State of Louisiana, Through Its Department of Transportation and Development v. Ruvim Kimakovkiy

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

22-494

STATE OF LOUISIANA, THROUGH ITS
DEPARTMENT OF TRANSPORTATION
AND DEVELOPMENT

VERSUS

RUVIM KIMAKOVKIY, ET AL.

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF ST. MARTIN, NO. 89693
HONORABLE ANTHONY JUDE SALEME, JR., DISTRICT JUDGE

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D. KENT SAVOIE
JUDGE

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Court composed of D. Kent Savoie, Charles G. Fitzgerald, and Gary J. Ortego,
Judges.

AFFIRMED.

William Henry Cooper III
Attorney at Law
1201 Capitol Access Road
Baton Rouge, LA 70802
(225) 242-4664
COUNSEL FOR PLAINTIFF/APPELLANT:
State of Louisiana, Dept. of Transportation and Develop.

James L. Maughan
State of Louisiana, Dept. of Transportation and Develop.
1201 Capitol Access Rd.
P.O. Box 94245
Baton Rouge, LA 70804-9245
(225) 242-4611
COUNSEL FOR PLAINTIFF/APPELLANT:
State of Louisiana, Dept. of Transportation and Develop.

Jeanne P. Henderson
Craig Gremillion and Associates
2600 CitiPlace Drive, Suite 550
Baton Rouge, LA 70808
(225) 231-9460
COUNSEL FOR DEFENDANT/APPELLEE:
State Farm Mutual Automobile Insurance Company

John J. Rabalais
Chad N. Evans
Joseph M. Mouton, II
Rabalais Unland
70779 S. Ochsner Blvd.
Covington, LA 70433
(985) 893-9900
COUNSEL FOR DEFENDANTS/APPELLEES:
Hudson Insurance Company
Montgomery Transport, LLC
James D. Gilbert

Douglas K. Williams
Christopher A. Mason
Alexa Candelora
Breazeale, Sachse & Wilson, L.L.P.
One American Place, Suite 2300
301 Main Street
P.O. Box 3197
Baton Rouge, LA 70821-3197
(225) 387-4000
COUNSEL FOR DEFENDANTS/APPELLEES:
Great West Casualty Company
Chemical South Transport, Inc.

Ian Alexander Macdonald
Jones Walker
600 Jefferson St, #1600
Lafayette, LA 70501
(337) 593-7600
COUNSEL FOR DEFENDANT/APPELLEE:
United Financial Casualty Company

James Michael Dill
The Dill Firm, APLC
825 Lafayette Street
Lafayette, LA 70502
(337) 261-1408
COUNSEL FOR DEFENDANTS/APPELLEES:
Old Republic Insurance Company
Schneider National, Inc.
Eric A. Sundvall

Sean McAllister
Katy Kennedy
Loeb Law Firm
1180 W. Causeway Approach
Mandeville, LA 70471
(985) 778-0220
COUNSEL FOR DEFENDANTS/APPELLEES:
Ruvim Kimakovkiy
Euphoria Transport, LLC
Great West Casualty Company

Raven A. Fielding
Duplass APLC
3838 N. Causeway Blvd, Ste 2900
Metairie, LA 70002
(504) 832-3700
COUNSEL FOR DEFENDANT/APPELLEE:
William Manis

T. Braden Riley
Cozen O'Connor
1221 McKinney, Ste. 2900
Houston, TX 77009
(832) 214-3900
COUNSEL FOR DEFENDANT/APPELLEE:
Axis Surplus Insurance Company

SAVOIE, Judge.

Plaintiff State of Louisiana, through the Department of Transportation and

Development (DOTD), appeals a judgment denying its motion to amend a

voluntary judgment of dismissal without prejudice. For the following reasons, we

affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On September 2, 2020, DOTD filed suit against twenty-four Defendants for

the recovery of damages it alleges were caused to Interstate-10 by a multi-vehicle

accident and fire that occurred on August 26, 2019.

