From Casetext: Smarter Legal Research

Cushenberry v. Scott

STATE OF LOUISIANA COURT OF APPEAL, FIRST CIRCUIT
Jan 6, 2021
NO. 2021 CW 0003 (La. Ct. App. Jan. 6, 2021)

Opinion

NO. 2021 CW 0003

01-06-2021

FRANK CUSHENBERRY AND ROBIN CUSHENBERRY, INDIVIDUALLY AND ON BEHALF OF THE MINOR CHILDREN, NOAH CUSHENBERRY AND KHLOE CUSHENBERRY v. JOHNNY SCOTT AND BARBER BROTHERS CONTRACTING COMPANY, LLC LOUISIANA CONSOLIDATED WITH BARBER BROTHERS CONTRACTING COMPANY, LLC v. CAPITOL CITY PRODUCE COMPANY, LLC, FRANK CUSHENBERRY AND XYZ INSURANCE COMPANY


In Re: Barber Brothers Contracting Company, LLC, applying for supervisory writs, 19th Judicial District Court, Parish of East Baton Rouge, No. 674957 c/w 672217. BEFORE: McDONALD, HOLDRIDGE, AND PENZATO, JJ.

WRIT DENIED.

AHP

McDonald and Holdridge, JJ., concur in the result. At this stage of the proceedings, the proper procedural remedy would be for the defendant to request a motion for directed verdict, La. C.C.P. art. 1810, after the close of the plaintiffs' case if the plaintiffs fail to prove any of their causes of action. However, we disagree that a partial exception of no cause of action cannot be granted. Prior to 1997, the cases did not allow a judgment granting only a partial exception of no cause of action. See Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1239 (La. 1993). However, in 1997, the legislature authorized a partial judgment that "sustains an exception in part, as to one or more but less than all of the claims, demands, issues, or theories against a party." La. C.C.P. art. 1915(B)(1). "This amendment ... authorizes a judgment granting a partial exception of no cause of action; importantly, this amendment provides certainty as to the immediate appealability of such a judgment." Frank L. Maraist, Louisiana Civil Law Treatise; Civil Procedure, Vol. I, § 6.7, pp. 172-173 (2d ed. 2008). We are aware that although La. C.C.P. art. 1915(B)(1) would appear to authorize a judgment granting only a partial exception of no cause of action, this court has not interpreted the clear and unambiguous language of La. C.C.P. art. 1915(B)(1) in this manner. See Expert Riser Solutions, LLC v. Techcrane International, LLC, 2018-0612 (La. App. 1 Cir. 12/28/18), 270 So.3d 655, 663; State, by and through Caldwell v. Astra Zeneca AB, 2016-1073 (La. App. 1 Cir. 4/11/18), 249 So.3d 38, 50-51 (Holdridge, J., concurring), writ denied, 2018-00766 (La. 9/21/18), 252 So.3d 899, and writ denied sub nom. State, by and through Caldwell v. AstraZeneca AB, 2018-0758 (La. 9/21/18), 252 So.3d 904. However, legislation, and not jurisprudence, is a solemn expression of legislative will. La. C.C. art. 2. Therefore, this court has the authority to grant a partial exception raising the objection of no cause of action. COURT OF APPEAL, FIRST CIRCUIT /s/_________

DEPUTY CLERK OF COURT

FOR THE COURT


Summaries of

Cushenberry v. Scott

STATE OF LOUISIANA COURT OF APPEAL, FIRST CIRCUIT
Jan 6, 2021
NO. 2021 CW 0003 (La. Ct. App. Jan. 6, 2021)
Case details for

Cushenberry v. Scott

Case Details

Full title:FRANK CUSHENBERRY AND ROBIN CUSHENBERRY, INDIVIDUALLY AND ON BEHALF OF THE…

Court:STATE OF LOUISIANA COURT OF APPEAL, FIRST CIRCUIT

Date published: Jan 6, 2021

Citations

NO. 2021 CW 0003 (La. Ct. App. Jan. 6, 2021)