Mercato Elisio, L.L.C. v. City of New Orleans, New Orleans Historic District Landmarks Commission and John Deveney
Date Filed2022-12-21
Docket2022-CA-0228
JudgeJudge Roland L. Belsome; Judge Joy Cossich Lobrano; Judge Pro Tempore James F. McKay III
Cited0 times
StatusPublished
Full Opinion (html_with_citations)
MERCATO ELISIO, L.L.C. * NO. 2022-CA-0228
VERSUS *
COURT OF APPEAL
CITY OF NEW ORLEANS, *
NEW ORLEANS HISTORIC FOURTH CIRCUIT
DISTRICT LANDMARKS *
COMMISSION AND JOHN STATE OF LOUISIANA
DEVENEY *******
APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2013-03057, DIVISION âMâ
Honorable Paulette R. Irons, Judge
******
Judge Pro Tempore James F. McKay III
******
(Court composed of Judge Roland L. Belsome, Judge Joy Cossich Lobrano, Judge
Pro Tempore James F. McKay III)
LOBRANO, J., CONCURS IN THE RESULT
AMANDA J. OLMSTED
RAVI K. SANGISETTY
SANGISETTY LAW FIRM, LLC
3914 Canal Street
New Orleans, LA 70119
COUNSEL FOR PLAINTIFF/APPELLEE
PAUL J. VERLANDER
AUSTIN T. WELCH
1515 Poydras Street, Suite 1900
New Orleans, LA 70112
COUNSEL FOR DEFENDANT/APPELLANT
AMENDED JUDGMENT VACATED;
ORIGINAL JUDGMENT REINSTATED
DECEMBER 21, 2022
JFM
RLB
This matter arises out of a public records request and Petition for Writ of
Mandamus and Civil Penalties filed by Mercato Elisio, LLC (âMercatoâ) against
the City of New Orleans (âthe Cityâ), John Deveney (âAppellantâ), a
Commissioner with the New Orleans Historic Landmark Commission (âHDLCâ),
and the HDLC, contending that the City, the HDLC, and Commissioner Deveney
only partially produced responses to his public records request. The trial court
found in favor of Mercato and determined that he was entitled to attorneyâs fees
and costs. After a hearing, the trial court signed a judgment awarding attorneyâs
fees and costs to Mercato. Mercato filed a motion for new trial, contending that
the City and John Deveney should be liable in solido for the attorneyâs fees and
costs. The trial court signed a judgment on September 30, 2020, ordering that âthe
City of New Orleans and Commissioner John Deveneyâ were âliable, in solido, for
the award of attorney fees previously granted by this Court.â Mercato
subsequently filed a Motion to Amend to Alter Phraseology Pursuant to Louisiana
Code of Civil Procedure Article 1951 with respect to the September 30, 2020
judgment. The trial court granted Mercatoâs motion to amend on January 5, 2022,
removing the official title designation âCommissionerâ from the September 30,
1
2020 judgment. John Deveney appeals the trial courtâs January 5, 2022 judgment
assessing attorneyâs fees and costs against him individually.
For the following reasons, we vacate the trial courtâs January 5, 2022
judgment and reinstate the September 30, 2020 judgment.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Mercato originally sought to develop an apartment complex in New Orleans,
but the HDLC did not approve the development. Mercato Elisio, L.L.C. v. City of
New Orleans, 2018-0081, p. 2 (La. App. 4 Cir. 11/21/18), 259 So.3d 1235, 1237. Mercato submitted a public records request to the HDLC,1 and after receiving a response, Mercato filed a Petition for Writ of Mandamus and Civil Penalties, pursuant to La. R.S. 44:35, against the City, the HDLC, and John Deveney, a commissioner on the HDLC, contending that Commissioner Deveney improperly sought to have the development denied, and that the documents from Mercatoâs public records request which would have proven same did not include documents from Commissioner Deveney. Mercato Elisio, 2018-0081, pp. 2-3,259 So.3d at 1237-1238
. Mercato subsequently filed a Supplemental Petition for Writ of Mandamus and Civil Penalties and Fees, averring that the HDLC, the City, and Commissioner Deveney only partially produced responses to the public records request. Id. at p. 3,259 So.3d at 1238
.
1 The public records request stated:
As such, we request copies of all public records, as defined in La. Rev. Stat. §
44:1 A(2)(a), dated between January 1, 2011, and December 31, 2012, in the
possession of the HDLC and/or Commissioner John Deveney including, but not
limited to, letters, e-mails, text messages, notes, documents, meeting minutes,
calendar entries of meetings, reports and memoranda to and/or from any person or
entity related to the Elisio Lofts-501 Elysian Fields Project, Mercato Elisio, LLC,
Ekistics, LLC, and/or Sean Cummings. Please note such records include those
that exist or were created using private accounts and/or devices utilized in
conducting the business of the HDLC.
2
The trial court denied Mercatoâs Petition for Writ of Mandamus, Civil
Penalties, and Fees, finding that a certain email communication exhibit was not
public record because it was between two spouses. Id. Mercato filed a Limited
Motion for New Trial, asserting that the denial of attorneyâs fees was contrary to
the law and argued that the trial court erroneously determined that the email
communication was not a public record. Id. On November 2, 2017, the trial court
granted Mercatoâs Limited Motion for New Trial, finding that the exhibit was a
public record and that Mercato was entitled to attorneyâs fees âpursuant to La. R.S.
