author: BLEICH, J. (Pro Tempore )

text:
    CITY LIFE LIVE, L.L.C. and Marcia D. Meredith, Plaintiffs-Appellants v. POST OFFICE EMPLOYEES FEDERAL CREDIT UNION, Defendant-Appellee
    No. 52,616-CA
    Court of Appeal of Louisiana, Second Circuit.
    April 10, 2019
    THE PESNELL LAW FIRM, By: J. Whitney Pesnell, Counsel for Appellants, City Life Live, L.L.C., Marcia Meredith, and Ros Di Mere, Inc.
    TAYLOR, WELLONS, POLITZ & DUHE, APLC, By: Travis B. Wilkinson, Counsel for Appellee
    Before WILLIAMS, COX, and BLEICH (Pro Tempore ), JJ.
   BLEICH, J. (Pro Tempore )

In 2014, Marcia Meredith and City Life Live, L.L.C. ("CLL"), had several bank accounts with the Post Office Employees Federal Credit Union ("Credit Union"), as well as an outstanding loan that was secured by the funds in the accounts. In February 2014, the Credit Union seized the funds in the accounts after a determination that Meredith and CLL had defaulted on their loan.

On February 4, 2015, Meredith and CLL filed a petition for damages alleging, inter alia , that CLL was unable to finance or close a transaction involving the purchase and sale of raw diamonds from Sierra Leone because CLL did not have access to the funds in the seized accounts. They alleged that this loss of business opportunity cost CLL $ 1.05 million in lost profits, as well as other costs incurred in CLL's efforts to salvage the deal. Meredith and CLL also claimed that the Credit Union breached contractual obligations and statutory duties owed to them as account holders, as well as a duty to protect their privacy. The Credit Union filed its answer on March 16, 2015. The parties engaged in discovery.

On January 17, 2017, the Credit Union filed an exception of no right of action, arguing that neither Meredith nor CLL had a right to pursue claims arising from the allegedly lost diamond sale. The trial court sustained this exception and directed Meredith and CLL to supplement and/or amend their petition to state a right of action against the Credit Union "for the recovery of the damages, losses, costs and expenses and other amounts which have been suffered, sustained, and/or incurred as a result of their inability to finance, close, and/or carry out or conclude the contracts and/or agreements for the purchase, importation, and/or sale of raw diamonds from Sierra Leone, Africa." On May 3, 2017, Meredith and CLL filed their first supplemental and amended petition which added, inter alia , Ros DiMere, Inc. ("RDI"), a Texas corporation incorporated on February 9, 2014, as a plaintiff. In this petition, RDI asserted entitlement to damages as a result of the Credit Union's alleged tortious interference with a contract it allegedly entered into with CLL and Meredith for the purpose of obligating CLL and Meredith to finance the Sierra Leone diamond purchase. According to Plaintiffs, all of RDI's claims asserted in the amended petition arise out of the Credit Union's alleged tortious acts of February 2014. The Credit Union filed its answer to this first supplemental and amended petition on August 4, 2017.

The Credit Union filed exceptions of no cause of action and prescription on November 15, 2017, in which Defendant alleged that RDI has no cause of action for breach of fiduciary duty or tortious interference with contract, but if it does, the claims have prescribed. The Credit Union filed a motion for partial summary judgment seeking dismissal of Plaintiffs' claims for lost profits on February 8, 2018. On March 18 and 28, 2018, Plaintiffs filed their memoranda in opposition to the Credit Union's exceptions and motion for partial summary judgment. On April 14, 2018, the trial court rendered two separate judgments. One judgment sustained the Credit Union's exception of prescription and dismissed with prejudice all claims of RDI, and one judgment granted the Credit Union's motion for partial summary judgment and dismissed with prejudice all lost profit claims by Plaintiffs.

Plaintiffs took devolutive appeals from both of the trial court's April 14, 2018, judgments.

DISCUSSION

Appeal from Trial Court's Grant of Partial Summary Judgment which Dismissed the Lost Profits Claims asserted by Plaintiffs with Prejudice

According to Plaintiffs, the trial court erred in granting Defendant's motion for partial summary judgment and dismissing their claims for lost profits. On the other hand, Defendant contends that Plaintiffs' appeal from the trial court's ruling on Defendant's motion for partial summary judgment is not a final judgment subject to appeal, and as such, it should be dismissed.

This Court's appellate jurisdiction extends to final judgments identified as such by appropriate language and to interlocutory judgments when expressly provided by law. La. C.C.P. arts. 1918, 2083(C). A final judgment that only partially determines the merits of an action is immediately appealable if authorized under La. C.C.P. art. 1915. Rhodes v. Lewis , 01-1989 (La. 5/14/02), 817 So.2d 64 ; Douglass v. Alton Ochsner Medical Foundation , 96-2825 (La. 6/13/97), 695 So.2d 953 ; Lee v. Sapp, 17-0490 (La. App. 4 Cir. 12/6/17), 234 So.3d 122 ; Quality EnvironmentalProcesses, Inc. v. Energy Development Corp. , 16-0171 (La. App. 1 Cir. 4/12/17), 218 So.3d 1045. Section (B) of article 1915 authorizes the immediate appeal of partial final judgments, including a partial summary judgment that "is designated as a final judgment by the court after an express determination that there is no just reason for delay."

The April 20, 2018, grant of summary judgment dismissing Plaintiffs' claims for lost profits is a partial summary judgment under the provisions of La. C.C.P. art. 966(E), and falls squarely within the parameters of La. C.C.P. art. 1915(B). Subsection (1) of La. C.C.P. art. 1915(B) requires that the trial court designate a partial summary judgment as a final judgment after an express determination that there is no just reason for delay. In the absence of such a determination and designation, the judgment shall not constitute a final judgment for the purpose of an immediate appeal. La. C.C.P. art. 1915(B)(2).

In this case, as the trial court did not designate the partial summary judgment as final and appealable, the judgment remains interlocutory, and the appeal from it is not properly before this Court. Furthermore, because Plaintiffs will have an adequate remedy through appeal following the complete adjudication of this suit, rather than exercising our supervisory jurisdiction to convert this appeal to a writ application, we dismiss this appeal without prejudice. Therefore, we will not address any assignments of error related to the April 14, 2018, partial summary judgment, which found that none of the Plaintiffs had a claim for lost profits against Defendant.

Appeal from Trial Court's Judgment Sustaining Defendant's Exception of Prescription and Dismissing with Prejudice All of RDI's Claims

According to Plaintiffs, RDI's claims against the Credit Union are not prescribed because the initial petition filed by CLL and Meredith interrupted the running of prescription on RDI's claims. Defendant contends that the trial court did not err in sustaining its exception of prescription and as such, this judgment should be affirmed.

Ordinarily, the party pleading prescription has the burden of proving that the claim has prescribed. Wells v. Zadeck , 11-1232 (La. 3/30/12), 89 So.3d 1145 ; Campo v. Correa , 01-2707 (La. 6/21/02), 828 So.2d 502 ; Evans v. Heritage Manor Stratmore Nursing & Rehabilitation Center, L.L.C. , 51,651 (La. App. 2 Cir. 9/27/17), 244 So.3d 737, writ denied , 17-1826 (La. 12/15/17), 231 So.3d 639. However, when the face of the petition reveals that the plaintiff's claim has prescribed, the burden shifts to the plaintiff to show that the action has not prescribed. Id.

The petition, coupled with the supplemental and amended petition, shows that RDI's tort claims against the Credit Union as alleged in the amending petition filed on May 3, 2017, are prescribed on their face, since they were first asserted more than three years after Defendant's alleged wrongful acts in February of 2014. Thus, it was RDI's burden to establish that their claims were not prescribed.

La. C.C.P. art. 1153 sets out the requirements for giving retrospective effect to an amended petition:

When the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of filing the original pleading.

Article 1153 does not specifically refer to parties, but to claims or actions. However, see , Stenson v. City of Oberlin , 10-0826 (La. 3/15/11), 60 So.3d 1205, 1214, citing Moore v. Gencorp, Inc. , 93-0814 (La. 03/22/94), 633 So.2d 1268, 1270 (" Article 1153... provides a means for determining when an amendment adding a plaintiff, claim, or defendant relates back to the date of an earlier filed pleading for prescriptive purposes.").

In Giroir v. South Louisiana Medical Center , 475 So.2d 1040, 1044 (La. 1985), the Louisiana Supreme Court established four criteria that must be satisfied in order to allow for the addition of plaintiffs to an original timely filed petition:

An amendment adding or substituting a plaintiff should be allowed to relate back if (1) the amended claim arises out of the same conduct, transaction, or occurrence set forth in the original pleading; (2) the defendant either knew or should have known of the existence and involvement of the new plaintiff; (3) the new and the old plaintiffs are sufficiently related so that the added or substituted party is not wholly new or unrelated; (4) the defendant will not be prejudiced in preparing and conducting his defense.

All four elements set forth in Giroir are required for the amendment adding additional parties to relate back to the original petition. Eaglin v. Eunice Police Dept. , 17-1875 La. 6/27/18, --- So. 3d ----, 2018 WL 3154744 ; Bates v. City of Shreveport , 46,432 (La. App. 2 Cir. 6/22/11), 69 So.3d 1205.

Defendant does not dispute that RDI's newly asserted claim arises out of the same conduct, transaction, or occurrence set forth in the original pleading (element # 1), or that RDI and CLL and Meredith are sufficiently related (element # 3). According to the Credit Union, however, Plaintiffs failed to prove that Defendant either knew or should have known of the existence and involvement of RDI (element # 2), and, it would be prejudiced if RDI's claims were allowed to relate back to those asserted in the original petition filed by CLL and Meredith (element # 4), and the trial court did not commit manifest error in sustaining the Credit Union's exception of prescription.

