
    Steve BATTAGLIA and James Massacci v. Charles JOHNSON, Cleveland Turner, Coleman Cab Company and Excell Underwriters.
    No. 2005-CA-0153.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 17, 2006.
    Rehearing Denied June 30, 2006.
    
      W. Patrick Klotz, Klotz & Early, New Orleans, LA, for Plaintiff/Appellant.
    Gregory M. Porobil, The Law Offices of Gregory M. Porobil, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS SR., Judge EDWIN A. LOMBARD, and Judge LEON A. CANNIZZARO JR.).
   CHARLES R. JONES, Judge.

|-iThe Appellants, Steve Battaglia and James Massacci, appeal a district court judgment, arguing that the judgment was not a final judgment as it only addressed quantum and not liability. We AFFIRM IN PART, VACATE and REMAND IN PART the district court judgment.

Facts and Procedural history:

This appeal arises out of a motor vehicle accident which occurred on or about September 10, 2002. The Appellants, Mr. Battaglia and Mr. Massacci were passengers in a limousine owned and operated by the Orleans Limousine Rentals and driven by Neil Jody Matthews on Interstate 10 at or near the Louisa Street exit. The Defendant, Charles Johnson, was the driver of a cab owned by co-defendant, Cleveland Turner, and operated by the Coleman Cab Company. Mr. Johnson’s cab rear-ended the Appellants’ vehicle, causing multiple soft tissue injuries to both Mr. Battaglia and Mr. Massacci.

On January 3, 2003, this lawsuit was filed against the named defendants, Charles Johnson, Cleveland Turner, Coleman Cab Company and Excel Underwriters. A supplemental petition was filed on April 1, 2003 which named ^Imperial Fire and Casualty Insurance as a defendant. After proper service of process was made on all defendants, each of them, with the exception of Coleman Cab, answered the petition.

At a bench trial held on September 28, 2004, the district court granted judgment in favor of both Appellants against Coleman Cab only. Specifically, the court awarded $25,000 in damages, plus $1,964.64 in medical expenses, for a total judgment of $26,964.64 to Mr. Battaglia and $10,000 in general damages, plus $500 in medical expenses to Mr. Massacci. However, the judgement itself was silent as to the other named defendants.

On appeal, the Appellants argue that the district court erred in failing to adjudicate the issue of liability as to the other defendants, Charles Johnson, Cleveland Turner, or Imperial Fire & Casualty Company; and, they further contend, the case should be remanded to the district court so that the matter of liability can be adjudicated as to the remaining defendants.

Discussion

Before we discuss the merits of the appeal before us, we must fully discuss the procedural errors in the record. The record indicates that although the only defendant cast in judgment by the district court was the Coleman Cab Company, there was no indication that the other defendants’ liability was ever addressed by the district court. However, while the district court entered judgment against the Coleman Cab Company, the record reflects that the Coleman Cab Company did not file an Answer to the Petition. Thus, the Coleman Cab Company’s actions in this matter do not amount to either an appearance of record nor participation in the |slitigation. Further, the Appellants did not seek a default judgment against the Coleman Cab Company.

Furthermore, what makes these procedural errors more problematic is that counsel for the Appellees, Mr. Proboril, made “appearances” for all of the defendants as follows:

• On March 13, 2003, Mr. Poboril filed an Exception of No Cause or Right of Action on behalf of Excel Underwriters;
• On March 27, 2003, Mr. Poboril made multiple filings: 1) he filed an Exception of Insufficiency of Service of Process on behalf of the Coleman Cab Company; 2) he filed an Answer for Cleveland Turner; and he 3) filed a Request for Notice of Trial and of Signing of Judgment.
• On April 22, 2003, Mr. Poboril filed an Answer to Original and First Supplemental and Amending Petition on behalf of Charles Johnson and Imperial Fire and Casualty Company.

