State of Louisiana, Dotd v. Triangle Property, LLC

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-564

STATE OF LOUISIANA,
DEPARTMENT OF TRANSPORTATION AND DEVELOMENT

VERSUS

TRIANGLE PROPERTY, LLC, ET AL.

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APPEAL FROM THE
SEVENTH JUDICIAL DISTRICT COURT
PARISH OF CATAHOULA, NO. 25,273 DIV. B
HONORABLE GLEN W. STRONG, DISTRICT JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of Jimmie C. Peters, James T. Genovese, and Shannon J.
Gremillion, Judges.

AFFIRMED.

Bernard L. Knobloch, Jr.
Attorney at Law
P. O. Box 94245
Baton Rouge, LA 70804
(225) 237-1341
COUNSEL FOR PLAINTIFF/APPELLANT:
State of Louisiana,
Department of Transportation and Development

Donald R. Wilson
Wilson & Wilson
P. O. Box 1346
Jena, LA 71342
(318) 992-2104
COUNSEL FOR DEFENDANT/APPELLEE:
W. B. McCartney Oil Company

V. Russell Purvis, Jr.
Smith, Taliaferro & Purvis
P.O. Box 298
Jonesville, LA 71343
(318) 339-8526
COUNSEL FOR DEFENDANT/APPELLEE:
CCI Management Corporation

J. W. Seibert, III
Seibert & Gibbs, P.A.
P. O. Box 2038
Vidalia, LA 71373
(318) 336-9676
COUNSEL FOR DEFENDANT/APPELLEE:
Triangle Property, LLC

GREMILLION, Judge.

The plaintiff, the State of Louisiana through the Department of

Transportation and Development, appeals the trial court’s order granting a writ of

mandamus in favor of the defendant, CCI Management Corporation (CCI). For the

following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

This litigation arises out of the State’s expropriation of property located in

Jonesville, Louisiana. The State filed suit against six different parties in the

expropriation proceeding who owned property or operated businesses. Three of

those parties, W.B. McCartney Oil Company (McCartney Oil), Triangle Property,

L.L.C. (Triangle Property) and CCI, filed reconventional demands.1

Following a jury trial in July 2010, CCI was awarded $894,764.00 plus legal

interest. McCartney Oil was awarded $558,279.00 plus legal interest. Judgment

was filed on August 18, 2010. McCartney Oil filed a motion for additur, or in the

alternative, for a new trial or judgment notwithstanding the verdict on August 26,

2010. A hearing was held in December 2010. In its written reasons for judgment

filed on February 17, 2011, the trial court stated it would grant the new trial with

regard to McCartney Oil, but if the State would consent, it would enter an additur

as an alternative to a new trial. The new amount awarded to McCartney Oil would

be $1,386,536.51, a figure based on uncontradicted expert testimony at trial. The

State did not consent to the additur and requested a new trial. On March 25, 2011,

the trial court granted McCartney Oil’s motion for new trial and entered judgment

in favor of McCartney Oil for $1,386,536.51 plus legal interest. Notice of

judgment was mailed on March 29, 2011. CCI filed a petition for a writ of

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Triangle Property owns the property. It leased a convenience store and retail gasoline
station to McCartney Oil, who sub-leased the outfit to CCI. CCI also operated a Subway
franchise in connection with the convenience store.

mandamus ordering the State to pay its award under the August 18, 2010 judgment,

which the trial court granted.

ISSUE

The State argues that because a new trial was granted to McCartney Oil, the

judgment as to CCI either is not final or should be held in abeyance pursuant to

La.Code Civ.Proc. art. 1971. The State’s sole assignment of error is that the trial

court erred in finding the August 18, 2010 judgment final as to CCI.

LAW AND DISCUSSION

A trial court’s decision to grant a new trial, including its “authority to define

and limit the scope of the new trial,” will not be reversed on appeal absent an abuse

of discretion. Boudreaux v. Wimberley, 02-1064, p. 5 (La.App. 3 Cir. 4/2/03), 843

So.2d 519, 522, writ denied, 03-1251 (La. 9/5/03), 852 So.2d 1037.

Louisiana Code of Civil Procedure Article 1971 states (emphasis added):

A new trial may be granted, upon contradictory motion of any
party or by the court on its own motion, to all or any of the parties and
on all or part of the issues, or for reargument only. If a new trial is
granted as to less than all parties or issues, the judgment may be held
in abeyance as to all parties and issues.

The State did not appeal the August 18, 2010 judgment in favor of either

Triangle Property or CCI. The State’s opportunity to appeal was extended well

beyond the usual sixty-day period due to McCartney Oil’s motion for new trial.

