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White v. Louisiana Department of Transportation & Development

Court of Appeals of Louisiana, Third Circuit

December 6, 2017

GERALD RODNEY WHITE AND CHARLOTTE WHITE
v.
LOUISIANA DEPARTMENT OF TRANSPORTATION & DEVELOPMENT, ET AL.

         APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 253, 702 "B" HONORABLE THOMAS MARTIN YEAGER, DISTRICT JUDGE

          Fred Andrew Pharis Pharis & Pharis COUNSEL FOR: Plaintiffs/Appellees - Gerald Rodney White and Charlotte White.

          Jerold Edward Knoll The Knoll Law Firm COUNSEL FOR: Plaintiffs/Appellees - Gerald Rodney White and Charlotte White.

          Mickey Stephens deLaup Mickey S. deLaup, APLC COUNSEL FOR: Defendant/Appellee - Safeco Insurance Co. of Oregon.

          Victoria R. Murry Assistant Attorney General Shane D. Williams Assistant Attorney General COUNSEL FOR: Defendant/Appellant - Louisiana Department of Transportation & Development.

          Madeline J. Lee Bolen, Parker, & Brenner, Lee & Engelsman, Ltd. COUNSEL FOR: Defendants/Appellees - Church Mutual Insurance Company, Garold A. Mangun, and Mickey Mangun.

          Court composed of Ulysses Gene Thibodeaux, Chief Judge, Billy Howard Ezell, and John E. Conery, Judges.

          CONERY, J., concurs in the result.

          ULYSSES GENE THIBODEAUX, CHIEF JUDGE

         Defendant State of Louisiana, Through the Department of Transportation and Development (hereafter "DOTD") appeals a summary judgment granted in favor of homeowners and co-defendants, Rev. Garold Mangun and Mrs. Mickey Mangun (hereafter "the Manguns"). DOTD contends that there is a genuine issue of material fact because the Manguns knew or should have known of the defective pecan tree on their property before it fell during a storm, injuring Plaintiff Gerald Rodney White, and that summary judgment was improper. The Manguns contend they are not liable because they did not maintain the right-of-way; DOTD did. Further, the Manguns, along with insurers, Church Mutual Insurance Company (hereafter "Church Mutual"), and Safeco Insurance Company of Oregon (hereafter "Safeco"), assert that they may not be considered in the litigation because they were dismissed on summary judgment and the Plaintiffs did not appeal the dismissal. Thus, the judgment dismissing them as parties is final. We find that DOTD may not reference the Manguns because the trial court dismissed the Manguns. Because we find summary judgment became final when the adverse judgment was not appealed by the Plaintiffs, this court does not reach the merits as to whether summary judgment was proper.

         I.

         ISSUES

         We must determine whether a co-defendant dismissed under La.Code Civ.P. art. 966(G) can be referenced for comparative fault under La.Civ.Code art. 2323 when the plaintiffs did not appeal the summary judgment. If this court finds that the dismissed co-defendants may be referenced, this court must also determine whether summary judgment as to the dismissed co-defendants was proper.

         II.

         FACTS AND ...


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