Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Russell v. Jones

Court of Appeals of Louisiana, Fifth Circuit

November 14, 2018

CARLOS RUSSELL AND DESHANNON RUSSELL
v.
MICHAEL G. JONES, RILEY & CARROLL PROPERTIES, INC. AND STATE NATIONAL INSURANCE COMPANY, INC.

          ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 728-857, DIVISION "N" HONORABLE STEPHEN D. ENRIGHT, JR., JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLANT, CARLOS RUSSELL AND DESHANNON RUSSELL Ron A. Austin Catherine H. Hilton Lillian A. Williams

          COUNSEL FOR DEFENDANT/APPELLEE, MICHAEL G. JONES, RILEY & CARROLL PROPERTIES, INC. AND ERNEST RILEY Mark E. Young Meredith R. Durham

          COUNSEL FOR DEFENDANT/APPELLEE, STATE NATIONAL INSURANCE COMPANY, INC. Sean P. Mount Anne E. Medo Bryce M. Addison

          Panel composed of Judges Fredericka Homberg Wicker, Marc E. Johnson, and Stephen J. Windhorst

          FREDERICKA HOMBERG WICKER JUDGE.

         Plaintiffs seek review of a judgment granting a motion to set aside a default judgment. For the following reasons, we find that the judgment appealed is not a final, appealable judgment, and this Court lacks jurisdiction to consider the merits of the appeal. Accordingly, for the reasons stated herein, we dismiss the appeal.

         This litigation arises out of a July 21, 2012 motor vehicle accident. Plaintiffs, Carlos and DeShannon Russell, filed suit in 2013 against the defendant-driver, Michael Jones, Riley & Carroll Properties, defendant-driver's employer, and Ernest Riley, the owner of R & C, as well as R & C's alleged liability insurer, State National Insurance Company (SNIC).[1] SNIC made payments initially but subsequently denied coverage and defense filed no responsive pleadings on behalf of Mr. Jones, Mr. Riley, or R & C. At some point in time, counsel for SNIC reported to plaintiffs' counsel that "SNIC had discovered that, at the time of the accident in question, Scottsdale Insurance Company carried general liability insurance coverage for Jones, Riley, and R & C." See Carlos Russell and DeShannon Russell v. Michael G. Jones, et al., 17-585 (La.App. 5 Cir. 3/12/18), 239 So.3d 1083, 1085. Based on this information, plaintiffs amended their petition to include Scottsdale Insurance Company as a named defendant.

         On June 11, 2015, plaintiffs presented evidence and obtained a default judgment against defendants, Mr. Jones, Mr. Riley, and R & C, in the amount of $154, 255.72. On May 5, 2016, SNIC filed a motion to set aside the default judgment, contending that the judgment was an absolute nullity because SNIC- who plaintiffs had identified as a responsible insurer, a named defendant, and an adverse party in the litigation-was never served with notice of the hearing on the motion to confirm the default judgment or of the default judgment as it purports is required under La. C.C.P. art. 1913.[2]

         On December 5, 2017, the trial judge, citing a jurisprudentially created "interest of justice" exception set forth in Bridges v. Lyles, 10-1183 (La.App. 3 Cir. 3/9/11), 2011 La. App. Unpub. LEXIS 125, granted SNIC's motion to vacate the default judgment and vacated the June 11, 2015 default judgment. The record reflects that on January 25, 2018, more than thirty days from the date of the December 5, 2017 judgment, plaintiffs filed a motion for appeal seeking review of the court's December 5, 2017 judgment.[3]

         This Court cannot determine the merits of an appeal unless our jurisdiction is properly invoked by a valid, final judgment. See Input/Output Marine Sys. v. Wilson Greatbatch, Techs., Inc., 10-477 (La.App. 5 Cir. 10/29/10), 52 So.3d 909, 915. A "final judgment" is appealable in all causes in which appeals are given by law, whether rendered after hearing, by default, or by reformation. La. C.C.P. art. 2083(A); Green Tree Servicing, LLC v. Edwards, 17-214 (La.App. 5 Cir. 11/15/17), 232 So.3d 688, 696. A final judgment is a judgment that "determines the merits in whole or in part," and an interlocutory judgment is one that "does not determine the merits but only preliminary matters in the course of the action." La. C.C.P. art. 1841; Davis v. Wong, 05-853, p. 3 (La.App. 5 Cir. 3/28/06), 927 So.2d 581, 583.

         Upon our review of the record in this matter, we find that the judgment appealed is not a final, appealable judgment. We find that a judgment granting a motion to vacate a default judgment-which maintains the litigation at the trial court level and does not determine in whole or in part the merits of the underlying action-is not a final, appealable judgment. Compare Bank of N.Y. v. Holden, 15-466 (La.App. 5 Cir. 12/23/15), 182 So.3d 1206, 1208 (wherein this Court found that a judgment vacating a dismissal of an action as abandoned under La. C.C.P. art. 561, which maintains the action, is an interlocutory judgment). Therefore, we find we do not have jurisdiction to consider the merits of this appeal. Accordingly, we dismiss the appeal and, consequently, further deny as moot the pending "Motion to Reinstate Oral Argument" and "Motion to Strike Appellee Brief" filed in connection with this appeal.

         APPEAL DISMISSED; MOTION TO STRIKE DENIED AS MOOT; MOTION TO ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.