STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
NO. 2020 CA 0165
CITY OF BOGALUSA, LOUISIANA
VERSUS
LEON MOSES, ET AL.
Judgment Rendered: APR 16 2021
1W On Appeal from the 22nd Judicial District Court Parish of Washington, State of Louisiana Trial Court No. 113009
The Honorable Reginald T. Badeaux, III, Judge Presiding
Dale E. Branch Attorney for Plaintiff A - ppellee, Bogalusa, Louisiana City of Bogalusa, Louisiana
Richard W. Watts Attorney for Defendants -Appellees, Franklinton, Louisiana Tommy Ray Bass, Vondell Miley Bass, James J. Cothern, Joyce Ann Meserve Cothern, Earl J. Soulier, and Boncille Miley Soulier
Barry W. Bolton Attorney for Defendant -Appellant, Bogalusa, Louisiana Leon Moses
BEFORE: THERIOT, WOLFE, AND HESTER, JJ. WOLFE, J.
In this expropriation case, Leon Moses appeals a judgment rendered in favor
of the City of Bogalusa, allowing it to expropriate land for a public purpose. We
affirm.
FACTS AND PROCEDURAL HISTORY
The City ofBogalusa, Louisiana, instituted this lawsuit to acquire unimproved
Washington Parish property owned in part by defendant, Leon Moses. According
to the City, the acquisition of the property is necessary to provide required clearance
approaching an airport runway, and improve the safety of air traffic, at the Carr
Memorial Airport owned by the City. The improvements to the runway approach
are also necessary to comply with rules and regulations of the Federal Aviation
Administration. After consulting professional engineers, land surveyors, real estate
appraisers, and title examiners, the City attempted to negotiate the purchase of the
property from Mr. Moses at an alleged fair market value price of $22,000. 00. The
City asserts that Mr. Moses was agreeable; however, the negotiations failed because
Mr. Moses did not have a clear and merchantable title to the property. As a result,
the City fled a petition for expropriation, pursuant to La. R. S. 19: 101, et seq., on
January 10, 2019.
According to the trial court and the City, Mr. Moses was personally served
with the petition and notice of the trial date. This court confirmed service after the
clerk of court for the 22nd Judicial District Court ( 22nd JDC) supplemented the
appellate record with the service returns. The record reflects that Mr. Moses was
personally served with the petition and notice of the March 20, 2019 trial date on
January 25, 2019. Additionally, in an order dated January 10, 2019, the trial court
appointed an attorney ad hoc to represent the other potential co- owners of Mr.
Moses' s property. In the same order, a trial date was set for March 20, 2019, in
accordance with the summary proceedings for trial in expropriation cases as outlined
E in La. R.S. 19: 106. Mr. Moses, through his attorney, filed an answer on February 4,
2019, generally denying that just compensation for his property was $ 22, 000. 00.
In a bench trial held on March 20, 2019, and a judgment rendered on the same
date, the trial court found that the project to improve air safety at the airport was one
of public necessity and interest. The trial court received evidence and heard
testimony from the project engineer, the real estate appraiser, and the title abstractor.
Also, the trial court denied an oral motion to continue made by Mr. Moses' s attorney,
who argued that he had not received notice of the trial until the day before the trial.
