Opinion
No. W88-437.
January 23, 1989. Concurring and Dissenting in Part Opinion January 24, 1989. On Rehearing April 13, 1989. Writ Denied June 2, 1989.
APPEAL FROM NINTH JUDICIAL DISTRICT COURT, PARISH OF RAPIDES, STATE OF LOUISIANA, HONORABLE ALFRED A. MANSOUR, J.
Gist, Methvin, Hughes Munsterman, John W. Munsterman, Alexandria, for third party/defendant/applicant.
Wilson Walker, Alonzo P. Wilson, Alexandria, Provosty, Sadler Delaunay, Michael L. Glass, Albin A. Provosty, Alexandria, for defendants-respondents.
Before DOMENGEAUX, GUIDRY, FORET, KNOLL and KING, JJ.
Insured Lloyds (hereafter Lloyds), a third-party defendant, seeks supervisory relief from a judgment of the trial court which denied its motion for summary judgment, seeking a dismissal of certain third-party demands filed by Central Louisiana Electric Company, Inc. (hereafter CLECO), and Evangeline Cable Television, Inc. (hereafter Evangeline) against Lloyds on the ground of res judicata. Lloyds' motion for summary judgment was filed in response to a motion of CLECO seeking to fix its third-party demand against Lloyds for trial on the merits. We recall and deny the writ in part and we grant and make peremptory the writ in part.
The facts and the procedural disposition of this case are contained in our earlier opinion in Piper v. Central Louisiana Elec. Co., Inc., 446 So.2d 939 (La.App. 3rd Cir. 1984), and will not be repeated herein. In our earlier opinion we addressed the arguments of Perron Insurance Agency, Inc. (hereafter Perron), an intervenor, that the decision of the trial court which dismissed the third-party demands of CLECO and Evangeline against Lloyds on a motion for summary judgment was erroneous. After an exhaustive analysis of the facts and laws involved, we concluded:
Although in our earlier decision, we noted that only Perron appealed Lloyds' dismissal, upon close examination of the record it is now clear that Evangeline was also granted an appeal from that judgment on April 18, 1983.
"For the foregoing reasons, the summary judgment of the trial court dismissing Insured Lloyds from the third party demands of CLECO and Evangeline is hereby reversed and the matter is remanded for further proceedings. All costs of the motion for summary judgment and this appeal are assessed to appellee, Insured Lloyds; other costs to await final disposition."
Lloyds neither sought a rehearing nor applied to the Louisiana Supreme Court for writs of certiorari; therefore, the judgment became final and definitive.
On remand to the trial court Perron was granted summary judgment against Evangeline on May 21, 1984, and no further action was taken in this matter until August 10, 1987, when CLECO filed a motion to fix its third-party demands against Evangeline and Lloyds for trial. Lloyds countered by filing a motion for summary judgment on February 3, 1988, alleging that CLECO's and Evangeline's claims against it were foreclosed under res judicata, by reason of the fact that the earlier judgment of the trial court which sustained Lloyds' motion for summary judgment dismissing the third-party demands of CLECO and Evangeline had become final. The trial court denied Lloyds' motion and this writ ensued.
It is well settled that a judgment becomes final as to any party who does not timely appeal. Bellard v. CNA Ins. Co., 506 So.2d 1228 (La.App. 3rd Cir. 1987), writ denied, 508 So.2d 817 (La. 1987). Further, a party who neither appeals nor answers the appeal can not have the judgment modified to his advantage. Davidson v. Baker Fuel Oil Burner Co., 134 So. 108 (La.App.Orl. 1931); Broderick v. Broderick, 191 La. 492, 186 So. 5 (1939). It is clear that CLECO is now attempting to fix the same third-party demand for trial on the merits which was previously dismissed by final judgment of the trial court. Since CLECO did not timely appeal that judgment and Perron's appeal did not constitute an appeal on its behalf, we conclude that our opinion reported at 446 So.2d 939 (La.App. 3rd Cir. 1984), cannot serve to revive any rights of CLECO which were finally foreclosed by the trial court's judgment which became final and res judicata long before we rendered that opinion. However, this same result does not follow in the case of Evangeline. As indicated in our footnote, infra, Evangeline did timely appeal and that appeal was disposed of in our previous decision reported at 446 So.2d 939 (La.App. 3rd Cir. 1984). Considering this circumstance, the trial court did not err when it denied Lloyds' motion for summary judgment seeking dismissal of Evangeline on the ground of res judicata.