44:35(D).â2 Id. at pp. 3-4. Accordingly, the trial court ordered Mercato to submit
proposed attorneyâs fees and costs for an in camera inspection and a separate
determination. Id. at p. 4. The City, the HDLC, and Commissioner Deveney
appealed the trial courtâs ruling.
This Court affirmed, finding, inter alia, that the trial court did not manifestly
err in its determination that the email communication was a public record and that
Mercato âwas entitled to an award of attorneyâs fees as a prevailing partyâ, while
noting that â[t]he trial court has yet to award an amount of attorneyâs fees;
therefore, the reasonableness of the amount of that award is not before us.â Id. at
pp. 13-14, 259 So.3d at 1244.
2 La. R.S. 44:35(D) provides:
D. (1) If a person seeking the right to inspect, copy, or reproduce a record or to
receive or obtain a copy or reproduction of a public record prevails in such suit,
he shall be awarded reasonable attorney fees and other costs of litigation. If such
person prevails in part, the court may in its discretion award him reasonable
attorney fees or an appropriate portion thereof.
(2) If a public body or official brings a suit against a person based on the personâs
request to inspect, copy, or reproduce a record or to receive or obtain a copy or
reproduction of a public record and the person prevails in the suit, the person shall
be awarded reasonable attorney fees and other costs of litigation. If the person
prevails in part, the court may in its discretion award the person reasonable
attorney fees or an appropriate portion thereof.
3
On May 3, 2019, the trial court signed a judgment awarding the Sangisetty
Law Firm $69,489.55 in attorneyâs fees and $3,360.09 in court costs. The trial
court further awarded the law firm of Sangisetty & Samuels $2,613.00 in
attorneyâs fees and $1,021.25 in court costs, and Richard G. Perque, LLC,
$5,670.00 in attorneyâs fees and $129.35 in court costs. Notably, the trial courtâs
May 3, 2019 judgment specifically referenced the November 2, 2017 judgment that
âaward[ed], among other things, attorney[âs] fees pursuant to La. R.S. § 44:35(D).â
(R. 230).
On May 9, 2019, Mercato filed another Limited Motion for New Trial,
contending that the City and John Deveney should be liable, in solido, pursuant to
La. R.S. 44:35(E)(2)3 for the attorneyâs fees awarded by the trial court in the May
3, 2019 judgment. On September 30, 2020, the trial court signed a judgment
ordering that the City and âCommissioner John Deveneyâ were liable in solido for
the award of attorneyâs fees âpreviously granted by this Court.â Mercato did not
file a motion for new trial, nor did Mercato appeal that judgment.
3 La. R.S. 44:35(E) governs circumstances in which a custodian is personally liable for fees and
costs and provides:
E. (1) If the court finds that the custodian arbitrarily or capriciously withheld the
requested record or unreasonably or arbitrarily failed to respond to the request as
required by R.S. 44:32, it may award the requestor any actual damages proven by
him to have resulted from the actions of the custodian except as hereinafter
provided. In addition, if the court finds that the custodian unreasonably or
arbitrarily failed to respond to the request as required by R.S. 44:32 it may award
the requestor civil penalties not to exceed one hundred dollars per day, exclusive
of Saturdays, Sundays, and legal public holidays for each such day of such failure
to give notification.
(2) The custodian shall be personally liable for the payment of damages pursuant
to Paragraph (1) of this Subsection and shall be liable in solido with the public
body for the payment of the requestorâs attorney fees and other costs of litigation,
except where the custodian has withheld or denied production of the requested
record or records on advice of the legal counsel representing the public body in
which the office of such custodian is located, and in the event the custodian
retains private legal counsel for his defense or for bringing suit against the
requestor in connection with the request for records, the court may award attorney
fees to the custodian.
4
Also on September 30, 2020, the trial court issued written reasons for
judgment, wherein the trial court noted that the issue for review was âwhether the
award of attorney fees against the City and Commissioner John Deveney in solido
is appropriate.â The trial court acknowledged Mercatoâs argument that
âCommissioner Deveneyâ should be liable in his individual capacity pursuant to
La. R.S. 44:35(E), as well as Commissioner Deveneyâs argument that the
attorneyâs fees were not awarded pursuant to La. R.S. 44:35(E), but La. R.S.
44:35(D). The trial court recognized that it âdid, in fact, award attorney[âs] fees
pursuant to La. R.S. § 44:35(D)(1),â but found that âthe inquiry does not end
there.â (R. 390). The trial court reasoned that because âCommissioner Deveneyâs
withholding the requested documents [sic] was arbitrary and capriciousâ, La. R.S.
44:35(E)(2) applied. As previously noted, however, the September 30, 2020
judgment itself does not reference La. R.S. 44:35(E)(or any statute) and provides
that the City âand Commissioner John Deveney are liable, in solido, for the award
of attorney fees previously granted by this Court.â (emphasis added).
On May 5, 2021, Mercato filed a Motion to Amend to Alter Phraseology
Pursuant to Louisiana Code of Civil Procedure Article 1951 with respect to the
September 30, 2020 judgment, contending that an amendment was necessary
because the September 30, 2020 judgment did not list the amount owed by the City
and John Deveney to Mercato, and John Deveney was identified as âCommissioner
John Deveneyâ when he should have been identified only by his name, John
Deveney.
