Prestage v. Clark
| Decision Date | 28 December 1998 |
| Docket Number | No. 97 CA 0524.,97 CA 0524. |
| Citation | 723 So.2d 1086 |
| Parties | David PRESTAGE v. Jack CLARK, Edward L. Clark, XYZ Insurance Company and ABC Insurance Company. |
| Court | Court of Appeal of Louisiana — District of US |
Joe Arthur Sims, Hammond, for Plaintiff-Appellee David Prestage.
Tracy S. Pickerell, Baton Rouge, for Defendant-Appellant Edward Clark.
William H. Voigt, Thomas, Hayes & Buckley, LLP, New Orleans, for Defendants-Appellees Iddo Pittman and State Farm Mutual Insurance Company.
Before: GONZALES, PARRO, and GUIDRY, JJ.
Edward Clark appeals from various orders of the trial court made during the proceedings in his action to annul a default judgment and an action for damages against his insurer and his former attorney for failure to properly defend him. For the following reasons, Clark's appeal is dismissed in part, and the September 25, 1996 judgment is affirmed.
On June 20, 1994, David Prestage ("Prestage") filed a suit for wrongful seizure, damages, and rental proceeds against Jack Clark1 and Edward L. Clark ("Clark"). On July 13, 1994, Iddo Pittman, Jr. ("Pittman"), Clark's attorney, filed a motion for extension of time in which to file responsive pleadings.2 The trial court allowed Clark until August 8, 1994, to respond. Pittman also filed a request for written notice of assignment and written notice of any order or judgment made or rendered.
By letter dated July 29, 1994, State Farm Mutual Insurance Company3 ("State Farm") notified Clark as follows:
In conjunction with this letter, State Farm notified Pittman to close his file after the referenced 30-day period. Without filing an answer on Clark's behalf, Pittman was allowed to withdraw as counsel of record for Clark by order dated September 26, 1994. Attached to the motion to withdraw was a certificate by Pittman, which stated that a copy of the motion was mailed to Clark at 411 Pecan Street, Hammond, Louisiana 70401, postage prepaid.
On October 27, 1994, a judgment of default was confirmed against Clark for: $22,000 for the value of the boat; $9,824.74 for improvements to the boat, supplies, equipment, and personal effects that were on the boat; and $15,000 for damages for wrongful seizure and depriving Prestage of the use of the boat.
On January 26, 1995, Clark, represented by a different attorney, filed a "Petition of Annulment of Default Judgment and Suit for Damages for Failure to Defend" in the suit record of Prestage's action for wrongful seizure. Prestage, State Farm, Pittman, and ABC Insurance Company were named as defendants. With respect to Prestage, Clark sought to have the default judgment annulled; with respect to Pittman and State Farm, Clark sought damages for breach of their duty to defend him in the action by Prestage.
Since the petition filed by Clark involved an action against Prestage to annul a final judgment and an action against Pittman and State Farm for damages for failure to defend in Prestage's original action, Prestage requested that Clark's claims be severed on the grounds of improper cumulation of actions. In response to Clark's petition for annulment of the default judgment, Prestage filed a peremptory exception raising the objection of no cause of action on the ground that Prestage did not commit the acts for which the final judgment could be annulled. Thus, Prestage prayed for his dismissal from this action. Clark opposed Prestage's motion to sever and his exception of no cause of action. These matters were heard by the trial court on April 10, 1995, and were taken under advisement.
On April 12, 1995, the trial court signed an order granting Prestage's motion to sever the action for damages against Pittman and State Farm from the action to annul.4 Furthermore, finding no grounds for an annulment, the trial court maintained Prestage's exception of no cause of action and dismissed Clark's petition to annul the default judgment. On July 6, 1995, Prestage executed a satisfaction of judgment in which he acknowledged payment by Clark in full settlement for value of the default judgment taken against Clark on October 27, 1994.
Proceeding in the same suit record, State Farm and Pittman requested that Clark's action for damages be set for trial. On October 6, 1995, counsel for State Farm and Pittman received a request for admissions from Clark. On December 5, 1995, Clark filed a rule to deem facts admitted in light of State Farm and Pittman's failure to respond to the request for admissions.5 The trial court declined to deem the facts admitted and granted State Farm and Pittman's motion for an extension of time in which to respond to the request for admissions. Their responses to the request for admissions were filed within the delay allowed by the trial court.
