Old Republic Life Ins. Co. v. TransWood Inc.
| Decision Date | 02 June 2017 |
| Docket Number | NO. 2016 CA 0552,2016 CA 0552 |
| Citation | 222 So.3d 995 |
| Parties | OLD REPUBLIC LIFE INSURANCE COMPANY v. TRANSWOOD INC., Tuthill Corporation, Axiall, LLC previously known as Georgia Gulf Chemicals & Vinyls, LLC, TRG, Inc. previously known as Delta Process Equipment, Inc., Christopher Fontenot, Westside Truck and Auto, et al. |
| Court | Court of Appeal of Louisiana — District of US |
Willie G. Johnson, Jr., Baton Rouge, Louisiana, Scott L. Smith, Jr., New Roads, Louisiana, Chad A. Aguillard, New Roads, Louisiana, Derek E. Elsey, Zachary, Louisiana, Counsel for Plaintiff/Appellant, Old Republic Life Insurance, Company
Connell L. Archey, Keith J. Fernandez, Baton Rouge, Louisiana, Counsel for Defendant/Appellee, TransWood, Inc. and TransWood, Logistics, Inc.
Robert E. Kerrigan, Jr., Raymond C. Lewis, Matthew D. Moghis, New Orleans, Louisiana, Counsel for Defendant/Appellee, Tuthill Corporation
Luis A. Leitzelar, Michael R. Rhea, Baton Rouge, Louisiana, Counsel for Defendant/Appellee, Axiall, LLC f/k/a Georgia Gulf, Chemicals & Vinyls, LLC
Daryl A. Higgins, Wade A. Langlois, III, John J. Danna, Jr., William D. Dunn, Jr., Brittany Cooper, Greta, Louisiana, Counsel for Defendant/Appellee, Muncie Power Products, Inc.Louis C. LaCour, Jr., Gregory Rouchell, New Orleans, Louisiana, Counsel for Defendant/Appellee, DXP Enterprises, Inc.
BEFORE: HIGGINBOTHAM, THERIOT, AND CHUTZ, JJ.
In this appeal, the plaintiff-appellant, Old Republic Life Insurance Company ("Old Republic"), challenges the trial court's judgment sustaining a peremptory exception of no right of action and ordering the dismissal, with prejudice, of Old Republic's claims against the defendants-appellees, TransWood, Inc. and TransWood Logistics, Inc. ("TransWood"), Tuthill Corporation ("Tuthill"), Axiall, LLC, f/k/a Georgia Gulf Chemicals & Vinyls, LLC ("Axiall"), Muncie Power Products, Inc. ("Muncie"), and DXP Enterprises, Inc. ("DXP"). For the following reasons, we maintain the appeal, affirm the trial court's revised judgment sustaining the exception of no right of action, and grant the answer to the appeal.
The factual background of this case is not currently in dispute. In January of 2013, an independent professional truck driver, Vincent G. Johnson,1 was seriously injured in a catastrophic accident that occurred at Axiall's chemical manufacturing facility located in Plaquemine, Louisiana. Mr. Johnson was injured at Axiall's facility while unloading powdered lime from his 2005 International 9400I eighteen-wheeler. Mr. Johnson's eighteen-wheeler was equipped with a power takeoff unit and rotary displacement blower used to offload shipments. Mr. Johnson became entangled in his eighteen-wheeler's offloading system equipment, which resulted in significant bodily injuries. It is uncontested that Mr. Johnson ultimately died from his injuries after the institution of this lawsuit.
On December 30, 2013, Old Republic filed suit against several named defendants, including TransWood, Tuthill, and Axiall.2 Through amended and supplemental pleadings, Muncie and DXP were later named as additional defendants. Old Republic alleged that after the accident, it was forced to make certain insurance payments to its insured, Mr. Johnson, pursuant to the terms of an occupational accident coverage insurance policy bearing policy number ORL01132I. Old Republic claimed the accident and resulting injuries to its insured were caused by the fault of the defendants, which it alleged, inter alia, failed to provide a safe work environment and/or improperly manufactured and/or installed the offloading system equipment onto Mr. Johnson's eighteen-wheeler.
On July 1, 2015, following various matters not at issue on appeal, TransWood filed a peremptory exception of no right of action. TransWood submitted that Old Republic had no right of action against it, arguing that Old Republic did not enjoy a right of action as the conventional or legal subrogee of its insured. TransWood sought that the exception be sustained and the petition be dismissed. In the alternative, TransWood requested that the suit be stayed pending resolution of Mr. Johnson's federal lawsuit against the defendants. Old Republic opposed the motion.