The trial court held a hearing on Mercatoâs motion on November 18, 2021,
at which time the trial court stated that the removal of John Deveneyâs official title
designation was not a substantive change. On January 5, 2022, the trial court
5
signed a judgment that granted Mercatoâs request to remove the title designation of
âCommissionerâ from John Deveneyâs name on the September 30, 2020 judgment,
ordering, inter alia, that the City and John Deveney be liable, in solido, for the
award of attorneyâs fees previously granted. This appeal by John Deveney
followed.
DISCUSSION
Whether the Motion to Amend to Alter Phraseology Pursuant to Louisiana
Code of Civil Procedure Article 1951 was properly granted is a question of law.
See Freeman v. Zaraâs Food Store, Inc., 2016-0445, p. 9 (La. App. 4 Cir. 11/2/16),
204 So.3d 691, 697. âPure questions of law are reviewed under a de novo standard âwithout deference to the legal conclusions of the courts below.ââ Freeman, 2016- 0445, p. 9,204 So.3d at 697
(quoting Bates v. City of New Orleans, 2013â1153, 2013â1157, p. 8 (La. App. 4 Cir. 3/26/14),137 So.3d 774, 780
(quoting Durio v. Horace Mann Ins. Co., 2011â0084, p. 14 (La. 10/25/11),74 So.3d 1159, 1168
)).
Appellant contends that the trial court erred as a matter of law when it
granted Mercatoâs motion to amend, which substantively altered the existing final
judgment by changing the name of a party cast in judgment and effecting new
personal liability upon Deveney. Appellant further contends that the trial court
erred as a matter of law when it granted Mercatoâs motion to amend to conform the
existing judgment with the trial courtâs prior reasons for judgment.
La. C.C.P. art. 1951 applies to final judgments and provides:4
4 La. C.C.P. art. 1951 was amended effective August 1, 2021. From August 1, 2013 through
July 31, 2021, La. C.C.P. art. 1951 provided:
On motion of the court or any party, a final judgment may be amended at any
time to alter the phraseology of the judgment, but not its substance, or to correct
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
6
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.
(emphasis added). Thus, La. C.C.P. art. 1951 âpermits the trial court to amend a
final judgment at any time â[t]o alter the phraseology of the judgment, but not
the substance; or ... [t]o correct errors of calculation.ââ Safeguard Storage
Properties, L.L.C. v. Donahue Favret Contractors, Inc., 2010-0673, p. 9 (La. App.
4 Cir. 3/31/11), 60 So.3d 110, 117(emphasis added). It is well-settled that a trial court may change the substance of the original judgment in three ways: â1) the timely motion for new trial; 2) timely appeal; or 3) petition or action for nullity.â Safeguard, 2010-0673, p. 9,60 So.3d at 117
(quoting Paragon Lofts Condo. Owners Assân, Inc. v. Paragon Lofts, L.L.C., 2010â0419, p. 1 (La. App. 4 Cir. 1/14/11),55 So.3d 970, 972
); see also Nichols v. Nichols, 2008-0207, p. 4 (La. App. 4 Cir. 1/14/09),4 So.3d 134, 137
.
In Bates v. City of New Orleans, 2013â1153, 2013â1157 (La. App. 4 Cir.
3/26/14), 137 So.3d 774, this Court outlined the following parameters regarding a
trial courtâs authority to amend a final judgment pursuant to La. C.C.P. art. 1951:
⢠âArticle 1951 contemplates the correction of a âclerical errorâ in a
final judgment, but does not authorize substantive amendments.â
⢠An amendment that âadds to, subtracts from, or in any way affects
the substance of a judgment, is considered a substantive amendment.â
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.
7
⢠The substance of a judgment can be altered only by a timely motion
for new trial, nullity action, or appeal.
⢠âThe 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.â
⢠âLa. C.C.P. art.1951 does not permit the trial court to substantively
alter a final judgment even if the amendment merely expresses the
trial judgeâs actual intention. The trial courtâs written judgment is
controlling, even if the trial judge may have intended otherwise.â
⢠A trial courtâs authority on a motion to enforce a final judgment is
limited to enforcing its judgment as written.
⢠Substantive amendments to judgments made without recourse to the
proper proceduresâa timely motion for a new trial or an appealâare
absolute nullities.
⢠The remedy generally granted by an appellate court when it finds an
improper substantive amendment has been made to a final judgment is
to set aside and annul the amending judgment and to reinstate the
original judgment.
Bates, 2013â1153, pp. 13-14, 137 So.3d at 784-85 (internal citations omitted); see
also Freeman, 2016-0445, p. 13, 204 So.3d at 699â700.