Notably, the attorney did not deny that Mr. Moses had been personally served with
the petition and notice. The trial court concluded that the City was entitled to
expropriate the property as described in the petition and judgment, and found that
the amount offered was fair. The trial court declared the City to be the owner of the
property free and clear of all encumbrances, and ordered the City to deposit
22, 000. 00 into the registry of the 22nd JDC, with the funds to be dispersed upon
further orders of the trial court. The City deposited the funds in accordance with the
judgment on March 25, 2019, and notices of the judgment were mailed to all
attorneys of record on March 26, 2019. Mr. Moses fax -filed a motion to reconsider
judgment on March 28, 2019, and filed the original on April 1, 2019. 1 The trial court
denied the motion to reconsider judgment on August 7, 2019. Thereafter, Mr. Moses
1 A pleading is considered a motion for new trial if it requests a substantive modification of the judgment and is filed within the delays applicable to a motion for new trial. Greene v. Succession of Alvarado, 2015- 1960 ( La. App. 1st Cir. 12/ 27/ 16), 210 So. 3d 321, 339. Mr. Moses' s motion to reconsider judgment requested a modification of the judgment and was filed within seven days, exclusive of legal holidays, of the notice of judgment as required by La. Code Civ. P. art. 1974. Thus, Mr. Moses' s pleading is properly construed as a motion for new trial since the Louisiana Code of Civil Procedure does not provide for a motion to reconsider with respect to any judgment. See Harris v. Louisiana Department of Public Safety and Corrections, 2019- 1657 ( La. App. 1st Cir. 8/ 3/ 20), 301 So. 3d 211, 214. A judgment denying a motion for new trial is an interlocutory order and is normally not appealable. See La. Code Civ. P. art. 2083( C); Hickman v. Exxon Mobil Corporation, 2017- 0235 ( La. App. 1st Cir. 7/ 18/ 18), 255 So. 3d 1097, 1101, writ denied, 2018- 1463 ( La. 11/ 20/ 18), 256 So. 3d 996. However, when a motion for appeal refers by date to the judgment denying a motion for new trial, but the circumstances indicate that the appellant actually intended to appeal from the final judgment on the merits, the appeal should be maintained as being taken from the judgment on the merits. Id.
3 filed a motion for devolutive appeal of the denial of his motion to reconsider. The
order of appeal was signed on November 13, 2019.2
LAW AND ANALYSIS
Essentially, Mr. Moses contends that notice of the trial date was insufficient
to him and his attorney, and he contests the trial court' s denial of his motion to
continue the trial. After thoroughly reviewing the record, we find that the arguments
presented by Mr. Moses lack merit. The trial court may grant a continuance on
peremptory or discretionary grounds. La. Code Civ. P. arts. 1601 and 1602. There
are only two peremptory grounds: ( 1) the party seeking the continuance, despite due
diligence, has been unable to obtain material evidence; or ( 2) a material witness is
absent without the contrivance of the party applying for the continuance. La. Code
Civ. P. art. 1602. Mr. Moses does not contend, nor does the record reveal, that there
were any peremptory grounds for a continuance in this case.
Absent peremptory grounds, a continuance rests within the sound discretion
of the trial court. St. Tammany Parish Hospital v. Burris, 2000- 2639 ( La. App.
1 st Cir. 12/ 28/ 01), 804 So. 2d 960, 963. Article 1601 provides for a continuance " if
there is good ground therefor." The trial court must consider the particular facts of
a case when deciding whether to grant or deny a continuance. The trial court should
consider the diligence and good faith of the party seeking the continuance and other
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STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
NO. 2020 CA 0165
CITY OF BOGALUSA, LOUISIANA
VERSUS
LEON MOSES, ET AL.
Judgment Rendered: APR 16 2021
1W On Appeal from the 22nd Judicial District Court Parish of Washington, State of Louisiana Trial Court No. 113009
The Honorable Reginald T. Badeaux, III, Judge Presiding
Dale E. Branch Attorney for Plaintiff A - ppellee, Bogalusa, Louisiana City of Bogalusa, Louisiana
Richard W. Watts Attorney for Defendants -Appellees, Franklinton, Louisiana Tommy Ray Bass, Vondell Miley Bass, James J. Cothern, Joyce Ann Meserve Cothern, Earl J. Soulier, and Boncille Miley Soulier
Barry W. Bolton Attorney for Defendant -Appellant, Bogalusa, Louisiana Leon Moses
BEFORE: THERIOT, WOLFE, AND HESTER, JJ. WOLFE, J.
In this expropriation case, Leon Moses appeals a judgment rendered in favor
of the City of Bogalusa, allowing it to expropriate land for a public purpose. We
affirm.
FACTS AND PROCEDURAL HISTORY
The City ofBogalusa, Louisiana, instituted this lawsuit to acquire unimproved
Washington Parish property owned in part by defendant, Leon Moses. According
to the City, the acquisition of the property is necessary to provide required clearance
approaching an airport runway, and improve the safety of air traffic, at the Carr
Memorial Airport owned by the City. The improvements to the runway approach
are also necessary to comply with rules and regulations of the Federal Aviation
Administration. After consulting professional engineers, land surveyors, real estate
appraisers, and title examiners, the City attempted to negotiate the purchase of the
property from Mr. Moses at an alleged fair market value price of $22,000. 00. The
City asserts that Mr. Moses was agreeable; however, the negotiations failed because
Mr. Moses did not have a clear and merchantable title to the property. As a result,
the City fled a petition for expropriation, pursuant to La. R. S. 19: 101, et seq., on
January 10, 2019.
