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Clary v. State Farm Mutual Automobile Insurance Co.

Court of Appeals of Louisiana, Third Circuit

April 18, 2018

MICHAEL CAL CLARY AND CATHERINE ANN HIXSON CLARY
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY; STATE FARM FIRE AND CASUALTY COMPANY; STATE FARM GENERAL INSURANCE COMPANY; STATE FARM LIFE INSURANCE COMPANY; STATE FARM VP MANAGEMENT CORPORATION; INSURANCE PLACEMENT SERVICE, INC.; STATE FARM BANK, F.S.B.; PATRICK WHITE; KIMBERLY ROLLINS WHITE; GENE HAYMON; AND DAVID HAYMON

          APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 2015-2657 HONORABLE G. MICHAEL CANADAY, DISTRICT JUDGE

          Michael James Barry Tiffany Powers Michael Patrick Kenny Alston & Bird, LLC Counsel for Defendants: State Farm Mutual Automobile Insurance Company; State Farm Fire and Casualty Company; State Farm General Insurance Company; State Farm Life Insurance Company; State Farm VP Management Corporation; Insurance Placement Services, Inc.; State Farm Bank, F.S.B.; Patrick White, and Kimberly Rollins White

          Robert J. David, Jr. Marc D. Moroux Juneau David, APLC Counsel for Defendant: David Haymon

          George Fagan Stephanie Villagomez Lemoine Leake & Andersson LLP Counsel for Third Party Defendant/Appellant: William Claude Coker, III

          Hunter W. Lundy Matthew Lundy Hunter, hunter, Lundy & Soileau Counsel for Plaintiffs: Michael Cal Clary and Catherine Ann Hixson Clary

          Mark N. Mallery Lisa Diane Hanchey Hal Unger Jacob C. Credeur Ogletree, Deakins, Nash, Smoak & Stewart, P.C. Counsel for Defendants: State Farm Mutual Automobile Insurance Company; State Farm Fire and Casualty Company; State Farm General Insurance Company; State Farm Life Insurance Company; State Farm VP Management Corporation; Insurance Placement Services, Inc.; State Farm Bank, F.S.B.; Patrick White, and Kimberly Rollins White

          Scott J. Scofield Phillip W. DeVilbiss Scofield, Gerard, Pohorelsky, Gallaugher & Landry Counsel for Defendant/Plaintiff in Reconvention/Appellee: Gene Haymon

          Court composed of Sylvia R. Cooks, John D. Saunders, and Candyce G. Perret, Judges.

          SYLVIA R. COOKS JUDGE.

         In this expedited appeal we are asked to review the trial court's ruling denying Trey Coker's Exception of No Cause of Action regarding Gene Haymon's action based on Louisiana's Antitrust Law, La.R.S. 51:122 et seq., and the trial court's ruling denying in part and granting in part an exception of no right of action raised by the trial court.

The denial of exceptions of no cause of action and no right of action are normally not appealable. However, La. R.S. 51:134 and 51:135 provide for an immediate appeal of such an interlocutory judgment related to antitrust claims. See Plaquemine Marine, Inc. v. Mercury Marine, 2003-1036 (La.App. 1st Cir.7/25/03), 859 So.2d 110, 114, n. 3.

HPC Biologicals, Inc. v. UnitedHealthcare of Louisiana, Inc., 16-585 p. 6 (La.App. 1 Cir. 5/26/16), 194 So.3d 784, 791-92. Gene Haymon asserts in his Motion to Dismiss Appeal that this appeal should be dismissed because Coker waived his right to an expedited appeal and failed to designate issues on appeal. We referred this motion to the merits and after due consideration the Motion to Dismiss Appeal is denied.

         Our review of exceptions of no right of action and no cause of action are de novo, [1] and:

It is well settled that pursuant to La. C.C.P. art. 2164, an appellate court must render its judgment upon the record on appeal. The record on appeal is that which is sent by the trial court to the appellate court and includes the pleadings, court minutes, transcript, judgments and other rulings. The appellate court cannot review evidence that is not in the record on appeal and cannot receive new evidence. Memoranda and exhibits not filed in evidence are not part of the record on appeal. The briefs of the parties and the attachments thereto are not part of the record on appeal. Further, this court does not consider exhibits ...

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