For the foregoing reasons, we grant and make peremptory Lloyds' writ of certiorari and order CLECO's third-party demand against it dismissed with prejudice. Lloyds' writ of certiorari is recalled and denied in so far as Lloyds seeks dismissal of Evangeline's third-party demand on the ground of res judicata. Costs in connection with this writ application are assessed one-half to CLECO and one-half to Lloyds.
WRIT RECALLED AND DENIED IN PART, AND IN PART MADE PEREMPTORY.
KING, J., concurs in part and dissents in part for written reasons assigned.
On Rehearing
In our original opinion on this appeal we determined that CLECO's demands against Lloyds were foreclosed because of the finality of the trial court's judgment dismissing its third-party demand, from which judgment CLECO took an untimely appeal which we later formally dismissed. We therefore made the writ peremptory as to CLECO and ordered CLECO's third-party demand against Lloyds dismissed with prejudice. However, because there was no formal dismissal of Evangeline's untimely appeal (Evangeline and CLECO secured an order of appeal from the trial court on the same date, April 18, 1983, although their delay for taking an appeal had lapsed on December 12, 1982), we reasoned that Evangeline's appeal was viable and was disposed of in our previous decision reported at 446 So.2d 939. We decided this issue as to Evangeline incorrectly, as Evangeline did not have a viable appeal when we considered Perron's appeal ( 446 So.2d 939), since the trial court's judgment in favor of Lloyds dismissing Evangeline's third-party demand had become final and res judicata long before Evangeline secured its order of appeal.
We conclude on the basis of Arnold v. Arnold, 217 La. 362, 46 So.2d 298 (1950), that our inadvertent failure to formally dismiss Evangeline's appeal could not serve to breathe life into an order of appeal which was absolutely null. On June 10, 1983, this court issued a rule ordering both CLECO and Evangeline to show cause on or before June 28, 1983, why their appeals should not be dismissed for untimeliness. Neither responded. We formally dismissed CLECO's appeal but through inadvertence our court failed to enter a formal dismissal of the Evangeline appeal. As previously mentioned, this inadvertent failure to perform a perfunctory act could not and did not make viable Evangeline's untimely appeal.
In Arnold, supra, our Supreme Court stated:
"Aside from the impropriety of the motion for the appeal, — since it was not made at the same term at which the judgment was rendered — the order granting it was absolutely null as the appeal was not taken within the year allowed by Article 593 of the Code of Practice. It is now firmly established that the provision in Article 593 that `No appeal will lie, * * * after a year has expired' is prohibitory; that the appellate court does not acquire jurisdiction of appeals which have not been taken and perfected by the filing of bond within the prescribed time and that it is the duty of the court to dismiss such appeals ex proprio motu. Untereiner v. Miller, 29 La. Ann. 435; Lafayette v. Farr, 162 La. 385, 110 So. 624; Mount Olive Baptist Church v. New Zion Baptist Church, 198 La. 896, 5 So.2d 144, and Dickerson v. Hudson, 201 La. 915, 10 So.2d 700." (Footnotes omitted.)
LSA-C.C.P. Art. 2087 finds its source in former Article 593, Code of Practice of 1870. The principal change made by Article 2087 is to reduce the delay allowed for taking an appeal from one year to the delays now permitted. Although Arnold was decided prior to the adoption of the Louisiana Code of Civil Procedure, we find the legal principle announced therein, i.e., an order of appeal not taken within the delay allowed is absolutely null and confers no jurisdiction, is sound, viable and should be applied in the instant case.
