Timothy D. Koehl Versus Rli Insurance Company, Geico General Insurance Company, Packard Truck Lines, L.L.C., and Robert T. Salassi ( 2024 )

TIMOTHY D. KOEHL NO. 23-CA-585
VERSUS FIFTH CIRCUIT
RLI INSURANCE COMPANY, GEICO COURT OF APPEAL
GENERAL INSURANCE COMPANY,
PACKARD TRUCK LINES, L.L.C., AND STATE OF LOUISIANA
ROBERT T. SALASSI
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 758-658, DIVISION "E"
HONORABLE FRANK A. BRINDISI, JUDGE PRESIDING
October 30, 2024
FREDERICKA HOMBERG WICKER
JUDGE
Panel composed of Judges Fredericka Homberg Wicker,
Stephen J. Windhorst, and Timothy S. Marcel
APPEAL DISMISSED
FHW
SJW
TSM
COUNSEL FOR PLAINTIFF/APPELLANT,
TIMOTHY D. KOEHL
Darla L. D'Amico
Michael J. Almerico
COUNSEL FOR DEFENDANT/APPELLEE,
RLI INSURANCE COMPANY
Matthew D. Moghis
William Peter Connick
Michael S. Futrell
COUNSEL FOR DEFENDANT/APPELLEE,
AXIS SURPLUS INSURANCE COMPANY
Rachel D. Chance
WICKER, J.
Plaintiff, Timothy Koehl, seeks appellate review of the trial court’s August
10, 2023 judgment, denying his “Motion to Annul, Set Aside, and Vacate
Judgment.” For the following reasons, we dismiss this appeal.
This case arises from a motor vehicle accident that occurred on March 14,
2015, in Metairie, Louisiana, involving a vehicle driven by Mr. Koehl and a
vehicle driven by defendant, Robert Salassi. Mr. Koehl filed this lawsuit against
Mr. Salassi, Packard Truck Lines, L.L.C. (“Packard”), and Packard’s commercial
liability insurers, RLI Insurance Company (“RLI”) and Axis Surplus Insurance
Company (“Axis”).1
RLI, Axis, and Packard filed motions for summary judgment pertaining to
insurance coverage, waiver of affirmative defenses, and vicarious liability, and
these motions were denied by the trial court on January 8, 2021. Packard filed a
writ application and, on May 12, 2021, this Court granted summary judgment in
Packard’s favor, dismissing Mr. Koehl’s claims against it. See Koehl v. RLI Ins.
Co., 21-68 (La. App. 5 Cir. 5/12/21), 325 So.3d 1110, 1115.2
On February 14, 2022, RLI re-urged its two motions for summary judgment,
on waiver and coverage, and also filed an exception of no right of action. Axis
filed a renewed motion for summary judgment on February 22, 2022. On April 19,
2022, the trial court rendered judgment in favor of RLI and Axis, granting their
motions and RLI’s exception and dismissing Mr. Koehl’s claims against them with
prejudice.3
1
Mr. Salassi was one of three members/owners of Packard until his November 2015 death. Mr. Salassi’s
succession was substituted as a defendant in Mr. Koehl’s first supplemental and amending petition.
2
RLI and Axis also sought review of the denial of their motions for summary judgment. On March 29,
2021, this Court denied the insurers’ writ applications. See Koehl v. RLI Ins. Co., 21-C-69 C/W 21-C-70
and 21-C-74 (La. App. 5 Cir. 3/29/21) (unpublished writ disposition).
3
The judgment was amended on October 18, 2022, to include the proper decretal language for a valid,
final judgment per La. C.C.P. arts. 1918 and 1951.
23-CA-585 1
Mr. Koehl appealed the April 19, 2022 judgment. Koehl v. RLI Ins. Co., 22-
370 (La. App. 5 Cir. 5/24/23), 367 So.3d 122. On appeal, this Court affirmed the
summary judgment granted in favor of Axis. Id. at 130-132. However, as to the
two summary judgments granted in favor of RLI, this Court reversed, finding
“genuine issues of material fact as to whether RLI waived its affirmative defenses
as to coverage in this case,” and remanded the matter to the trial court for further
proceedings. Koehl, 367 So.3d at 130. This Court also reversed the judgment
granting RLI’s exception of no right of action. Id. at 132. The Louisiana Supreme
Court denied writs. Koehl v. RLI Ins. Co., 23-1057 (La. 12/5/23), 373 So.3d 980;
and Koehl v. RLI Ins. Co., 23-1052 (La. 12/5/23), 373 So.3d 981.
On April 18, 2023, before this Court’s opinion affirming Axis’ summary
judgment and reversing RLI’s summary judgments was issued, Mr. Koehl filed in
the trial court a “Motion to Annul, Motion to Set Aside, and Motion to Vacate
Judgment” (“motion to annul”). In his motion to annul, Mr. Koehl cited La. C.C.P.
art. 2002, et seq., and argued that the April 19, 2022 judgment, which was pending
on appeal at that time, is an absolute nullity for failure to properly serve Mr.
