APPEALED FROM THE NINETEENTH JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF EAST BATON ROUGE, STATE OF LOUISIANA. DOCKET NUMBER C583650, DIVISION 25. HONORABLE WILSON E. FIELDS, JUDGE.
Michael C. Palmintier, Jonathan E. Mitchell, Baton Rouge, Louisiana, Attorneys for Plaintiff/Appellee, Dana Annette Bolton.
Richard T. Reed, Myron A. Walker, Jr., Baton Rouge, Louisiana, Attorneys for Defendants/Appellants, Farmers Texas County Mutual Insurance Company and Farmers Insurance Exchange.
BEFORE: PETTIGREW, McDONALD, AND McCLENDON, JJ.
[2013 1563 La.App. 1 Cir. 2]
This is an appeal of a district court's granting of a motion for partial summary judgment. The matter is before us as an appeal and also as a supervisory writ. For the following reasons, we dismiss the appeal, grant the writ, reverse the judgment, and remand the matter.
An automobile accident occurring on October 22, 2008, precipitated this law suit. Dana Annette Bolton's vehicle collided with Kenneth James Mackenzie's vehicle on St. Louis Street in downtown Baton Rouge, Louisiana. At the time of the accident, Mr. Mackenzie was insured by defendant, Farmers Texas County Mutual Insurance Company and Farmers Insurance Exchange (Farmers). Ms. Bolton filed suit against Farmers and Mr. Mackenzie on October 19, 2009, alleging that Mr. Mackenzie failed to yield the right-of-way to Ms. Bolton's vehicle and negligently entered her lane of travel. She alleged that she suffered injuries, damages, and losses as a result of the collision. As the matter proceeded, Farmers filed a motion to have Mr. Mackenzie dismissed, which the court granted.
On August 5, 2013, Ms. Bolton filed a motion for partial summary judgment alleging that, based on the depositions of Ms. Bolton, Mr. Mackenzie, and Corporal Mark Weber, the police officer who investigated the accident, she was entitled to judgment as a matter of law on the issues of duty and breach of duty. According to Ms. Bolton, she was in the left lane of a one-way street comprised of two lanes. Construction was in progress, requiring traffic in the right lane to merge into the left lane. Mr. Mackenzie was in the right lane and in attempting to merge, he hit Ms. Bolton's car. He acknowledged hearing Ms. Bolton honk her horn but " didn't think anything of it."
[2013 1563 La.App. 1 Cir. 3] Ms. Bolton's motion for partial summary judgment came for hearing on September 3, 2013. After hearing arguments, the trial court granted the motion in open court. Farmers notified the trial court of its intent to seek supervisory review of the judgment and requested a continuance of the September 16, 2013 trial date on this basis. After initially denying the request for a continuance, the trial court granted a joint motion for continuance that was filed on September 5, 2013. The writ application was filed on September 10, 2013, the same day the trial court signed the judgment granting Ms. Bolton's motion for partial summary judgment and designating the judgment as a final judgment pursuant to La. C.C.P. art. 1915B. A panel of this court reviewed the writ application and ordered that the " writ be referred to the same panel that is assigned the yet to be lodged appeal." Dana Annette Bolton v. Farmers Texas County Mutual Insurance Company and Farmers Insurance Exchange, 2013 CW 1563 (La.App. 1 Cir. 11/18/13) (unpublished writ action). The motion for appeal was made on October 8, 2013, and the record was lodged with this court on December 20, 2013.
The judgment by the trial court reads, in pertinent part, as follows:
IT IS ORDERED, ADJUDGED AND DECREED that plaintiff's Motion for Partial Summary Judgment be and it is hereby GRANTED on the ...