Sylvia R. Cooks, Billy H. Ezell and John E. Conery.
APPEAL DISMISSED AND REMANDED.
Ernie Lynn Vallery
Attorney at Law
526 Murray St.
Alexandria, LA 71301
(318) 442-6565
COUNSEL FOR PLAINTIFF/APPELLANT:
Thomas Nearhood Andrew David Weinstock
Duplass, Zwain & Bourgeois
3838 N. Causeway Blvd Ste 2900
Metarie, LA 70002
(504) 832-3700
COUNSEL FOR DEFENDANT/APPELLEE:
Precor, Inc. Ashley C. Wimberly
Attorney at Law
Post Office Box 1629
Baton Rouge, LA 70821
(255) 214-1908
COUNSEL FOR DEFENDANT/APPELLEE:
Fitness Partners of Pineville
CONERY, Judge.
Upon the lodging of the record in the above-captioned appeal, this court issued a rule for the appellant, Thomas Nearhood, to show cause, by brief only, why the appeal should not be dismissed as having been taken from a judgment lacking proper decretal language. In addition, the appellees, Fitness Partners of Pineville, LA, and Precor Incorporated, filed separate Motions to Dismiss raising the same procedural defect. The appellant has filed his appellate brief, and in his brief responded to this court's rule by stating that the judgment does lack proper decretal language. For the reasons assigned, we dismiss the appeal at appellant's cost.
The appealed judgment reads, in pertinent part:
Considering the pleadings, memoranda, argument of counsel, law, and evidence, IT IS ORDERED, ADJUDGED AND DECREED that the Exception of Res Judicata filed by FITNESS PARTNERS OF PINEVILLE, LA is GRANTED.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Exception of Res Judicata filed by PRECOR INCORPORATED is hereby GRANTED.
This court has stated:
"A judgment that determines the merits in whole or in part is a final judgment." La.Code Civ.P. art. 1841. A judgment must be precise, definite, and certain. Kimsey [v. Nat'l Auto. Ins. Co.], [13-856 (La.App. 3 Cir. 2/12/14),] --- So.3d ----; La.Code Civ.P. art. 1918, comment (a). In order to constitute a final appealable judgment, the "judgment must contain decretal language, and it must name the party in favor of whom the ruling is ordered, the party against whom the ruling is ordered, and the relief that is granted or denied." Frank v. City of Eunice, 13-1118, p. 3 (La.App. 3 Cir. 3/5/14), 134 So.3d 222, 225. These requirements should be evident without reference to other documents in the record. Id.Goal Properties, Inc. v. Prestidge, 14-422 (La.App. 3 Cir. 11/5/14), 150 So.3d 610.
We find that the judgment in the instant case fails to meet the requirements as discussed above. The judgment does not dismiss appellant's suit. In order to know the relief the trial court was granting in maintaining the exceptions, reference must be made to other documents in the record, which is not permitted. Therefore, we hereby grant the appellees' motions to dismiss the appeal and dismiss this appeal at appellant's cost. We remand this matter to the trial court to include proper decretal language in the Judgment, and for such further proceedings as may be necessary in accordance with this court's ruling.
APPEAL DISMISSED AND REMANDED.
THIS OPINION IS NOT DESIGNATED FOR PUBLICATION.
Rule 2-16.3 Uniform Rules, Court of Appeal.