Following the district court’s sustaining the Coleman Cab Company’s Exception of Insufficiency of Service of Process, there was still no Answer filed by the Coleman Cab Company. Pleadings consist of petitions, exceptions, written motions, and answers. LSA-C.C.P. Art. 852. When an exception is filed prior to answer and is overruled or referred to the merits, or is sustained and an amendment of the petition is ordered, the answer shall be filed within ten days after the exception is overruled or referred to the merits, or ten days after service of the amended petition. La. Code Civ. Pro. Art. 1001. [our emphasis]

Thus, the only Answers appearing in the record are those of Cleveland Turner, Charles Johnson, and Imperial Fire and Casualty Company. However, the |4only defendant cast in judgment is the Coleman Cab Company, which unfortunately, is the only defendant that failed to answer either the original or amended petition. However, the record reflects that despite the fact that proper service was made upon the Coleman Cab Company, no Answer was filed, even though in the Appellant’s brief, counsel notes “all defendant’s [sic] were represented by this counsel and proceeded to trial.” Furthermore, there is no indication that the Appellants ever filed for a Preliminary Default against Coleman Cab Company. Thus, by virtue of the fact that Mr. Porobil appeared as counsel of record for various defendants, he should have followed through by formally submitting an official Motion to Enroll as Counsel of Record for each Defendant he represented, or formally withdrawing as counsel if it was not his intention to fully represent all Defendants. However, despite the fact that counsel for Appellees represented all defendants, he did not file an Answer for all defendants.

We therefore conclude that based on the above procedural errors, the Coleman Cab Company never formally answered the petition as a matter of record. We disagree with the Appellants and find the matters and issues of liability should not have been adjudicated against Coleman Cab Company because the Coleman Cab Company did not file an answer to the Petition, even after the exception filed by Mr. Porobil on the Coleman Cab Company’s behalf was adjudicated. Additionally, since no preliminary default was taken against the Coleman Cab Company by the Appellants, there was literally no legal basis upon which to cast Coleman in judgment since Coleman did not appear on the record after the Exception for Insufficiency for Service of Process was ruled upon. Under no circumstances should judgment have been rendered against a party who has not | smade an appearance, and furthermore, the Appellants also had the option to file a preliminary default against Coleman Cab, but they failed to do so.

In its sole assignment of error, the Appellants argue that the district court erred in not adjudicating the matters of liability and quantum as to all defendants, and as a result, the district court judgment rendered in the case sub judice, is not a final judgment.

In R.J. Messinger, Inc. v. Rosenblum, 894 So.2d 1113 (La.03/02/05), the Supreme Court recently addressed the issue of the determination of final judgments as follows:

In order to assist the appellate court in its review of designated final judgments, the trial court should give explicit reasons, either oral or written, for its determination that there is no just reason for delay. However, if the trial court fails to do so, we find the appellate court cannot summarily dismiss the appeal. For purposes of judicial efficiency and economy, we approve the approach taken by the First, Third and Fifth circuits, and hold the proper standard of review for an order designating a judgment as final for appeal purposes when accompanied by explicit reasons is whether the trial court abused its discretion. If no reasons are given but some justification is apparent from the record, the appellate court should make a de novo determination of whether the certification was proper. Of course, if after examination of the record the propriety of the certification is not apparent, the court of appeal may request a per cu-riam from the trial judge. Alternatively, the court of appeal could issue a rule to show cause to the parties requiring them to show why the appeal should not be dismissed for failure to comply with La.Code Civ. P. art.1915, when the propriety of the certification is not apparent and the trial court has failed to give reasons for its certification ...
However, the overriding inquiry for the trial court is whether there is no just reason for delay. Courts of appeal, when conducting de novo review in matters where the trial court fails to give explicit reasons for the | ^certification, can consider these same criteria. Our interpretation of article 1915, which holds the certified final judgment is properly before the appellate court even when the trial court fails to give explicit reasons for its determination, is in accordance with La.Code Civ. Pro. art. 5051 which provides “[t]he articles of this Code are to be construed liberally, and with due regard for the fact that rules of procedure implement substantive law and are not an end in themselves.”