This Court has also recognized that an amendment which âadds to, subtracts
from, or in any way affects the substance of the judgmentâ is considered to be a
substantive amendment to a judgment. Iles v. Ogden, 2011-0317, p. 8 (La. App. 4
Cir. 9/5/12), 99 So.3d 1035, 1040â41 (quoting Palmer v. Leclercq, 2007â0604, p. 6 (La. App. 4 Cir. 9/24/08),996 So.2d 21, 25
; Nichols, 2008â0207, p. 4,4 So.3d at 136
). âFurthermore, changing the name of a party cast in judgment is a substantive change prohibited by Code of Civil Procedure article 1951.â Safeguard Storage Properties, L.L.C., 2010-0673, p. 9,60 So.3d at 117
(quoting Harvey v. Traylor, 96â1321 (La. App. 4 Cir. 2/5/97),688 So.2d 1324, 1329
). Recently, this Court
noted that âmost jurisprudence holds that changing the name of a party cast in
judgment is an alteration of substance.â Washington v. Taylor, 2021-0080, pp. 11-
8
12 (La. App. 4 Cir. 1/26/22), 334 So.3d 1060, 1070 (citing Freeman, 2016-0445, p. 14,204 So.3d at 700
(âThe general rule is that an amendment to add a party to a judgment is a change of substance, not of phraseology, that can only be accomplished by motion for a new trial or on appealâ), and Paragon Lofts, 2010- 0419, p. 2,55 So.3d at 972
.
In Tunstall v. Stierwald, 2001-1765 (La. 2/26/02), 809 So.2d 916, the Louisiana Supreme Court considered whether the trial court erred in amending an original judgment that named a non-existent legal entity. In Tunstall, plaintiff Terrance Tunstall was driving a taxi cab when his vehicle was struck by a vehicle operated by defendant, Elvin Stierwald. Tunstall filed suit against Stierwald and Travelers Insurance Company, alleging that Travelers provided liability coverage for the vehicle operated by Stierwald. Tunstall, 2001-1765, p. 1,809 So.2d at 918
.
Thereafter, Phoenix Insurance Company filed an answer to the petition, stating:
âNOW INTO COURT, through undersigned counsel, comes defendant, The
Phoenix Insurance Company (improperly identified as Travelers Insurance
Company)â and âadmit[ting] it had a policy with Elvin Stierwald and specifically
pleads the policy.â Id. at pp. 1-2. The parties conducted discovery, but Travelers
was never listed as a party defendant on any of the pleadings; rather, all notices
listed counsel for âPhoenix Insurance Company.â Id. at p. 2.
After a trial on the merits, the trial court found in favor of Tunstall, awarding
him damages and naming as defendants âElvin Stierwald and Phoenix/Travelers
Insurance Company.â Tunstall, 2001-1765, p. 3, 809 So.2d at 919. In the trial
courtâs reasons for judgment, the trial court ânever stated that Phoenix acted in bad
faith nor did it indicate that there was a question as to the identity of Mr.
9
Stierwaldâs insurer.â Id. Defendants filed a motion for new trial, and the trial
court issued an amended judgment, stating:
â[t]his Honorable Court noted a typographical error and amended the
judgment as follows:
IT IS ORDERED, ADJUDGED AND DECREED that there be
judgment herein, with prejudice, in favor of plaintiff Terrance
Tunstall, and against the defendants, Elvin Stierwald, Phoenix
Insurance Company and Travelers Insurance Company.â
Id.Based on the amended judgment specifically naming Travelers as a party, both Phoenix and Travelers appealed the decision, which this Court affirmed. Tunstall v. Stierwald, et al., unpub., 2000â0823 (La. App. 4 Cir. 5/16/01),796 So.2d 937
.
The Louisiana Supreme Court considered, inter alia, whether the trial court
erred in amending the original judgment, which named Phoenix/Travelers, a non-
existent legal entity, as a party cast in judgment. Tunstall, 2001-1765, p. 5, 809
So.2d at 920. Because the record reflected that the only defendant who answered Tunstallâs petition as the insurer for Elvin Stierwald was Phoenix Insurance Company, the Court found that the only defendant capable of being cast in judgment in this matter was Phoenix.Id.
Additionally, the Court noted that Tunstall never sought a default judgment against Travelers and did not object to Phoenixâs participation as the insurer of Stierwald.Id.
The Court also noted that although the record did not contain a motion for
new trial, the trial court ârendered an amended judgment, in which
Phoenix/Travelers was replaced by Phoenix Insurance Company and Travelers
Insurance Company.â Id.(emphasis in original). The Court recognized that â[c]hanging the name of a party cast in the judgment is a change of substance and not of phraseology.âId.
(citing Davenport v. Amax Nickel, Inc.,569 So.2d 23, 26
(La. App. 4 Cir. 1990)). Thus, the Court held that â[a]lthough the error may have
10
appeared obvious to the parties and the court, the change should not have been
accomplished by the courtâs own motion, but should have been done
contradictorilyâ, and â[w]hile the usual remedy of the appellate court in such a
case is to vacate the amended judgment and reinstate the original judgment,â the
original judgment cast a non-entity in judgment. Tunstall, 2001-1765, p. 6, 809
So.2d at 920. Accordingly, the Louisiana Supreme Court vacated the amended judgment, reinstated and revised the original judgment, deleting Travelers Insurance Company and adding Phoenix Insurance Company. Tunstall, 2001- 1765, p. 6,809 So.2d at 921
.