The following is excerpted from the trial judge's oral reasons for judgment:

Ms. Meredith made it very clear in her testimony that these were separate and distinct entities. She said, "I wanted to keep it separate on purpose." She also said, "I didn't want it convoluted." She said that the parties to the transaction, the diamond deal in February of 2014, [were] Ros Dimere and a seller ... UDK Enterprises ... "My Ros Dimere and then UDK."
There doesn't seem to be any confusion about that. And she testified that she intentionally wanted to keep those entities separate. Mr. Pesnell, I agree with you that you can form an LLC or an entity for any matter that's not against public policy or illegal, and people do it for tax purposes and liability purposes, and they do it intentionally, and if they're sophisticated enough they can form those entities and protect their assets, their individual assets and the assets of the individual entities.
So it appears that what Ms. Meredith is asking the Court to do is give her cake and let her eat it, too. She wants to be protected against anyone suing her entities for her personal assets, and then she wants to protect her individual entities against any lawsuits or tax liabilities, but when the tables are turned she wants to be able to say, oh well, we're all just convoluted, it's all the same thing, you know, I'm Ros Dimere, and I'm City Life Live, and it's all the same thing, but it isn't. She intentionally formed different entities, she was in the best position to know which entity should have brought this lawsuit, and for whatever reason, Ros Dimere, ... which was the entity that was involved in this transaction according to her, and the only entity involved in this transaction according to her, unfortunately she did not name them as a party in the original petition filed on February 4, 2015. It was not until after the parties came to court and had an adverse ruling from this Court that a supplemental petition was filed in May, on May 3rd of 2017, and for the first time Ros Dimere was named as a party to the lawsuit for damages, which allegedly took place in February of 2014.
You've argued that Ros Dimere is claiming a tort action in this matter, and so clearly there has been in excess of one year from the date of the damage or injury, from February 2014 to May 3rd of 2017, so the Court agrees with defense that this matter has prescribed, and the Court will grant the exception of prescription....
[T]he purpose for reading [selected portions from Ms. Meredith's deposition aloud] is to show that Ms. Meredith seems to be very sophisticated. She understands the different entities, she said that she kept them separate on purpose, she had a reason for doing that. She had full knowledge of what was taking place. She did not seem to be confused to me at all over those several pages. She seemed to be just the opposite. She seemed to be very sophisticated and understood full good and well that she had separate entities. City Life Live is in the business of entertaining; and Ros Dimere is in the business of buying precious stones and diamonds, and [Ms. Meredith] said she kept it separate on purpose. She did it for a reason, that's ... why people form entities so they can protect their individual assets from any liability, and also protect the assets of the individual entities against any other liability.
Unfortunately for Ms. Meredith, she simply didn't name the entity that she should have named in the original petition. That matter prescribed as I ruled on earlier ...

While the trial judge did not specifically discuss the Giroir factors in his reasons for judgment, he did emphasize the fact that RDI and City Life Live were two separate and distinct entities and note that more than two years had passed between the original petition and RDI's supplemental and amended petition.

The record establishes that both CLL and Meredith were account holders with the Credit Union, and that RDI was not. The record further shows that there is absolutely no mention of RDI (or even some unnamed third party) in Plaintiffs' pleadings until the amended pleading filed on May 3, 2017. There was no reasonable and timely notice to the Credit Union that RDI was in existence, that it had a relationship with either or both CLL and Meredith and a connection to the diamond deal in Sierra Leone, or that RDI would have a potential claim arising out of Defendant's allegedly tortious actions in February 2014. See , Ahmed v. Downman Development, L.L.C. , 17-0114 (La. App. 4 Cir. 12/28/17), 234 So.3d 1111 (in which the Fourth Circuit also noted that a corporate entity, even if wholly owned by a sole shareholder, is a separate legal person, and as such, is not treated as one in the same as its sole shareholder). On this record, we find that Plaintiffs failed to establish that the Credit Union knew or should have known of the existence and involvement of RDI ( Giroir element # 2).

While the court in Giroir, supra , did not place any time limits on the relation back of an amended pleading, the passage of time between the filing of an original petition and an amended petition generally weighs against a finding that the amended petition relates back to the timely filed petition. Bates, supra . RDI's amended petition was filed more than two years after CLL and Meredith's original petition and more than three years after the Credit Union's allegedly tortious conduct. As noted above, because RDI was not an account holder with Defendant, the evidence RDI would rely on to establish its claim is separate and distinct from that of CLL and Meredith. Under the facts and circumstances of this case, Defendant would definitely be prejudiced in the preparation of its defense as a result of the delay in the addition of RDI to this case ( Giroir element # 4).

We find no manifest error in the trial court's judgment sustaining the Credit Union's exception of prescription. We will not address Plaintiffs' remaining assignment regarding Defendant's exception of no cause of action, which is rendered moot by our disposition.

CONCLUSION

For the reasons set forth above, the appeal from the April 14, 2018 grant of partial summary judgment is dismissed, and the April 14, 2018 judgment sustaining the exception of prescription filed by Defendant, Post Office Employees Federal Credit Union, is affirmed. Costs are assessed to Plaintiffs, City Life Live, L.L.C., and Marcia D. Meredith.

      In the event that Meredith and CLL failed to supplement/amend their petition as ordered, the trial court's order provided that the claims asserted by these two Plaintiffs against the Credit Union "for the recovery of all of those damages, losses, costs and expenses, and/or other amounts in the above referenced proceeding will be dismissed without prejudice" at Plaintiffs' cost.

      Whenever the term "Plaintiffs" is used, it will refer to all three: Meredith, CLL and RDI.

      This judgment was not designated as a final judgment as required by La. C.C.P. art. 1915(B)(1).

      La. C.C.P. art. 966(E) provides that a summary judgment may be rendered dispositive of a particular issues, theory of recovery, cause of action, or defense, in favor of one or more parties, even though the granting of the summary judgment does not dispose of the entire case as to that party or parties.


source: Caselaw Access Project

author: McCALLUM, J.

license: Public Domain

text:
    TOWN OF STERLINGTON, Plaintiff-Appellant v. GREATER OUACHITA WATER COMPANY, Defendant-Appellee
    No. 52,482-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered April 10, 2019 Rehearing Denied May 16, 2019
    ROUNTREE LAW FIRM, By: James A. Rountree, Counsel for Appellants, Town of Sterlington, Vern A. Breland, Kerry Elee, Caesar Velasquez
    JAY BARDY MITCHELL, Assistant District Attorney, Counsel for Intervenor Appellee Ouachita Parish Police Jury
    HAMMONDS, SILLS, ADKINS & GUICE, By: Elmer Gray Noah, II, Counsel for Intervenor Appellee Ouachita Parish School Board
    HAYES, HARKEY, SMITH & CASCIO, L.L.P., By: Thomas Moore Hayes, III, Philip E. McQueen, Counsel for Defendant Appellee Greater Ouachita Water Company
    SHOTWELL, BROWN & SPERRY, By: Clarence Allan Martin, III, Counsel for Defendant Appellee Greater Ouachita Water Company
    JOHN ANDREW GALLAGER, KAREN DAY WHITE, Counsel for Appellee Louisiana Municipal Association
    Before MOORE, PITMAN, and McCALLUM, JJ.
   McCALLUM, J.

This appeal calls for us to consider two similar yet contrasting issues. First, the trial court has granted a preliminary injunction against a public subdivision. In essence, the trial court has exercised a unique power wherein it ordered and prevented another government entity from taking certain actions. Second, is a complex issue involving the fundamental division of governmental power. Essentially, we are tasked with deciding whether the trial court overstepped its constitutional authority when it granted a writ of mandamus, an extraordinary remedy, ordering a political subdivision to pay a judgment.

The City of Sterlington appeals the judgment of the trial court, asserting two errors: (1) the trial court erred in granting the Greater Ouachita Water Company a preliminary injunction against the City of Sterlington; and (2) the trial court erred when it granted a writ of mandamus in favor of the Greater Ouachita Water Company against the City of Sterlington. The City of Sterlington argues that the trial court erred in granting the preliminary injunction because the Greater Ouachita Water Company failed to show any possibility of irreparable injury. The City of Sterlington further contends that the trial court had no authority in granting the writ of mandamus where it had yet to appropriate any funds to pay the judgment in question.

The Greater Ouachita Water Company counters that the trial court did not err. It argues that that it did not need to show the possibility of irreparable injury. It further urges that Louisiana Revised Statute 19:201 authorized the trial court to issue the writ of mandamus at issue. Additionally, the Greater Ouachita Water Company requests that we increase the award of attorney fees and court costs to include this appeal.

For the following reasons, we affirm the trial court's judgment as to its grant of the preliminary injunction and we reverse the trial court's judgment as to its grant of the writ of mandamus.

FACTS

On June 17, 1996, the City of Sterlington ("Sterlington") entered into an agreement with the Greater Ouachita Water Company ("GOWC"). The agreement, titled ORDINANCE NO. 96-02 (UTL) ("Ordinance Agreement"), granted GOWC, for a period of twenty years, "a non-exclusive franchise ... for the construction, maintenance and operation of a water system including the production, transmission, distribution and sale of water in, through, across and beyond the Town of Sterlington[.]" Within the agreement, Sterlington further authorized GOWC the right to "construct, maintain and operate a system of pipes, pipelines, water mains, laterals, conduits, feeders, regulators, meters, fixtures, wells, storage facilities, connections and attachments and other instrumentalities and appurtenances[.]"

Between June of 1996 and November of 1998, Sterlington installed water mains in the Town of Sterlington for fire protection, a 150,000-gallon elevated storage tank ("water tower") and a pumping station. By agreement ("Water Tower Agreement") executed on November 1, 1998, Sterlington granted GOWC exclusive use of the water mains, water tower and pumping station. Furthermore, as consideration for the agreement, GOWC assumed full responsibility and liability for the maintenance, operation and upkeep of the water mains, water tower and pumping station. GOWC further agreed to hold Sterlington free of any and all liability and responsibility connected to the use of the water mains, water tower and pumping station. The agreement was executed and effective to June 17, 2016, the same date the Ordinance Agreement was set to expire.

