APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH
OF JEFFERSON, STATE OF LOUISIANA NO. 726-822, DIVISION
"O" HONORABLE DANYELLE M. TAYLOR, JUDGE PRESIDING
COUNSEL FOR PLAINTIFF/APPELLANT, LATESSIA MCCLELLAN AND
MARKETHY MCCLELLAN Danatus N. King
COUNSEL FOR DEFENDANT/APPELLEE, PREMIER NISSAN L.L.C. D/B/A
PREMIER NISSAN OF METAIRIE Brett M. Dupuy
composed of Judges Fredericka Homberg Wicker, Marc E.
Johnson, and Robert A. Chaisson
A. CHAISSON, JUDGE
and Markethy McClellan appeal an April 5, 2018 judgment of
the trial court granting a motion for summary judgment and
dismissing with prejudice their claims against Premier
Nissan, L.L.C. ("Premier"), arising out of an
alleged breach of contract and fraud relating to an
automobile purchase. For the following reasons, we dismiss
AND PROCEDURAL HISTORY
and Markethy McClellan filed suit on May 10, 2013, against
Premier alleging breach of a sales agreement and fraud
pertaining to the McClellans' purchase of a green 2004
Nissan Armada automobile on August 19, 2005, and an
associated trade-in of the McClellans' gray 2004 Nissan
Armada as "partial payment." On August 21, 2013,
Premier filed an exception of prescription, which the trial
court granted. On appeal, the Court reversed that judgment of
the trial court, finding the applicable prescriptive period
for the breach of contract action to be ten years.
McClellan v. Premier Nissan, L.L.C., 14-726 (La.App.
5 Cir. 2/11/15), 167 So.3d 934.
remand, on May 28, 2015, Premier filed an Answer and
Reconventional Demand. In its position as
plaintiff-in-reconvention, Premier seeks to recover from
Latessia McClellan sums equal to 35 cents per mile and $35
per day for the use of the green 2004 Nissan Armada until the
ultimate sale of the vehicle.
February 2, 2018, Premier filed a Motion for Summary Judgment
in which it argued that, with respect to Mrs. McClellan's
breach of contract claim, there were no genuine issues of
material fact and Premier was entitled to judgment as a
matter of law. Following a March 28, 2018 hearing on the
motion, the trial court issued a judgment on April 5, 2018,
granting summary judgment in favor of Premier and dismissing
Mrs. McClellan's breach of contract claim with prejudice.
The McClellans appeal this judgment.
Code of Civil Procedure article 1915(B) states:
(1)When a court renders a partial judgment or partial summary
judgment or sustains an exception in part, as to one or more
but less than all the claims, demands, issues, or theories
against a party, whether in an original demand,
reconventional demand, cross-claim, third-party claim, or
intervention, the judgment shall not constitute a final
judgment unless it is designated a final judgment by the
court after an express determination that there is no just
reason for delay.
(2)In the absence of such a determination and designation,
any such order or decision shall not constitute a final
judgment for the purpose of an immediate appeal and may be
revised at any time prior to the rendition of the judgment
adjudicating all ...