In Safeguard Storage, supra,Safeguard Storage Properties, L.L.C., a self- storage business, suffered damage to its New Orleans area facilities and business interruption to its corporate office and national call center in Metairie, Louisiana from Hurricane Katrina. Safeguard filed a petition for declaratory judgment and damages against Donahue Favret Contractors, Inc. (âDonahueâ), Mapp Construction, L.L.C. (âMappâ), and all of the insurers of Safeguard and Mapp, seeking monetary damages against companies contracted to repair Safeguardâs properties, payments on policies from its excess insurers due to Hurricane Katrina damages, and penalties and attorneysâ fees pursuant to La. R.S. 22:658 and La. R.S. 22:1220.5 Safeguard Storage, 2010-0673, p. 3,60 So.3d at 114
. Safeguard
also sought monetary damages for lost business opportunities for the business
locations Safeguard was allegedly unable to open due to Hurricane Katrina from
5 The statutes are now numbered La. R.S. 22:1892 and La. R.S. 22:1973, respectively.
11
Lexington and its excess insurers, (collectively referred to as âDefendant
Insurersâ).6 Id. at pp. 3-4.
The Defendant Insurers filed motions for partial summary judgment,
asserting that Safeguardâs lost business opportunities claims were too speculative,
that Safeguard could only recover damages sustained during the applicable period
of recovery, and regarding the application of the period of recovery. Id. at p. 4.
Safeguard subsequently filed a motion for partial summary judgment, asserting that
its claims for lost business developments and development income streams were
covered by insurance. Id.
Lloydâs filed a motion for partial summary judgment, asserting that the
âpolicy wordingâ controlled the rights and obligations of it and Safeguard. Id.
Safeguard filed a motion for partial summary judgment regarding the ânature and
effectâ of Lloydâs coverage slips. Safeguard Storage, 2010-0673, p. 4, 60 So.3d at
114-115(footnote omitted). The trial court granted the Defendant Insurersâ motion for partial summary judgment as to lost business opportunities and denied Safeguardâs re-urged motion for partial summary judgment regarding business interruption coverage for loss of development. Safeguard Storage, 2010-0673, p. 5,60 So.3d at 115
. The trial court also granted the Defendant Insurersâ motion for
partial summary judgment regarding the period of recovery and denied Safeguardâs
6 Ace American Insurance Company (âAceâ), Allied World Assurance Company (âAlliedâ),
American International Specialty Lines Insurance Company (âAISLICâ), Axis Reinsurance
Company (âAxisâ), Axis Specialty Limited (âASLâ), Certain Underwriters at Lloydâs of London
(âLloydâsâ), Continental Casualty Company (âContinentalâ), Federal Insurance Company
(âFederalâ), Great Lakes UK d/b/a Great Lakes Reinsurance (UK), PLC (âGreat Lakesâ), Illinois
Union Insurance Company (âIllinoisâ), International Insurance Company of Hannover
(âInternationalâ), Liberty Mutual Group (âLMGâ), Employers Insurance Company of Wausau
(âEmployersâ), Pacific Insurance Company, Ltd. (âPacificâ), SR International Business
Insurance Company, Ltd. (âSRâ), and XL Insurance America, Inc. (âXLâ).
12
corresponding re-urged motion. Id.The trial court declared several other motions for partial summary judgment as moot.Id.
Subsequently, the trial court issued an amended judgment excluding Lloydâs
from the Defendant Insurers referred to in the original judgment because it
mistakenly used the noun âdefendantâ without specificity. Id. The trial court
stated that Lloydâs âdid not formally acknowledge and/or adopt the insurance
contract which is the subject of this litigationâ and that whether or not Lloydâs
would be included in the results of the original judgment depended upon the trial
courtâs âruling on the slip/binder issue.â Id. at pp. 5-6. Lloydâs appealed and
contended, inter alia, that La. C.C.P. art. 1951 does not permit substantive changes
to the original judgment.7 Id. at p. 6.
With respect to Lloydâs assignment of error regarding the amended
judgment, this Court found that a trial court is prohibited from issuing an amended
judgment because jurisdiction is divested once an order of appeal is granted, and
âchanging the name of a party cast in judgment is a substantive change prohibited
by Code of Civil Procedure article 1951.â Safeguard Storage, 2010-0673, p. 9, 60
So.3d at 117(quoting Harvey v. Traylor, 96-1321, p. 5 (La. App. 4 Cir. 2/5/97),688 So.2d 1324, 1329
). In declaring the amended judgment to be an absolute
nullity, this Court found:
In the case sub judice, the trial court judge amended the original
judgment to exclude Lloydâs from the granting of the motions for
partial summary judgment. Meaning, Lloydâs originally prevailed on
the motions for partial summary judgment, but after the amended
7 This Court noted that the trial court designated the original interlocutory judgment as final and
appealable pursuant to La. C.C.P. art. 1915(B)(1), but found this was a procedural error, as the
denial of a motion for summary judgment is not appealable even if certified as final by the trial
court judge. Safeguard Storage, 2010-0673, p. 7, n. 11, 60 So.3d at 116(citing Yokum v. Van Calsem, 2007â0676, p. 6 (La. App. 4 Cir. 3/26/08),981 So.2d 725, 730
). Therefore, this Court
concluded, the judgment Lloydâs sought to reverse remained interlocutory and subject to this
Courtâs supervisory jurisdiction.
13
judgment, Lloydâs was excluded from the prevailing class of
Defendant Insurers. Thus, given the statutory divestiture of
jurisdiction coupled with the jurisprudential interpretation of La.