On April 19, 2021, DOTD filed a Motion and Order for Judgment of

Dismissal, “request[ing] that this suit be dismissed.” On April 21, 2021, the trial

court signed the judgment that DOTD presented with its motion, and, accordingly,

the suit was dismissed without prejudice.

On May 24, 2021, DOTD, along with Defendants Schneider National Inc.,

Old Republic Insurance Co., and Eric A. Sundvall, filed an Ex-Parte Joint Motion

to Amend and Correct Judgment of Dismissal Without Prejudice. The ex-parte

motion suggests that DOTD’s April 21, 2021 motion and judgment inadvertently

did not list by name the defendants DOTD intended to dismiss pursuant to an

agreement—namely, Sundvall, Schneider National, and Old Republic—and sought

to amend the judgment to reflect that DOTD’s claims against only those three

Defendants were dismissed without prejudice. The ex-parte motion further states

that the moving parties agreed to the amendment.

The trial court denied the ex-parte motion, but it set the matter for hearing.

The motion to amend was opposed by Defendants who were not parties to the

motion. Following a June 15, 2021 hearing, the trial court indicated that it lacked

jurisdiction to amend the April 21, 2021 judgment, and it denied the motion.

DOTD then filed motions to appeal both the underlying judgment of

dismissal and the judgment denying its motion to amend. In its appellant brief,

DOTD asserts the following as its sole assignment of error: “The Trial Court Erred

by Finding It Did Not Have Subject Matter Jurisdiction to Amend the April 21,

2021[] Consent Judgment Under La[. Code Civ.P. arts.] 1951 and 2088.”

STANDARD OF REVIEW

The question of whether DOTD’s motion to amend was properly denied

presents a question of law that is reviewed de novo on appeal. Freeman v. Zara’s

Food Store, Inc., 16-445 (La.App. 4 Cir. 11/2/16), 204 So.3d 691.

ANALYSIS

We first note that while DOTD appealed both the underlying judgment of

dismissal and the denial of its motion to amend, it has briefed only issues

pertaining to the trial court’s denial of its motion to amend; therefore, DOTD’s

appeal of the judgment of dismissal is deemed abandoned.1 Uniform Rules–Courts

of Appeal Rule 2–12.4.

With respect to the trial court’s denial of DOTD’s motion to amend, DOTD

argues on appeal that the judgment of dismissal was a “consent judgment” and that

the judgment failed to contain proper decretal language because it did not identify

the three Defendants whom DOTD intended to dismiss. Therefore, according to

DOTD, the trial court retained jurisdiction under La.Code Civ.P. art. 1951 and/or

La.Code Civ.P. art. 2088 to amend the judgment of dismissal to a partial judgment

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We further note that because DOTD moved to voluntarily dismiss its action, it cannot
appeal the judgment of dismissal that it prayed for and presented to the trial court for signature.
La.Code Civ.P. art. 2085; Frank L. Maraist, 1 LA. CIVIL LAW TREATISE § 10:3 (2d ed. 2018).

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of dismissal that dismissed DOTD’s claims against only three Defendants. DOTD

further suggests that the trial court had jurisdiction to substantively amend the

“consent judgment” because the parties to the agreement consented to the

amendment.

In response, Appellees argue that the judgment of dismissal was not a

“consent judgment,” as it was not styled as such, it was not signed by any

Defendants, and it did not otherwise make reference to any agreement. Appellees

further note that there is no compromise agreement in the record. In addition,

Appellees argue that the trial court had no authority to substantively amend the

final judgment of dismissal because the judgment contains proper decretal

language, DOTD did not file a motion for new trial, and not all Defendants

consented to the amendment.

Louisiana Code of Civil Procedure Article 1951 states as follows with

respect to amending final judgments (emphasis added):

On motion of the court or any party, a final judgment may be
amended at any time to alter the phraseology of the judgment or to
correct deficiencies in the decretal language or errors of calculation.
The judgment may be amended only after a hearing with notice to all
parties, except that a hearing is not required if all parties consent or if
the court or the party submitting the amended judgment certifies that
it was provided to all parties at least five days before the amendment
and that no opposition has been received. A final judgment may not
be amended under this Article to change its substance.

