Lytle v. CEM Insurance Company ( 2023 )

Case: 22-40616 Document: 00516836551 Page: 1 Date Filed: 07/27/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
____________
July 27, 2023
No. 22-40616 Lyle W. Cayce
____________ Clerk
Kevin Clay Lytle,
Plaintiff—Appellant,
versus
CEM Insurance Company, Incorporated,
Defendant—Appellee.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:20-CV-186
______________________________
Before Haynes and Engelhardt, Circuit Judges, and Saldaña,
District Judge. *
Per Curiam: †
This case began in a state district court involving Kevin Lytle’s claims
arising from damage to his truck. He originally sued Exeter Finance
Corporation and Pronto Insurance Agencies, LP, which both answered the
case (although Lytle settled and then nonsuited his claims against Exeter
_____________________
*
United States District Judge for the Southern District of Texas, sitting by
designation.
†
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-40616 Document: 00516836551 Page: 2 Date Filed: 07/27/2023
No. 22-40616
while still in state court), and later sued CEM Insurance Company, which
removed the case. Pronto was never dismissed. In the original petition filed
in state court, it was called Pronto Insurance Agencies, LP, and was later
referred to as Pronto Insurance Company in amended petitions. Pronto was
named on the docket in the federal court and continued to be referenced in
the case. Ultimately, CEM Insurance moved for summary judgment, which
the district court granted. Notably, the district court, seemingly recognizing
that another party was still in the case, did not enter a final judgment.
Nonetheless, Lytle filed this appeal regarding only the summary judgment in
favor of CEM Insurance. 1
Although CEM Insurance contends that Pronto Insurance Company
was a different defendant that was never served, at oral argument its counsel
admitted it was not aware of a separate company with that name, and Lytle’s
counsel admitted it was a misnomer. See In re Greater Hous. Orthopaedic
Specialists, Inc., 295 S.W.3d 323, 325–26 (Tex. 2009) (explaining that the
naming of the right party incorrectly is a misnomer, and the petition remains
effective). Because a party remains in the case, and the district court did not
direct entry of final judgment pursuant to Federal Rule of Civil Procedure
54(b), the August 9, 2022 order granting CEM Insurance’s motion for
summary judgment is not a “final decision” for purposes of 28 U.S.C.
§ 1291. Thus, we lack appellate jurisdiction over this case, which remains
pending in the district court. See Borne v. A & P Boat Rentals No. 4, Inc., 755
F.2d 1131, 1133 (5th Cir. 1985). Accordingly, this appeal is DISMISSED
for want of jurisdiction.
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1
Notably, the notice of appeal listed the case name as “Kevin Clay Lytle v. Pronto
Insurance Agencies, LP and Exeter Finance Corporation.” Because the appeal addressed
only Lytle and CEM Insurance, the Clerk’s Office set the case title used above.
2