Messinger, 894 So.2d at 1122-23. [our emphasis]

In the case sub judice, the judgment does not indicate that it is not a final, appealable judgment. Therefore, based on Messinger, we have determined after our de novo review that this case must be considered as an appeal from a final judgment of the district court.

The appropriate standard for appellate review by appellate courts is the “manifest error-clearly wrong” standard, which precludes the setting aside of a trial court or jury’s findings of fact unless those findings are clearly wrong in light of the record reviewed in its entirety. Alexander v. Pellerin Marble & Granite, 93-1698 630 So.2d 706, 710 (La.1/14/94) citing Rosell v. ESCO, 549 So.2d 840 (La.9/12/89).

According to La.Code Civ. Pro. Art. 1841, a judgment is the determination of the rights of the parties in an action and may award any relief. However, if the district court rules on less than all the claims, then it retains jurisdiction to adjudicate the remaining issues in the case. La. C.C.P. Art.l915(C)

In the case sub judice, the parties proceeded to trial after the counsel for the Appellants filed an uncontested Motion to Set for Trial on the Merits. The parties subsequently filed witness lists with the district court, and proceeded to trial on September 28, 2004. Prior to trial, there were no stipulations filed into the record ^concerning liability. There was no indication that the Appellants ever sought to cure the defect in the record concerning the Coleman Cab Company’s failure to answer the Appellants’ Petition for Damages. The district court heard testimony from both Appellants, but none of the defendants were present, even though their counsel, Mr. Porobil appeared on their behalf. After all parties rested, the district court rendered judgment of liability based upon the Appellants’ testimony that their vehicle was struck by a Coleman cab. The Appellants did not contest the finding of liability and the district court proceeded to review the Appellants’ damage claims and subsequently awarded monetary awards to the Appellants.

However, based upon our review of the record in its entirety, and in light of the procedural errors in this record, we conclude that the Coleman Cab Company’s failure to answer and the Appellants’ failure to properly join the issues as to all defendants prior to proceeding to trial, renders this case alive as to the Coleman Cab Company, but adjudicated as to the other defendants. “Where [a] judgment is silent with respect to any demand which was an issue in the case under the pleadings, the silence constitutes an absolute rejection of the demand.” Sun Finance Co., Inc. v. Jackson, 525 So.2d 532, 533. (La.1988).

Although the Coleman Cab Company submitted to the jurisdiction of the district court through its attorney of record, the Coleman Cab Company cannot be cast in judgment until such time as the issues are properly joined and the Coleman Cab Company answers the Petition for Damages. The failure to join a party to an action may be pleaded in the peremptory exception, or may be noticed by the trial or appellate court on its own motion. La.C.C.P. Art. 645. However, we find that the district court judgment was clearly wrong due to the Appellants’ failure to properly join the issues as to the Coleman Cab Company. Thus, considering that |Rthe judgment is silent as to defendants other than the Coleman Cab Company, we VACATE the judgment as to the Coleman Cab Company.

However, because it was manifest error by the district court in not casting other defendants in judgment, we conduct a de novo review as to the liability of the other defendants

The record reflects that Excel Underwriters filed an Exception of No Cause or No Right Action on the basis that it is not an insurance company. However, the record indicates that there was no determination of the exception, nor did Excel Underwriters file an Answer. Therefore, Excel Underwriters was never determined to have liability as an insurer in this matter due to the Appellants’ failure to properly join the issues as to Excel Underwriters.

When this matter proceeded to trial, the Appellants presented their case through counsel and proved their damages by way of medical records and medical bills. However, the trial transcript reflects that when the issue of liability was discussed, no stipulations were agreed to by the attorneys of record, no witnesses were called to prove the damages against the named defendants, nor were insurance policies subpoenaed from either Imperial Fire and Casualty or Excel Underwriters as insurers by Counsel for the Appellants as evidence to cast either of the purported insurers in judgment. Furthermore, to the Appellants’ disadvantage, their counsel rested their case without having examined any of the Appellees. Therefore, we AFFIRM the judgment of the district court finding no liability on the part of the purported insurance providers, Excel Underwriters and Imperial Fire Rand Casualty, and Cleveland Turner.

