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Hernandez v. Excel Contractors, Inc.

Court of Appeals of Louisiana, First Circuit

March 13, 2019

BENNY HERNANDEZ
v.
EXCEL CONTRACTORS, INC.

          Appealed from the Twenty-Third Judicial District Court In and for the Parish of Ascension State of Louisiana Docket Number 113957 Honorable Jessie M. LeBlanc, Judge Presiding

          Danial C. Vidrine Baton Rouge, LA Counsel for Plaintiff/Appellant Benny Hernandez

          Timothy E. Pujol Matthew W. Pryor Barbara Lane Irwin Gonzales, LA Counsel for Defendant/Appellee Excel Contractors, Inc.

          Robert A. Dunkelman Joshua P. Monteleone Shreveport, LA Counsel for Defendant/Appellee SPX Cooling Technologies, Inc., Xcel Erectors, Inc., and James Meidl

          J. Alan Harrell Benjamin M. Anderson John B. Shortess Baton Rouge, LA, Mark C. Dodart New Orleans, LA Counsel for Defendant/Appellee CF Industries, Inc.

          BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ.

          WHIPPLE, C.J.

         Plaintiff, Benny Hernandez, appeals a judgment of the trial court granting summary judgment in favor of defendants, SPX Cooling Technologies, Inc., Xcel Erectors, Inc., and James Meidl, dismissing plaintiffs negligence claims with prejudice, and maintaining these defendants' exception of no cause of action as to plaintiffs intentional tort claims. For the following reasons, we dismiss the appeal.

         FACTS AND PROCEDURAL HISTORY

         This matter originally came before this court in 2017 on an appeal ("2017 appeal") filed by plaintiff, Benny Hernandez. See Hernandez v. Excel Contractors, Inc., 2017-0762 (La.App. 1st Cir. 12/21/17), 2017 WL 6524030 (unpublished). However, the 2017 appeal was ultimately dismissed by this court. While we will not reiterate herein all of the underlying facts regarding the dispute set forth in this court's prior opinion, we include the pertinent procedural events.

         Plaintiff instituted this suit on September 16, 2015 by filing a petition for damages against Excel Contractors, Inc.[1] as well as its insurer, alleging that plaintiff was employed by ASAP Employment Services, Inc. and that he was injured on September 16, 2014 while working at a "CF1 Industries plant." Plaintiff later filed an amended and supplemental petition, which named SPX Cooling Technologies, Inc., Xcel Erectors, Inc., CF Industries, Inc., and James Meidl as defendants.[2] In response to the amended and supplemental petition, SPX Cooling Technologies, Inc., Xcel Erectors, Inc., and James Meidl ("defendants") filed a "Peremptory Exception for [sic] No Cause of Action, and in the Alternative, Motion for Summary Judgment," which sought dismissal, with prejudice, of all claims against defendants. On February 22, 2017, the trial court rendered judgment (hereinafter, the "2017 judgment"), which, in pertinent part, granted the motion for summary judgment filed by SPX Cooling Technologies, Inc., Excel Erectors, Inc., and James Meidl and dismissed Hernandez's claims against these defendants with prejudice and at plaintiffs costs. The judgment further decreed that the Exception of No Cause of Action was moot as to the statutory employee issue, but was sustained, however, as to plaintiffs claims for intentional torts. The judgment further ordered plaintiff to amend his pleadings within thirty days of the signing of the judgment "to sufficiently plead any intentional torts if he so chooses."

         Plaintiff appealed the 2017 judgment, but this court eventually dismissed the appeal because no portion of the 2017 judgment was a final judgment for the purpose of immediate appeal. After examining the 2017 judgment, this court concluded that the summary judgment granted by the trial court was dispositive of plaintiffs negligence claims only and, therefore, was a partial summary judgment granted pursuant to LSA-C.C.P. art. 966(E). Thus, because the 2017 judgment lacked a designation as final and an express determination by the trial court that there was no just reason for delay in accordance with LSA-C.C.P. art. 1915(B)(1), this court concluded that we lacked appellate jurisdiction to review the partial summary judgment. This court further noted that the remaining portion of the 2017 judgment was not final and appealable in that it granted an exception of no cause of action and permitted plaintiff a period of time in which to amend his petition. Accordingly, finding no portion of the 2017 judgment immediately appealable, this court was constrained to dismiss the 2017 appeal.

         While the appeal of the 2017 judgment was pending with this court, however, defendants filed a Motion to Dismiss the intentional tort claims of Mr. Hernandez in the trial court on August 22, 2017, which the trial court granted. In the Motion to Dismiss, defendants averred that, despite the signing of an order of appeal from the 2017 judgment, the trial court retained jurisdiction over the intentional tort claims pursuant to LSA-C.C.P. art. 1915. Despite the pending appeal of the 2017 judgment, defendants contended that plaintiffs failure to comply with the trial court's 2017 judgment, which ordered plaintiff to amend his pleadings to sufficiently allege intentional tort claims within thirty days of the signing of the 2017 judgment, necessitated the dismissal of plaintiff s intentional tort claims. Apparently finding merit to the defendants' contention, on August 29, 2017, the trial court signed an order of dismissal, which stated as follows:

CONSIDERING THE FOREGOING, IT IS HEREBY ORDERED that, pursuant to La. CCP art 934, Defendants' Motion to Dismiss is hereby GRANTED as to the intentional tort claims of Plaintiff, BENNY HERNANDEZ, against Defendants, SPX COOLING TECHNOLOGIES, INC., XCEL ERECTORS, INC. and JAMES MEIDL, and those intentional tort claims shall be dismissed with prejudice, at Plaintiffs cost.

         Four months later, on December 21, 2017, this court rendered its opinion in the then-pending appeal of the 2017 judgment, ...


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