Succession of Simon Harrell and Clara Harrell v. Erris-Omega Plantation, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-696

SUCCESSION OF SIMON HARRELL, ET AL.

VERSUS

ERRIS-OMEGA PLANTATION, INC., ET AL.

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 222,091
HONORABLE HARRY F. RANDOW, DISTRICT JUDGE

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MARC T. AMY
JUDGE

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Court composed of Marc T. Amy, Elizabeth A. Pickett, and Billy Howard Ezell,
Judges.

AFFIRMED.

Michael L. Glass
1733 White Street
Alexandria, LA 71301
(318) 484-2917
COUNSEL FOR DEFENDANTS/APPELLEES:
Wilbert Joseph Saucier, Jr.
Erris-Omega Plantation, Inc.

Myles J. Johnson
2820 Jackson Street
Alexandria, LA 71301
(318) 542-4102
COUNSEL FOR DEFENDANTS/APPELLEES:
Wilbert Joseph Saucier, Jr.
Erris-Omega Plantation, Inc.

Gerard N. Torry
516 Napoleon Street
Baton Rouge, LA 70802
(225) 387-0850
COUNSEL FOR PLAINTIFF/APPELLANT:
Succession of Simon Harrell and Clara Harrell

AMY, Judge.

This long-standing litigation is about the plaintiffs‟ efforts to establish a predial

servitude over the defendants‟ property. This appeal concerns the trial court‟s

judgment dismissing the plaintiffs‟ petition to annul judgment after neither the

plaintiffs nor their counsel appeared for a hearing on that issue. For the following

reasons, we affirm. The defendants‟ request for damages for frivolous appeal is

denied.

Factual and Procedural Background

The record indicates that the plaintiffs, the Succession of Simon Harrell and

Clara Harrell, are the owners of an enclosed estate. Alleging that the defendants,

Erris-Omega Plantation, Inc. and Wilbert J. Saucier, Jr., had interfered with their

historical way of access, the Harrells filed this suit seeking a servitude in their favor.

Some time later, the parties entered into a purported stipulated agreement on the

record. Contending that the plaintiffs had failed to abide by the terms of the

settlement, the defendants later sought to enforce the settlement. When neither the

plaintiffs nor their attorney appeared at the hearing on the motion to enforce

settlement, the trial court granted the motion.

The plaintiffs then filed a petition to annul judgment. At a hearing on the

petition to annul the judgment, counsel for the plaintiffs, Gerard Torry, argued that the

stipulation was not enforceable because the agreement had not been presented to his

clients for review and that the trial court had inappropriately denied his request for a

continuance for the hearing on the motion to enforce settlement. The trial court

subsequently entered judgment dismissing the plaintiffs‟ petition and barring the

plaintiffs, their successors, heirs and assigns from seeking a legal servitude across the

defendants‟ property.

The plaintiffs appealed, and the trial court‟s judgment was initially affirmed by

this court. Succession of Harrell v. Erris-Omega Plantation, Inc., 10-138 (La.App. 3

Cir. 6/2/10), 41 So.3d 1215. The supreme court later granted the plaintiffs‟ writ

application, finding in part that there was confusion over the continuance request and

that the judgment granted relief not prayed for. Succession of Harrell v. Erris-Omega

Plantation, Inc., 10-2059 (La. 12/17/10), 50 So.3d 158. Thus, the supreme court

remanded the matter to the trial court for further proceedings on the plaintiffs‟ petition

to annul the April 20, 2009 judgment.

After a pretrial conference, which the trial court noted was attended by all

counsel of record, the trial court set a telephone scheduling conference. The record

indicates that the plaintiffs filed a motion for continuance late in the afternoon the day

before the telephone scheduling conference. At the hearing on the petition to annul

the judgment, the trial court observed that they were unable to reach plaintiffs‟

counsel and the telephone scheduling conference was conducted without him. The

trial court subsequently denied the motion for continuance as moot. At a later

hearing, the trial court noted that he was unaware the motion had been filed because

the plaintiffs did not provide his office with a courtesy copy. The plaintiffs sought

supervisory writs for the denial of the motion for continuance of the telephone

scheduling conference, which were denied by both this court and the supreme court.

