FROM THE NINETEENTH JUDICIAL DISTRICT COURT IN AND FOR THE
PARISH OF EAST BATON ROUGE STATE OF LOUISIANA DOCKET NUMBER
607, 202, SECTION 26 HONORABLE DONALD R. JOHNSON, JUDGE
A. Gennusa, II Joseph S. Piacun Reid S. Uzee Metairie,
Louisiana Attorneys for Plaintiffs/ Appellees Ronald and
A. Giambrone, III Bert J. Miller Metairie, Louisiana and
Michael B. Kadish Santa Monica, California Attorneys for
Defendant/ Appellant Allied Professionals Insurance Company,
A Risk Retention Group, Inc.
BEFORE: PETTIGREW, MCDONALD, AND CALLOWAY, [*] JJ.
appeal, a risk retention group challenges a judgment denying
its motion to tax costs and legal fees against plaintiffs
whose direct action claims against the group had previously
been ordered to proceed to arbitration. We convert the appeal
to an application for supervisory writs and affirm.
AND PROCEDURAL BACKGROUND
and Angela Courville filed a petition for medical malpractice
damages against Thomas J. Rathmann, D.C., a chiropractor;
Rathmann-Keogh Chiropractic Clinics, L.L.C (Clinic); as well
as a direct action against Allied Professionals Insurance
Company, A Risk Retention Group, Inc. (APIC), Dr.
Rathmann's liability insurer. APIC filed a motion to
compel arbitration and to stay the proceedings, based on its
contract with Dr. Rathmann, which required that all claims
involving APIC be resolved by binding arbitration in Orange
County, California. The trial court signed a judgment on
February 4, 2013, granting APIC's motion to compel
arbitration and staying the proceedings. The Courvilles
appealed. In our prior opinion, Courville v. Allied
Professionals Ins. Co., 13-0976 (La.App. 1 Cir. 6/5/15),
174 So.3d 659, 673, writ denied, 15-1309 (La.
10/30/15), 179 So.3d 615 (Courville I), we affirmed
the February 4 judgment insofar as it ordered arbitration of
the Courvilles' claims against APIC and ordered
arbitration between APIC, Dr. Rathmann, and/or the Clinic;
reversed the judgment insofar as it ordered arbitration
between the Courvilles, Dr. Rathmann, and/or the Clinic; and,
lifted the stay.
APIC filed a motion to tax over $62, 000 in costs and
attorney fees against the Courvilles based on APIC's
contract with Dr. Rathmann, which allowed any party forced to
seek a court order compelling arbitration to recover such
costs and fees. After a hearing, the trial court signed a
judgment on April 26, 2016, denying APIC's motion, and
APIC appealed. After the appeal was lodged, this court
issued a rule to show cause, noting that the April 26
judgment appeared to be non-appealable. Another panel of this
court referred the rule to this panel for decision, which we
now address before reaching the merits.
of the April 26, 2016 Judgment
judgment may constitute a separately appealable judgment,
when rendered after a judgment on the merits. Mack v.
Wiley, 07-2344 (La.App. 1 Cir. 5/2/08), 991 So.2d 479,
486, writ denied, 08-1181 (La. 9/19/08), 992 So.2d
932. Here, there is no judgment on the merits between the
Courvilles and APIC, because the trial court's February
4, 2013 judgment did not decide the merits but instead
ordered the parties to arbitration. The judgment did not
dismiss the Courvilles' claims against APIC. And,
although the Courville I court affirmed the February
4 judgment ordering arbitration, the Courvilles' claims
against APIC have never been dismissed. Contrast Green
Tree Financial Corp.-Alabama v. Randolph, 531 U.S. 79,
89, 121 S.Ct. 513, 521, 148 L.Ed.2d 373 (2000) (concluding
that when the district court has ordered the parties to
arbitration, and dismissed all the claims before it,
the district's court's decision is final within the
meaning of federal arbitration law and therefore appealable).
Thus, because the April 26 judgment was not rendered after a
final judgment on the merits, it is not a separately
Court has discretion, however, to convert an appeal to an
application for supervisory writs, if the appeal would have
been timely had it been filed as a writ application.
See LSA-C.C.P. art. 1914; URCA Rule 4-3;
Stelluto v. Stelluto, 05-0074 (La. 6/29/05), 914
So.2d 34, 39. In this case, the trial court signed the
judgment denying costs on April 26, 2016, and notice of the
judgment was sent the same day. APIC filed its motion for
appeal on May 20, 2016. Because the appeal was filed within
30 days of the notice, we exercise our discretion to consider
the motion for appeal as a timely-filed application for
supervisory writs under URCA Rule 4-3. We now turn to the
merits of APIC's writ application.
Motion to Tax Costs and ...