Prior to the expiration date of the Ordinance Agreement and the Water Tower Agreement, Sterlington and GOWC entered into an Asset Purchase Agreement ("APA"). With a desire to own and operate its own water distribution system, Sterlington executed the APA on April 9, 2015, with GOWC. For the consideration of $ 2,600,000.00, Sterlington agreed to purchase all of GOWC's infrastructure within a specified area, detailed within the APA. Furthermore, within the APA, the parties agreed to the following notable terms and conditions, to wit:

Section 7.01 Conditions to Obligations of All Parties. The obligations of each party to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to the Closing, of each of the following conditions:
...
(e) Buyer shall have completed construction of the water treatment plant to serve the customers within the Area and shall have completed all construction necessary to tie the water treatment plant into Seller's existing water distribution system in the Area.
Section 9.01 Termination. This Agreement may be terminated at any time prior to the Closing:
...
(c) by Seller by written Notice to Buyer if:
(i) Seller is not then in material breach of any provision of this Agreement and there has been a material breach, inaccuracy in or failure to perform any representation, warranty, covenant or agreement made by Buyer pursuant to this Agreement that would give rise to the failure of any of the conditions specified in Article VII and such breach, inaccuracy or failure cannot be cured by Buyer by the Drop Dead Date[.]
Section 9.02 Effect of Termination. In the event of the termination of this Agreement in accordance with this Article, this Agreement shall forthwith become null and void, except as provided below, and the following shall apply:
...
(c) Buyer and Seller shall sign a new franchise agreement for a term of twenty (20) years; and
(d) Buyer and Seller shall sign a new agreement allowing Seller to use the 8" and 6" fire mains and the 150,000 gallon elevated tank and pumping station owned by Buyer for a term of twenty (20) years.
Section 10.11 Specific Performance. The parties agree that irreparable damage would occur if any provision of this Agreement were not performed in accordance with the terms hereof and that the parties shall be entitled to specific performance of the terms hereof, in addition to any other remedy to which they are entitled at law or in equity.

By letter dated April 12, 2017, GOWC terminated the APA with Sterlington. Citing Article VII, Section 7.01(e), GOWC notified Sterlington of the termination due to the fact that Sterlington had failed to construct a water treatment plant or any of the infrastructure required to connect the plant to the water distribution system. GOWC further noted that the Drop Dead Date had passed and that Sterlington had failed to perform in accordance with the APA as a whole. Additionally, it notified Sterlington that due to the termination, Sterlington was required to promptly enter into the necessary agreements to renew or extend the franchise and use agreements as provided in Article IX, Section 9.02 of the APA. Thereafter, GOWC provided an agreement for the extension of the franchise and use agreements to Sterlington.

Refusing to sign GOWC's extension agreements, Sterlington instead filed an expropriation action against GOWC. Alleging significant residential and commercial growth and GOWC's failure to satisfy such needs, Sterlington sought to gain by expropriation the same infrastructure, from GOWC, which it failed to acquire with the APA, for $ 1,400,000.00.

GOWC countered Sterlington's expropriation cause with an exception of prematurity. GOWC argued that because Sterlington did not own or operate the necessary treatment plant required for a proper and safe water distribution system, then expropriating the infrastructure from GOWC would be premature. The trial court, agreeing with GOWC, granted its exception and dismissed Sterlington's cause of action. Sterlington did not appeal the trial court's decision. Thereafter, GOWC filed a motion to tax fees and costs, requesting $ 59,231.98 in attorney fees and costs it incurred while challenging Sterlington's expropriation suit.

Prior to the trial court hearing on the motion to tax fees and costs, GOWC determined that the water tower had a design flaw. In seven letters from the State of Louisiana Department of Health, dated from September 11, 2014, to August 25, 2015, the State informed GOWC that the water tower chlorine residual level had fallen below the Louisiana State Sanitary Code's acceptable levels. After years of mitigating the problem with temporary remedies, GOWC grew concerned for the safety and drinkability of the water. The temporary remedies further caused GOWC concern because they hampered the ability of GOWC to provide appropriate amounts of water for fire protection. On June 29, 2017, the State authorized and granted a permit for GOWC to make the necessary changes to ensure the safety of the water. On August 19, 2017, GOWC notified Sterlington of its intent to improve the water tower. To prevent stagnation of the water, and to improve the chlorine residual levels, GOWC determined that it needed to install a chlorine booster and recirculation equipment. Such improvements would ensure safe drinking water while at the same time allow GOWC to maintain proper water levels for fire protection.

On the date GOWC scheduled the installation of the modifications, September 5, 2017, Sterlington denied GOWC contractors access to the water tower. After Sterlington threatened to arrest the contractors for trespass, the contractors left the site, failing to install any of the improvements to the tower. Thereafter, GOWC filed for injunctive relief against Sterlington, including a motion for a preliminary injunction.

On September 21, 22 and 25, 2017, the trial court held a hearing on the motion to tax fees and costs, attendant to defending the expropriation suit. The court further accepted evidence and testimony in conjunction with the motion for preliminary injunction. GOWC produced the letters from the State of Louisiana Department of Health. It further presented the testimony of four witnesses and experts as to the need for improvements to the water tower.

Ultimately, the trial court ruled in favor of GOWC on both matters. It awarded GOWC $ 57,641.98, with judicial interest, against Sterlington, for attorney fees and court costs. It granted the preliminary injunction that GOWC sought against Sterlington. Sterlington did not appeal the trial court's ruling with regard to the award for attorney fees and court costs. It did appeal the trial court's grant of the preliminary injunction.

Thereafter, Sterlington failed to pay GOWC in accordance with the judgment for fees and costs. GOWC then petitioned the trial court for a writ of mandamus against Sterlington. At the hearing on the mandamus, Sterlington argued that the trial court lacked the authority to grant such a writ where the city had yet to appropriate any funds for the payment of the judgment. GOWC argued that Louisiana Revised Statute 19:201 gave the trial court authority to grant a writ of mandamus. Agreeing with GOWC, the trial court granted the writ of mandamus, ordering the mayor of Sterlington to pay $ 58,421.42 to GOWC.

Consequently, Sterlington appealed both the trial court's decision in granting the preliminary injunction and the trial court's decision in granting the writ of mandamus. GOWC counters that we should affirm the trial court and also increase the award of attorney fees and costs to include their cost to defend this appeal.

DISCUSSION

Preliminary Injunction

Louisiana Code of Civil Procedure Article 3663 provides injunctive relief to two classes of petitioner. Article 3663 states the following:

Injunctive relief, under the applicable provisions of Chapter 2 of Title I of Book VII, to protect or restore possession of immovable property or of a real right therein, is available to:
(1) A plaintiff in a possessory action, during the pendency thereof; and
(2) A person who is disturbed in the possession which he and his ancestors in title have had for more than a year of immovable property or of a real right therein of which he claims the ownership, the possession, or the enjoyment.

Louisiana Code of Civil Procedure Article 3601(A) states, "An injunction shall be issued in cases where irreparable injury, loss, or damage may otherwise result to the applicant, or in other cases specifically provided by law[.]" Typically, a trial court may grant a preliminary injunction where a party makes a showing of three things: (1) that the injury, loss or damage he will suffer if the injunction is not issued may be irreparable; (2) that he is entitled to the relief sought; and (3) that he is likely to prevail on the merits of the case. See Meredith v. I am Music, LLC. , 2018-0659, 2019 WL 610224 (La. App. 1 Cir. 2/13/19) ; See Denta-Max v. Maxicare Louisiana, Inc. , 95-2128 (La. App. 4 Cir. 3/14/96), 671 So.2d 995.

"A preliminary injunction is a procedural device interlocutory in nature designed to preserve the existing status pending a trial of the issues on the merits of the case." Smith v. West Virginia Oil & Gas Co. , 373 So.2d 488, 494 (La. 1979). "[T]he grant or denial of a preliminary injunction is left to the sound discretion of the trial court and will not be disturbed on appeal except for a clear abuse of that discretion." Cason v. Chesapeake Operating, Inc. , 47,084 (La. App. 2 Cir. 4/11/12), 92 So.3d 436, 441, writ denied 2012-1290 (La. 9/28/12), 98 So.3d 840.

In a recently rendered and still unpublished opinion, the First Circuit Court of Appeal of Louisiana elucidated the difference between a prohibitory injunction and a mandatory injunction. "A 'prohibitory injunction' is one that seeks to restrain conduct; a 'mandatory injunction,' on the other hand, commands the doing of some action." Meredith, 2019 WL 610224 at 4-5 ; see Denta-Max, 671 So.2d at 996-97. "The level of proof required and the procedure used to satisfy these three elements differs depending on whether the preliminary injunction sought is a prohibitory or a mandatory injunction." Meredith, 2019 WL 610224 at 4-5 ; see Denta-Max, 671 So.2d at 996-97. Where a prohibitory injunction simply preserves the status quo until a full trial on the merits, a court may issue the injunction on a prima facie showing by the party seeking the injunction. See Meredith, 2019 WL 610224 at 4-5 ; See Denta-Max, 671 So.2d at 996-97.

In the case before us, the trial court held a hearing on GOWC's request for a preliminary injunction. After allowing testimony and taking evidence, the trial court granted the preliminary injunction on December 4, 2017. The Honorable Judge Alvin Sharp considered the testimony of experts with knowledge of the water tank at issue, evidence of the concerns of GOWC and the agreements entered into by both parties allowing GOWC to use and operate the water tower. The court further considered documents showing multiple periods where the chlorine residual level had fallen below the Louisiana State Sanitary Code's acceptable levels.

Although the trial court did not specify its reasoning as to whether it was granting the preliminary injunction based on a prima facie showing or a showing of irreparable injury, we find that the court did not abuse its broad discretion in granting the preliminary injunction. GOWC made a showing that irreparable injury could occur in the form of civil liability to itself from the public at large through both the possibility of unsafe drinking water and the decreased availability of necessary fire protection. GOWC also made a showing of past instances where the current configuration of the water tower in question failed to maintain the acceptable levels as required by the Louisiana State Sanitary Code.