Louisiana Code of Civil Procedure Article 2087(C) pertaining to devolutive

appeals provides that, “When one or more parties file motions for new trial or for

judgment notwithstanding the verdict, the delay periods specified herein shall

commence for all parties at the time they commence for the party whose motion is

last to be acted upon by the trial court.”2 Likewise, La.Code Civ.P. art. 2123(B)

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The State suspensively appealed from the writ of mandamus. Pursuant to La.R.S.
48:459, the proper procedure in expropriation proceedings is to file a devolutive appeal.
Nevertheless, in either case, the time delays for appealing had long expired.
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pertaining to suspensive appeals provides that, “Whenever one or more parties file

motions for a new trial or for judgment notwithstanding the verdict, the delay

periods specified herein commence for all parties at the time they commence for

the party whose motion is last to be acted upon by the trial court.” Thus, the State

had sixty days from the date that the trial court ruled on McCartney Oil’s motion

for additur/new trial, which occurred March 25, 2011. The State has never

appealed from the original judgment in favor of CCI nor from the March 25, 2011

grant of McCartney Oil’s motion for new trial. It only appealed from the writ of

mandamus granted by the trial court on October 5, 2011.

All time delays for appealing had clearly expired when it attempted to hold

the judgment against CCI in abeyance because of the new trial granted to

McCartney Oil. The State offers little in way of argument in its two-page brief

except to note the case of T.M. Thurman v. Star Electric Supply, Inc., 283 So.2d

212 (La.1973). Thurman was rendered prior to the amendments to La.Code Civ.P.

art. 2087(C) and La.Code Civ.P. art. 2123(B), which essentially allowed all parties

an extended period of time in which to appeal when one party files a motion for

new trial, even if there are no underlying related issues. See Boyd v. Allied Signal,

Inc., 07-1409 (La.App. 1 Cir. 10/17/08), 997 So.2d 111, writ denied, 08-2682 (La.

1/16/09), 998 So.2d 105; Rosen v. State ex. rel. Dept. of Transp. And Dev., 01-499

(La.App. 4 Cir. 5/2/01), 785 So.2d 1049. Unfortunately, the State did not avail

itself of this opportunity.

The trial court specifically found:

In trying to sort this out, we’ve got three separate entities who have
three separate interests in this property. One is the property owner,
the other is the prime lessor, and the third is the sublessor. And the
appeal that was taken is as to one of those parties. And what I’m
trying to sort out in my mind as you have argued this, and I’ve looked
over the brief, if the Court of Appeals reversed and remanded this
matter, could they order a new trial as to the parties who did not
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appeal? Could their rights be taken away and start over, since there
was no appeal taken as to them. I don’t think so. I don’t think that
the Court of Appeals, the only issue that the Court of Appeals would
address would be the issue dealing with the one party out of the three
that was, where the Court of Appeals review was sought. So, if you
can’t change what has already been awarded by the jury, I think those
are separable issues. Those issues have been carved in stone, because
they were not appealed. And Mr. Knobloch’s argument was that he’s
entitled to come back now and stay this matter and possibly come
back and get some new appeal delays running, but I don’t think you
can do that. I don’t think you get to take another bite of that apple. So
from my analysis of this case, the only thing that is happening now is
the two parties against whom the judgment was not appealed are
being stonewalled. So, the Court is going to make the Writ of
Mandamus absolute in this case with regard to the two parties against
whom the appeal was not taken.

It is within the trial court’s discretion to hold a judgment in abeyance, and it

chose not to in this case. There is no obvious reason to do so since there are no

underlying factual issues that are mutually dependent upon resolution. The State’s

entire argument in this regard is:

At the time of the trial the project was under construction and
the impact of the project as completed was based in part on the effect
of construction activities and not on the effect of the project as
planned. The project is now substantially completed and additional
facts with respect to the effect of the project on the remaining
improvements may be adduced at trial.

We do not find this argument compelling. A full trial on the merits of this

case has already been held. The State further argues that the trial court erred in

failing to notify it that neither the August 18, 2010 judgment nor the March 24,

2011 ruling on the motion for new trial/additur would be held in abeyance;

therefore, it was properly appealable as a final judgment. This argument fails. A

trial court does not have a duty to inform the parties of an action it is not taking.

The State failed to appeal the original judgment, and it failed to appeal when

the trial court granted the motion for new trial in favor of McCartney Oil.

Additionally, the trial court did not err in refusing to hold the August 18, 2010

judgment in abeyance. Accordingly, the trial court did not abuse its discretion in
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granting the writ of mandamus in favor of CCI. The State is ordered to pay CCI

the amount due pursuant to the August 18, 2010 judgment.

CONCLUSION

The writ of mandamus issued in favor of the defendant-appellee, CCI

Management Corporation, is affirmed, and the State is ordered to pay the sums due

to CCI Management Corporation. All costs of this appeal are assessed against the

plaintiff-appellant, the State of Louisiana through the Department of

Transportation and Development in the amount of $7,613.75.

AFFIRMED.

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