C.C.P. art. 1951, we find that the change excluding Lloydâs from the
âdefendantsâ was substantive. Therefore, we declare that the amended
judgment is an absolute nullity.
Safeguard Storage, 2010-0673, p. 10, 60 So.3d at 118.
This Court considered a similar issue in Freeman, supra.In Freeman, the plaintiff, Joycelyn Freeman, was working as a cashier at Zaraâs Food Store, Inc., on October 5, 2012, and was groped by Joseph Zara. Freeman, 2016-0445, p. 2,204 So.3d at 693
. Following the incident, Ms. Freeman initially was suspended for three days before being terminated.Id.
Ms. Freeman filed suit in the United States District Court for the Eastern District of Louisiana against Mr. Zara and Zaraâs Food Store, Inc., which rendered judgment dismissing all of Ms. Freemanâs claims. Freeman, 2016-0445, pp. 2-3,204 So.3d at 693-694
.
The day after the federal court rendered its judgment dismissing the matter
in its entirety, Ms. Freeman filed suit in state court, naming Joseph Zara and Zaraâs
Food Store, Inc., as defendants. Freeman, 2016-0445, p. 3, 204 So.3d at 694.
After Defendants failed to answer the petition, Ms. Freeman filed a Motion for
Preliminary Default, which was entered, and at the conclusion of the hearing on the
default judgment, the duty judge signed the following judgment on May 28, 2014:
After considering the testimony of Joycelyn Freeman and all the
evidence and facts presented and for good cause shown:
IT IS ORDERED, ADJUDGED AND DECREED that there be
judgment in favor of the plaintiff, Joycelyn Freeman, in the amount of
ninety two thousand one hundred ninety seven and 50/100
($92,197.50) DOLLARS with interest from the date of judicial
demand.
Id. at pp. 3-4.
14
At the duty judgeâs request, the names and addresses of both defendants
were typed below the trial court judgeâs signature on the bottom left corner of the
judgment. Id. at p. 4. Ms. Freeman recorded the judgment in the Orleans Parish
Mortgage and Conveyance Office. Id.
Thereafter, Defendants filed a Motion to Dismiss Based Upon the
Peremptory Exceptions of Prescription and Res Judicata, contending that because
the federal district courtâs judgment dismissed Ms. Freemanâs federal suit with
prejudice, Ms. Freemanâs state court suit was barred by both res judicata and
prescription. Freeman, 2016-0445, p. 4, 204 So.3d at 695. Defendants also argued
that no party defendant was named in the judgment. Id. at pp. 4-5. The trial court
granted Defendantsâ motion to dismiss, and Defendants filed a Petition for Writ of
Mandamus, seeking to remove the trial courtâs judgment from the mortgage
records. Id. at p. 5. Subsequently, Ms. Freeman filed a motion to amend in
federal court. Id.
In its amended judgment, the federal court dismissed without prejudice Ms.
Freemanâs remaining state law claims. Id. Thereafter, Ms. Freeman filed a Motion
for New Trial from the trial courtâs ruling dismissing the case, attaching the federal
courtâs amended judgment. Id. at p. 6. The trial court granted Ms. Freemanâs
Motion for New Trial and, reversing its prior ruling, denied Defendantsâ
Exceptions of Prescription and Res Judicata, as well as the Petition for Writ of
Mandamus.8 Id.
Ms. Freeman subsequently filed a Motion to Amend the May 28, 2014
judgment to clarify that it was rendered against Joseph Zara and Zaraâs Food Store,
8 From the trial courtâs judgment granting Ms. Freemanâs Motion for New Trial, Defendants
filed a writ application with this court, which was denied. Freeman v. Joseph Zara, et al., 2014â
1330 (La. App. 4 Cir. 12/1/14) (unpub.).
15
Inc. Freeman, 2016-0445, p. 6, 204 So.3d at 696. On August 27, 2015, the trial
court rendered an amendment judgment, which stated:
IT IS ORDERED, ADJUDGED AND DECREED that the original
Judgment be amended to state that âthere be judgment in in favor of
the plaintiff, Joycelyn Freeman, in the amount of NINETY TWO
THOUSAND ONE HUNDRED NINETY SEVEN and 50/100
($92,197.50) DOLLARS and against the defendants Joseph Zara and
Zaraâs Food Store, Inc., with interest from the date of judicial
demand.
Freeman, 2016-0445, pp. 7-8, 204 So.3d at 696.
Defendants filed a Motion for New Trial, which was denied. Id. at p. 8, 204
So.3d at 697. On appeal, this Court considered, inter alia, the applicability of La. C.C.P. art. 1951, noting that â[t]he jurisprudence on the issue of whether it is permissible to amend a judgment to correct an error in the name of the party cast in judgment is âunsettled.ââ Freeman, 2016-0445, p. 14,204 So.3d at 700
(quoting 1 Frank L. Maraist and Harry T. Lemmon, LOUISIANA CIVIL LAW TREATISE: CIVIL PROCEDURE § 13:1 (2015)). This Court recognized that â[t]he general rule is that an amendment to add a party to a judgment is a change of substance, not of phraseology, that can only be accomplished by motion for a new trial or on appeal.â Freeman, 2016-0445, p. 14,204 So.3d at 700
(citing Derouen v. Quintana Petroleum,626 So.2d 1181
(La. 1993) (Lemmon, J., concurring) (noting that â[t]he amended judgment substituted one party defendant for another and this violated La.Code Civ.Proc. Art. 1951.â)). Ultimately, this Court held that the amendment adding Defendantsâ namesâJoseph Zara and Zaraâs Food Store, Inc.âwas a substantive amendment and vacated the trial courtâs judgment. Freeman, 2016-0445, pp. 15, 20,204 So.3d at 701, 704
.