Trial dates were set for August 17, 2011, and, alternatively, August 23, 2011.

Contending that their attorney had conflicts with both dates, the plaintiffs filed a

motion to continue the trial dates on July 20, 2011. However, the record indicates that

motion to continue was held by the Clerk of Court‟s office due to outstanding court

costs. Once the costs were paid, the motion to continue was processed and presented

to the trial court. The trial court denied the motion to continue the trial dates on

August 15, 2011, i.e., two days before the trial date.
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Accordingly, on August 17, 2011, a hearing was conducted on the plaintiffs‟

petition to annul the judgment. The record indicates that neither the plaintiffs nor

their counsel appeared at the hearing. The trial court noted that the start of the hearing

had been delayed while efforts were made to contact plaintiffs‟ counsel. According to

the trial court, a voicemail was left at plaintiffs‟ counsel‟s office inquiring whether he

was en route to the hearing. Further, the trial court also discussed the plaintiffs‟ July

20, 2011 motion to continue, stating that after he received the motion on August 15,

2011, he was able to contact defense counsel but not plaintiffs‟ counsel. The trial

court indicated that he left a message for plaintiffs‟ counsel and attempted to fax a

copy of the order denying the motion to continue to plaintiffs‟ counsel‟s office but

was unable to do so because plaintiffs‟ counsel‟s fax number was not working. The

trial court also noted that on August 16, 2011, he received a voicemail from plaintiffs‟

counsel stating that he had a previously scheduled matter and that he had filed a writ.

After taking a brief recess and instructing his bailiff to sound the hallway, the

trial court took up the plaintiffs‟ petition to annul the judgment. The defendants

moved for dismissal based on the plaintiffs‟ failure to appear and prosecute the case.

The trial court granted the defendants‟ request, dismissing the plaintiffs‟ petition to

annul the judgment with prejudice.

The plaintiffs now appeal, asserting as error that:

1. The trial court erred in departing from Rule 9.14(b) of the Uniform
Rules of the District Courts, Appendix 9.14 (Ninth Judicial District Court
Rule) and the Louisiana Code of Civil Procedure Article 1551, by
scheduling the matter for a “Pre-trial Conference” and the subsequent
telephone conference.

2. The trial court erred by scheduling this matter for trial in the absence
of plaintiffs‟ counsel and without any input from plaintiffs‟ counsel.

3. The trial court erred by denying the plaintiffs‟ Motion for Continuance
and thus denying the plaintiffs their day in court.

3

The defendants have filed an answer to the appeal, alleging that this appeal is

frivolous and seeking attorney fees and costs.

Discussion

Pre-trial Conference & Telephone Scheduling Conference

The plaintiffs first contend that the trial court erred in scheduling a pre-trial

conference and in failing to consider the plaintiffs‟ input in scheduling a trial date.

According to the plaintiffs, the trial court should have scheduled a scheduling

conference pursuant to La. Uniform Rules of Court Rule 9.14, which would have

avoided the later scheduling problems.

Louisiana Code of Civil Procedure Article 1551 addresses pretrial conferences,

stating, in relevant part:

A. In any civil action in a district court the court may in its
discretion direct the attorneys for the parties to appear before it for
conferences to consider any of the following:

(1) The simplification of the issues, including the elimination of
frivolous claims or defenses.

(2) The necessity or desirability of amendments to the pleadings.

(3) What material facts and issues exist without substantial
controversy, and what material facts and issues are actually and in good
faith controverted.

(4) Proof, stipulations regarding the authenticity of documents, and
advance rulings from the court on the admissibility of evidence.

(5) Limitations or restrictions on or regulation of the use of expert
testimony under Louisiana Code of Evidence Article 702.

(6) The control and scheduling of discovery including any issues
relating to disclosure or discovery of electronically stored information,
and the form or forms in which it should be produced.

(7) Any issues relating to claims of privilege or protection of trial
preparation material, and whether the court should include agreements
between counsel relating to such issues in an order.

(8) The identification of witnesses, documents, and exhibits.

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(9) The presentation of testimony or other evidence by electronic
devices.

(10) Such other matters as may aid in the disposition of the action.

