Gravolet v. BD. OF COM'RS.

676 So. 2d 199, 1996 WL 328447
CourtLouisiana Court of Appeal
DecidedJune 12, 1996
Docket95-CA-2477
StatusPublished
Cited by11 cases

This text of 676 So. 2d 199 (Gravolet v. BD. OF COM'RS.) 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
Gravolet v. BD. OF COM'RS., 676 So. 2d 199, 1996 WL 328447 (La. Ct. App. 1996).

Opinion

676 So.2d 199 (1996)

Benedict C. GRAVOLET, Grace Kay Gravolet Priestly and Gayle Gravolet Loupe
v.
BOARD OF COMMISSIONERS FOR THE GRAND PRAIRIE LEVEE DISTRICT, Plaquemines Parish Commission Council and Parish of Plaquemines.

No. 95-CA-2477.

Court of Appeal of Louisiana, Fourth Circuit.

June 12, 1996.

*201 Jack A. Ricci, Gary J. Giepert, Ricci & Giepert, New Orleans, for Appellees.

Stephen C. Braud, Parish Attorney, Kevin D. Conner, Assistant Parish Attorney, Plaquemines Parish Government, Belle Chasse, for Appellants.

Before CIACCIO, ARMSTRONG, WALTZER, LANDRIEU and MURRAY, JJ.

WALTZER, Judge.

This is an appeal from a May 8, 1995 judgment of the district court fixing the amount of damages and attorneys fees. A brief history of the case is in order.

On July 7, 1989, plaintiffs sued the defendants arguing that the Parish wrongfully removed 125,000 cubic yards or 10 vertical feet of fill from their property for the purpose of constructing a back levee. Plaintiffs sought compensation and attorneys fees. On August 13, 1990, plaintiffs filed a motion for partial summary judgment on the issue of liability. In their memo supporting the motion for partial summary judgment, plaintiffs argued the following:

PLAQUEMINES PARISH IS LIABLE FOR THE ATTORNEYS FEES OF THE GRAVOLETS

According to Louisiana Revised Statute 38:301(C)(2)(f),
Reasonable attorneys fees may be awarded by the Court if the amount of the compensation found to be due by the State, [or] Levee Board ... is less than the amount of compensation awarded in any judgment seeking additional compensation. The attorneys fees shall not exceed 25% of the difference between the award and the amount found to be due by the State [or] Levee Board.
In this case, the Levee Board has contended that the Gravolets are not owed any money at all for the use of their property. Clearly, the Gravolets are entitled to the fair market value of the property taken and therefore are entitled to some amount of compensation.
In accordance with the cited statute, the Gravolets request that this Court order Plaquemines Parish to pay attorneys fees, as well as the fair market value of the property used.

In their memo opposing the motion for partial summary judgment, the Parish argued the following:

PLAQUEMINES PARISH IS NOT LIABLE FOR THE ATTORNEYS' FEES OF THE GRAVOLETS

Title 38, Section 513(B) of the Louisiana Revised Statutes provides in part:
Only the provision of R.S. 38:301(A) and (C)(1), 306(A) and (C), 314, 317, and 325, and parts VI and VII of this chapter shall apply to levee districts reorganized, merged and consolidated with a parish.
LSA-R.S. 38:513(B).
The Gravolets allege that Plaquemines Parish is liable for attorneys' fees under Title 38 of the Louisiana Revised Statutes, Section 301(C)(2)(f). This particular statute is not applicable according to LSA-R.S. 38:513(B) and thus Plaquemines Parish should not be liable for the attorneys' fees of the Gravolets.

The trial court granted the partial summary judgment and the Parish appealed. This court rendered judgment in Gravolet v. Board of Commissioners for the Grand Prairie Levee District, 598 So.2d 1231, 1236 (La. App. 4 Cir.1992) in which this court stated:

Plaintiffs are entitled to compensation ... Plaintiffs are entitled to attorneys fees ... We remand this case for determination of the amount of compensation, including attorney's fees, to which plaintiffs are entitled.

Defendants did not seek writs to the Supreme Court from the Fourth Circuit opinion and the time to do so has expired. Accordingly, the Fourth Circuit opinion is now final. C.C.P. art. 2201; La.Sup.Ct.R. X(5)(a).

After a hearing on August 29, 1994, the trial court issued a judgment on May 8, 1995 awarding damages and $25,000.00 attorneys fees. Defendants appealed solely on the issue *202 of attorneys fees. The amount of damages has not been appealed by defendants. Plaintiffs answered the appeal seeking an increase in the amount of attorneys fees awarded.

On appeal defendants raise one assignment of error, namely the trial court erred in awarding attorneys fees to plaintiffs in light of this court's decision in Kimble v. Board of Commissioners for the Grand Prairie Levee District, 94 1134 (La.App. 4 Cir. 1/19/95), 649 So.2d 1112, writs denied 95-0405, 95-0416 (La. 4/7/95), 652 So.2d 1347. Defendants argue that Kimble has identical facts and that this court refused to award attorneys fees.

In Kimble, supra, this court stated:

Kimble's counsel, retained under a 40% contingency fee, argue that under La.Rev. Stat.Ann. 13:5111 (West 1991), Kimble is entitled to recover attorney fees not limited to the percentage established by the expropriation statutes. Because we look upon this as a tort case, rather than an expropriation case, it is unnecessary for us to rule on the reasonableness of the $150,000.00 in fees claimed by counsel. Kimble is entitled, however, to interest from the date of judicial demand. La.Rev.Stat.Ann. 13:4203 (West 1991).

We find however that Kimble is irrelevant to the instant appeal because the threshold issue is whether defendants can appeal the issue of entitlement to attorneys fees at this point in the proceedings.

This court issued judgment on April 30, 1992 awarding attorneys fees. Defendants did not appeal the April 30, 1992 judgment and it is now final. Likewise, the issue of entitlement to attorneys fees is also final.

In Adams v. Chevron U.S.A., Inc., 589 So.2d 1219, 1226 (La.App. 4 Cir.1991), this court, relying on Serrate v. Serrate, 472 So.2d 137 (La.App. 5 Cir.1985) stated:

A judgment becomes final when the time fixed by law for appeal has elapsed without the filing of an appeal. LSA-C.C. 3556(31) (sic). Since the plaintiffs failed to appeal the granting of the motion for partial summary judgment on the punitive damage issue within the proscribed time period, that issue is res judicata and may not be considered by this court at this time. Serrate v. Serrate, 472 So.2d 137, 139 (La.App. 5th Cir.1985). The claim for punitive damages is dismissed. [Emphasis supplied].

In Tolis v. Board of Sup'rs of Louisiana State University, 660 So.2d 1206, 1206-07 (La.1995), the Supreme Court stated:

When a court renders a judgment that decides the merits of the case in whole or in part, the judgment is a final judgment. La.Code Civ.Proc. art. 1841. A final judgment may be rendered by either a trial court or an appellate court, and a judgment by an appellate court that decides the merits of the case is a final judgment, regardless of whether the case reached the appellate court on appeal or on supervisory writs.
A final judgment is conclusive between the parties except on direct review. La. Rev.Stat. 13:4231. Moreover, a final judgment acquires the authority of the thing adjudged if no further review is sought within the time fixed by law or if the judgment is confirmed on further review. La.Civ.Code art.

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Bluebook (online)
676 So. 2d 199, 1996 WL 328447, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gravolet-v-bd-of-comrs-lactapp-1996.