The First Circuit recently considered a similar issue and relied on Tunstall,
supra,in Duncan v. Gauthier, 2021-0220 (La. App. 1 Cir. 10/28/21),332 So.3d 16
1191. In Duncan, Raeven Duncan was involved in an automobile accident with
Brett Gauthier. Ms. Duncan filed a petition for damages allegedly sustained in the
accident against Brett Gauthier, Brett Gauthierâs Auto Sales, Collision Specialties,
Inc., and Houston Specialty Insurance Company. Duncan, 2021-0220, p. 2, 332
So.3d at 1193. Ms. Duncan subsequently filed a first supplemental and amending
petition naming as additional defendants, State National Insurance Company,
insurer of Brett Gauthierâs Auto Sales, and Steven Colburn, an employee of
Collision Specialties, Inc., and asserted survival action and wrongful death claims
contending that the stress of the accident, combined with the trauma to her
abdomen, caused her to experience a miscarriage soon after the accident. Id.
Some of the defendants filed peremptory exceptions of no cause of action,
seeking dismissal of Ms. Duncanâs survival action claim, which the trial court
sustained, ordering Ms. Duncan to amend her petition to eliminate any survival
action claim. Id. at p. 3. Ms. Duncan complied and also filed a motion to dismiss
her claims against Collision Specialties, Inc. and Houston Specialty Insurance
Company, without prejudice, which was granted. Id. Thereafter, the trial court
granted a motion for summary judgment dismissing plaintiffâs claims against Mr.
Colburn with prejudice and granted a motion for partial summary judgment,
dismissing Ms. Duncanâs claims for wrongful death on behalf of her unborn child
against Brett Gauthier, Brett Gauthierâs Auto Sales, Collision Specialties, Inc., and
State National Insurance Company, Inc., with prejudice. Duncan, 2021-0220, p. 3,
332 So.3d at 1193-1194.
After a bench trial, the trial court found in favor of Ms. Duncan, and issued a
judgment finding defendants, Brett Gauthier, Brett Gauthier d/b/a Brett Gauthierâs
Auto Sales, and State National Insurance Company, 100% liable for plaintiffâs
17
damages, and awarding plaintiff $19,202.60 for past medical expenses, $10,219.55
for expert reconstruction expense, â$1,1250.00â for the trial deposition fee of Dr.
David Wyatt, and $125,000.00 for general damages, plus court costs and legal
interest from the date of judicial demand. Id. at pp. 3-4, 332 So.3d at 1194.
Thereafter, the trial court signed a second judgment, submitted by Ms.
Duncan, which referenced the trial courtâs previous âwritten reasons finding in
favor of plaintiff Raeven Duncan, and against Defendants, Brett Gauthier, Brett
Gauthierâs Auto Sales Collision Specialties, Inc. and State National Insurance
Company ... [finding] defendants 100% at fault for the accident,â and awarded
plaintiff $19,202.60 for past medical expenses, $10,219.55 for expert accident
reconstruction expense, $1,250.00 for the trial deposition fee of Dr. Wyatt, and
$125,000.00 for general damages. Id. at p. 4. The judgment was rendered âin favor
of Plaintiff, Raeven Duncan, and against Defendants, Brett Gauthier, Brett
Gauthierâs Auto Sales Collision Specialties, Inc. and State National Insurance
Company, jointly and in solido in the amount of $155,672.15, together with legal
interest thereon from date of judicial demand until paid and plaintiffâs court costs.â
Id. (footnote omitted).
On January 7, 2020, the defendants filed a motion for new trial, which was
denied by the trial court on March 5, 2020, and on April 9, 2020, defendants filed a
motion and order for a devolutive appeal from the December 30, 2019 judgment of
the trial court. Id. at pp. 4-5, 332 So.3d at 1194-1195. On appeal, the First Circuit
recognized that as a procedural matter, the record contained two judgments signed
by the trial court arising from the September 26, 2019 bench trial, and that the
judgments differed in that the original judgment was rendered against defendants,
âBrett Gauthier, Brett Gauthier d/b/a Brett Gauthierâs Auto Sales, and State
18
National Insurance Company,â while the second judgment was rendered against
defendants, âBrett Gauthier, Brett Gauthierâs Auto Sales Collision Specialties,
Inc. and State National Insurance Company.â Duncan, 2021-0220, p. 7, 332 So.3d
at 1196 (emphasis in original). The judgments also differed in that the original
judgment awarded Ms. Duncan a fee of â$1,1250.00â for the trial deposition of Dr.
David Wyatt, while the second judgment corrected the amount to show that Ms.
Duncan was awarded â$1,250.00â for the trial deposition fee of Dr. David Wyatt.
Id.