Furthermore, it is notable that Sterlington has never prevented GOWC from operating and maintaining the water tower in connection with its responsibility to provide drinking water to the public. It has merely sought to stop GOWC from improving the tower so that it may appropriately function as intended, i.e. to provide potable water. In essence, Sterlington has not sincerely challenged the right of GOWC to use the water tower for the city's benefit. Instead, it has objected to and prevented GOWC from maintaining the water tower because, to its disadvantage, such actions would increase the price of the water tower with regard to the expropriation.

Within every previous agreement between the parties, however, GOWC's right to use and maintain the tower never included Sterlington's direction or oversight of how it could use the water tower. Indeed, Sterlington specifically demanded, within each agreement, that it shall not be liable for any problems with the water. Instead, it ensured that GOWC would assume all liability and responsibility for the maintenance, operation and upkeep of the water mains, water tower and pumping station.

The first and only time that Sterlington denied access to the water tower was after the trial court issued adverse rulings on motions and petitions brought by GOWC. The timing of such an action by Sterlington contributes to the seemingly arbitrary nature of its actions as opposed to a legitimate defense of its ownership of the water tower. Such indirect implication of the arbitrary nature of Sterlington's actions further highlights the status quo of GOWC's complete control and right of use of the water tower in question. Considering the actions of Sterlington, discussed supra , and that the trial court held a full evidentiary hearing on the matter, it is difficult for us to find that the trial court's grant of the preliminary injunction was an abuse of the broad discretion that it enjoys in such a matter.

Moreover, this Court decided a similar case in Monroe Real Estate & Development Co., Inc. v. Sunshine Equipment Co., Inc., 35,555 (La. App. 2 Cir. 1/23/02), 805 So.2d 1200. In Monroe , the trial court denied a request for a preliminary injunction. The appellant held an option on a contract that had yet to be proven as satisfied or valid because the trial on the merits was still pending. This Court decided the following, to wit:

For purposes of the proof required for a preliminary injunction, this evidence is sufficient to establish that the Agreement contemplated transfer of ownership of the easement to Sunshine following its valid exercise of the option. Upon proof of these facts, it logically follows that Sunshine's successful proof of a claim to ownership of the real right of specific performance resulting from an asserted exercise of the option necessarily results in a corresponding claim to ownership of the easement, which in this case is appropriately classified as a predial servitude - a real right which may also be protected by La. C.C.P. art 363 preliminary injunction. Id. at 1204.

Reversing the trial court, this Court granted the preliminary injunction because the appellant presented prima facie proof of its claims to ownership or possession of a real right. Much like in Monroe, the evidence is sufficient to establish that the APA contemplated the continuation of GOWC's right to use and control the water tower in question following GOWC's valid exercise of terminating the APA.

We find that GOWC has put forward prima facie evidence of a right to the continued use of the water tower through the APA. Additionally, considering the status quo of the parties prior to the incident necessitating the cause for a preliminary injunction and a possibility of irreparable harm, we find that the trial court did not commit error in granting the preliminary injunction. Therefore, we affirm the trial court's granting of the preliminary injunction.

Mandamus

Under Title III, "Extraordinary Remedies," one finds Article 3862 of the Louisiana Code of Civil Procedure. That Article, titled "Mandamus; issuance of" states the following:

A writ of mandamus may be issued in all cases where the law provides no relief by ordinary means or where the delay involved in obtaining relief may cause injustice; provided, however, that no court shall issue or cause to be issued a writ of mandamus to compel the expenditure of state funds by any state department, board or agency, or any officer, administrator or head thereof, or any officer of the state of Louisiana, in any suit or action involving the expenditure of public funds under any statute or law of this state, when the director of such department, board or agency or the governor shall certify that the expenditure of such funds would have the effect of creating a deficit in the funds of said agency or be in violation of the requirements placed upon the expenditure of such funds by the legislature.

"Mandamus is a writ directing a public officer ... to perform" "a ministerial duty required by law." Jazz Casino Company, L.L.C v. Bridges , 2016-1663 (La. 5/3/17), 223 So.3d 488, 492. "A 'ministerial duty' is one 'in which no element of discretion is left to the public officer,' in other words, 'a simple, definite duty, arising under conditions admitted or proved to exist, and imposed by law.' " Id. at 492 (citing Hoag v. State , 2004-0857 (La. 12/1/04), 889 So.2d 1019.) "If a public officer is vested with any element of discretion, mandamus will not lie." Id. at 492 (citing Landry v. City of Erath , 628 So.2d 1178 (La. App. 3 Cir. 1993) ).

Normally, a district court's findings of fact in a mandamus proceeding are subject to a manifest error standard of review. See St. Bernard Port, Harbor and Terminal District v. Guy Hopkins Construction Co., Inc. , 2016-0907 (La. App. 4 Cir. 4/5/17), 220 So.3d 6. In this case, however, we must interpret Louisiana Revised Statute 19:201 in relationship to the enforcement of a money judgment for attorney fees and court costs against a political subdivision of the state. Where statutory interpretation is at issue and since the correct interpretation of a statute is naturally a question of law, we apply a de novo standard of review. See Newman Marchive Partnership, Inc. v.City of Shreveport , 2007-1890 (La. 4/8/08), 979 So.2d 1262 ; Quality Design and Const. Inc. v. City of Gonzales , 2013-0752 (La. App. 1 Cir. 3/11/14), 146 So.3d 567.

Similar to the case before the Newman Marchive Court, GOWC does not argue that Sterlington's decision to appropriate funds to pay a judgment against the city is not discretionary. GOWC instead argues that since Louisiana Revised Statute 19:201 mandates that the attorney fees and court costs be paid from the funds appropriated for the expropriation, then the appropriation for the original, unsuccessful expropriation statutorily includes any future judgment of attorney fees and courts costs. Essentially, GOWC contends that La. R.S. 19:201 is the appropriation itself because it mandates attorney fees and court costs shall be paid from the original expropriation funds.

In several opinions, the Supreme Court of Louisiana has succinctly outlined the constitutional concerns as relates to the judiciary's power to issue mandamus. The Constitution of Louisiana established three individual, distinct and separate branches of government: the executive, the legislative and the judicial. "Except as otherwise provided by this constitution, no one of these branches, nor any person holding office in one of them, shall exercise power belonging to either of the others." La. Const. art. II § 2. Such branching and separation provides the inherent basis that no one branch may infringe or usurp the powers of the others. See Newman Marchive , 979 So.2d at 1265. Therefore, just as the legislative and executive branches may not seize the authority and power of the judiciary, the judiciary may not usurp the powers of the legislative and executive branches. Id.

However, "[t]he separation of powers is not always defined precisely." Id. at 1265-66. For example, "[t]he constitution allocates the judiciary some power over the other branches through article XII, section 10(A), where it waives the State's immunity in suits in contract and tort." Id. at 1266. "Thus, the judicial branch is empowered to render judgments against the state." Id. at 1266.

Furthermore, the legislature has enacted other statutes, broadening the power of the judiciary in very specific and strict situations. One such statute forms GOWC's alleged basis and argument for such power of the judiciary. Louisiana Revised Statute 19:201(A) states the following:

A court of Louisiana having jurisdiction of a proceeding instituted by any expropriating authority referred to in R.S. 19.2 shall award the owner of any right, or title to, or interest in the property sought to be expropriated such sum as will, in the opinion of the court, reimburse such owner for his reasonable attorney fees, and court costs, actually incurred because of the expropriation proceeding, if the final judgment is that the plaintiff does not acquire at least fifty percent of the immovable property requested in the petition for expropriation or if the proceeding is abandoned by the plaintiff. If the expropriating authority is the state or its political corporations or subdivisions, any such award shall be paid from the same funds from which the purchase price of the property would have been paid.

Therefore, the legislature has clearly authorized the judiciary to award a judgment for attorney fees and courts costs against a political subdivision involving matters of expropriation. Again, we note that Sterlington has not appealed the trial court's judgment for attorney fees and court costs. Rather, it has appealed the trial court's grant of the mandamus, ordering Sterlington to pay the judgment.

On that note, we are reminded that the power of the judiciary to award a judgment against a political subdivision and the power of the judiciary to enforce such a judgment are two entirely different matters. "[T]he constitution does not provide the judiciary with the ability to execute those judgments. The constitution reserves that power to the legislature." Newman Marchive , 979 So.2d at 1265 (citing La. Const. art. XII, § 10 (C).

Louisiana Constitution Article XII, § 10 (C) states the following:

[The legislature] shall provide a procedure for suits against the state, a state agency, or a political subdivision and provide for the effect of a judgment, but no public property or public funds shall be subject to seizure . The legislature may provide that such limitations, procedures, and effects of judgments shall be applicable to existing as well as future claims. No judgment against the state, a state agency, or a political subdivision shall be exigible, payable or paid except from funds appropriated therefor by the legislature or by the political subdivision against which the judgment is rendered. (emphasis added).

Adopting similar language, the legislature enacted Louisiana Revised Statute 13:5109 (B)(2), which states the following:

Any judgment rendered in any suit filed against the state, a state agency, or a political subdivision , or any compromise reached in favor of the plaintiff or plaintiffs in any such suit shall be exigible, payable, and paid only out of funds appropriated for that purpose by the legislature, if the suit was filed against the state or a state agency, or out of funds appropriated for that purpose by the named political subdivision, if the suit was filed against a political subdivision. (emphasis added).

In considering such language, the Newman Marchive Court held that "the combined effect of article XII, section 10(C) and LSA-R.S. § 13:5109(B)(2) is clear. Judgments against a political subdivision of the State may only be paid 'out of funds appropriated for that purpose by the named political subdivision.' " Newman Marchive, 979 So.2d at 1267. " La. R.S. 13:5109(B) is a clear expression of legislative intent; judgments rendered against the state are payable only by specific appropriation by the legislature." Id. at 1267 (citing Hoag v. State , 2004-0857 (La. 12/1/04), 889 So.2d 1019.)

