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McClellan v. Premier Nissan L.L.C.

Court of Appeals of Louisiana, Fifth Circuit

December 19, 2018

LATESSIA MCCLELLAN AND MARKETHY MCCLELLAN
v.
PREMIER NISSAN L.L.C. D/B/A PREMIER NISSAN OF METAIRIE

          ON 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

          Panel composed of Judges Fredericka Homberg Wicker, Marc E. Johnson, and Robert A. Chaisson

          ROBERT A. CHAISSON, JUDGE

         Latessia 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 this appeal.

         FACTS AND PROCEDURAL HISTORY

         Latessia 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.

         Following 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.

         On 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.

         DISCUSSION

         Louisiana 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 ...

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