APPEAL FROM THE TWENTY-NINTH JUDICIAL DISTRICT COURT PARISH
OF ST. CHARLES, STATE OF LOUISIANA NO. 79, 10, DIVISION
"C" HONORABLE EMILE R. ST. PIERRE, JUDGE PRESIDING
COUNSEL FOR DEFENDANT/APPELLANT, LOUISIANA PIZZA GROUP, INC.
D/B/A PAPA JOHN'S PIZZA Kirk A. Patrick, III Blake A.
Altazan Grant T. Herrin Matthew A. Rogers
COUNSEL FOR DEFENDANT/APPELLEE, THE GRAY INSURANCE COMPANY,
COMMAND CONSTRUCTION INDUSTRIES, LLC AND PATRICK JACKSON
Robert S. Reich Lawrence Plunkett, Jr.
composed of Jude G. Gravois, Marc E. Johnson, and Stephen J.
STEPHEN J. WINDHORST JUDGE
Louisiana Pizza Group, LLC, d/b/a Papa John's Pizza
("LPG"), appeals the trial court's July 27,
2016 summary judgment in favor of appellees, The Gray
Insurance Company, Command Construction Industries, LLC, and
Patrick Jackson (hereinafter "appellees" or
"Jackson"), dismissing plaintiff, Tobias
Dixon's, claims against appellees with prejudice. For the
reasons that follow, we affirm the trial court's July 27,
and Procedural History
accident occurred on October 6, 2013, in the center turn lane
and left westbound lane of U.S. Highway 90 near its
intersection with Breaux Court in St. Charles Parish.
Defendant, Devyn Allen, was driving his vehicle westbound on
U.S. Highway 90, when he moved from the left westbound lane
into the center turn lane. Plaintiff, Dixon, operating his
motorcycle, collided with the rear of Allen's vehicle and
he was ejected from the motorcycle where he landed on the
pavement. Thereafter, a pickup truck driven by co-defendant,
Jackson, allegedly struck Dixon while he was lying on the
pavement. Dixon filed a petition naming Allen, Progressive
Security Insurance Company (insurer of Allen's vehicle),
Jackson, Command Construction Industries, LLC (Jackson's
employer), and The Gray Insurance Company (Command's
insurer). Dixon subsequently added LPG (Allen's employer)
and Tudor Insurance Company (LPG's insurer).
April 22, 2016, appellees filed a motion for summary judgment
arguing that there was no evidence that Jackson ran over
Dixon while he was lying on the pavement. The motion was
opposed by Dixon and LPG. The trial court granted the motion
on July 27, 2016. Dixon filed a motion for appeal, but
dismissed his appeal in the trial court before the record was
lodged in this Court. LPG filed the instant timely appeal.
appellate court reviews a trial court's decision to grant
a motion for summary judgment de novo, using the
same criteria which govern the trial court's
consideration of whether summary judgment is appropriate.
Bank of New York Mellon v. Smith, 15-0530 (La.
10/14/15), 180 So.3d 1238, 1243; Smith v. Our Lady of the
Lake Hospital, Inc., 93-2512 (La. 07/05/94), 639 So.2d
730, 750. A motion for summary judgment shall be granted if
the motion, memorandum, and supporting documents show that
there is no genuine issue as to material fact and that the
mover is entitled to judgment as a matter of law. La. C.C.P.
art. 966 A(3).
sole assignment of error, LPG contends that the trial court
erred in granting appellees' motion for summary judgment.
LPG contends that there remains a genuine issue of material
fact as to the liability of appellees, and whether Jackson
struck Dixon while he was lying on the pavement. Thus, LPG
contends that the comparative fault of Jackson, who was found
without fault at summary judgment, is a determination that
should be made by the trier of fact.
judgment dismisses one of several cumulated claims by the
plaintiff, the plaintiff must appeal the adverse
judgment to obtain affirmative relief. Nunez v.
Commercial Union Ins. Co., 00-3062 (La. 02/16/01), 780
So.2d 348, 349. The judgment of dismissal acquires the
authority of the thing adjudged when the plaintiff does not
appeal the dismissal of his action. Grimes v. La. Med.
Mut. Ins. Co., 10-0039 (La. 05/28/10), 36 So.3d 215,
217; Nunez, 780 So.2d at 349. An appeal from the
judgment of the trial court by another party only brings
"up on appeal the portions of the judgment that were
adverse to [that party], " but not "the portions of
the judgment that were adverse to plaintiff."
Grimes, 36 So.3d at 217, citing Nunez, 780
So.2d at 349.
Dixon did not appeal or answer the appeal, the summary
judgment dismissing appellees became final as to the parties
thereto, Dixon and Jackson. In the absence of an appeal, this
Court has no authority to determine whether the grant of
summary judgment against Dixon was correct on its merits.
regard to appellant's contention that the trier of fact
should determine and allocate fault between Jackson and LPG,
La. C.C.P. art. 966 G provides:
G. When the court grants a motion for summary judgment in
accordance with the provisions of this Article, that a party
or non-party is not negligent, is not at fault, or did not
cause in whole or in part the injury or harm alleged, that
party or non-party shall not be considered in any subsequent
allocation of fault. Evidence ...