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Courville v. Allied Professionals Insurance Co.

Court of Appeals of Louisiana, First Circuit

April 12, 2017

RONALD COURVILLE AND ANGELA COURVILLE
v.
ALLIED PROFESSIONALS INSURANCE COMPANY, A RISK RETENTION GROUP, INC., RATHMANN-KEOGH CHIROPRACTIC CLINICS, L.L.C. AND THOMAS J. RATHMANN, D.C.

         APPEALED 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

          Thomas A. Gennusa, II Joseph S. Piacun Reid S. Uzee Metairie, Louisiana Attorneys for Plaintiffs/ Appellees Ronald and Angela Courville.

          Guice 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.

          McDONALD, J.

         In this 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.

         FACTUAL AND PROCEDURAL BACKGROUND

         Ronald 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.

         Later, 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.[1] 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.

         DISCUSSION

         Appealability of the April 26, 2016 Judgment

         A costs 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 appealable judgment.

         This 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.

         APIC's Motion to Tax Costs and ...


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