As stated by the Louisiana Supreme Court in Bourgeois v. Kost, 02-2785, pp.

5-8 (La. 5/20/03), 846 So.2d 692, 695-96:

[Louisiana Code of Civil Procedure] Article 1951 contemplates the
correction of a “clerical error” in a final judgment, but does not
authorize substantive amendments. Thus, the judgment may be
amended by the court where the amendment takes nothing from or
adds nothing to the original judgment. Villaume v. Villaume, 363
So.2d 448 (La.1978). The proper recourse for an error of substance
within a judgment is a timely application for new trial or a timely

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appeal. LaBove v. Theriot, 597 So.2d 1007, 1010 (La.1992); Hebert v.
Hebert, 351 So.2d 1199 (La.1977).

....

It is well settled under our jurisprudence that a judgment which
has been signed cannot be altered, amended, or revised by the judge
who rendered the same, except in the manner provided by law. The
trial judge cannot, on his own motion or on the motion of any party,
change a judgment which has been so signed, notwithstanding it was
signed in error. State ex rel. Vignes v. Judge Civil District Court, 10
So. 294, 43 La.Ann. 1169 (La.1891); Villaume, 363 So.2d at 450-51.
Without a specific statutory grant of authority, the trial court is limited
to the general authorization for amending final judgments provided in
Code of Civil Procedure Article 1951. As stated above, Article 1951
limits the amendment of judgments to the correction of errors in
calculation and alteration of phraseology, but does not authorize a trial
court to make substantive amendments to final judgments. Courts
have uniformly held substantive amendments to judgments made
without recourse to the proper procedures, i.e. by way of a timely
motion for a new trial or by appeal, to be absolute nullities. LaBove,
597 So.2d at 1010.

Here, DOTD suggests that it is attempting to have the judgment of dismissal

amended to include proper decretal language; however, DOTD is actually

attempting to obtain, via a motion to amend, relief that is substantively different

than what it initially sought and obtained. Specifically, DOTD unequivocally

moved to have its entire lawsuit dismissed, and the trial court granted the relief

requested. Then, over a month later, DOTD asked the trial court to “amend” the

judgment of dismissal to a partial dismissal of only three Defendants, when it

never sought a partial dismissal from the trial court. Neither La.Code Civ.P. art.

1951 nor La.Code Civ.P. art. 2088 provided the trial court with authority to amend

the judgment to render relief that was substantively different than what DOTD

actually sought in connection with its motion to dismiss.

DOTD also suggests that the trial court had authority to amend the judgment

of dismissal because it was a “consent judgment” between it and three Defendants

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and because all parties to the agreement agreed to amend the judgment. However,

“a consent judgment is a bilateral contract wherein parties adjust their differences

by mutual consent.” Plaquemines Parish Gov’t v. Getty Oil Co., 95-2452, p. 6 (La.

5/21/96), 673 So.2d 1002, 1006. Here, the motion and judgment of dismissal is not

a bilateral agreement and does not otherwise reference any such agreement. Rather,

it was a unilateral motion presented by DOTD to voluntarily dismiss its entire

lawsuit without prejudice, and the trial court rendered a judgment in accordance

therewith. Therefore, the consent of DOTD and only three of the twenty-four

Defendants to amend the judgment of dismissal did not give the trial court

authority to amend the judgment under La.Code Civ.P. art. 1951 or otherwise.

While the purported error on the part of DOTD in moving to dismiss its

entire action and its apparent failure to notice this error for over a month after the

judgment it sought was signed by the trial court are unfortunate, DOTD’s motion

seeking to substantively amend the judgment of dismissal was not a proper

procedural mechanism by which to cure its mistake. We find no error in the trial

court’s denial of DOTD’s motion.

DECREE

For the reasons set forth above, the trial court’s denial of DOTD’s motion to

amend the April 21, 2021 judgment is hereby affirmed. Costs of this appeal in the

amount of $2,323.00 are assessed to Appellant, State of Louisiana, through the

Department of Transportation and Development.

AFFIRMED.

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