HILL v. TMR EXPLORATION INC (2022)

Writ application denied.

I agree with the majority's decision to deny this writ application. I write separately, however, to clarify that, in my view, although the trial court reached the right result, it took the wrong route to get there. In Land v. Vidrine, 2010-1342 (La. 3/15/11), 62 So.3d 36, 41-42, this court explained “the [law of the case] doctrine does not apply in the context of a trial court ruling on interlocutory issues․” Here, the judgment denying AIG's motion for summary judgment was interlocutory in nature. Furthermore, the court of appeal did not exercise its supervisory jurisdiction to consider the portion of AIG's application seeking review. This court has recognized that “a denial of a writ by this court to review the lower courts’ rulings ․ [does] not become the law of the case․” Levine v. First National Bank of Commerce, 2006-0394, p. 6 n.4 (La. 12/15/06), 948 So.2d 1051, 1057.

Moreover, it is well-recognized that a party may file more than one motion for summary judgment. See, e.g., Bozarth v. State LSU Med. Ctr./Chabert Med. Ctr., 2009-1393, p. 9 (La. App. 1 Cir. 2/12/10), 35 So. 3d 316, 323 (a trial court may “consider a second motion for summary judgment after a first motion for summary judgment on the same issue has been denied.”); Magallanes v. Norfolk S. Ry. Co., 2009-0605, p. 5 (La. App. 4 Cir. 10/14/09), 23 So. 3d 985, 988 (“The proper procedure for obtaining a reconsideration of [a] motion for summary judgment which has been denied is to re-urge the motion itself by re-filing it prior to trial.”); Serou v. Touro Infirmary, 2015-0747, pp. 7-8 (La. App. 4 Cir. 4/13/16), 191 So. 3d 1090, 1095 (the “denial of a summary judgment does not bar a party from re-urging it at another time․ [A] ‘trial court may grant a re-urged motion for summary judgment, even when no new evidence has been submitted.’ ”)(Citations omitted). Therefore, application of the law of the case doctrine was inappropriate in this situation.

I agree, however, that the trial court properly denied the motion for summary judgment. As respondents indicate, there are numerous, disputed genuine issues of material fact regarding coverage, some of which may depend on factual issues such as intent or motive, neither of which is appropriate for summary judgment. See Phipps v. Schupp, 2009-2037, p. 6 (La. 7/6/10), 45 So. 3d 593, 597 (“Summary judgment usually is not appropriate for claims based on subjective facts such as motive, intent․”).

Thus, trial court reached the correct result even though it improperly applied the law of the case doctrine to arrive at that result. Under the circumstances, there is no need for this court to exercise its supervisory jurisdiction.

McCallum, J., additionally concurs and assigns reasons. Crain, J., recused.