On July 28, 2015, Axiall filed a motion adopting and joining in TransWood's peremptory exception of no right of action.
On August 12, 2015, the exception of no right of action came before the trial court for a hearing. TransWood, Tuthill, Muncie, Axiall, and Old Republic all made appearances at the hearing. Following arguments on the matter, the trial court orally sustained the exception of no right of action and declined to rule upon the alternative request for a stay. The trial court directed counsel for TransWood to prepare a final judgment.
On August 31, 2015, the trial court signed a written judgment in accordance with its oral ruling on the exception of no right of action that contained the following decretal language:
IT IS ORDERED, ADJUDGED, AND DECREED there be judgment in favor of TransWood, Inc., TransWood Logistics, Inc., and Axiall LLC and against Old Republic Life Insurance Company GRANTING the exception of no right of action filed by TransWood, Inc. and TransWood Logistics, Inc. and dismissing with prejudice all claims asserted by Old Republic Life Insurance Company against all parties....
Old Republic filed an appeal from this judgment. TransWood answered the appeal.3
Old Republic raises the following assignments of error:
Initially, before we can consider the merits of this appeal, we must dispose of the rule to show cause order issued by this court, ex proprio motu, on May 26, 2016. The rule to show cause order noted that the trial court's August 31, 2015 judgment appeared unclear and lacked the specificity required by law; the rule to show cause order further noted that the appeal appeared premature based upon a pending motion for new trial filed by Old Republic. The parties were directed to show cause as to whether or not the appeal should be dismissed for these reasons. On November 7, 2016, the rule to show cause order was referred to the panel to which the merits of the appeal were assigned.
It is well-settled under Louisiana law that an appeal taken while a timely filed motion for new trial or request for rehearing is pending is premature and subject to dismissal, because the filing of a motion for new trial suspends the operation of the final judgment being appealed. See La. C.C.P. arts. 2087(D) and 2123(C) ; Crescent Real Estate Equities/1100 Poydras v. Louisiana Tax Comm'n, 01-1434 (La.App. 1 Cir. 9/28/01), 809 So.2d 394, 396.
In the case before us, the record reflects that, on September 2, 2015, Old Republic timely filed a motion for new trial from the trial court's August 31, 2015 judgment sustaining the exception of no right of action. The trial court set the motion for new trial for a hearing, but never held a hearing on the motion. In addition, several of the defendants began to pursue discovery regarding some of the documents that had been attached to the motion for new trial, but these discovery matters were never acted upon, and Old Republic later filed unopposed motions to quash the responsive discovery.4 On October 20, 2015, Old Republic filed a motion and order for devolutive appeal. The trial court signed the order granting Old Republic an appeal on that same day.
In response to the rule to show cause order issued by this court on May 26, 2016, Old Republic filed a reply brief wherein it claimed to have withdrawn its motion for new trial prior to entry of the order of appeal. Old Republic specifically claimed it withdrew its motion for new trial and removed the matter from the docket of the trial court by sending a letter of withdrawal, through counsel, to the trial court and to all parties and counsel of record. Old Republic attached a copy of the purported letter of withdrawal to its reply brief. The letter, which is dated October 20, 2015, states: "This serves to withdraw Old Republic Life Insurance Company's Motion for New Trial and to respectfully request that this matter be removed from the docket...."
None of the defendants dispute that Old Republic withdrew its motion for new trial prior to entry of the order of appeal. Furthermore, the record certified for purposes of appeal does contain a subsequent oral representation from counsel for Old Republic tending to establish that it timely withdrew its motion for new trial.5 Nevertheless, the original record does not contain a copy of the purported letter of withdrawal itself. It is well-settled that, as an appellate court, our judgment must be rendered "upon the record on appeal." La. C.C.P. art. 2164. We have no jurisdiction to review evidence that is not in the record on appeal, and we cannot receive new evidence. Gillio v. Hanover Am. Ins. Co., 16-0640 (La.App. 1 Cir. 1/31/17), 212 So.3d 588, 591 n.3. Appellate briefs are not part of the record, and we have no authority to consider facts referred to in such briefs, or in exhibits containing matters that are not in the pleadings or evidence, since they are outside of the record. Id.
Accordingly, on March 13, 2017, in order to settle any uncertainty pertaining to the effectiveness of Old Republic's purported withdrawal of its motion for new trial, this court issued a rule to show cause order to the clerk of court for the trial court, ordering it to supplement the record with "[a]ny evidence ... tending to establish that [Old Republic] withdrew its motion for new trial prior to entry of the order of appeal...." In response...
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