GOWC argues that since La. R.S. 19:201 specifies that the judgment "shall be paid from the same funds from which the purchase price of the property would have been paid," the legislature is essentially stating that the funds to pay such a judgment are already appropriated by the political subdivision. Therefore, GOWC concludes that since the funds are already "appropriated," then the duty of the public officer to pay such judgment is not discretionary. Instead, it is a ministerial duty. Ergo, the trial court had the authority to issue the mandamus, directing Sterlington to pay the judgment. We disagree with such an interpretation of La. R.S. 19:201.

After a pedantic review of the instructive jurisprudence on the matter of mandamus, we conclude that the opinions where a judgment or order of mandamus was held valid and constitutional are distinguishable to this case. Further, the jurisprudence where courts have found mandamus unconstitutional have many similarities to the facts at issue before us.

One case that has the "sheep's clothing" of similarity, yet, on closer inspection, is a "wolf" among the herd, is Jazz Casino Company, L.L.C v. Bridges , 2016-1663 (La. 5/3/17), 223 So.3d 488. In Jazz , the Supreme Court of Louisiana found that a writ of mandamus was a valid exercise of the judiciary's power. The Jazz Court dealt with the constitutional and statutory duties owed by the tax collector in connection with the taxpayer's refund judgment. The Court ultimately reversed the appellate court and reinstated the judgment of the trial court, granting the writ of mandamus.

The Jazz Court first detailed the mandatory nature of the payment of a tax refund. "While having the power to tax, the legislature must 'provide a complete and adequate remedy for the prompt recovery of an illegal tax paid by a taxpayer.' " Id. at 492-93 (citing La. Const. art. VII § 3 (A) ). One such remedy for an "illegal tax," provided for by the legislature, was the "Overpayment Refund" procedure. Id. With regard to that procedure, the Court noted that the "legislature enacted procedures to authorize the return of overpaid taxes without requiring a legislative appropriation." Id. at 493. The Court then stated the following, to wit:

Where there has been a determination that an overpayment has been made, La. R.S. 47:1621(D)(1) directs that the refund of overpaid taxes "shall be made out of any current collections of the particular tax which was overpaid." The refund of overpayments that occurred in multiple years may be refunded "incrementally" by the Secretary; however, "[t]he number of increments shall not exceed the total number of years the tax was overpaid." La. R.S. 47:1621(D)(2). Within 45 days of the finality of a refund judgment in a Section 1621 proceeding, "the secretary shall make the refund." See La. R.S. 47:1621(D)(3). For incremental refunds, "[t]he first payment owed ... shall be made within" 45 days of the judgment becoming final. La. R.S. 47:1621(D)(3) and (4). Id. at 494.

In concluding that a court may issue a mandamus under La. R.S. 47:1621, the Jazz Court held the following, to wit:

In exercising the legislative authority to 'determine when and how to pay' a judgment against the state, a state agency, or political subdivision and to provide 'a complete and adequate remedy for the prompt recovery of an illegal tax paid by a taxpayer,' the legislature made the refund of tax overpayments mandatory. Accordingly, the legislature afforded the judiciary authority to issue a mandamus in a proceeding under La. R.S. 47:1621, to compel enforcement of a final refund judgment. Id. at 496.

The Court further stated that "the legislature expressly authorizes the use of mandamus relief to compel the Secretary to 'promptly' ... make the refund' ... [a]s to hold otherwise would allow the Secretary to disregard mandatory obligations under La. Const. art. VII, § 3 (A) and La. R.S. 47:1621." Id. at 496.

In considering the Court's opinion in Jazz , we note considerable, distinguishing factors between the tax refund statutes and La. R.S. 19:201. First, although we concede that La. R.S. 19:201 clearly mandates that a trial court "shall award" attorney fees and court costs, such a mandate is not the same as authorizing or mandating that the trial court issue an attendant mandamus for the payment of such an award. Neither party contests that the trial court correctly awarded a judgment of attorney fees or court costs. Second, it is certainly accurate that La. R.S. 19:201 mandates from which funds the award shall be paid when it states, "any such award shall be paid from the same funds from which the purchase price of the property would have been paid." However, although the statute dictates the specific fund from which the judgment shall be paid, it does not expressly state that the judgment shall be paid immediately nor does it strictly mandate that any specific public official pay the award. Finally, whereas La. R.S. 47:1621 specifies payment within 45 days of judgment, no such time frame, much less adjectives such as "promptly" or "quickly," can be found in La. R.S. 19:201. We find the statutory language in La. R.S. 19:201 to sharply contrast with the language interpreted by the Jazz Casino Court where the Court found that the Secretary is compelled to "promptly ... make the refund." Here, we find no such mandate or language.

Furthermore, we must note that the Jazz Court did refer to expropriations while considering the mandamus issue before it. The Court referenced the similarity of the constitutional mandate to provide a refund for an illegal tax to the constitutional mandate of just and fair compensation for land that the government expropriates. "Because a claim for a refund of overpaid taxes involves the return of money belonging to the taxpayer that is being held by the Department, a proceeding under La. R.S. 47:1621, like an expropriation proceeding, implicates constitutional concerns involving the deprivation of property." Jazz at 497. The Court further delineated why the source or the "ownership" of the funds in question is important. "A distinguishing characteristic of the funds sought by Jazz is that these funds belong to Jazz; whereas, with a judgment in a tort or contract matter, the judgment creditor is attempting to collect funds the public body legally collected which have become public funds." Id. at 497.

In contrast to Jazz , the case before us involves neither the actual taking of property nor deprivation of such property. In fact, the judgment in question arose because the expropriation sought by Sterlington against GOWC failed. No taking occurred; therefore, no deprivation of property occurred. The constitutional provision providing for "just and fair" compensation was neither invoked nor applicable to the case at hand. The judgment resulted from the unsuccessful expropriation attempt. The evidence at trial shows that Sterlington has only appropriated the funds for the payment of a successful expropriation; it has not appropriated any funds for the specific payment of any other judgments. The language of the statute controls the source of the funds for payment, but stops short of authorizing mandamus.

We further highlight Parish of St. Charles v. R.H. Creager, Inc. , 10-180 (La. App. 5 Cir. 12/14/10), 55 So.3d 884, writ denied 2011-118 (La. 4/1/11), 60 So.3d 1250. In Creager , the Fifth Circuit Court of Appeal of Louisiana found mandamus to be a valid exercise of judicial power. In that case, the court referenced similar laws to the one it was considering, where the legislature strictly mandated that trial courts issue mandamus for the payment of judgments with regard to expropriations brought specifically by levee districts. That court then held that, "We find the wording of the expropriation laws and the constitution set forth by the legislature make payment of fair and just compensation mandatory and not discretionary." Id. at 892.

The facts in Creager and the facts in the case before us are distinguishable. The Creager opinion highlights that the legislature, when it deems necessary, specifically and expressly enacts language mandating that trial courts issue mandamus. For example, under Title 38, Chapter 4, Part V, titled, "Expropriation by Declaration of Taking," Louisiana Revised Statute 38:390 states the following:

A. If the amount finally awarded exceeds the amount so deposited, the court shall enter judgment against the levee district or levee and drainage district and in favor of the persons entitled thereto for the amount of the deficiency. The final judgment together with legal interest thereon shall be paid within sixty days after becoming final. Thereafter upon application by the owner or owners, the trial court shall issue a writ of mandamus to enforce payment.

For our case, we find no such language within La. R.S. 19:201.

We note the decision of the First Circuit Court of Appeal of Louisiana in State, Dept. of Transp. & Development v. Sugarland Ventures, Inc. , 476 So.2d 970 (La. App. 1 Cir. 11/22/85), writ denied 478 So.2d 909 (1985), as a contrasting opinion, where that court held mandamus to be not within the power of a trial court where the state had abandoned the expropriation. Much like the case at hand, Sugarland involved an unsuccessful taking of property. Id.

Similarities do exist between the issues of this case and those at issue in Newman Marchive Partnership, Inc. v. City of Shreveport , 2007-1890 (La. 4/8/08), 979 So.2d 1262. The Newman Marchive Court considered the validity of a writ of mandamus where the city of Shreveport had generally appropriated funds to pay judgments against it but had not specifically appropriated funds for each and every judgment. Although the general appropriation to pay judgments against the city existed, the procedure for appropriating funds for a specific judgment required that a committee scrutinize and then specifically appropriate the funds for each judgment. The Court held that where the committee had not specifically appropriated the funds for the judgment before it, then the mandamus was not valid because the city still held a discretionary power to pay the judgment. The Court declared that, " LSA R.S. 13:5109(B)(2) envisions that whenever a judgment is rendered against the state, a state agency, or a political subdivision of the state, the judgment is payable only out of funds appropriated 'for that purpose,' i.e. money set aside specifically to satisfy a particular judgment." Id. at 1267. " La. R.S. 13:5109(B) is a clear expression of legislative intent; judgments rendered against the state are payable only by specific appropriation by the legislature." Id. at 1267 (citing Hoag v. State , 2004-0857 (La. 12/1/04), 889 So.2d 1019 ).

It is clear that the legislature has not yet specifically authorized mandamus in this situation. Without such specific authority being given to the courts, we are reluctant to seize it.

Finally, we are compelled to quote the ever-cerebral words of the Supreme Court of Louisiana in Hoag v. State , 889 So.2d at 1024. The Hoag Court stated the following, to wit:

The Louisiana Constitution delineates the parameters of each branch of government. Admittedly, there is some inevitable overlap of the functions and each branch of government must strive to maintain the separation of powers by not encroaching upon the power of the others. Consequently, the inherent powers of the judiciary should be used sparingly and only to the extent necessary to insure judicial independence and integrity.

