STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
CA 15-840
TAMMY RENEA MARTIN HARRUFF, ET AL.
VERSUS
RICHARD B. KING, JR., ET AL.
**********
APPEAL FROM THE TENTH JUDICIAL DISTRICT COURT PARISH OF NATCHITOCHES, NO. C-82954, DIV. B HONORABLE LALA BRITTAIN SYLVESTER, DISTRICT JUDGE
BILLY HOWARD EZELL JUDGE
Court composed of Marc T. Amy, Billy Howard Ezell, and David Kent Savoie, Judges.
AFFIRMED. Billy R. Pesnell J. Whitney Pesnell William Alan Pesnell The Pesnell Law Firm, A.P.L.C. HC Beck Building, Suite, 1100 400 Travis Street (Zip 71101) Shreveport, LA 71166-1794 (318) 226-5577 COUNSEL FOR DEFENDANTS/APPELLANTS: Kyle King Renee Poole King
Henry W. Bethard, L.L.P. Bethard & Bethard P. O. Box 1362 Coushatta, LA 71019 (318) 932-4071 COUNSEL FOR PLAINTIFFS/APPELLEES: Edgar Cason Tammy Renea Martin Harruff Amy Lynn Bilodeau EZELL, Judge.
Renee King, individually and in her capacity as executrix of the estate of her
late husband, Richard King, and Kyle King appeal the decision of the trial court
below denying their motion for sanctions and motion to assess costs against
Tammy Martin Harruff, Amy Lynn Bilodeau, and Edgar Cason (hereinafter “the
Plaintiffs”). For the following reasons, we hereby affirm the decision of the trial
court.
The underlying facts of the case involve the Kings‟ purchase of two tracts of
land in Red River and Natchitoches Parishes from the Plaintiffs. The land
purchased was near the Haynesville Shale. After completion of the sale, the
Plaintiffs sought to rescind the sale for lesion beyond moiety. The trial court
rescinded the sale, and a panel of this court reversed that decision, reinstating the
sale as originally executed. See Harruff v. King, 13-940 (La.App. 3 Cir. 5/14/14),
139 So.3d 1062, writ denied, 14-1685 (La. 11/7/14), 152 So.3d 176.
While the decision of the trial court rescinding the sale was being appealed,
the trial court held a separate hearing and issued a separate ruling on costs. That
decision was not appealed. After this court reversed the trial court‟s original ruling,
the Kings filed several motions, including one seeking sanctions against the
Plaintiffs and another seeking to tax them with the court costs from the original
trial. The Kings also sought to have the cost judgment cancelled in the Red River
Parish and Natchitoches Parish public records. The trial court denied those motions.
From that decision, the Kings appeal.
On appeal, the Kings assert five assignments of error. They first claim that
the trial court erred in failing to sanction the Plaintiffs for moving ex parte to
remove funds from the registry of the court after they had already transferred title to third parties. They further assert other assignments of error concerning court
costs awarded arising from the original judgment of the trial court. We will
address those assignments of error together. Finally, the Kings claim that the trial
court erred in failing to cancel the costs judgment rendered against them.
The Kings first claim that the trial court erred in failing to sanction the
Plaintiffs for taking funds from the registry of the court after they had transferred
title to the disputed land to third parties. Following the original judgment of the
trial court in their favor and the Kings‟ failure to take a suspensive appeal, the
Plaintiffs transferred title to the land to third parties. The trial court stated at the
hearing on the motions:
I don‟t see a problem with anything that they did. As far as sanctions for both of y‟all, I‟m denying sanctions on both sides. I don‟t think either side was egregious in their behavior in order to award sanctions and attorney‟s fees. I don‟t [think] that [Plaintiff‟s counsel] did it with intent to defraud anybody. I think he did it in good faith. He thought his trial judgment was good so he did it in good faith. He has turned the property back over to the people completely as a whole title to what they had before the Court of Appeals reversed it or after the Court of Appeals reversed it.
The trial court concluded the actions of the Plaintiffs were not so flagrant as
to require the imposition of sanctions. We cannot find clear error in that finding.
The trial court has „considerable discretion as to the type and severity of
sanctions to be imposed,‟ and we review those decisions under the abuse
of discretion standard of review.” Moffett v. Moffett, 10-1364, p. 6 (La.App. 3 Cir.
6/22/11), 67 So.3d 1287, 1291 (quoting Joyner v. Wear, 27,631, p. 14 (La.App. 2
Cir. 12/6/95), 665 So.2d 634, 642, writs denied, 96-40, 96-42 (La. 2/28/96), 668
So.2d 370). After a review of the record before this court, we cannot say the trial
court committed an abuse of discretion. Thus, we find no clear error in the trial
court‟s failure to award sanctions. This assignment of error is without merit.
