U.S. Fire Ins. Co. v. Swann

• Decision Date: 29 November 1982
• Docket Number: No. 82-C-1143,82-C-1143
• Citation: 424 So.2d 240
• Parties: U.S. FIRE INSURANCE COMPANY v. Ellen Tooley SWANN, individually and as administratrix of the Succession of Francis E. Swann.
• Court: Louisiana Supreme Court

Page 240

424 So.2d 240

U.S. FIRE INSURANCE COMPANY v. Ellen Tooley SWANN, individually and as administratrix of the Succession of Francis E. Swann.

No. 82-C-1143.

Supreme Court of Louisiana.

Nov. 29, 1982.

Frank M. RePass, III, Deutsch, Kerrigan & Stiles, New Orleans, for relator.

Edward A. Shamis, Jr., Shamis, Jolissaint & McCreary, Slidell, Leonard A. Young, Beinvenu, Foster, Ryan & O'Bannon, New Orleans, for respondent.

CALOGERO, Justice.

We granted writs in this case to consider whether the Court of Appeal, 411 So.2d 1173 (1982), erred when it dismissed as untimely an appeal by Ellen Tooley Swann ¹ from a district court judgment against Ms. Swann and in favor of U.S. Fire Insurance Company. For the reasons which follow we determine that Swann did timely appeal the pertinent judgment in U.S. Fire's favor, and that accordingly the Court of Appeal's dismissal of the appeal was improper.

Ellen Tooley Swann and her now deceased husband, Francis E. Swann owned a building out of which they operated a supply business. They sold the business (partially on credit) to James E. Daspit and his wife Janet, and leased the building to the Daspits as well. The Daspits insured their business contents with U.S. Fire.

The building and its contents were destroyed by fire on September 20, 1978; purportedly the fire was caused by defective wiring in Swann's building.

Three separate lawsuits were thereafter filed. The Daspits sued Swann for damages arising out of the fire. ² Swann sued the Daspits for the unpaid portion of the business purchase price (claiming $36,277.15 remained unpaid on a $46,000.00 promissory note). ³ U.S. Fire, alleging it had paid the Daspits $75,000.00, the limits on a fire policy for losses incurred because of the fire, and alleging that they were subrogated to a portion of the Daspits' claim, sued Swann seeking recovery of the $75,000.00. ⁴

On August 1, 1979 on motion of Swann, the U.S. Fire suit (No. 56,126) was consolidated with the previously filed lawsuits Nos. 54,668 and 54,773. Trial on the merits of the three consolidated cases was held on November 5, 1980. On July 9, 1981 the trial judge issued reasons for judgment in the matter. Essentially the court found that fault lay with Swann because the fire was caused by defective wiring in the building. He found that the damages to which the Daspits were entitled amounted to $105,000.00; that Swann was entitled to recover from the Daspits $25,548.18 (plus interest and attorney's fees), the balance due on the Daspits' promissory note; and that United States Fire, as subrogee, was entitled to a $75,000.00 portion of the $105,000.00 Daspit damages. Thus he recited that the court would award the Daspits "the sum of $105,000.00 subject to the claim of United States Fire Insurance Company in the amount of $75,000.00 and the claim of Mrs. Swann."

The trial judge concluded his reasons by reciting, "the court will sign a judgment in accordance with these reasons when one is presented to it."

The reasons for judgment were issued under the following caption and number:

JAMES E. DASPIT and his wife, NUMBER 54668

JANET S. DASPIT

d/b/a SWANN SUPPLY 22ND JUDICIAL DISTRICT COURT

PARISH OF ST. TAMMANY

VERSUS

STATE OF LOUISIANA

ELLEN TOOLEY SWANN, widow of

FRANCIS E. SWANN, Individually and

Administratrix of the Succession of

FRANCIS E. SWANN

At this juncture the attorneys did not, as contemplated by the trial judge, present a single judgment in the three consolidated cases conforming with the trial judge's reasons. Rather, respective counsel for U.S. Fire and the Daspits presented, and had the judge sign, separate judgments on July 15, 1981 and July 17, 1981.

The July 15, 1981 judgment, under No. 56,126 awarded U.S. Fire $75,000.00 plus costs and legal interest against Swann. The July 17, 1981 judgment, under No. 54,668, awarded the Daspits against Swann $105,000.00, costs and legal interest, and in a separate paragraph it awarded Swann against the Daspits $25,545.18 plus legal interest and attorney's fees. This latter judgment did not recite, as it should have, that $75,000.00 of the $105,000.00 Daspit award belonged to U.S. Fire.

As a result of the signing of the two judgments as presented, in the latter of which the $105,000.00 Daspit award was not made subject to credit for U.S. Fire's $75,000.00 entitlement, Swann was cast in judgment for $75,000.00 more than was intended by the trial judge in his written reasons.