We decline to blur the lines between the several branches of government, weakening the thoughtfully crafted, necessary trichotomous branching of authority.

In consideration of the above, we find that the trial court had no constitutional authority in issuing the writ of mandamus in question. Although La. R.S. 19:201 does mandate that a trial court award attorney fees and courts costs in specific circumstances, it does not provide authority for the judiciary to issue writs of mandamus ordering the payment of such awards. Therefore, we reverse the trial court's judgment granting the writ of mandamus.

CONCLUSION

The judgment of the trial court, in granting the preliminary injunction, is AFFIRMED. The judgment of the trial court, in granting the writ of mandamus, is REVERSED. One-half of the appeal costs are assessed to GOWC. The other half of the appeal costs are not assessed. See La. R.S. 13:5112.

APPLICATION FOR REHEARING

Daniel Milton Moore III, Frances Jones Pitman, Jeanette Giddens Garrett, Shonda D. Stone, and Jay Bowen McCallum - Writing.

Rehearing denied.

      On March 11, 2015, the parties entered into an interim agreement. The APA at issue extended and expanded that agreement between the parties.

      Within the APA, Sterlington is referred to as "Buyer" and GOWC is referred to as "Seller."

      Section 9.01(b)(i) of the APA defined the Drop Dead Date as two (2) years following the date of the Agreement. We note that the date, by that term, would have been approximately April 9, 2017.

      We note that the Louisiana Municipal Association has filed an amicus curiae in support of Sterlington's position with regard to the issue of mandamus.


author: Judge Terri F. Love

text:
    SUCCESSION OF Joseph Ernest DEDAIS
    NO. 2018-CA-0914
    Court of Appeal of Louisiana, Fourth Circuit.
    April 10, 2019
    Jack M. Alltmont, Stephanie G. Gamble, SESSIONS FISHMAN NATHAN & ISRAEL, LLC, 400 Poydras Street, Suite 2550, New Orleans, LA 70130, COUNSEL FOR DEFENDANT/APPELLANT, SONJA DEDAIS
    (Court composed of Judge Terri F. Love, Judge Edwin A. Lombard, Judge Regina Bartholomew-Woods )
   Judge Terri F. Love

This appeal arises from a dispute between two sisters regarding a petition for partition of succession property. The trial court granted the petition for partition and the opposing sister sought an appeal. However, after the trial court granted the petition for partition, the property was sold. We find that the appeal of the petition for partition is moot, as the property was sold since the trial court ruled. Accordingly, the appeal is dismissed.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Samantha Dedais Mitchell Bass and Sonja Marie Dedais, twin sisters, disagreed about the sale of the former community property family home located at 5219 Constance Street, New Orleans, Louisiana. Samantha was appointed as the administratrix of their father's succession on November 3, 2017. Samantha then filed a Petition for Partition of Succession Property and Application to Sell at Private Sale. Samantha, Sonja, and Flag Boy Properties, LLC ("FBP") were the stakeholders in the property.

Sonja opposed the partition and filed a Petition for a Temporary Restraining Order, seeking thirty days to purchase the property. Sonja's request for a TRO was denied. The trial court subsequently granted Samantha's Petition for Partition, providing, in pertinent part:

IT IS ORDERED, ADJUDGED, AND DECREED that that Petition for Partition of Succession Property and Application to Sell at Private Sale filed by Samantha Maria Dedais Mitchell on December 15, 2017 is herein GRANTED giving her the authority to sell the immovable property located at 5219 Constance Street, New Orleans, Louisiana 70115.

Sonja filed a Motion for Suspensive Appeal and for expedited supervisory review/stay of the trial court's judgment granting Samantha the authority to sell. The trial court set the suspensive appeal bond at $ 280,000. This Court denied Sonja's request for a stay and for supervisory review. Succession of Joseph E. Dedais , unpub., 18-0597 (La. App. 4 Cir. 7/16/18). Sonja filed a motion to reduce the suspensive appeal bond, contending that the amount of the bond was excessive. Sonja also requested that the trial court order the Clerk of Court to hold her fifty percent interest in the succession as the bond. The trial court held as follows, in pertinent part:

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the Motion to Reduce Security and Motion for Expedited Hearing filed by Sonja Marie Dedais on July 18, 2018 is herein granted in part and denied in part. The security bond is hereby reduced to Two Hundred and Seventy Five Thousand Dollars ($ 275,000.00). The deadline to post security is extended Forty-Eight (48) hours until 5:00 p.m. on Friday, July 20, 2018.

Sonja did not perfect the suspensive appeal bond, but a devolutive appeal followed.

In her original appellant's brief, Sonja asserted that the trial court erroneously granted Samantha's Petition for Partition because: (1) the purchase agreement was not attached, (2) Samantha did not prove that she published the notice of intent to sell succession property, (3) Samantha did not allege or prove that the purchase agreement was signed within thirty days of the filing of the "Petition to Sell", (4) Samantha did not prove that $ 275,000 was a fair and reasonable price, (5) Samantha did not give her a reasonable opportunity to purchase the property at a higher price, and (6) Sonja was not afforded a hearing or opportunity to present evidence.

Prior to examining Sonja's assignments of error, we must address a jurisdictional issue.

RULE TO SHOW CAUSE

Sonja provided in her appellant's brief and Response to this Court's Rule to Show Cause that the property was sold at least twice since the trial court granted Samantha's Petition for Partition. Accordingly, this Court issued a Rule to Show Cause as to why her appeal should not be dismissed as moot. In response, Sonja contends that since the property sold, she is entitled to a declaratory judgment.

Sonja correctly states that La. C.C.P. art. 1877 provides that "[a]ll orders, judgment, and decrees under Articles 1871 through 1883 may be reviewed." However, there is no declaratory judgment in the record for review. The record before us does not show that a declaratory judgment was ever sought or prayed for.

"It is well established that appellate courts will not render advisory opinions from which no practical results can follow." Whitney Nat. Bank of New Orleans v. Poydras Ctr. Associates , 468 So.2d 1246, 1248 (La. App. 4th Cir. 1985). "As a result, Courts have established the rule that moot questions will not be considered on appeal." Id. " 'The Louisiana Constitution implicitly prohibits courts from issuing advisory opinions which will not affect the parties' rights.' " Evans v. Louisiana Patient's Comp. Fund , 02-0538, p. 4 (La. App. 4 Cir. 2/25/04), 869 So.2d 234, 238 (quoting State in the Interest of C.W. , 97-1229, p. 4 (La. App. 5 Cir. 4/13/98), 712 So.2d 245, 246 ). "[A]n appellate Court, as a matter of judicial economy, has a right to consider the possibility of mootness on its own motion and to dismiss the appeal if the matter has become moot." Whitney Nat. Bank , 468 So.2d at 1248.

Sonja sought to have the trial court's granting of Samantha's Petition for Partition reversed. However, she did not perfect a suspensive appeal, and the property was sold after the trial court ruled. As such, and because Sonja never prayed for declaratory relief before the trial court, we find the matter moot and dismiss the appeal. See Enmon Enterprises, LLC v. City of New Orleans ex rel. New Orleans Aviation Bd. , 15-0763 (La. App. 4 Cir. 5/4/16), 194 So.3d 709 ; Jackson v. Dobard , 15-0505 (La. App. 4 Cir. 12/9/15), 182 So.3d 1119 ; State in Interest of J.H. , 13-1026 (La. App. 4 Cir. 3/19/14), 137 So.3d 748 ; In re Meraux , 03-0633 (La. App. 4 Cir. 2/4/04), 867 So.2d 818. See also Allums v. Allums , 17-0021 (La. App. 4 Cir. 5/31/17), 221 So.3d 191 ; Weaver v. Chimneywood Homeowners Ass'n, Inc. , 01-1444 (La. App. 4 Cir. 1/30/02), 809 So.2d 1071.

DECREE

For the above-mentioned reasons, we find that Sonja's appeal is moot because the property was sold since the trial court granted Samantha's Petition for Partition. Accordingly, the appeal is dismissed.

APPEAL DISMISSED

      Joseph Ernest Dedais passed away on July 15, 1991. Subsequently, on June 9, 1998, their mother, Inez Auguste Dedais also passed away.

      FBP consented to a private sale.

      "In ordinary proceedings, a failure to pay a suspensive appeal bond is not generally considered grounds for dismissal because the appeal is simply converted to a devolutive appeal when the appeal bond is not timely paid." Franco v. Franco , 04-0967, p. 13 (La. App. 4 Cir. 7/28/04), 881 So.2d 131, 139. "We do this because appeals are favored and also because since 1978 LSA-C.C.P. art. 2124 A has eliminated the requirement that any security be furnished in connection with devolutive appeals." Id.


author: Judge Joy Cossich Lobrano

text:
    Crystal REED and Tanesha Hardy v. 21ST CENTURY CENTENNIAL INSURANCE COMPANY, Derek Theriot, the State of Louisiana, Through the Department of Public Safety and Corrections, and Dinerra Cotton
    NO. 2018-CA-1071
    Court of Appeal of Louisiana, Fourth Circuit.
    April 17, 2019
    Vincent J. DeSalvo, LAW OFFICE OF VINCENT J. DESALVO, 7918 Wrenwood Blvd., Suite A, Baton Rouge, LA 70809 COUNSEL FOR PLAINTIFFS/APPELLANTS
    Jack E. Truitt, Peter M. Gahagan, Lou Anne Milliman, Michelle Mayne Davis, Nancy N. Butcher, Thomas Adair, THE TRUITT LAW FIRM, 149 North New Hampshire Street, Covington, LA 70433, Jeff Landry, Attorney General, Lance S. Guest, Assistant Attorney General, Louisiana Department of Justice, Litigation Division, 1450 Poydras Street, Suite 900, New Orleans, LA 70112 COUNSEL FOR DEFENDANTS/APPELLEES
    (Court composed of Chief Judge James F. McKay, III, Judge Joy Cossich Lobrano, Judge Paula A. Brown )
   Judge Joy Cossich Lobrano

In this motor vehicle accident case, appellants, Crystal Reed and Tanesha Hardy, appeal the June 29, 2018 judgment of the district court granting the exception of improper venue filed by appellees, the State of Louisiana, through its Department of Public Safety and Corrections, and Dinerra Cotton, and dismissing appellants'

lawsuit without prejudice. The district court determined that the only proper venue for this litigation, pursuant to the Prison Litigation Reform Act, La. R.S. 15:1181 et seq. , was East Baton Rouge Parish, where appellants were housed as inmates at the Louisiana Correctional Institute for Women during the time of the accident at issue this case.