After the trial of Clark's action for damages against State Farm and Pittman, the trial court signed a judgment on September 25, 1996, in favor of State Farm and Pittman, dismissing Clark's action. Subsequently, Clark filed a motion to appeal the final judgment dismissing his petition to annul the default judgment and the final judgment dismissing his claims against State Farm and Pittman. On appeal, Clark assigns the following as error: (1) the trial court's maintaining of Prestage's exception of no cause of action regarding Clark's petition to annul the default judgment, (2) the trial court's denial of his rule to deem facts admitted, (3) the trial court's granting of State Farm and Pittman's motion for extension of time to respond to request for admissions, (4) the trial court's failure to find that Pittman's actions constituted legal malpractice, and (5) the trial court's failure to find that State Farm breached its duty to defend.
Prior to addressing whether the trial court erred in granting Prestage's exception raising the objection of no cause of action with respect to Clark's action to annul the default judgment, State Farm, Pittman, and Prestage request that we determine if Clark's appeal of this issue is timely.
Ordinarily, a judgment granting a peremptory exception of no cause of action is a final judgment entitling the plaintiff to an appeal. See LSA-C.C.P. art. 1841; Dufour v. Westlawn Cemeteries, Inc., 94-81 (La.App. 5th Cir.6/28/94), 639 So.2d 843, 846. When a judgment adjudicates all of the claims and defenses asserted by all of the parties, such a judgment is universally recognized as appealable. Everything On Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1240 (La.1993). But when a judgment adjudicates fewer than all of the claims or defenses, or adjudicates the claims or defenses of one or more but less than all of the parties, there are significant problems in designating such a judgment as appealable. Everything On Wheels Subaru, Inc., 616 So.2d at 1240-41.
Generally, the courts will not maintain an exception of no cause of action in part. If the petition states a cause of action as to any ground or portion of the demand, the exception of no cause of action generally should be overruled. The purpose of this general rule is to prevent a multiplicity of appeals which forces an appellate court to consider the merits of the action in a piecemeal fashion. Everything On Wheels Subaru, Inc., 616 So.2d at 1236. However, if two or more actions are cumulated which could have been brought separately because they were based on the operative facts of separate and distinct transactions or occurrences, a partial judgment may be rendered to dismiss one action on an exception of no cause of action, while leaving the other actions to be tried on the merits. Everything On Wheels Subaru, Inc., 616 So.2d at 1239. In such a case, there are truly several causes of action, and a judgment partially maintaining the exception as to one separate and distinct cause of action is generally appropriate. Everything On Wheels Subaru, Inc., 616 So.2d at 1239.
Appeals may be taken from a final judgment and from an interlocutory judgment which may cause irreparable injury. LSA-C.C.P. art. 2083. A final judgment is one that determines the merits of the action in whole or in part. LSA-C.C.P. art. 1841. LSA-C.C.P. art.1915 lists the exclusive instances in which partial final judgments are permitted.6 See Everything On Wheels Subaru, Inc., 616 So.2d at 1240. Article 1915 does not authorize a partial final judgment on an exception of no cause of action unless a party is dismissed; this is so because a party who is completely exonerated in pretrial proceedings should be spared further litigation. Everything On Wheels Subaru, Inc., 616 So.2d at 1241. However, if the judgment does not result in the dismissal of a party, the judgment is an interlocutory judgment, which is not appealable in the absence of irreparable injury. Everything On Wheels Subaru, Inc., 616 So.2d at 1241. Clark's petition attempts to set forth a cause of action against Prestage to annul the default judgment. It also sets forth a separate and distinct cause of action against State Farm and Pittman for failure to defend. Clearly, the latter claim was not asserted as to Prestage. Prestage's sole involvement as a defendant was with respect to the action to annul. The separateness of Clark's causes of action was recognized by the trial court when it granted Prestage's motion to sever. Once Clark's cause of action against State Farm and Pittman was severed, the trial court was free to...
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