For these reasons, we make the writ peremptory as to Evangeline and CLECO, finding the earlier judgment of the trial court res judicata and dispositive of Evangeline's and CLECO's third-party demands against Lloyds. Evangeline and CLECO are assessed for all costs of this writ application.
WRIT GRANTED AND MADE PEREMPTORY.
KING, J., dissents for the same reasons set forth in his opposing the granting of the supervisory writ in favor of Insured Lloyds and against Central Louisiana Electric Co., Inc. This Court should not grant a Motion For Summary Judgment, by supervisory writ dismissing the third party demands of CLECO and Evangeline against Insured Lloyds because there exists a genuine issue as to material fact and there exists a question of law.
I concur with the decision of the majority affirming the judgment of the trial court denying Insured Lloyds' (hereinafter Lloyds) motion for summary judgment seeking dismissal of the third party demand brought against it by Evangeline Cable Television, Inc. (hereinafter Evangeline).
I dissent from the decision of the majority which reverses the judgment of the trial court and now grants Lloyds' motion for summary judgment and orders dismissal of the third party demand brought against it by Central Louisiana Electric Company (hereinafter Cleco). I believe that the trial judge was correct in denying the motion for summary judgment because there exists both a genuine issue of fact and law.
La.C.C.P. Article 2082 states that: "Appeal is the exercise of the right of a party to have a judgment of a trial court revised, modified, set aside, or reversed by an appellate court." In addition, La.C.C.P. Article 2086 provides that a person who is not even a party but "who could have intervened in the trial court may appeal, whether or not any other appeal has been taken." Thus, Louisiana law clearly contemplates no necessity that a person have a judgment rendered directly against him in order to appeal. Andrade v. Shiers, 516 So.2d 1192 (La.App. 2 Cir. 1987). A person who could have intervened in the trial court may appeal whether or not any other appeal has been taken. Thus an intervenor, and a party to the suit, was permitted to appeal a judgment dismissing plaintiff's suit even though plaintiff did not appeal. Neely v. Hollywood Marine, Inc., 530 So.2d 1116 (La. 1988). A third party defendant, and a party to the suit, was permitted to appeal a summary judgment dismissing another third party defendant even though the third party plaintiffs did not appeal. Bradley v. Central Louisiana Elec. Co., Inc., 437 So.2d 999 (La.App. 3 Cir. 1983). A creditor, not a party to the suit, has been permitted to appeal a decision adverse to its debtor even though no other party appealed. Pennison v. Pennison, 250 La. 303, 195 So.2d 276 (1967). An assignor, not a party to the suit, has been permitted to appeal a judgment in favor of the assignee even though no other party appealed. Mutual Life Insurance Company v. Houchins, 52 La.Ann. 1137, 27 So. 657 (1899). A property owner-lessor, not a party to the suit, has been permitted to appeal a default judgment rendered against its lessee even through no other party appealed. Roman v. Zupparado, 407 So.2d 65 (La.App. 4 Cir. 1981). Louisiana jurisprudence is consistent in holding that where a party is "aggrieved" by a judgment he has a right to appeal and that this rule applies even where the party appealing "may be" aggrieved and does not have any direct pecuniary interest in the judgment appealed from. Bossier Bank Trust Co. v. Fryar, 488 So.2d 428 (La.App. 3 Cir. 1986); Andrade v. Shiers, supra; Brock v. Tidewater Construction Company, 318 So.2d 100 (La.App. 3 Cir. 1975) and cases cited therein.
Perron clearly had the right to appeal the judgment rendered in favor of Lloyds and against Cleco and Evangeline. We so ruled. Piper v. Central Louisiana Elec. Co., Inc. 437 So.2d 997 (La.App. 3 Cir. 1983). Evangeline also clearly had the right to appeal the judgment adverse to it We so ruled. Piper, supra.