The First Circuit recognized the constraints of La. C.C.P. art. 1951, as well
as the principal that â[a] judgment may be amended by the court where the
resulting judgment takes nothing from or adds nothing to the original judgment.â
Duncan, 2021-0220, pp. 7-9, 332 So.3d at 1196 (citing Villaume v. Villaume, 363
So.2d 448, 450(La. 1978)). The court concluded that â[t]he trial courtâs changing of the name of a party cast in judgment constitutes an impermissible substantive change in the judgment.â Duncan, 2021-0220, p. 8, 332 So.3d at 1197 (citing Tunstall, 2001-1765, p. 5,809 So.2d at 920
). Thus, â[w]hen a trial court substantively amends a judgment without recourse to the proper procedure, the amended judgment is an absolute nullity.â Duncan, 2021-0220, p. 8, 332 So.3d at 1197 (citing LaBove v. Theriot,597 So.2d 1007, 1010
(La. 1992)). Accordingly,
the First Circuit held, inter alia, that because âthe trial court herein substantively
amended the December 26, 2019 original judgment by changing or adding the
name of a defendant cast in judgment without recourse to the proper procedure and
where the defendants herein did not consent to the substantive change in the
judgmentâ, the âDecember 30, 2019 judgment [wa]s an absolute nullity and of no
effect.â Duncan, 2021-0220, p. 9, 332 So.3d at 1197. The First Circuit ordered
19
the December 30, 2019 judgment of the trial court vacated as null and set aside and
reinstated the December 26, 2019 judgment. Id. at p. 11, 332 So.3d at 1198.
Mercato contends that the trial courtâs September 30, 2020 written reasons
for judgment discuss John Deveneyâs personal liability, despite referring to him as
âCommissionerâ. Mercato further contends that any reference to John Deveney as
âCommissioner Deveneyâ in the September 30, 2020 judgment itself is not an
indication that he is liable in his professional capacity, but is simply another way to
refer to John Deveney. Thus, Mercato insists the amended judgment does not
make a substantive change because the same individual is liable in both the
original and amended judgment.
âIt is well-established that reasons for judgment are not controlling and do
not constitute the judgment of the court.â Theresa Seafood, Inc. v. Berthelot,
2009-0814, p. 7 (La. App. 4 Cir. 3/10/10), 40 So.3d 132, 137, amended on rehâg (May 12, 2010). Additionally, this Court has recognized that La. C.C.P. art. 1951 âdoes not permit the trial court to substantively alter a final judgment even if the amendment merely expresses the trial courtâs actual intention.â In re Abadie, 96- 1685, p. 3 (La. App. 4 Cir. 7/30/97),699 So.2d 457, 460
, writ denied, 1997-2231 (La. 11/21/97),703 So.2d 1314
.
As noted previously herein, the November 2, 2017 and May 3, 2019
judgments provided that âCommissioner John Deveneyâ was liable pursuant to La.
R.S. 44:35(D), which does not impose personal liability. The September 30, 2020
judgment ordered that the City and âCommissioner John Deveneyâ were liable in
solido and referenced awards âpreviously granted by this Court.â Although the
September 30, 2020 reasons for judgment referenced La. R.S. 44:35(E), no
judgment referenced La. R.S. 44:35(E). Therefore, even if the trial court amended
20
the September 30, 2020 judgment to comport with its actual intentions expressed in
the September 30, 2020 written reasons for judgment,9 this was nevertheless an
impermissible substantive amendment to a final judgment. See In re Abadie, 96-
1685, p. 3, 699 So.2d at 460.10
In this case, the September 30, 2020 judgment provided that Commissioner
John Deveney is liable, and therefore, he is liable in his capacity as a city official.
Thus, we find that because the trial courtâs removal of âCommissionerâ from John
Deveneyâs name improperly altered the substance of a final judgment by imposing
personal liability, the trial court legally erred. Accordingly, the trial courtâs
January 5, 2022 judgment is vacated as an absolute nullity, and the original
judgment is reinstated. See Tunstall, 2001-1765, p. 6, 809 So.2d at 920(noting that âthe usual remedy of the appellate court in such a case is to vacate the amended judgment and reinstate the original judgmentâ); see also Freeman, 2016-0445, p. 20,204 So.3d at 703
.
9 The following colloquy occurred at the November 18, 2021 hearing on Mercatoâs motion to
amend:
THE COURT:
Then you work it out with your client. That is not in my judgment. I do not even
know that I addressed that. So you-all â hopefully your client will pay you. Iâm
not changing that. I think there is no substantive change because whether we
disagree that the reasons do not â then I do not understand why the Supreme
Court, 4th Circuit calls you up and says, hey, give me some reasons. I am telling
you why I did it and I do not believe that it is substantive.
[Counsel for John Deveney]:
Your Honor, just for clarity of the record what, Your Honor, was reading from in
concluding the change was not substantive was from, Your Honorâs, reasons for
judgment?
THE COURT:
That is correct. That is why I said what I said.
10 As previously noted herein, Mercato did not file a motion for new trial from the September
30, 2020 judgment, nor did he appeal that judgment.
21
CONCLUSION
For the above stated reasons, the trial courtâs amended January 5, 2022
judgment is vacated as null and we reinstate the September 30, 2020 judgment.
AMENDED JUDGMENT VACATED;
ORIGINAL JUDGMENT REINSTATED
22