After the district court rendered judgment, appellants filed a motion for new trial on July 5, 2018. The district court denied the motion for new trial in its judgment dated August 24, 2018. On October 1, 2018, appellants filed a motion for devolutive appeal, which the district court granted in an order dated October 11, 2018. For the following reasons, we dismiss the appeal.

This appeal arises from an adverse ruling on venue. An adverse ruling on venue is interlocutory in nature. Blow v. OneBeacon Am. Ins. Co. , 2016-0301, p. 2 (La. App. 4 Cir. 4/20/16), 193 So.3d 244, 247 (citing Land v. Vidrine , 2010-1342, p. 5 (La. 3/15/11), 62 So.3d 36, 39 ; Savoie v. Rubin , 2001-3275, 2001-3276, p. 3 (La. 6/21/02), 820 So.2d 486, 488 ). To obtain review of the ruling, the adversely affected party must timely apply for supervisory writs. Id. , 2016-0301, pp. 2-3, 193 So.3d at 247. "The party may not await the rendition of a final judgment which adjudicates all issues as to all parties and then request appellate review as is otherwise available with respect to other interlocutory rulings." Id. , 2016-0301, p. 3, 193 So.3d at 247.

Rule 4-3 of the Uniform Rules-Courts of Appeal allows 30 days from the date of the ruling to file an application for supervisory writs. This Court has "exercised its discretion to convert an appeal of a non-appealable judgment into an application for supervisory writs" where both of the following circumstances occur:

(i) The motion for appeal has been filed within the thirty-day time period allowed for the filing of an application for supervisory writs under Rule 4-3 of the Uniform Rules, Courts of Appeal.
(ii) When the circumstances indicate that an immediate decision of the issue sought to be appealed is necessary to ensure fundamental fairness and judicial efficiency, such as where reversal of the trial court's decision would terminate the litigation.

Lee v. Sapp , 2017-0490, pp. 4-5 (La. App. 4 Cir. 12/6/17), 234 So.3d 122, 126 (citing Mandina, Inc. v. O'Brien , 2013-0085, pp. 7-8 (La. App. 4 Cir. 7/31/13), 156 So.3d 99, 104 ; Delahoussaye v. Tulane Univ. Hosp. and Clinic , 2012-0906, 2012-0907, pp. 4-5 (La. App. 4 Cir. 2/20/13), 155 So.3d 560, 563 ).

Additionally, motions for new trial only apply to final judgments. Daniels v. SMG Crystal, LLC , 2013-0761, p. 9 (La. App. 4 Cir. 12/4/13), 128 So.3d 1272, 1277. "[T]he filing of a motion for new trial seeking reconsideration of an interlocutory judgment cannot interrupt the 30-day period for filing an application for supervisory writs established by Rule 4-3 of the Uniform Rules-Courts of Appeal." Whitney Nat'l Bank v. Landrieu , 2018-0357, p. 4 (La. App. 4 Cir. 6/27/18), 250 So.3d 322, 324 (quoting Carter v. Rhea , 2001-0234, p. 5 (La. App. 4 Cir. 4/25/01), 785 So.2d 1022, 1025 ). "Thus, 'while [a] motion for appeal could be construed to be a notice of intent to seek supervisory writs, it could not be construed as a timely one where it was filed more than thirty days from the court's ruling.' "

Dearmon v. St. Ann Lodging, L.L.C. , 2018-0377, p. 4 (La. App. 4 Cir. 9/7/18), 255 So.3d 635, 638 (citations omitted)("the motion [for appeal] was filed untimely for a writ application, and if we allowed the conversion, the writ application would be dismissed because of untimeliness").

In this matter, the judgment and notice of judgment are dated June 29, 2018. The motion for appeal was not filed until October 1, 2018. The June 29, 2018 judgment is not a final, appealable judgment. The proper procedural device to seek review of a judgment granting or denying an exception of improper venue is an application for supervisory writs. The motion for new trial cannot interrupt the 30-day period for filing an application for supervisory writs. The motion for appeal was not filed within the 30-day time period for filing an application for supervisory writs. Accordingly, this Court is unable to invoke its supervisory jurisdiction to convert the appeal to an application for supervisory writs.

For these reasons, the appeal is dismissed.

APPEAL DISMISSED

      La. R.S. 15:1184(F) provides, in relevant part, "[t]he exclusive venue for delictual actions for injury or damages shall be the parish where the prison is situated to which the prisoner was assigned when the cause of action arose...."


author: ISHEE, JUSTICE, FOR THE COURT:

text:
    Michael Todd CROWLEY and Edward Blackmon, Jr. v. Robert G. GERMANY and Pittman, Germany, Roberts & Welsh, LLP
    Ashley deJanae Stowers, Individually and as Wrongful Death Beneficiary of Rodney Sandrell Stowers and Delie M. Shepard, Individually and as Administratrix of the Estate of Rodney Sandrell Stowers, and on Behalf of all the Wrongful Death Beneficiaries of Rodney Sandrell Stowers v. Robert G. Germany, Both Individually and as Agent/Employee/Representative/Partner Associate/office/Director of Pittman, Germany, Roberts & Welsh, L.L.P. and Pittman, Germany, Roberts & Welsh, L.L.P.
    NO. 2017-CP-01452-SCT, (CONSOL. WITH 2017-CA-01635-SCT)
    Supreme Court of Mississippi.
    December 13, 2018
    ATTORNEYS FOR APPELLANTS: MICHAEL TODD CROWLEY, EDWARD BLACKMON, JR., CANTON, (PRO SE)
    ATTORNEYS FOR APPELLEES: DANIEL J. MULHOLLAND, FRED KRUTZ, III, JACKSON
    BEFORE RANDOLPH, P.J., KING AND ISHEE, JJ.
   ISHEE, JUSTICE, FOR THE COURT:

¶ 1. This case concerns release language in a settlement agreement. We must determine if the circuit court abused its discretion by enforcing a settlement agreement using specific release language that required the Plaintiffs' attorneys' signatures. Finding that the circuit court abused its discretion, we reverse the Order Enforcing Settlement Agreement and Judgment of Dismissal and remand the case for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

¶ 2. This case began as a legal malpractice action by Delie Shepard and Ashley Stowers (the Plaintiffs) against Robert Germany and his law firm, Pittman, Germany, Roberts & Welsh, LLP. Shepard and Stowers were represented by Michael Crowley and Edward Blackmon; Germany and his firm were represented by Fred Krutz and Daniel Mulholland. After several years of litigation and mediation, the parties reached a settlement. In the settlement, Shepard and Stowers agreed "to execute a Full and Complete Release." The parties agreed to and memorialized the essential terms of their settlement in an email exchange. Although the essential terms were agreed upon, Crowley's email to Krutz did not specify the precise language of the "Full and Complete Releases."

¶ 3. The proposed release required signatures from Crowley and Blackmon, the Plaintiffs' attorneys. The specific language in the proposed release was "Agreed to and Approved By...." After additional discussion, this language was eventually changed to "Approved By Michael Todd Crowley And Edward Blackmon Jr. In Their Capacity As Lawyers For [the Plaintiffs]." Crowley and Blackmon still refused to sign the releases because they were concerned that signing such a release would have been interpreted to mean that they were parties to the settlement agreement, resulting in personal liability and a potential obligation to indemnify.

¶ 4. After further exchanges, Shepard and Stowers proposed alternative releases, reflecting Crowley's and Blackmon's willingness to sign the releases as to the form but not the content of the releases. Germany rejected the alternative releases, insisting on the language proposed by his attorneys.

¶ 5. Then, the parties returned to court. Believing that the parties had a meeting of the minds on the essential terms of the settlement in the email exchange, Germany moved to enforce the settlement agreement using the release language proposed by his attorneys. Shepard and Stowers later filed their own motion to enforce the settlement agreement using their proposed releases. Before Shepard and Stowers filed their motion, the circuit court held a hearing on Germany's motion to enforce the settlement agreement. The circuit court entered an Order Enforcing Settlement Agreement and Judgment of Dismissal.

¶ 6. Shepard and Stowers then filed a motion for findings of fact and conclusions of law under Mississippi Rule of Civil Procedure 52(a). The circuit court denied the motion. Unsatisfied with the order enforcing the settlement agreement, which required their signature on the releases, Crowley and Blackmon filed an emergency petition for writ of prohibition with this Court, which was ordered to be treated as a Notice of Appeal. They later filed a notice of appeal in the underlying case on behalf of Shepard and Stowers. The appeal sought essentially the same relief as Crowley and Blackmon's petition, so this Court consolidated the cases.

DISCUSSION

¶ 7. This Court reviews rulings on motions to enforce settlement agreements for abuse of discretion. Ill. Cent. R.R. Co. v. Byrd , 44 So.3d 943, 947 (Miss. 2010). Settlement agreements are "are contracts, made by the parties," which will be enforced by the law. McManus v. Howard , 569 So.2d 1213, 1215 (Miss. 1990). This Court has held that "in order for there to be a settlement, there must be a meeting of the minds." Hastings v. Guillot , 825 So.2d 20, 23 (Miss. 2002). Neither party disagrees a "meeting of the minds" occurred as to the essential terms of the deal, therefore an agreement existed.