Accordingly, a trial court has wide discretion to provide for pretrial orders and to

ensure that the terms of the order are enforced. Russell v. H & H Metal Contractors,

Inc., 11-27 (La.App. 3 Cir. 6/1/11), 65 So.3d 806.

Louisiana Uniform Rules of Court Rule 9.14, which addresses fixing a matter

for trial or a hearing and scheduling orders, provides that:

(a) The date on which a motion to fix for trial on the merits may be
made, and the method of setting a date for trial or hearing of a matter,
including deadlines for scheduling orders, pre-trial briefs, contact with
jurors, or any other matter, shall be determined by each district court as
set forth in Appendix 9.14.

(b) Any party may request in writing, or the court on its own
motion may order, a La. Code Civ. Proc. art. 1551 scheduling conference
between counsel and the court to which the case has been allotted.
Within thirty days after receiving a request for a scheduling conference,
the court shall schedule a conference for the purpose of addressing those
matters set forth in La. Code Civ. Proc. art. 1551. The scheduling
conference may be held by any appropriate means, including in person,
by telephone, or teleconference.

We note that the district court‟s local rules state that “[a]fter all pleadings are filed,

either party may file motion to set for trial.” See Rules for Louisiana District Courts,

9th Judicial District Court, Rule 9.14.

We find no merit in the plaintiffs‟ contention that the trial court erred in

scheduling a pretrial conference pursuant to La.Code Civ.P. art. 1551. That article

clearly grants the trial court the discretion and authority to “direct the attorneys for the

parties to appear before it,” for a pretrial conference to discuss, among other issues,

“[s]uch other matters as may aid in the disposition of the action.” La.Code Civ.P. art.

1551(10). Although there is no order in the record indicating what occurred at the

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pretrial conference, all counsel of record attended the pretrial conference.1 Further, in

brief, the plaintiffs do not object to the content of the pretrial conference, only the fact

that one was held.

The plaintiffs also contend that the trial court should have “afford[ed] the

plaintiffs an opportunity to participate in a scheduling conference pursuant to Rule

9.14(b) of the Uniform Rules of the District Courts and C.C.P. art. 1551.” However,

we note that the trial court did set such a scheduling conference after the plaintiffs‟

motion for leave of court to file first supplemental and amending petition2 had been

granted and after the defendants had answered the plaintiffs‟ supplemental and

amending petition. The record indicates that on May 9, 2011, the trial court issued an

order setting the telephone conference for May 19, 2011.3

According to the record, counsel for the plaintiffs did not file a motion for

continuance of the telephone scheduling conference until late in the afternoon on May

18, 2011. The record also indicates that the trial court did not learn that the plaintiffs

had filed a motion for continuance until after the scheduling conference had already

occurred. The trial court thus denied the motion for continuance as moot. The

plaintiffs do not contend in their appellate brief that the trial court erred in failing to

1
The plaintiffs have attached to their appellate brief a letter dated March 23, 2011, objecting
to the pre-trial conference on the basis that a scheduling conference is appropriate. Although the
letter is file-stamped by the Rapides Parish Clerk of Court, the stamp is not signed by the Clerk‟s
office and a copy of the letter does not appear in the record. It is well settled that an appellate court
“shall render any judgment which is just, legal, and proper upon the record on appeal.” La.Code
Civ.P. art. 2164. However, an appellate court cannot receive new evidence and cannot review
evidence which is not in the record on appeal. Reed v. Peoples State Bank of Many, 36,531 (La.App.
2 Cir. 3/5/03), 839 So.2d 955. In that vein, the briefs of the parties and any attachments thereto are
not part of the record on appeal. Id.
2
The plaintiffs titled this document, which was filed on March 23, 2011, their first
supplemental and amending petition. However, we observe that the record indicates that a
supplemental and amending petition was previously filed in 2007.
3
The order setting the telephone scheduling conference does not appear in the record. The
plaintiffs attached a copy of the order, which is file-stamped by the Clerk of Court, to their appellate
brief. See Reed, 839 So.2d 955. However, the transcript of the hearing held on August 17, 2011,
indicates that the telephone scheduling conference was set on May 9, 2011, for May 19, 2011, at
9:00 a.m.
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grant the motion to continue the telephone scheduling conference.4 Thus, we find that

the trial court did provide the plaintiffs with an opportunity for input in selecting the

dates for trial.

