DERRICK JEROME ALLEN v. BATON ROUGE GENERAL ET AL (2026)

This matter is before us on appeal by plaintiff, Derrick Jerome Allen, from a judgment of the trial court denying his motion for judgment by preliminary default. For the reasons that follow, we dismiss the appeal.

FACTS AND PROCEDURAL HISTORY

On October 10, 2023, Mr. Allen filed suit against Baton Rouge General Medical Center (“BRGMC”) asserting claims for medical malpractice and seeking damages.¹ Following a hearing on May 28, 2024, the trial court signed a judgment on July 25, 2024, granting BRGMC's motion for summary judgment and dismissing Mr. Allen's suit with prejudice.

Mr. Allen then filed a second “Amended & Re-Instated Petition for Damages” on June 26, 2024. On August 16, 2024, Mr. Allen filed a motion for preliminary judgment by default, which was denied by the trial court on August 21, 2024. In response to Mr. Allen's amended and reinstated petition for damages, BRGMC filed a peremptory exception of no cause of action and/or peremptory exception of res judicata on August 22, 2024. On September 13, 2024, Mr. Allen filed a motion to appeal the August 21, 2024 judgment denying his motion for preliminary default.

DISCUSSION

Following the lodging of this appeal, this Court issued a Rule to Show Cause Order noting that the August 21, 2024 judgment appeared to be an interlocutory nonappealable judgment, and ordered the parties to show cause by briefs why the appeal should not be dismissed.

As an appellate court, we have the duty to examine our subject matter jurisdiction and to determine sua sponte whether such subject matter jurisdiction exists, even when the issue is not raised by the litigants. Bond v. Louisiana Purchase Equestrian Estates, LLC, 2019-0957 (La. App. 1st Cir. 2/21/20), 299 So. 3d 120, 124; Marrero v. I. Manheim Auctions, Inc., 2019-0365 (La. App. 1st Cir. 11/19/19), 291 So. 3d 236, 238. This court's appellate jurisdiction only extends to “final judgments.” Gulfco of Louisiana, LLC v. Plaisance, 2022-0166 (La. App. 1st Cir. 3/8/23), 362 So. 3d 660, 662.

Only final judgments and interlocutory judgments expressly provided by law are appealable. La. C.C.P. art. 2083. A judgment that determines the merits in whole or in part is a final judgment. La. C.C.P. art. 1841. A judgment that denies a confirmation of a preliminary default does not determine the merits and is therefore, interlocutory. Gulfco of Louisiana, LLC, 362 So. 3d at 662, citing Gorman v. Miller, 2012-0412 (La. App. 1st Cir. 11/13/13), 136 So. 3d 834, 839, writ denied, 2013-2909 (La. 3/21/14), 135 So. 3d 620 (treating the denial of a request to confirm a preliminary default as an interlocutory judgment).

In the instant case, Mr. Allen has filed an appeal from an order denying a motion for preliminary default judgment. The denial of a default judgment, however, does not determine the merits of an action, and as such, is not a final judgment. Allen v. Louisiana Department of Public Safety and Corrections, 2018-1676 (La. App. 1st Cir. 6/10/19), 2019 WL 2416957, *1 (unpublished); Wells v. Mentorship Steam Academy as Part of Helix Community Schools, 2023-1112 (La. App. 1st Cir. 4/19/24), 2024 WL 169743 7, *2 (unpublished). Furthermore, the August 21, 2024 ruling is not an interlocutory judgment appealable by law. See La. C.C.P. art. 2083(C). Accordingly, this court lacks appellate jurisdiction over this matter. See Allen, 2019 WL 2416957 at *1-2; Wells, 2024 WL 1697437, *3 (unpublished).

The proper procedural vehicle to contest an interlocutory judgment is by application for supervisory writs filed within thirty days of the interlocutory judgment. See La. C.C.P. art. 2201; Myers v. Diaz, 2022-0445 (La. App. 1st Cir. 11/4/22), 354 So. 3d 78, 81. We recognize that this court has discretion to convert an appeal to an application for supervisory writs, and may do so when the motion for appeal was filed within the thirty-day time period allowed for the filing of a supervisory writ application. See Uniform Rules—Courts of Appeal, Rule 4-3; Succession of Saucier, 2021-1466 (La. App. 1st Cir. 6/29/22), 344 So. 3d 108, 114.

Under certain circumstances, appellate courts have exercised the discretion to convert an appeal of an interlocutory judgment into an application for supervisory writs where reversal of the trial court's decision would terminate the litigation, or where clear error in the trial court's judgment, if not corrected, will create a grave injustice. Sauce v. Burke, 2022-0541 (La. App. 1st Cir. 11/7/22), 356 So. 3d 439, 447-448; see also Herlitz Construction Company, Inc. v. Hotel Investors of New Iberia, Inc., 396 So. 2d 878 (La. 1981) (where the Louisiana Supreme Court directed appellate courts to exercise their supervisory jurisdiction, even though relief may be ultimately available on appeal, when the trial court judgment is arguably incorrect, when a reversal would terminate the litigation in whole or in part, and when there is no dispute of fact to be resolved).

While Mr. Allen's appeal was filed within the delay for filing a supervisory writ application, because the other criteria set forth above has not been met, we decline to exercise our supervisory jurisdiction to review the trial court's August 21, 2024 judgment denying his motion for preliminary default. See Lowe v. Leon Lowe & Sons, Inc., 2023-0920 (La. App. 1st Cir. 10/17/24), 2024 WL 4511447, *4 (unpublished), writ denied, 2024-01399 (La. 2/5/25), 400 So. 3d 109; Stelluto v. Stelluto, 2005-0074 (La. 6/29/05), 914 So.2d 34, 39 (the decision to convert an appeal to an application for supervisory writs is within the discretion of the appellate court).

CONCLUSION

For the above and foregoing reasons, this appeal of the trial court's August 21, 2024 interlocutory judgment is dismissed. Plaintiff/Appellant, Derrick Jerome Allen, is assessed with all costs of this proceeding.

APPEAL DISMISSED.

FOOTNOTES

1.   Mr. Allen filed a first amended and reinstated petition for damages and medical malpractice on January 26, 2024.

MILLER, J.