However, Charles Johnson, who was an employee of the Coleman Cab Company, was the driver of the cab on the evening he collided into the Appellants’ limousine. This fact alone is prima facie proof of Charles Johnson’s liability in this matter, although the district court judgment was silent as to the liability of Charles Johnson. Therefore, we find that the district court was manifestly erroneous in not finding liability against Charles Johnson. As a result of his negligent operation of the vehicle, both Appellants sustained physical injuries and medical damages. Therefore, we find that Charles Johnson was liable for the injuries and damages sustained by the Appellants. We therefore AMEND and RENDER judgment against Charles Johnson, finding him liable for the injuries and damages sustained by the Appellants, and casting him in judgment in the exact amounts expressed in the district court judgment against the Coleman Cab Company.

DECREE

For the aforementioned reasons, we hereby AFFIRM the district court judgment with respect to the defendants Cleveland Turner, Excel Underwriters, and Imperial Fire and Casualty; we VACATE the district court judgment as to the Coleman Cab Company, and Excel Underwriters as issues were not properly joined as to these defendants, and we RENDER judgment against Charles Johnson finding him liable for the injuries and damages sustained by the Appellants in the exact amounts expressed in the district court judgment against the Coleman Cab Company.

AFFIRMED IN PART; VACATED AND RENDERED IN PART

ARMSTRONG, C.J., respectfully concurs in part and dissents in part with reasons.

LOMBARD, J. Concurs.

CANNIZARO, J., dissents with reasons.

C.J. ARMSTRONG

Respectfully Concurs in Part and Dissents in Part with Reasons.

_jjl agree with the majority insofar as it vacates the judgment with respect to Coleman Cab Company. This defendant filed an exception of insufficiency of service of process, claiming that service was not made on its registered agent for service of process. The sheriffs return in the record shows domiciliary service on Cleveland Turner at Mr. Turner’s residence. The record contains no evidence that this exception was set for hearing, heard or acted upon by the trial court. Issue was not joined as between this defendant and the plaintiffs, and I would, therefore, vacate the judgment and remand to the trial court for hearing and disposition of the exception filed by Coleman Cab Company.

I also agree with the majority in affirming the trial court’s implicit judgment with respect to Mr. Turner and Imperial Fire and Casualty Company. The record does not show that Excell Underwriters’ exception of no cause of action was set for hearing, heard or ruled upon by the trial court. Therefore, issue has not been joined as to that defendant. I would vacate the implicit judgment dismissing the plaintiffs’ claims against that defendant for the same reasons as set forth herein and in the majority opinion with respect to Coleman Cab Company, remanding the case to the trial court for hearing and disposition of the exceptions filed by Excell Underwriters.

|2I am unable to agree with the rendition of judgment against Charles Johnson. Mr. Johnson’s answer admits only that he is a resident of the Parish of Orleans, State of Louisiana. Specifically, he does not admit having been the driver of the cab that was involved in the accident. Furthermore, Paragraph VI of Mr. Turner’s answer to the original petition states: “Further answering defendants [sic] aver that the [sic] Charles Johnson is not his employee and he has no liability for his actions.” The trial court did not allow the introduction of the police report into evidence, and that ruling has not been appealed or brought before this Court by application for supervisory review. Mr. Massacci testified at the trial that he did not know who owned the cab, and had had no conversation with the cab driver. At no time during his testimony did Mr. Massacci identify the driver as Charles Johnson. Although Mr. Battaglia testified that he had asked the cab driver how he was doing after the accident, when asked if he recalled the name of the cab driver, Mr. Battaglia testified, “No. Offhand, I don’t.” Because I find no evidence of record identifying Mr. Johnson as the driver of the offending taxi-cab, I am unable to agree that he should be cast in judgment.

CANNIZZARO, J. Dissents with Reasons.

