Big "A" Sand & Gravel Co. v. Bay Sand & Gravel Co.

262 So. 2d 66, 1972 La. App. LEXIS 6458
CourtLouisiana Court of Appeal
DecidedApril 17, 1972
DocketNo. 8807
StatusPublished
Cited by2 cases

This text of 262 So. 2d 66 (Big "A" Sand & Gravel Co. v. Bay Sand & Gravel Co.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Big "A" Sand & Gravel Co. v. Bay Sand & Gravel Co., 262 So. 2d 66, 1972 La. App. LEXIS 6458 (La. Ct. App. 1972).

Opinion

SARTAIN, Judge.

Big “A” Sand and Gravel Company, Inc., (hereinafter referred to as Big “A”) has appealed an interlocutory order in which writs of sequestration and attachment issued against the defendants, Bay Sand and Gravel Co., Inc., (hereinafter referred to as Bay), Ace Sand and Gravel Co., Inc. (hereinafter referred to as Ace), Lex Jenkins and his wife, Ruth Jenkins were dissolved. Also appealed herein is a final judgment rendered in connection with that interlocutory order in which the appellant was condemned to pay to Ace $1,645.-33 as charges for the wrongful issuance of the writs and in which it was further cast for $5,000.00 attorney’s fees in favor of all four defendants.

A motion to dismiss the appeal from the interlocutory order dissolving the writs of attachment and sequestration has been filed by the appellees herein.

This protracted litigation, not yet heard by the District Court on the merits, is an action for an alleged breach of contract on the part of the defendants; more particularly, the plaintiffs claim that they agreed to sell, and the defendants agreed to buy all of the assets of Big “A” for $193,-919,28, those assets consisting of numerous pieces of heavy equipment used in the commercial production of sand and gravel, and all of the plaintiffs’ interest in a lease for those purposes located in the Parish of St. Helena, known as the “Harvel” lease. Also included in the alleged sale was all of the plaintiffs’ interest in a contract awarded it by a major sand and gravel user in the Baton Rouge area, Dunham Concrete Products, Inc., according to which Dunham agreed to purchase 85% of its sand and gravel requirements from Big “A” or its successors.

The record indicates that the negotiations between the parties surrounding the alleged sale began in the latter part of 1968 when Mr. A. T. Sanders, Jr., President of Big “A” approached Mr. and Mrs. Jenkins, also sand and gravel operators, with a proposition concerning the acquisition of Big “A” assets. The Jenkins, receptive to the possibility of the purchase, investigated the matter fully, appraised the equipment, and made an offer to buy for $180,000.00. This offer was rejected and the holdings of Big “A” were then leased in early 1969 to another sand and gravel operator. On August 1, 1969, as a result of the resumption of negotiations between Big “A” and the defendants, Bay, wholly owned by the Jenkins, began operation of the “Harvel” lease and use of the Big “A” equipment on that lease, which continued through May of 1970. Thereafter, the defendants abandoned further production on the Harvel tract and suit was subsequently filed by Big “A” and Sanders on March 15, 1971.

The petition alleges the contractual default of the defendants and also avers that [68]*68a sale was to be consummated on March IS, 1971, between Ace and Grangeville Sand and Gravel Co., Inc. (hereinafter referred to as Grangeville) in which assets of Big “A” were purportedly going to be sold by Ace to Grangeville. Based upon the alleged sale from Big “A” to the defendants, the plaintiffs asserted a vendor’s lien and privilege on the Big “A” equipment and prayed for writs of attachment and sequestration ostensibly to protect their interest in that equipment. However, the writs were not directed toward the seizure of those assets, but were sought only against the proceeds accruing to Ace from the Grangeville sale. By supplemental petition, the plaintiffs obtained similar writs upon all funds on deposit to the credit of Grangeville in the American Bank & Trust Company of Baton Rouge. Seized under these writs were $155,577.96 on deposit with that bank to the credit of Grangeville and a non-negotiable $15,000.00 note payable to Ace from Grangeville one year from its March 15, 1971 date.

On April 5, 1971, a motion to dissolve the writs of attachment and sequestration was filed by the defendants herein. The matter was tried over a three day period in which a voluminous record was compiled consisting of several hundred pages of testimony and numerous offerings and exhibits.

In written reasons for judgment filed on June 18, 1971, the District Judge found that the writs were improvidently issued due to their failure to fall within the ambit of the pertinent statutory provisions which authorize their use; damages and attorney’s fees were assessed as previously indicated. A formal judgment reflecting all of these rulings was signed on October 26, 1971. We affirm the judgment of the District Court.

The appellees have moved and strenuously argued before this court that the plaintiffs’ appeal from the interlocutory order dissolving the writs of attachment and sequestration should be dismissed as untimely. To adequately clarify this argument, it is necessary that the events surrounding the taking of this appeal be traced.

The written reasons for judgment were handed down on Friday, June 18, 1971. Counsel for the appellant indicates that he received a copy of those reasons on the following Monday, June 21st. On that day, he was also advised by the Judge’s minute clerk that the judge would be absent from the court until its next term began in September. Both counsel thereafter prepared judgments for submission, but neither could agree to .the other’s wording of the judgment and other judges on summer duty refused to sign any document submitted without mutual agreement. A judgment was not finalized until a conference between the counsel herein and the judge was held on October 26, 1971. An order granting a suspensive or devolutive appeal to the plaintiffs was signed on that day and appropriate bonds were filed on November 2, 1971.

Counsel for appellees contends that the appeal is untimely as to the dissolution of the writs because the judgment ordering the dissolution was an interlocutory order which requires no written, signed judgment and is final immediately upon rendition by the trial judge. They argue that the trial judge’s written reasons for judgment orders the dissolution of the writs, effective immediately, and that no written judgment is necessary to further finalize that order and as the written reasons were handed down on June 18, 1971, and plaintiffs’ appeal order was not signed until October 26, 1971, that the delays for appealing from the interlocutory order had lapsed. Parenthetically, it should be noted that the motion to dissolve is directed only to the appeal from the interlocutory order dissolving the writs and not from the appeal of the final judgment on damages and attorney’s fees, awarded the appellees, which was unquestionably perfected timely.

That the order dissolving the writs involved herein is an interlocutory order is [69]*69well settled. See Pittman v. Lilly, 197 La. 233, 1 So.2d 88 (1941) and authorities cited therein. There seems to be no dispute by either counsel that the interlocutory order dissolving these writs is an appealable order within the contemplation of Code of Civil Procedure Article 2083, as irreparable injury to the plaintiff might arise by their dissolution. It also does not seem to be seriously disputed that such an order may be final without the signing of a formal, written judgment. Wickham v. Nalty, 41 La.Ann. 284, 6 So. 123 (1889). The pivotal issue here is whether it was the intent of the trial judge that his order dissolving the writs be final upon the handing down of his written reasons or upon the signing of the formal judgment.

We conclude that the District Judge intended that the dissolution of the writs be made final upon the signing of judgment.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Spiers v. Roye
927 So. 2d 1158 (Louisiana Court of Appeal, 2006)
Lor, Inc. v. Martin Exploration Co.
489 So. 2d 1326 (Louisiana Court of Appeal, 1986)

Cite This Page — Counsel Stack

Bluebook (online)
262 So. 2d 66, 1972 La. App. LEXIS 6458, Counsel Stack Legal Research, https://law.counselstack.com/opinion/big-a-sand-gravel-co-v-bay-sand-gravel-co-lactapp-1972.