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Gonzalez v. Jimmerson

Court of Appeals of Louisiana, Third Circuit

December 7, 2017

DIONISIO GONZALEZ, ET AL.
v.
CAREY LESHAWN JIMMERSON, ET AL.

         APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT COURT PARISH OF ST. MARTIN, NO. 79979 HONORABLE LORI A. LANDRY, DISTRICT JUDGE

          H. Glenn Marcantel, Jr. for Plaintiff/Appellant: Gregorio Gonzalez

          Kraig Thomas Strenge for Defendants/Appellees: Carey LaShawn Jimmerson; Process Piping Materials, Inc.; and United Fire & Casualty Company

          Court composed of Sylvia R. Cooks, Elizabeth A. Pickett, and Billy H. Ezell, Judges.

          SYLVIA R. COOKS JUDGE

         This court issued a rule ordering Appellant, Gregorio Gonzalez, to show cause, by brief only, why his appeal should not be dismissed for having been taken from a judgment lacking proper decretal language. See State v. White, 05-718 (La.App. 3 Cir. 2/1/06), 921 So.2d 1144. For the reasons that follow, we dismiss the appeal without prejudice and remand the matter to the trial court for further proceedings consistent with this opinion.

         FACTS AND PROCEDURAL HISTORY

         On February 1, 2013, Dionisio Gonzalez (Dionisio), filed a petition for damages naming Carey LaShawn Jimmerson (Jimmerson); Process Piping Materials, Inc. (Process Piping); and United Fire & Casualty Company (United) as Defendants. On or about May 20, 2013, a first supplemental and amending petition was filed to add Gregorio Gonzalez (Gregorio) as a plaintiff. The suit arose out of an automobile accident that occurred on or about March 29, 2012. Dionisio was driving a vehicle in which Gregorio was a passenger when the vehicle was allegedly struck on its rear bumper by a truck with a gooseneck trailer attached. That truck was driven by Jimmerson, owned by Process Piping, and insured by United.

         Dionisio settled all of his claims, and said claims were dismissed by a motion and order of partial dismissal signed on October 19, 2015. Thereafter, Defendants filed an exception of prescription as to Gregorio's claims. The exception was heard and taken under advisement. On July 13, 2016, the trial court issued written reasons for judgment and granted the exception based on a finding that Gregorio's petition did not relate back to the original petition filed by Dionisio. A judgment sustaining the exception was signed on July 13, 2016. The judgment also assessed costs against Gregorio. However, the judgment did not dismiss Gregorio's claims against Defendants.

         Gregorio filed a motion for devolutive appeal. Defendants filed a motion to dismiss the appeal based on Gregorio's alleged failure to pay the estimated costs to prepare the record. Gregorio then obtained an order to proceed in forma pauperis.

         When the record was lodged in this court, a rule was issued ordering Gregorio to show cause why his appeal should not be dismissed for the above-stated reason.

         DISCUSSION

         The rule to show cause order indicated that Gregorio was to show cause, if there was any, why the appeal should not be dismissed as having been taken from a judgment lacking decretal language. Appellant contends that a judgment sustaining an exception of prescription is a final appealable judgment and cites Estate of Patout v. City of New Iberia, 01-151 (La.App. 3 Cir. 6/27/01), 791 So.2d 741, for that contention. Appellant goes on to assert that the judgment at issue meets the requirements of Thomas v. Lafayette Parish Sch. Sys., 13-91, p. 2 (La.App. 3 Cir. 3/6/13), 128 So.3d 1055, 1056, because "Judge Landry's judgment dismissed Gregorio Gonzalez's case in its entirety on the ground that, as per her Reasons for Judgment, it was not timely filed, did not relate back to the originally filed petition of Dionisio Gonzalez, and is therefore prescribed."

         The jurisprudence is clear that "[a] final appealable judgment must contain decretal language, and it must name the party in favor of whom the ruling is ordered, the party against whom the ruling is ordered, and the relief that is granted or ...


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