Hurst v. Ricard

558 So. 2d 1269, 1990 WL 15810
CourtLouisiana Court of Appeal
DecidedFebruary 21, 1990
DocketCA 88 1940
StatusPublished
Cited by16 cases

This text of 558 So. 2d 1269 (Hurst v. Ricard) 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
Hurst v. Ricard, 558 So. 2d 1269, 1990 WL 15810 (La. Ct. App. 1990).

Opinion

558 So.2d 1269 (1990)

Norbert J. HURST, et al.
v.
Evelyn Vallet RICARD, et al.

No. CA 88 1940.

Court of Appeal of Louisiana, First Circuit.

February 21, 1990.
Writ Denied April 20, 1990.

*1270 Sam D'Amico, D'Amico, Curet & Dampf, Baton Rouge and Thomas A. Nelson, New Roads, for plaintiffs-appellants.

John Wayne Jewell, New Roads, for defendants-appellees.

Before EDWARDS, LANIER and FOIL, JJ.

LANIER, Judge.

This is an action to amend a final judgment pursuant to La.C.C.P. art. 1951. These proceedings initially commenced with a boundary action by Norbert J. Hurst and his co-owners (Hurst Group) against Evelyn Vallet Ricard and her co-owners (Ricard Group). At issue at the trial of the boundary action was whether the side lines of the contiguous properties were parallel or converged to the rear. The trial court held the side lines converged to the rear and fixed the common boundary between the Hurst Group and the Ricard Group as "that same line between points `X' and `Y' as shown on that certain map or plat of survey by John K. Laws, Jr.," which "boundary line is 7,801.07 feet in length along a straight line bearing North 47 degrees 20'51" west." The Hurst Group appealed. This court reversed and rendered, holding that the side lines should be parallel and the common boundary should be fixed according to the survey of the Hurst Group's surveyor, Wallace Hargrove. Hurst v. Ricard, 498 So.2d 258 (La.App. 1st Cir.1986). The Ricard Group applied for a writ to the Louisiana Supreme Court and it was granted. Hurst v. Ricard, 501 So.2d 220 (La.1987). On original hearing, the Louisiana Supreme Court affirmed the judgment of this court. Hurst v. Ricard, 506 So.2d 1202 (La.1987). However, a rehearing was granted and the Louisiana Supreme Court ultimately held that the boundary lines converged to the rear, and the trial court judgment was correct. Hurst v. Ricard, 514 So.2d 14 (La.1987).

The Ricard Group then filed a rule to amend the reinstated trial court judgment to show that the correct bearing of the boundary line between the parties was North 42° 20'51" West instead of North 47° 20'51" West. The Ricard Group asserted that a draftsman's error caused the boundary to be erroneously put on the boundary map as North 47° 20'51" West instead of North 42° 20'51" West, and that an amended survey plat should be substituted in these proceedings and attached to the judgment. The Ricard Group cumulated a rule to tax costs with the rule to amend the judgment. The Hurst Group answered the rule and filed a peremptory exception raising the objection of res judicata. In the exception the Hurst Group contended the judgment fixing the boundary was definitive, the error sought to be corrected was substantive, and the judgment could not be changed. After a hearing, the trial court rendered judgment which: (1) overruled the exception, (2) amended the judgment to reflect that the boundary between the parties had a bearing of North 42° 20'51" West, (3) assessed all costs of fixing the boundary equally between the parties, and (4) cast the Ricard Group for all costs of the rule to amend the judgment. The Hurst Group took this suspensive appeal. The Ricard Group answered the appeal seeking damages for a frivolous appeal.

FACTS

The only witness to testify at the trial court hearing on the motion to amend the judgment was John K. Laws, Jr., the Ricard's surveyor. The Hurst property is bounded on the north by the section line between Sections 49 and 50, Township 5 South, Range 11 East (section line), on the east or back by the boundary line between the Parishes of West Baton Rouge and Pointe Coupee (parish line) and on the south by the Ricard property. Louisiana *1271 Highway 416 (highway) runs across the front or west portions of the Hurst and Ricard properties. Laws' survey determined that there was an old bent blade in the ground to mark the intersection of the section line and the highway right-of-way at the northwest corner of the Hurst property, and there was a 4 inch square concrete monument in the ground to mark the intersection of the section line and the parish line at the northeast corner of the Hurst property. At the hearing, the old bent blade was denominated point A and the concrete monument was marked point B. The line A-B was the northern boundary of the Hurst property (and the section 49-50 dividing line).

Laws testified that he determined that the boundary between the Hurst and Ricard properties on the west was located at a distance of 238.97' along the highway south of point A. He denominated this location as point X on his survey map. He also determined that the boundary between the Hurst and Ricard properties on the east was located at a distance of 164.09' along the parish line south of point B. He denominated this location as point Y on his map. By this method he established the line between points X and Y as the common boundary between the Hurst and Ricard properties.

Laws testified that the line between points X and Y was 7801.07' long and had an actual bearing of N 42° 20'51" W from Y to X (or S 42° 20'51" E from X to Y). The computer printout which reflected these computations was filed in evidence.

Laws testified that Jerome Lowman was the draftsman who prepared the survey map under his supervision. When Lowman transposed the data from the field notes and computer printout to the map, he made an error in the bearing for the X-Y line and put N 47° 20'51" W instead of N 42° 20'51" W. Laws stated that this error did not change the actual physical locations of points X and Y or the actual physical location of the line between them; those physical locations remained the same. The bearing of the line is determined by the actual physical locations of points X and Y; the bearing of the line does not control the location of the points. Laws testified that the map remains the same with only an erroneous bearing being corrected.

The trial court accepted the testimony of Laws and rendered judgment in favor of the Ricard Group with the following rationale:

Gentlemen, the judgment of this Court on May 21st, 1985, which has been affirmed by the—by the State Supreme Court fixed and established the boundary as that line between points "X" and "Y" as shown on that certain map or plat or survey by John K. Laws, Jr. dated November 12, 1984. Now, in further description of that line, the distance and a bearing of north forty-seven (47) degrees, twenty (20) minutes, fifty-one (51) seconds west, is listed. The only error that was made is that where the—where there is a seven in the bearing there should be a two.
Now, if we were to allow this to stand and say that the bearing is what governs then the Court would not have found the line to be between "X" and "Y", which is what the Court actually did in that judgment. This is purely an error—a mistake that some employee made. It was not caught in time. It went into the record and nobody noticed it until after the case had been through the whole appellate process. The only reasonable and common sense interpretation of the judgment is that the line between "X" and "Y" is the line between the parties. And the bearing is simply—forty-seven (47) instead of forty-two (42) is simply a clerical error that should be corrected. It's an error in phraseology on the judgment. It doesn't change the substance because the substance of the judgment is that the line is between "X" and "Y" on that map.

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Cite This Page — Counsel Stack

Bluebook (online)
558 So. 2d 1269, 1990 WL 15810, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hurst-v-ricard-lactapp-1990.