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Dixon v. Gray Insurance Co.

Court of Appeals of Louisiana, Fifth Circuit

June 15, 2017

TOBIAS DIXON
v.
THE GRAY INSURANCE COMPANY, COMMAND CONSTRUCTION INDUSTRIES, LLC, PROGRESSIVE SECURITY INSURANCE COMPANY, PATRICK JACKSON, AND DEVYN ALLEN

         ON 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.

          Panel composed of Jude G. Gravois, Marc E. Johnson, and Stephen J. Windhorst

         SJW

         MEJ

         JGG

          STEPHEN J. WINDHORST JUDGE

         Appellant, 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, 2016 judgment.

         Facts and Procedural History

         This 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).

         On 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.

         Discussion

         An 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).

         In its 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.

         When a 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.

         When 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.

         With 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 ...

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