Jon Loy, Inc. v. Terrie L. Allen

Opinion

JON LOY, INC. * NO. 2023-CA-0645

VERSUS * COURT OF APPEAL TERRIE L. ALLEN * FOURTH CIRCUIT * STATE OF LOUISIANA *******

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2022-00098, DIVISION “M” Honorable Paulette R. Irons, Judge ****** Judge Nakisha Ervin-Knott ****** (Court composed of Judge Daniel L. Dysart, Judge Tiffany Gautier Chase, Judge Nakisha Ervin-Knott)

ON APPLICATION FOR REHEARING

James E. Uschold Mark J. Boudreau Paul W. Pritchett JAMES E. USCHOLD, PLC 700 Camp Street, Suite 317 New Orleans, LA 70130

COUNSEL FOR PLAINTIFF/APPELLEE

Irl R. Silverstein THE SILVERSTEIN LAW FIRM, APLC 3324 N. Causeway Blvd., Suite 200 Metairie, LA 70002

COUNSEL FOR DEFENDANT/APPELLANT

REHEARING GRANTED; APRIL 18, 2024 OPINION AFFIRMED

MAY 7, 2024 NEK

DLD

TGC

Appellee, Jon Loy, Inc. (“Jon Loy”), has filed an Application for Rehearing

regarding this Court’s April 18, 2024 opinion reversing the ruling on its motion for

summary judgment. For the following reasons, we grant Jon Loy’s Application for

Rehearing for the limited purpose of clarifying our original opinion.

First, Jon Loy argues that this Court did not have jurisdiction to consider the

trial court’s ruling on its motion for summary judgment because the Appellant,

Terrie Allen (“Allen”), did not appeal that judgment.1 While Allen only sought an

appeal from the judgment denying her motion for new trial, this did not preclude

the Court from considering Jon Loy’s motion for summary judgment because a

ruling on a motion for new trial requires an analysis of the underlying judgment on

which the motion is based.

A new trial may be granted on peremptory or discretionary grounds. Autin v.

Voronkova, 2015-0407, p. 3 (La. App. 4 Cir. 10/21/15), 177 So. 3d 1067, 1069.

The appellate court reviews a ruling on a motion for new trial under an abuse of

discretion standard, and a trial court “abuses its discretion if its ruling is based on

1 Allen’s Motion for Suspensive Appeal provided that she was granted an appeal

from the judgment denying her motion for new trial and confirming the summary judgment rendered in favor of Jon Loy.

1 an erroneous view of the law.” Id. at p. 4, 177 So. 3d at 1070 (quoting LCR–M Ltd.

P’ship v. Jim Hotard Properties, L.L.C., 2013–0483, p. 9 (La. App. 4 Cir. 10/9/13),

126 So. 3d 668, 675). In this case, Allen sought a new trial on peremptory grounds

under La. C.C.P. art. 1972, which provides that a new trial shall be granted when

the judgment appears clearly contrary to the law and the evidence. For the reasons

discussed in our previous opinion, the trial court erred in granting the motion for

summary judgment. Consequently, it also erred in denying the motion for new trial

as summary judgment had not been proper.

Second, Jon Loy argues that this Court erred in concluding that the tax sale

certificate contained a contradiction because Allen did not raise the issue in her

appeal. However, under a de novo review, we are required to look at all the

evidence considered by the trial court, without deference to the trial court’s

judgment or reasons, and determine whether the evidence shows that the mover is

entitled to summary judgment as a matter of law. See Jessie v. Wendy’s Co., 22-

156, p. 4 (La. App. 5 Cir. 12/7/22), 356 So. 3d 467, 471 (quoting Allday v.

Newpark Square I Office Condo. Ass’n, Inc., 20-358, p. 8 (La. App. 5 Cir.

8/18/21), 327 So. 3d 566, 573).2 We did just this. Even assuming for the sake of

argument that there was no error in the tax sale certificate, we find that Allen met

her burden of proof in opposing the summary judgment motion for the reasons

stated in our previous opinion.

2 “A de novo review ‘involves examining the facts and evidence in the record,

without regard or deference to the judgment of the trial court or its reasons for judgment.’”

2 Therefore, for the foregoing reasons, we grant Jon Loy’s Application for

Rehearing and maintain our April 18, 2024 opinion.

REHEARING GRANTED; APRIL 18, 2024 OPINION AFFIRMED