Tom C. Miller v. Jose Gustavo Erazo, Gabisa Insurance Company and Liberty Mutual Insurance Company ( 2023 )

STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2023 CA 0247
TOM C. MILLER
VERSUS
JOSE GUSTAVO ERAZO, GABISA INSURANCE COMPANY AND
LIBERTY MUTUAL INSURANCE COMPANY
Judgment Rendered: SEP 212023
On Appeal from the 19th Judicial District Court
In and for the Parish of East Baton Rouge
State of Louisiana
Trial Court Docket Number C665938, Sec. 24
Hon. Donald R. Johnson, Judge Presiding
Willie G. Johnson, Jr. Counsel for Plaintiff/Appellant,
Jennifer O. Robinson Tom C. Miller
Sophia J. Riley
Derek E. Elsey
Baton Rouge, Louisiana
Paul D. Oberle, Jr. Counsel for Defendant/Appellee,
Byron A. Richie National General Insurance Co. and
Patrick W. Woolbert Imperial Fire & Casualty Insurance
Shreveport, Louisiana Co.
Keith S. Giardina Counsel for Defendant/Appellee,
Heather A. D' Antonio Liberty Personal Insurance Co.
David A. Safranek
Brad J. Brumfield
Baton Rouge, Louisiana
BEFORE: THERIOT, PENZATO, AND GREENE, JJ.
PENZATO, J.
The plaintiff, Tom C. Miller, appeals from the trial court' s July 19, 2021
judgment granting a motion to dismiss filed by Imperial Fire and Casualty
Insurance Company.' After reviewing the record, this court determined that
Imperial was not named as a defendant in Mr. Miller' s petition for damages, filed
on January 31, 2018. No other pleading in the record named Imperial as a party to
this proceeding. However, National General Insurance Company, a named
defendant, filed an answer to a first supplemental and amending petition for
damages purportedly filed by Mr. Miller. National' s answer indicated that Imperial
was named in Mr. Miller' s first supplemental and amending petition for damages.
National also alleged in its answer that it " shares common ownership" with
Imperial.
This court, ex proprio, issued an order on August 11, 2023, directing the
Clerk of Court for the 191h Judicial District Court to supplement the appellate
record with, among other things, the first supplemental and amending petition for
damages filed by Mr. Miller and the answer filed by Imperial.
The Clerk of Court for the 19th Judicial District Court supplemented the
appeal record, as instructed, on August 21, 2023. Neither of the requested
pleadings was included in the supplemental appellate record, evidencing to this
court that Mr. Miller did not file a first supplemental and amending petition for
damages into the record with the Clerk of Court for the 19t' Judicial District Court.
Imperial is not named as a party defendant in this proceeding and does not appear
in any other capacity. Thus, there is no pending suit against Imperial, and Imperial
lacked standing to file a motion to dismiss Mr. Miller' s suit pursuant to La. C. C. P.
t This case arises out of a car accident that occurred in February 2017.
N
arts. 1471 and 1473. 2
Although a party' s lack of standing is generally raised by a peremptory
exception of no right of action, this court may notice such on its own motion
pursuant to La. C. C. P. art. 927( B). See La. C. C.P. art. 927 and Rowland a BASF,
20- 0278 ( La. App. 1st Cir. 3/ 29/21), 323 So. 3d 26, 34, wit denied, 21- 00607 ( La.
6/ 22/ 21), 318 So. 3d 706. See also Abdul -Salaam v. " ole Food Market, Inc., 15-
356 ( La. App. 5th Cir. 11/ 19/ 15), 179 So. 3d 846, 848 ( An appellate court may
raise the issue of standing on its own motion.)
For these reasons, we vacate the judgment granting the motion to dismiss
filed by Imperial Fire and Casualty Insurance Company. This matter is remanded
to the trial court for further proceedings consistent with this opinion. All costs of
this appeal are assessed to Tom C. Miller.3
VACATED AND REMANDED.
2 Imperial' s motion to dismiss alleged that Mr. Miller violated the trial court' s April 28, 2021 order
to appear for his deposition. Because Imperial lacked standing to file the motion to dismiss, we do
not address Liberty Personal Insurance Company' s argument on appeal that the judgment granting
Imperial' s motion dismissed Mr. Miller' s suit in its entirety, not simply Mr. Miller' s claims against
mover, Imperial.
3 This memorandum opinion is issued in accordance with Uniform Rules—Courts of Appeal Rule 2-
16. 2( A)( 2) and ( 4).
3