Counsel for Swann opted not to have the judgments corrected by way of a motion for new trial, but instead, chose to seek his relief by way of appeal. ⁵ Accordingly, on August 7, 1981 counsel for Swann filed a petition and order for suspensive appeal. ⁶ This petition was captioned and numbered exactly like the trial court's reasons for judgment, that is, No. 54,668, "James E. Daspit and his wife, Janet S. Daspit, d/b/a Swann Supply v. Ellen Tooley Swann, widow of Francis E. Swann, Individually, and as Administratrix of the Succession of Francis E. Swann." The petition was signed on August 25, 1981 and a bond of $130,000.00 was set.

On August 27, 1981, the deputy clerk of the district court sent out a notice of appeal to counsel for all parties to all three consolidated cases. The notice of appeal indicated that all three cases were being appealed, although in the body of the notice reference was made only to a judgment of July 17th. There was also sent by the Minute Clerk a letter to counsel for Swann, which in addition to indicating that all three cases had been appealed, advised him that costs would have to be paid within twenty days.

On August 28, 1981 Swann filed the suspensive appeal bond for $130,000.00. The bond was captioned and numbered in the same manner as was the petition for the appeal.

On September 28, 1981, the deputy clerk for the district court contacted counsel for Swann and questioned him concerning what was on appeal, informing him that someone from U.S. Fire was requesting a certificate of no appeal. Counsel allegedly informed the deputy clerk that all three of the consolidated cases had been appealed on August 7, 1981, and that the same was reflected by the notice of appeal and the letter concerning payment of costs.

On September 29, 1981, the deputy clerk of the district court signed a "Certificate of No Appeal" for the case of U.S. Fire v. Swann, docket number 56,126. On this same day, the same deputy clerk sent a letter to counsel for all parties stating that the previously issued notice of appeal, indicating that all three cases had been appealed, was in error, and that "the only case that was appealed is number 54,668."

On September 30, 1981, counsel for Swann received a letter from counsel for U.S. Fire demanding payment of the judgment and reciting that the July 15th judgment in U.S. Fire's favor was final.

Thereafter, counsel for Swann, on October 2, 1981, filed a motion in the district court contending that the previously signed judgments contained errors, in that they were not in conformity with the written reasons for judgment. He requested that an amended judgment be signed correcting those errors. Such an amended judgment was signed by the judge on that date. That amended judgment consolidated the two prior judgments into one. There was judgment U.S. Fire against Swann of $75,000.00 plus interests and costs; judgment Swann against Daspit of $25,545.18 plus interests and attorneys fees; and judgment Daspit against Swann of $105,000.00 plus legal interest, the latter, however, "subject to a credit of $75,000.00 reflecting the amount received by Mr. Daspit from U.S. Fire Insurance Company."

Thereafter, on October 15, 1981, another petition and order for appeal was filed and signed, and another bond was filed, but for $135,000.00, the additional $5,000.00 apparently to take into account accumulating interest. The record in the three cases was lodged in the Court of Appeal on December 2, 1981 and a lodging notice was mailed that day.

On December 3, 1981, counsel for U.S. Fire filed a motion to dismiss the appeal. It was argued, in the brief in support of the motion to dismiss the appeal, that the judgment in favor of U.S. Fire, signed on July 15, 1981, had become final on September 29, 1981 when the delays had run for filing an appeal, without an appeal having been filed. ⁷ It was further argued that the amended judgment obtained on October 2, 1981 did not change the judgment of July 15, 1981 and, therefore, did not start the appellate delays running anew. Consequently, it was argued that the appeal of the case of U.S. Fire v. Swann, District Court No. 56,126, should be dismissed as not timely perfected.

A "Show Cause Order" was sent to counsel for Swann requesting him to answer by brief, the motion to dismiss. Finally, on March 2, 1982, judgment was rendered by the Court of Appeal dismissing the appeal in that case (No. 56,126 ). The court correctly concluded that the appeal of one consolidated case with a separate judgment does not automatically effect an appeal of all other cases consolidated therewith. However, the court neglected to consider whether Swann's original petition and order of appeal was in fact for all three cases and not just for one of the consolidated cases. We granted writs to consider that question.

Counsel for Swann contends that the appeal of the U.S. Fire case was timely perfected by the petition and order for appeal filed on August 7, 1981 and signed on August 25, 1981. In support of this contention, he argues that he used the one caption and number as a short reference to all three cases, just as did the trial judge in his written reasons for judgment. However, it was his intention to appeal all three cases. That intention was sufficiently evident to the clerk, for the clerk's notice recited that all three cases had been appealed, and thus the same was evident to U.S. Fire upon receipt of the clerk's notice, he contends.

Counsel for U.S. Fire attempts to refute...