Accordingly, we find that the trial court did not abuse its discretion with regard

to either the pretrial conference or the telephone setting conference. The plaintiffs‟

contention that the trial court erred in doing so is without merit.

Motion for Continuance of the August 17 and August 23 Hearing Dates

The plaintiffs also contend that the trial court erred in denying their motion to

continue the hearing on the petition to annul the judgment.

The peremptory grounds for a motion to continue are found in La.Code Civ.P.

art. 1602, which states that:

A continuance shall be granted if at the time a case is to be tried,
the party applying for the continuance shows that he has been unable,
with the exercise of due diligence, to obtain evidence material to his case;
or that a material witness has absented himself without the contrivance of
the party applying for the continuance.

Absent one of those grounds, the discretionary grounds for a continuance are

delineated in La.Code Civ.P. art. 1601, which states that “[a] continuance may be

granted in any case if there is good ground therefor.” The trial court has wide

discretion in ruling on a motion for continuance, and that ruling will not be disturbed

absent a clear showing of abuse of discretion. Succession of Stark, 06-190 (La.App. 3

Cir. 7/5/06), 934 So.2d 901 (citing Sauce v. Bussell, 298 So.2d 832 (La.1974)). The

decision to grant or deny a continuance is dependent on the facts of the case and may

include consideration of such factors as diligence, good faith, reasonable grounds,

fairness to both parties, and the need for the orderly administration of justice. Ardoin

v. Bourgeois, 04-1663 (La.App. 3 Cir. 11/2/05), 916 So.2d 329. Another factor which

4
On August 12, 2011, in an unpublished writ bearing docket number 11-859, this court denied the
plaintiffs‟ writ application. The supreme court subsequently denied the plaintiffs‟ writ application
on August 17, 2011, in an unpublished writ bearing docket number 11-1806.
7

may be considered is the defendant‟s right to have his case heard as soon as

practicable. Gilcrease v. Bacarisse, 26,318 (La.App. 2 Cir. 12/7/94), 647 So.2d 1219,

writ denied, 95-421 (La. 4/30/95), 651 So.2d 845 (citing Lambert v. Heirs of Adams,

325 So.2d 331 (La.App. 3 Cir. 1975), writ denied, 329 So.2d 458 (1976)). “However,

this discretion may not be exercised arbitrarily, where a denial of a continuance

founded on a good-faith ground may deprive a litigant of his day in court.” Powell v.

Giddens, 271 So.2d 596, 597 (La.App. 1 Cir. 1972).

A review of the record indicates that this litigation has been pending since

2007. Since that time, multiple continuances have been filed, some attributable to the

plaintiffs and some to the defendants. Further, the record reveals that plaintiffs‟

counsel has, on more than one occasion, sought continuances in an untimely manner.

At least one time, that tendency was compounded by plaintiffs‟ counsel‟s failure to

alert the trial judge to the existence of such late-filed motions for continuance.

According to the record, the defendants‟ motion to enforce settlement was set

for a hearing on April 20, 2009. Approximately one month after the hearing was set

and five days before the hearing date, plaintiffs‟ counsel fax-filed a motion for

continuance, asserting that he had a previously scheduled hearing on that date.

However, the motion erroneously stated that the hearing was set for May 20, 2009.

The defendants opposed the motion for continuance. After neither plaintiffs nor their

attorney appeared at the hearing on April 20, 2009, the trial court granted the

defendants‟ motion to enforce settlement. The Clerk of Court received the original

motion for continuance on April 27, 2009, and presented it to the trial court. The trial

court then granted the order continuing the “May 20, 2009” hearing.

We observe that, in his reasons for judgment regarding the dismissal of the

plaintiffs‟ petition to annul judgment, dated December 1, 2009, the trial court

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addressed the series of events concerning the motion for continuance of the April 20,

2009 hearing and noted that:

When dealing with pleadings requiring a Judge‟s signature that are
filed via facsimile, it is the practice of the Rapides Parish Clerk of Court
to submit the pleading to the Judge for consideration upon receipt of the
original documents from the attorney, whether it be by hand delivery or
by mail.