Salassi’s succession with the motions for summary judgment, exception of no right
of action, and the hearing date.
A hearing on the motion to annul was held on July 13, 2023. On August 10,
2023, the trial court rendered a judgment denying Mr. Koehl’s motion to annul. In
its reasons for judgment, the trial court indicated it construed Mr. Koehl’s pleading
as a motion for new trial and denied it as untimely.
Mr. Koehl filed this appeal and a writ application, seeking review of the
August 10, 2023 judgment denying his motion to annul in each. RLI filed a
motion to dismiss this appeal, arguing the judgment is interlocutory and thus, it is
reviewed only under this Court’s supervisory jurisdiction. On initial review, this
Court denied the motion to dismiss appeal on February 29, 2024. However, on
23-CA-585 2
further review, we find the judgment is interlocutory and may not be addressed
under our appellate jurisdiction.
In his motion to annul, Mr. Koehl argued the judgment is absolutely null for
lack of proper service on Mr. Salassi’s succession. An absolutely null judgment
may be challenged by filing a direct action to nullify the judgment, or it may be
collaterally attacked by procedural means short of a petition for nullity, such as a
contradictory motion. Zavala v. Dover Constr. USA, L.L.C., 17-1 (La. App. 1 Cir.
4/11/18), 249 So.3d 24, 29; Lexington Ins. Co. v. Tasch, Inc., 12-339 (La. App. 5
Cir. 11/27/12), 105 So.3d 950, 956; Folse v. St. Rose Farms, Inc., 14-436 (La.
App. 5 Cir. 11/25/14), 165 So.3d 104, 107. A motion for new trial is an acceptable
procedural vehicle for asserting the nullity of a judgment. Harriss v. Archives
Grill, LLC, 51,298 (La. App. 2 Cir. 4/5/17), 217 So.3d 1203, 1210, n. 8; Dougherty
v. Dougherty, 21-433 (La. App. 1 Cir. 3/29/22), 341 So.3d 669, 677.
In the present case, Mr. Koehl did not file a direct action to nullify the
judgment; rather, he filed a motion to annul the April 19, 2022 judgment. The trial
court construed Mr. Koehl’s motion to annul as a motion for new trial and denied
the motion on August 10, 2023. The denial of a motion for new trial is an
interlocutory judgment which is not appealable and may only be reviewed under
the appellate court’s supervisory jurisdiction. State, Division of Administration,
Office of Community Development-Disaster Recovery Unit v. Gordon, 23-348 (La.
App. 5 Cir. 3/27/24), 384 So.3d 1141, 1145; Truitt v. Graco, Inc., 19-121 (La.
App. 5 Cir. 11/20/19), 284 So.3d 674, 677; 9029 Jefferson Highway, L.L.C. v.
S&D Roofing, L.L.C., 15-686 (La. App. 5 Cir. 2/24/16), 187 So.3d 522, 524;
Duckering v. Rapides Healthcare System, 15-1049 (La. App. 3 Cir. 3/2/16), 187
So.3d 548, 550. Therefore, the August 10, 2023 judgment is not appealable and is
reviewable only under this Court’s supervisory jurisdiction.
23-CA-585 3
In Mr. Koehl’s writ application, case number 23-C-563, we have reviewed
the denial of Mr. Koehl’s motion to annul under our supervisory jurisdiction. In
our disposition, which is being handed down simultaneously with this opinion, we
denied the writ application, finding that a nullity action in this case is precluded
under La. C.C.P. art. 2005 and that Mr. Koehl waived any right to object to
improper service by failing to timely raise the issue.
Accordingly, finding this Court lacks appellate jurisdiction and having
already addressed the judgment at issue via our supervisory review, we dismiss this
appeal.
APPEAL DISMISSED
23-CA-585 4
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
STEPHEN J. WINDHORST LINDA M. WISEMAN
JOHN J. MOLAISON, JR.
FIRST DEPUTY CLERK
SCOTT U. SCHLEGEL
TIMOTHY S. MARCEL FIFTH CIRCUIT
MELISSA C. LEDET
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NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
OCTOBER 30, 2024 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
23-CA-585
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE FRANK A. BRINDISI (DISTRICT JUDGE)
DARLA L. D'AMICO (APPELLANT) MATTHEW D. MOGHIS (APPELLEE) MICHAEL S. FUTRELL (APPELLEE)
WILLIAM PETER CONNICK (APPELLEE)
MAILED
SARAH R. SMITH (APPELLEE) TUCKER H. WIMBERLY (APPELLEE) RACHEL D. CHANCE (APPELLEE)
ATTORNEY AT LAW ATTORNEY AT LAW ATTORNEY AT LAW
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HOUSTON, TX 77046 METAIRIE, LA 70002 NEW ORLEANS, LA 70130
MICHAEL J. ALMERICO (APPELLANT)
ATTORNEY AT LAW
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METAIRIE, LA 70001