¶ 8. This Court has held that "courts may supply reasonable terms which the parties omitted in the contracting process." Duke v. Whatley , 580 So.2d 1267, 1273-74 (Miss. 1991). We find that the emails memorializing the settlement did reflect the parties' agreement on all material matters involving settlement, compromise, and dismissal of all claims by the plaintiffs. Although Crowley and Blackmon testified that they agreed to the terms of the release "as it relates to the plaintiffs releasing those rights and binding themselves as to the release," they did not agree to signing the document with Germany's release language because they believe such language could be interpreted to mean that they were parties to the contract potentially subject to personal liability and indemnity obligations. We agree.

¶ 9. The circuit court erred by forcing Crowley and Blackmon to sign the agreement as releasors. Section 1 of Germany's proposed releases of both Shepard and Stowers (the releases ultimately incorporated into the circuit court's order) specifies that "[their] attorneys" are releasors. Specifically, as to Stowers, Section 1 provides,

The Releasors are [Stowers], her attorneys , agents, servants, representatives, heirs, beneficiaries, insurers, reinsurers, predecessors, and successors in interest, and assigns, and all persons or entities asserting any claim to any portion of the settlement amounts to be paid to [Stowers], including of any of Releasors.

(Emphasis added.) And as to Shepard, Section 1 provides,

The Releasors are [Shepard], Individually and as Administratrix of the Estate of Rodney Sandrell Stowers, and on behalf of all the Wrongful Death Beneficiaries of Rodney Sandrell Stowers. This Release releases all claims of all persons or entities asserting any claim to any portion of the settlement amounts to be paid to Ashley deJanae Stowers, including the attorneys , agents, servants, representatives, heirs, beneficiaries, insurers, reinsurers, predecessors and successors in interest, and assigns, of any of Releasors. This executed document agrees to dismiss all claims of [Shepard], Individually and as Administratrix of the Estate of Rodney Sandrell Stowers, and on behalf of all the Wrongful Death Beneficiaries of Rodney Sandrell Stowers against Releasees.

(Emphasis added.) Further this release provides the following:

Releasors further agree that they will indemnify, defend, and hold Releasees harmless from any and all further claims arising from the Released Claims or any injuries or damages arising from Released Claims. Plaintiffs'counsel have no indemnity obligations under the releases.

Although the release states that "Plaintiffs' counsel [has] no indemnity obligations under the releases," Crowley and Blackmon are named as releasors, and the agreement states that releasors "agree to indemnify, defend and hold Releasees harmless." Because of this inconsistency, the inclusion of "her attorneys" (Crowley and Blackmon) in the release could be interpreted as including Crowley and Blackmon as parties to the contract subject to personal liability and indemnity obligations.

¶ 10. A judgment may not be enforced against persons who are not parties to an action. See Commercial Bank of Magee v. Evans , 145 Miss. 643, 112 So. 482, 483 (1927). See also A1 Fire Sprinkler Contractors, LLC v. B.W. Sullivan Bldg. Contractor, Inc. , 217 So.3d 731 (Miss. Ct. App. 2017). Crowley and Blackmon never became parties to this action; they were merely attorneys of the Plaintiffs. Since Crowley and Blackmon were not parties to the action, forcing them to sign the agreement using Germany's release language was unnecessary and amounted to an abuse of discretion.

CONCLUSION

¶ 11. The circuit court erred by enforcing the settlement agreement using the specific release language requiring Crowley's and Blackmon's signatures. The language of the release could have been interpreted to make Crowley and Blackmon releasors and therefore parties to the suit.

¶ 12. We reverse the Order Enforcing Settlement Agreement and Judgment of Dismissal and remand the case to the circuit court for further proceedings consistent with this opinion.

¶ 13. REVERSED AND REMANDED.

WALLER, C.J., RANDOLPH, P.J., KING, COLEMAN, MAXWELL, BEAM AND CHAMBERLIN, JJ., CONCUR. KITCHENS, P.J., NOT PARTICIPATING.


text:
    Jacob WRIGHT v. STATE of Mississippi
    2017-CT-00651-COA
    Supreme Court of Mississippi.
    Filed: March 11, 2019 Closed: May 16, 2019
    Certiorari - Denied


text:
    JohnTate CAMPBELL v. HARRISON COUNTY BOARD OF SUPERVISORS
    2017-CT-00961-COA
    Supreme Court of Mississippi.
    Filed: March 7, 2019 Closed: May 9, 2019
    Certiorari - Denied


text:
    Derrick NELSON v. STATE of Mississippi
    2016-CT-00835-SCT
    Supreme Court of Mississippi.
    Filed: March 19, 2019 Closed: May 30, 2019
    Certiorari - Granted


text:
    Showanda PALMER v. CLARK CLINIC, INC.
    2017-CT-01048-COA
    Supreme Court of Mississippi.
    Filed: April 23, 2019 Closed: May 30, 2019
    Motion Desc: Petition for Certiorari of Appellant Showanda Palmer.
    Certiorari - Denied.


text:
    Tony L. SMITH v. COLDWELL BANKER GRAHAM & ASSOCIATES, INC.
    2016-CT-01082-COA
    Supreme Court of Mississippi.
    Filed: March 12, 2019 Closed: May 23, 2019
    Motion Desc: Petition for Writ of Certiorari.
    Certiorari - Denied.


text:
    Michael J. BOUNDS v. Suzanne Marie BENSON
    2017-CT-00460-COA
    Supreme Court of Mississippi.
    Filed: February 13, 2019 Closed: May 2, 2019
    Motion Desc: Petition for Writ of Certiorari.
    Certiorari - Denied.


text:
    Chelsey FERGUSON v. MISSISSIPPI DEPARTMENT OF PUBLIC SAFETY-CRIMINAL
    2017-CT-00912-SCT
    Supreme Court of Mississippi.
    Filed: February 19, 2019 Closed: May 9, 2019
    Motion Desc: Appellee Amended Petition for Writ of Certiorari.
    Certiorari - Granted.


text:
    Timothy OWENS v. STATE of Mississippi
    2017-CT-01044-COA
    Supreme Court of Mississippi.
    Filed: March 6, 2019 Closed: May 9, 2019
    Motion Desc: Petition for Writ of Certiorari.
    Certiorari - Denied.


text:
    Frederick A. PETTERSEN v. Audrey S. PETTERSEN
    2017-CT-00089-COA
    Supreme Court of Mississippi.
    Filed: February 19, 2019 Closed: May 2, 2019
    Certiorari - Denied


author: JAMES D. MAXWELL II, JUSTICE

text:
    GOOGLE, INC., Petitioner v. The STATE of Mississippi, EX REL., Jim HOOD, Attorney General, Respondents
    No. 2017-M-01450-SCT
    Supreme Court of Mississippi.
    August 8, 2018
    ORDER
   JAMES D. MAXWELL II, JUSTICE

Before the Court en banc is Google, Inc.'s Motion for Reconsideration of Order Denying Petition for Interlocutory Appeal. On January 31, 2018, the panel of Randolph, P.J., King, and Ishee, JJ., denied Google's Petition for Interlocutory Appeal and Motion for Stay. On February 14, 2018, Google moved this Court to reconsider the denial of interlocutory appeal. After considering the matter en banc, this Court finds Google's motion is not well-taken and should be denied.

IT IS THEREFORE ORDERED that the Motion for Reconsideration of Order Denying Petition for Interlocutory Appeal is denied.

SO ORDERED.

/s/ James D. Maxwell II

JAMES D. MAXWELL II, JUSTICE

RANDOLPH, P.J., KING, MAXWELL, BEAM, CHAMBERLIN AND ISHEE, JJ., AGREE.

WALLER, C.J., OBJECTS WITH SEPARATE WRITTEN STATEMENT JOINED BY COLEMAN, J.

KITCHENS, P.J., NOT PARTICIPATING.

WALLER, CHIEF JUSTICE, OBJECTING TO THE ORDER WITH SEPARATE WRITTEN STATEMENT:

¶ 1. The State of Mississippi sued Google, Inc., in Lowndes County Chancery Court for violating the Mississippi Consumer Protection Act ("MCPA"), specifically seeking an injunction under the Mississippi Code Section 75-24-9. Google, Inc., filed a Motion to Dismiss for improper venue, citing as authority the venue clause in Section 75-24-9, which provides in relevant part:

The action shall be brought in the chancery court or county court of the county in which [the defendant] resides or has his principal place of business ....

Miss. Code Ann. § 75-24-9 (Rev. 2016) (emphasis added). It is undisputed that Google, Inc., neither resides nor has its place of business in Lowndes County, Mississippi.

¶ 2. Despite the mandatory nature of the statute, the trial court denied Google, Inc.'s, motion relying on the general circuit court venue statute, Mississippi Code Section 11-11-3 (Rev. 2004), and a withdrawn opinion of this Court, Board of Trustees of State Institutions of Higher Learning v. Van Slyke , 1986 Miss. LEXIS 2811, *6 (Miss. 1986), reh'g granted and withdrawn , 510 So.2d 490 (Miss. 1987).

¶ 3. Google, Inc., filed a petition for interlocutory appeal which was denied by a panel of this Court, Randolph, P.J., King and Ishee, JJ. A Motion for Reconsideration was filed by Google, Inc., pursuant to Mississippi Rule of Appellate Procedure 27(h). Google, Inc., has met the threshold requirement for reconsideration by identifying a specific error of law by the trial court. See Miss. R. App. P. 27.

¶ 4. If venue properly lies in Lowndes County, this Court should give a legal basis for the same. It is clear that a "substantial basis exists for a difference of opinion on a question of law" and review is needed to "(3) resolve an issue of general importance in the administration of justice." Miss. R. App. P. 5(a) & 5(a)(3).

¶ 5. I would grant the motion for reconsideration and grant the petition for interlocutory appeal filed by Google, Inc.

COLEMAN, J., JOINS THIS SEPARATE WRITTEN STATEMENT.