The trial court‟s dismissal of the plaintiffs‟ petition to annul judgment was

reversed by the supreme court based, in part, on the confusion resulting from the

motion for continuance of the April 20, 2009 hearing. See Succession of Harrell v.

Erris-Omega Plantation, Inc., 10-2059 (La. 12/17/10), 50 So.3d 158.

Having thus been put on notice that fax-filed pleadings would not be presented

to the trial court until receipt of the original document from the attorney and that late-

filed pleadings could cause problems with the orderly administration of the court,

counsel for the plaintiffs presented other motions for continuance to the trial court in a

similar method on more than one occasion. With regard to the May 19, 2011

telephone scheduling conference, the record indicates that the plaintiffs fax-filed a

motion for continuance of the telephone scheduling conference on May 18, 2011, at

3:19 p.m. The original was received by the Clerk of Court‟s office on May 19, 2011,

at 10:04 a.m. Therein, the plaintiffs requested a continuance of the telephone

scheduling conference, citing a previously scheduled conflict in their attorney‟s

calendar. The trial court denied the motion as moot on May 23, 2011, noting that the

matter was set for trial. At the hearing held on August 17, 2011, the trial court noted

that plaintiffs‟ counsel had not provided the trial court with a courtesy copy of the

May 18, 2011 motion for continuance and that it did not learn that a motion for

continuance had been filed until after the telephone setting conference had been held.

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Thereafter, the plaintiffs sought supervisory writs from this court. On August

12, 2011, in an unpublished writ bearing docket number 11-859, this court denied the

plaintiffs‟ writ application, stating:

WRIT DENIED. We find no error in the trial court‟s ruling.
Furthermore, we find that the issue of whether the relator should be
granted a continuance based on conflicts with the trial dates chosen is
premature since this issue must first be presented to the trial court.

The supreme court subsequently denied the plaintiffs‟ writ application on August 17,

2011, in an unpublished writ bearing docket number 11-1806. See Succession of

Simon Harrell v. Erris-Omega Plantation, Inc., an unpublished writ bearing docket

number 11-859 (La.App. 3 Cir. 8/12/11), writ denied, 11-1806 (La. 8/17/11).

Similarly, after being notified that hearing dates had been selected for August

17, 2011 and August 23, 2011, the plaintiffs filed a motion for continuance in the trial

court. That motion was not filed until July 20, 2011, almost two months after the

telephone scheduling conference. Therein, the plaintiffs‟ attorney contended that he

had previously scheduled matters which conflicted with the trial dates scheduled on

August 17, 2011, and August 23, 2011. The defendants opposed the motion for

continuance. However, according to the record, the July 20, 2011 motion was held by

the Clerk of Court‟s office because the plaintiffs owed outstanding court costs. After

the court costs were paid, the motion for continuance was presented to the trial court

and, on August 15, 2011, the trial court denied the motion for continuance, noting that

the matter had been set for a hearing on May 19, 2011, and that this court denied the

plaintiffs‟ writ application on August 12, 2011.

At the hearing held on August 17, 2011, the trial court addressed the plaintiffs‟

motion to continue, stating that after he received the motion on August 15, 2011, he

was able to contact defense counsel but not the plaintiffs‟ attorney. According to the

trial court, he left a message for plaintiffs‟ counsel and attempted to fax a copy of the

10

order denying the motion to continue to plaintiffs‟ counsel‟s office but was unable to

do so because plaintiffs‟ counsel‟s fax number was not working. The trial court also

noted that on August 16, 2011, he received a voicemail from the plaintiffs‟ attorney

stating that he had a previously scheduled matter and that he had filed a writ. 5

According to the record, neither the plaintiffs nor their attorney appeared at the

August 17, 2011 hearing. The trial court noted that the hearing had been delayed

while efforts were made to contact the plaintiffs‟ attorney. The trial court left a

voicemail message inquiring as to whether plaintiffs‟ counsel was on his way to the

hearing and had the hallway sounded for any parties that may have shown up for the

hearing. The defendants then made a motion to dismiss based on the plaintiffs‟ failure

to appear and prosecute their case, which was granted by the trial court.