_JjI respectfully dissent from the majority opinion. In their appellant brief the plaintiffs raised the following assignments of error:

I. The Judgment Rendered by the Honorable Judge Rosemary Ledet does not Dispose of all Claims Listed in Plaintiffs/Appellant’s Original and Supplemental Petition, thus, the Judgment is not Final.
II. In the Alternative, Because the Judgment Rendered by Judge Rosemary Ledet Failed to Litigate the Merits of the Case, Only Causing an Adjudication on the Issue of Quantum, it is an Interlocutory Judgment.

Rule 2-12.4 of the Uniform Rules-Courts of Appeal provides in relevant part that “[t]he court may consider as abandoned any specification or assignment of error which has not been briefed.”

In the instant case the plaintiffs’ discussion of the two assignments of error focuses only on the argument that the trial court judgment is not a final judgment, because it does not specifically address the liability of each defendant. After a trial on the merits, the trial court found that a single defendant, Coleman Cab Company, was liable to the plaintiffs. The judgment is silent as to the other defendants. The failure of the trial court judgment to expressly state that a determination of liability as to each defendant had been made in no way detracts from the finality of the judgment.

|9It is well settled that when a judgment is silent as to part of the relief requested, the judgment is deemed to have denied that relief. See, e.g., Rhone v. Boh Brothers, 2001-0270 (La.App. 4 Cir. 12/12/01), 804 So.2d 764, 768; Bain v. Middleton, 2000-2630 (La.App. 4 Cir. 11/14/01), 802 So.2d 837, 838 n. 1; Lacour v. Lacour, 99-0913 (La.App. 4 Cir. 2/9/00), 763 So.2d 678, 681. Therefore, I must dissent from the majority’s finding that Charles Johnson should be cast in judgment. Under the applicable jurisprudence, the silence of the trial court judgment on the issue of Mr. Johnson’s liability means that the trial court rejected the claim against him. Also, no one has requested that this Court review that finding.

I also dissent from the majority’s holding that vacates the judgment against Coleman Cab Company. The majority cites no authority for their holding on this issue, and I do not think that the fact that a defendant which does not answer a petition can release that defendant from the court’s jurisdiction, especially when the defendant appears at the trial on the merits through an attorney, does not object to any of the proceedings, and does not appeal the judgment that is rendered against it.

Additionally, I think that the majority erred in reviewing this case to determine whether the trial court’s findings of fact were manifestly erroneous or clearly wrong. Neither of the assignments or error raised by the plaintiffs contended that the trial court’s fact finding was in error. By raising and addressing an issue not included in an appellant’s assignments of error, this Court becomes an advocate for the appellant rather than an impartial arbiter.

Finally, I think that the majority’s reliance on the Messinger case, La. C.C.P. art. 1915(C), and La C.C.P. art. 645 is misplaced. The language quoted from the Messinger case relates to a summary judgment. In the instant case we are not reviewing a decision on a summary judgment. There was a trial on the merits. La. |3C.C.P. art. 1915(C) relates to partial judgments and partial summary judgments. The judgment in the instant case is not a partial judgment. It is a final judgment that is silent as to part of the relief requested. All of the issues in this case were tried in the trial court, and the judgment is not a partial judgment to which article 1915(C) is applicable. La. C.C.P. art. 645 relates to the failure to join a party to an action. La. C.C.P. art. 641 requires all parties necessary for the just adjudication of an action to be made parties to the action. All of the parties required by article 641 to be joined in the instant case were joined. Therefore, article 645 has no relevance in the instant case.

Based on the foregoing, I would affirm the trial court’s judgment, because neither of the assignments of error raised by the plaintiffs on appeal has merit. No other assignments of error were raised, and we should consider them abandoned. Rule 2-12.4 of the Uniform Rules-Courts of Appeal. 
      
      . Only the Appellants, Mr. Battaglia and Mr. Massacci, testified at trial.
     
      
      . Plaintiffs’ counsel rested without having subpoenaed the defendants to appear at trial. Although he served them with notice of the suit, he never subpoenaed them to appear at trial to testify.
     