According to the trial court and the City, Mr. Moses was personally served
with the petition and notice of the trial date. This court confirmed service after the
clerk of court for the 22nd Judicial District Court ( 22nd JDC) supplemented the
appellate record with the service returns. The record reflects that Mr. Moses was
personally served with the petition and notice of the March 20, 2019 trial date on
January 25, 2019. Additionally, in an order dated January 10, 2019, the trial court
appointed an attorney ad hoc to represent the other potential co- owners of Mr.
Moses' s property. In the same order, a trial date was set for March 20, 2019, in
accordance with the summary proceedings for trial in expropriation cases as outlined
E in La. R.S. 19: 106. Mr. Moses, through his attorney, filed an answer on February 4,
2019, generally denying that just compensation for his property was $ 22, 000. 00.
In a bench trial held on March 20, 2019, and a judgment rendered on the same
date, the trial court found that the project to improve air safety at the airport was one
of public necessity and interest. The trial court received evidence and heard
testimony from the project engineer, the real estate appraiser, and the title abstractor.
Also, the trial court denied an oral motion to continue made by Mr. Moses' s attorney,
who argued that he had not received notice of the trial until the day before the trial.
Notably, the attorney did not deny that Mr. Moses had been personally served with
the petition and notice. The trial court concluded that the City was entitled to
expropriate the property as described in the petition and judgment, and found that
the amount offered was fair. The trial court declared the City to be the owner of the
property free and clear of all encumbrances, and ordered the City to deposit
22, 000. 00 into the registry of the 22nd JDC, with the funds to be dispersed upon
further orders of the trial court. The City deposited the funds in accordance with the
judgment on March 25, 2019, and notices of the judgment were mailed to all
attorneys of record on March 26, 2019. Mr. Moses fax -filed a motion to reconsider
judgment on March 28, 2019, and filed the original on April 1, 2019. 1 The trial court
denied the motion to reconsider judgment on August 7, 2019. Thereafter, Mr. Moses
1 A pleading is considered a motion for new trial if it requests a substantive modification of the judgment and is filed within the delays applicable to a motion for new trial. Greene v. Succession of Alvarado, 2015- 1960 ( La. App. 1st Cir. 12/ 27/ 16), 210 So. 3d 321, 339. Mr. Moses' s motion to reconsider judgment requested a modification of the judgment and was filed within seven days, exclusive of legal holidays, of the notice of judgment as required by La. Code Civ. P. art. 1974. Thus, Mr. Moses' s pleading is properly construed as a motion for new trial since the Louisiana Code of Civil Procedure does not provide for a motion to reconsider with respect to any judgment. See Harris v. Louisiana Department of Public Safety and Corrections, 2019- 1657 ( La. App. 1st Cir. 8/ 3/ 20), 301 So. 3d 211, 214. A judgment denying a motion for new trial is an interlocutory order and is normally not appealable. See La. Code Civ. P. art. 2083( C); Hickman v. Exxon Mobil Corporation, 2017- 0235 ( La. App. 1st Cir. 7/ 18/ 18), 255 So. 3d 1097, 1101, writ denied, 2018- 1463 ( La. 11/ 20/ 18), 256 So. 3d 996. However, when a motion for appeal refers by date to the judgment denying a motion for new trial, but the circumstances indicate that the appellant actually intended to appeal from the final judgment on the merits, the appeal should be maintained as being taken from the judgment on the merits. Id.