Although a trial court may not arbitrarily deny a motion for continuance when a

good-faith ground exists for the continuance and the denial would deprive a party of

their day in court, a review of the record reveals that “these ingredients are lacking.”

Powell, 271 So.2d at 597. Further, as stated in Rodriguez-Farr Agency, Inc. v. Sharp,

431 So.2d 889, 892 (La.App. 2 Cir.), writ denied, 439 So.2d 1075 (La. 1983):

There is no right to a continuance because of a conflict in
counsel‟s schedule. There is no abuse of discretion in denying a
continuance, requested on grounds of a conflict in counsel‟s schedule,
where counsel knew or should have known of the conflict for a
substantial period of time, and fails to act to obtain a continuance until
the last minute.

See Jackson v. Royal Ins. Co., 97-723 (La.App. 3 Cir. 12/17/97), 704 So.2d 424.

The evidence in the record indicates that the plaintiffs‟ attorney had knowledge

of the conflict for almost two months before he filed his motion for continuance. The

plaintiffs failed to pay outstanding court costs for several weeks, further delaying the

presentation of the motion to the trial court. The plaintiffs‟ repeated late-filed motions

5
There is no evidence in the record that the plaintiffs sought supervisory writs with regard to
the denial of the July 20, 2011 motion for continuance.
11

for continuance had a negative effect on the defendants‟ right to have the case heard

as soon as possible and on the orderly administration of justice. See Gilcrease, 647

So.2d 1219; Sather v. White, 388 So.2d 402 (La.App. 1 Cir. 1980). Further, the

transcripts reveal little or no effort on the part of plaintiffs‟ counsel to provide the trial

court with notice that there were late-filed motions and to find out whether or not his

motions had been granted. Given the discretion afforded the trial court in granting or

denying a motion for continuance, we find no error in the trial court‟s denial of the

motion for continuance.

This assignment of error is without merit.

Answer to the Appeal

The defendants have filed an answer to the appeal, contending that this appeal

is frivolous and requesting attorney fees and court costs.

Louisiana Code of Civil Procedure Article 2164 permits the appellate court to

“award damages, including attorney fees, for frivolous appeal or application for writs,

and may tax the costs of the lower or appellate court, or any part thereof, against any

party to the suit, as in its judgment may be considered equitable.” In Bandaries v.

Cassidy, 11-1267, p. 10 (La.App. 3 Cir. 3/7/12), 86 So.3d 125, 133, writ denied, 12-

780 (La. 5/25/12), 90 So.3d 412, a panel of this court addressed the award of damages

on the basis of frivolous appeal, stating:

“Damages for frivolous appeals, like sanctions at the trial court
level, are utilized to curtail the filing of appeals that are intended to delay
litigation, harass another party, or those that have no reasonable basis in
fact [or] law.” Johnson v. Johnson, 08-60, p. 5 (La.App. 4 Cir. 5/28/08),
986 So.2d 797, 801, writ not considered, 08-1418 (La. 10/3/08), 992
So.2d 1001. Although we are mindful that La.Code Civ.P. art. 2164
must be strictly construed, “[f]rivolous appeal damages will be awarded
if the appellant is trying to „delay the action‟ or „if the appealing counsel
does not seriously believe the law he or she advocates.‟ Hester v. Hester,
97-2009, p. 5 (La.App. 4 Cir. 6/3/98), 715 So.2d 43, 46.” Johnson, 986
So.2d at 801.

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Although we find no error in the trial court‟s judgment, we do not find that the

criteria for frivolous appeal exist. Accordingly, we decline to award the defendants

attorney fees and costs on the basis of frivolous appeal.

DECREE

For the foregoing reasons, we affirm the trial court‟s judgment dismissing the

motion to annul judgment filed by the plaintiffs, the Succession of Simon Harrell and

Clara Harrell. The defendants, Erris-Omega Plantation, Inc. and Wilbert J. Saucier,

Jr.‟s, request for damages for frivolous appeal is denied. Costs of this appeal are

allocated to the plaintiffs.

AFFIRMED.

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