Acadian Gas Pipeline System v. Oliver Liecht McMickens

• Court: Louisiana Court of Appeal
• Decided: January 31, 2018
• Docket: CA-0017-1158
• Status: Unknown

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

CA 17-1158

ACADIAN GAS PIPELINE SYSTEM

VERSUS

OLIVER LIECHT MCMICKENS, ET AL.

**********

APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 257,060 HONORABLE PATRICIA EVANS KOCH, DISTRICT JUDGE

SYLVIA R. COOKS

JUDGE

Court composed of Sylvia R. Cooks, Elizabeth A. Pickett, and Billy H. Ezell, Judges.

APPEAL DISMISSED. CASE REMANDED.

Harry Brenner Sadler Provosty, Sadler, & deLaunay Post Office Box 1791 Alexandria, Louisiana 71309-1791 (318) 445-3631 COUNSEL FOR DEFENDANTS/APPELLEES: Oliver Liecht McMickens Rickey Loren McMickens Mark R McMickens Neal L. McMickens Scott A. McMickens John M. Wilson Matthew D. Simone Jaclyn E. Hickman Liskow & Lewis 701 Poydras Street, Suite 5000 New Orleans, Louisiana 70139-5099 (504) 581-7979 COUNSEL FOR PLAINTIFF/APPELLANT: Acadian Gas Pipeline System COOKS, Judge.

This court issued, sua sponte, a rule ordering the Plaintiff-Appellant, Acadian

Gas Pipeline System, to show cause, by brief only, why the appeal in this matter

should not be dismissed as premature. On January 4, 2018, this court received

Appellant’s response to the rule. For the reasons given herein, we hereby dismiss the

appeal and remand the case to the trial court.

This case involves an expropriation suit which Plaintiff filed seeking to acquire

a perpetual, non-exclusive servitude of passage across a 1,430-acre tract of land which

is located just outside the city limits of Alexandria, Louisiana, and is owned by

Defendants, Oliver Leicht McMickens, Ricky Loren McMickens, Mark R.

McMickens, Neal L. McMickens, and Scott A. McMickens. The purpose for the

servitude is to allow Plaintiff access to and from a nearby pipeline owned by Plaintiff.

Following a bench trial held on March 16, 2017, the matter was taken under

advisement. On August 31, 2017, the trial court issued written reasons for ruling and

signed a judgment denying Plaintiff’s expropriation request. The notice of judgment

was mailed on September 1, 2017. On September 12, 2017, Plaintiff filed a motion

for new trial. On September 13, 2017, the trial court wrote the word “Denied”

diagonally across the proposed order to show cause. On that proposed show cause

order, the trial court also made the notation, “written reasons given,” apparently to

indicate that it had issued written reasons for its August 31, 2017 judgment. No

hearing was held on the motion for new trial and no written reasons regarding the

Motion for New Trial appear in the appellate record.

Subsequently, a hearing was held to address issues involving costs and

attorney’s fees, and those issues were disposed of in a judgment signed on October 30,

2017. Also on October 30, 2017, Plaintiff filed a motion to appeal the trial court’s

August 31, 2017 judgment. The trial court signed the order of appeal on October 30,

2017, and the appeal record was lodged in this court on December 19, 2017. Louisiana Code of Civil Procedure Article 1918 provides that “[a] final

judgment shall be identified as such by appropriate language. When written reasons

for the judgment are assigned, they shall be set out in an opinion separate from the

judgment.” In the instant case, the purported judgment for Plaintiff’s motion for new

trial consists of the word “Denied” written across the proposed rule to show cause

order, as well as the notation, “written reason given,” which was also written on the

proposed show cause order.

In its response to this court’s order to cause why its appeal should not be

dismissed as premature, Plaintiff acknowledges that its appeal is premature based on

this court’s ruling in Egle v. Egle, 05-0531 (La.App. 3 Cir. 2/8/06), 923 So.2d 780. In

Egle, this court previously considered the issue of whether the notation “Denied”

written across a rule to show cause order is sufficient to constitute a judgment on a

motion for new trial. The Egle case was factually similar to the instant case in that no

hearing had been held on the motion for new trial, and the trial judge simply wrote the

notation “Denied” diagonally across the face of the rule. The court in Egle found such

a notation to be insufficient to satisfy the statutory requirement that a final judgment

be “identified as such by appropriate language.” See La.Code Civ.P. art. 1918. In

Egle, the court looked to La.Code Civ.P. art. 2087(D), which provides that “[a]n order

for appeal is premature if granted before the court disposes of all timely filed motions

for new trial or judgment notwithstanding the verdict.” Since the trial court had not

held a hearing and no valid judgment had been rendered with regards to the motion

for new trial, this court held in Egle that the appeal order was premature. Having

found the appeal order to be premature, this court concluded that it lacked jurisdiction

over the appeal pursuant to La.Code Civ.P. art. 2088.

Likewise, in the instant case, we find that the notation “Denied” written on the

rule to show cause order does not constitute a valid judgment. Since the trial court did

not conduct a hearing or sign a judgment properly disposing of the motion for new

2 trial, we find that the appeal order signed on October 30, 2017, was premature and

that the trial court was not divested of its jurisdiction. Having concluded that we lack

jurisdiction over this appeal, we find that the appeal must be dismissed and remanded

to the trial court for consideration of Plaintiff’s motion for new trial.

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION. Rule 2-16.3 Uniform Rules, Court of Appeal.