3 filed a motion for devolutive appeal of the denial of his motion to reconsider. The
order of appeal was signed on November 13, 2019.2
LAW AND ANALYSIS
Essentially, Mr. Moses contends that notice of the trial date was insufficient
to him and his attorney, and he contests the trial court' s denial of his motion to
continue the trial. After thoroughly reviewing the record, we find that the arguments
presented by Mr. Moses lack merit. The trial court may grant a continuance on
peremptory or discretionary grounds. La. Code Civ. P. arts. 1601 and 1602. There
are only two peremptory grounds: ( 1) the party seeking the continuance, despite due
diligence, has been unable to obtain material evidence; or ( 2) a material witness is
absent without the contrivance of the party applying for the continuance. La. Code
Civ. P. art. 1602. Mr. Moses does not contend, nor does the record reveal, that there
were any peremptory grounds for a continuance in this case.
Absent peremptory grounds, a continuance rests within the sound discretion
of the trial court. St. Tammany Parish Hospital v. Burris, 2000- 2639 ( La. App.
1 st Cir. 12/ 28/ 01), 804 So. 2d 960, 963. Article 1601 provides for a continuance " if
there is good ground therefor." The trial court must consider the particular facts of
a case when deciding whether to grant or deny a continuance. The trial court should
consider the diligence and good faith of the party seeking the continuance and other
reasonable grounds. The trial court may also weigh the condition of the court docket,
fairness to the parties and other litigants before the court, and the need for orderly
and prompt administration ofjustice. St. Tammany Parish Hospital, 804 So.2d at
963. The trial court has great discretion in granting or denying a continuance under
2 On November 20, 2020, this court issued a rule to show cause as to whether this appeal was timely. The parties responded by briefs to the show cause order, and the record was supplemented on January 11, 2020, with a copy of the original documents filed into the record after fax filings. The documents verify that the motion to reconsider and the motion to appeal were timely. Thus, we recall our show cause order and maintain the appeal.
M Article 1601, and its ruling should not be disturbed on appeal in the absence of a
clear abuse of discretion. Id.
Accordingly, we review the trial court' s denial of Mr. Moses' s request to
continue for abuse of discretion. The record shows that Mr. Moses engaged in
negotiations regarding the City' s purchase of his property prior to the City' s filing
of the expropriation suit. The City proceeded with the expropriation suit after
learning that Mr. Moses' s title to the property was not clear and merchantable. Mr.
Moses and the attorney ad hoc appointed to represent the other possible co- owners
were served with the lawsuit, along with the order fixing the trial date. Mr. Moses
did not have an attorney of record at the time of service. The notice of the trial date,
together with a certified copy of the City' s petition, are required to be served on the
defendant at least thirty days before the time fixed for the trial of the suit. See La.
R.S. 19: 106. The record reflects that the petition and order fixing the trial date were
filed on January 10, 2019. Mr. Moses was personally served on January 25, 2019,
well before the trial date of March 20, 2019. Mr. Moses engaged an attorney, and
an answer was filed on his behalf on February 4, 2019.3 The record does not reveal,
other than filing an answer generally objecting to the value offered for the property,
that Mr. Moses and his attorney made a diligent effort to obtain a different appraisal
before the trial date. The trial court noted that expropriation cases proceed
expeditiously, that the funds offered by the City would be deposited in the registry
of the court, and that Mr. Moses and other owners could dispute the amount offered
up to two years after the City actually occupied and used the property for the purpose
3 The appellate record was supplemented with the service returns for Mr. Moses and the trial court noted that service was completed, and that Mr. Moses was personally served with the trial date. Furthermore, Mr. Moses' s complaints about service of process are required to be raised in a declinatory exception pleaded prior to or along with his answer. See La. Code Civ. P. art. 928. Mr. Moses' s answer does not raise any issue regarding the sufficiency of service of process. Thus, the issue is considered waived since Mr. Moses made a general appearance by filing his answer. See La. Code Civ. P. art. 925( A)(2) and ( C).
5 of the expropriation. See La. R.S. 19: 103( B). Because Mr. Moses has another
remedy to contest the just compensation offered for his property or complain of any
damages caused by the expropriation, we find that the trial court did not abuse its
discretion in denying the motion to continue or in conducting the order and timing
of this expropriation trial.
CONCLUSION
For the assigned reasons, we recall our show cause order and maintain the
appeal. Additionally, we affirm the trial court' s judgment and denial of the motion
to reconsider the judgment in all respects. All costs of this appeal are assessed to
Leon Moses.
RULE TO SHOW CAUSE RECALLED; APPEAL MAINTAINED; AND JUDGMENT AFFIRMED.
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