Summary
In Myers v. Diaz, 2022-0445 (La.App. 1st Cir. 11/4/22), 354 So.3d 78, 80 81, this court considered a judgment granting a motion to enforce a settlement agreement.
Summary of this case from In re Oak Island Corp.Opinion
NUMBER 2022 CA 0445.
11-04-2022
Michael MYERS v. Gabriella DIAZ, Edward Diaz, GEICO County Mutual Insurance Company And GEICO Casualty Company.
GUIDRY, J.
This is an appeal from a trial court's grant of a motion to enforce a settlement. For the reasons that follow, we dismiss the appeal.
FACTS AND PROCEDURAL HISTORY
This appeal arises from a November 25, 2019 automobile accident wherein plaintiff Michael Myers brought suit against Gabriella Diaz, Edward Diaz, GEICO County Mutual Insurance Company, and GEICO Casualty Company. Subsequently, Plaintiff and GEICO County entered into settlement negotiations. Thereafter, on or about August 2, 2021, GEICO County filed a motion to enforce a settlement agreement, which after a hearing, was granted. A judgment was signed by the trial court on November 9, 2021. Plaintiff then filed a motion for new trial, which was denied on January 19, 2022. This appeal followed.
Plaintiff lists the following assignments of error.
1. The trial court erred in finding the mandate of La.C.C. Art. 2997(5) requiring authorization of the client to effect valid settlement was not controlling.
2. The trial court erred in finding a La.C.C. Art. 3071 "meeting of the minds" as to compromise or settlement existed.
3. The trial court erred in denying Plaintiff/Appellant's motion for a new trial under La.C.C.P. Art. 1972 and/or 1973.
4. The trial court committed legal error in basing its La.C.C. Art. 2997(5) decisions on improper considerations of "character," "motive," "policy" and other extraneous factors.
5. The trial court committed legal error in failing to read the relevant briefs and memoranda submitted it by Plaintiff/Appellant on the issues prior to hearing, at hearing or prior to ruling.
6. The trial court's nullification of part of its 11/9/21 judgment nullified the whole.
After the lodging of this appeal, Plaintiff filed a motion to strike certain portions of the record. This court, ex proprio motu, issued a rule ordering the parties to show cause why the appeal should not be dismissed.
The rule to show cause and motion to strike were referred to this panel to which the appeal is assigned. Given our decision herein, the motion to strike is denied as moot.
DISCUSSION
In this case, the judgment rendered by the trial court reads:
IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the Motion to Enforce Settlement by defendants Gabriella Diaz, Edward Diaz, and GEICO County Mutual Insurance Company is GRANTED;
IT IS FURTHER ORDERED that plaintiff Michael Myers and defendants Gabriella Diaz, Edward Diaz, and GEICO County Mutual Insurance Company shall accomplish the following within thirty (30) days of the signing of this Judgment: a) GEICO County Mutual Insurance Company, on behalf of itself and its alleged insureds Gabriella Diaz and Edward Diaz, shall pay to the plaintiff, Michael Myers, and his counsel, the amount of $30,001.00 (thirty thousand and one dollars), plus the plaintiff's court costs as of the date of settlement on December 22, 2020. b) Plaintiff, Michael Myers, shall execute a full release agreement releasing all claims arising from the automobile accident made the subject of this matter and occurring on or about November 25, 2019, in favor of Edward Diaz, Gabriella Diaz, and GEICO County Mutual Insurance Company in its capacity as liability insurer for Edward Diaz and Gabriella Diaz.
IT IS FURTHER ORDERED that the release shall reserve plaintiffs claims for UM/UIM coverage, property damages, and claims for statutory penalties related thereto, against any and all insurers which may be liable for same, including but not limited to GEICO County Mutual Insurance Company and GEICO Casualty Company.
The judgment herein grants the motion to enforce the settlement. The judgment, however, is devoid of language dismissing any of the parties, neither does it dispose of the entire matter. Therefore, we conclude that the judgment is a non-final, interlocutory judgment, which is not appealable. See La. C.C.P. arts. 1915, 2083 and 1841.
The proper procedural vehicle to contest an interlocutory judgment is by application for supervisory writ filed within thirty days of the interlocutory judgment. See La. C.C.P. art. 2201; Matter of Succession of Porche, 16-0538, p. 8 (La. App. 1st Cir. 2/17/17), 213 So.3d 401, 406 and n.2. Although this court has discretion to convert an appeal to an application for supervisory writs, it may only do so if the appeal would have been timely had it been filed as a supervisory writ application. Succession of Jaga, 16-1291, p. 5 (La. App. 1st Cir. 9/15/17), 227 So.3d 325, 328 n.2.
While this court has the discretion to convert a timely motion for appeal to an application for supervisory writs, there are limitations on this authority. Under Herlitz Construction Company, Inc. v. Hotel Investors of New Iberia, Inc. , 396 So.2d 878 (La. 1981) ( per curiam), appellate courts should consider an application for supervisory writs when the trial court judgment is arguably incorrect, there is no dispute of fact to be resolved, and a reversal would terminate the litigation. Further, we note that the filing of a motion for new trial seeking reconsideration of an interlocutory judgment cannot interrupt the thirty-day period for filing an application for supervisory writs. See Uniform Rules-Courts of Appeal, Rule 4-3; Whitney National Bank v. Landrieu , 18-0357, p. 4 (La. App. 4th Cir. 6/27/18), 250 So.3d 322, 324. We also note that the denial of a motion for new trial is an interlocutory and non-appealable judgment that an appellate court may consider as a part of an unrestricted appeal from a final judgment. See Henry v. Sullivan , 16-0564R (La. App. 1st Cir. 7/12/17), 223 So.3d 1263, 1272 (emphasis added).
In this matter, the judgment and notice of judgment are dated November 9, 2021 and November 10, 2021, respectively. The motion for appeal, however, was not filed until February 1, 2022. The motion for appeal was not timely filed. Accordingly, Plaintiff's appeal is hereby dismissed.
We recognize that Plaintiff can seek appellate relief once a final judgment has been rendered.
CONCLUSION
For the above and foregoing reasons, this appeal is dismissed. All costs are assessed to the plaintiff/appellant, Michael Myers.