The failure of an appellee to also appeal an adverse judgment when another party appeals or to answer the appeal of the adverse judgment by another party does not procedurally bar an appellate court from considering the judgment appealed from and reversing it. Bond v. Commercial Union Assur. Co., 407 So.2d 401 (La. 1981); Succession of Markham, 180 La. 211, 156 So. 225 (1934); Bradley v. Central Louisiana Elec. Co., Inc., supra; State v. Placid Oil Company, 274 So.2d 402 (La.App. 1 Cir. 1972). See e.g. Neely v. Hollywood Marine, Inc., supra; Pennison v. Pennison, supra; Mutual Life Insurance Co. v. Houchins, supra; Roman v. Zupparado, supra; and Brock v. Tidewater Construction Company, supra.
It is thus clear that the appeal of Perron, as an interested party, and the appeal of Evangeline, as an aggrieved party, from the summary judgment in favor of Lloyds and against Cleco and Evangeline constituted an appeal of the original summary judgment in favor of Lloyds which was adverse to Evangeline and Cleco. On the appeal this court reversed the summary judgment of the trial court dismissing Lloyds from the third party demands of Cleco and Evangeline and remanded the matter to the trial court for further proceedings. See Piper v. Central Louisiana Elec. Co., Inc., 446 So.2d 939 (La.App. 3 Cir. 1984), and Bradley v. Central Louisiana Elec. Co., Inc., 437 So.2d 999 (La.App. 3 Cir. 1983), where our judgment states:
"For the above and foregoing reasons the summary judgment of the trial court dismissing Insured Lloyds from the third party demands of CLECO and Evangeline is hereby reversed and the matter is remanded for further proceedings. . . ."
Certainly, in view of the jurisprudence cited above, and in view of the clear wording of our judgment on appeal in Piper, supra, there is a genuine issue of fact as to whether the judgment of this court, rendered on Perron's and Evangeline's appeal, was only a reversal as to Perron and Evangeline or was also a reversal to Cleco. Such a question of fact should preclude the granting of a Motion for Summary Judgment.
Lloyds neither sought a rehearing nor applied to the Louisiana Supreme Court for writs of certiorari, therefore, the judgment of this court in Piper, supra became final and definitive.
In Scherer v. Chaisson, 508 So.2d 596, 597 (La.App. 3 Cir. 1987), writ den., 512 So.2d 1183 (La. 1987), we stated:
"Within thirty days of the mailing of notice of rendition of judgment by the Court of Appeal, a party may either apply to the Court of Appeal for a rehearing or apply to the Supreme Court for certiorari. If no application is filed in either court, the judgment of Court of Appeal becomes final and definitive and acquires the authority of the thing adjudged. LSA-C.C.P. Art. 2166. Once the judgment of the Court of Appeal acquires the authority of the thing adjudged, the Court of Appeal loses the power and authority to reverse or modify that judgment. Wheat, Inc. v. Carruthers, 439 So.2d 1065 (La. 1983)."
The judgment of our court which reversed the summary judgment of Lloyds against the third party demands of Cleco and Evangeline is final and definitive and we are now powerless to review that judgment. Scherer, supra; Wheat, supra.
Certainly for this reason, there is also a genuine question of law as to whether or not the judgment of this court reversing the summary judgment in favor of Lloyds and against Cleco, even if incorrect, is final and definitive and should, as a matter of law, preclude the granting of a Motion for Summary Judgment.
Whether or not the original summary judgment granted in favor of Lloyds was reversed and set aside by the judgment of this court in Piper, supra, as to Cleco, on the appeal of Evangeline and Perron, certainly presents questions of both fact and law which should preclude the granting of a summary judgment as the majority has done.
For these reasons I believe the majority is incorrect in reversing the decision of the trial judge and granting a Motion for Summary Judgment dismissing the third party demand of Cleco against Lloyds.