2 The Kings next assert several assignments of error claiming that the trial
court erred in fixing various items as court costs and awarding judgment for those
costs in favor of Plaintiffs and against them, especially in light of the determination
of this court that the sale could not be rescinded for lesion beyond moiety.
However, we conclude that these costs-related issues are not properly before this
court, as the judgment which fixed costs and taxed them against the Kings is a final
judgment which was not appealed.
On January 17, 2013, the trial court signed a judgment on the merits in favor
of the Plaintiffs, ordering the sale rescinded based on lesion beyond moiety. That
judgment specifically noted that the assessment of costs, including expert witness
fees, would be fixed at a separate hearing. That decision was appealed by the
Kings and subsequently reversed by this court. Harruff v. King, 139 So.3d 1062.
However, following that original judgment by the trial court and during the
pendency of that appeal, the separate hearing on the costs referenced in the original
judgment was held. A separate judgment on costs was rendered on March 5, 2013,
taxing the Kings for costs in the amount of $31,151.29. That judgment on costs
was not appealed.
“A „costs‟ judgment against a defendant is a separately appealable judgment
where the amount of expert witness fees taxed as costs are substantial and where,
following a judgment on the merits, the trial court takes the matter of costs under
advisement and conducts additional hearings on such matter.” Hoyt v. State Farm
Mut. Auto. Ins. Co., 623 So.2d 651, 664 (La.App. 1 Cir.), writ denied, 629 So.2d
1179 (La.1993). See also Phillips v. G & H Seed Co., 10-1484 (La.App. 3 Cir.
6/8/11), 68 So.3d 645.
3 The jurisdiction of the trial court over all matters in the case reviewable under the appeal is divested, and that of the appellate court attaches, on the granting of the order of appeal in the case of a devolutive appeal. Thereafter, the trial court has jurisdiction in the case only over those matters not reviewable under the appeal, including the right to set and tax costs and expert witness fees. La. C.C.P. art.2088. A judgment for costs rendered after the final judgment on the merits is a separate and appealable judgment. In re Succession of Pitman, 42,654 (La.App.2d Cir.10/24/07), 968 So.2d 871; Hoyt v. State Farm Mutual Automobile Insurance Co., 623 So.2d 651 (La.App. 1st Cir.1993), writ denied, 629 So.2d 1179 (La.1993).
Little v. Pou, 42,872, p. 28 (La.App. 2 Cir. 1/30/08), 975 So.2d 666, 681,
writ denied, 08-806 (La.
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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
CA 15-840
TAMMY RENEA MARTIN HARRUFF, ET AL.
VERSUS
RICHARD B. KING, JR., ET AL.
**********
APPEAL FROM THE TENTH JUDICIAL DISTRICT COURT PARISH OF NATCHITOCHES, NO. C-82954, DIV. B HONORABLE LALA BRITTAIN SYLVESTER, DISTRICT JUDGE
BILLY HOWARD EZELL JUDGE
Court composed of Marc T. Amy, Billy Howard Ezell, and David Kent Savoie, Judges.
AFFIRMED. Billy R. Pesnell J. Whitney Pesnell William Alan Pesnell The Pesnell Law Firm, A.P.L.C. HC Beck Building, Suite, 1100 400 Travis Street (Zip 71101) Shreveport, LA 71166-1794 (318) 226-5577 COUNSEL FOR DEFENDANTS/APPELLANTS: Kyle King Renee Poole King
Henry W. Bethard, L.L.P. Bethard & Bethard P. O. Box 1362 Coushatta, LA 71019 (318) 932-4071 COUNSEL FOR PLAINTIFFS/APPELLEES: Edgar Cason Tammy Renea Martin Harruff Amy Lynn Bilodeau EZELL, Judge.
Renee King, individually and in her capacity as executrix of the estate of her
late husband, Richard King, and Kyle King appeal the decision of the trial court
below denying their motion for sanctions and motion to assess costs against
Tammy Martin Harruff, Amy Lynn Bilodeau, and Edgar Cason (hereinafter “the
Plaintiffs”). For the following reasons, we hereby affirm the decision of the trial
court.
The underlying facts of the case involve the Kings‟ purchase of two tracts of
land in Red River and Natchitoches Parishes from the Plaintiffs. The land
purchased was near the Haynesville Shale. After completion of the sale, the
Plaintiffs sought to rescind the sale for lesion beyond moiety. The trial court
rescinded the sale, and a panel of this court reversed that decision, reinstating the
sale as originally executed. See Harruff v. King, 13-940 (La.App. 3 Cir. 5/14/14),
139 So.3d 1062, writ denied, 14-1685 (La. 11/7/14), 152 So.3d 176.
While the decision of the trial court rescinding the sale was being appealed,
the trial court held a separate hearing and issued a separate ruling on costs. That
decision was not appealed. After this court reversed the trial court‟s original ruling,
the Kings filed several motions, including one seeking sanctions against the
Plaintiffs and another seeking to tax them with the court costs from the original
trial. The Kings also sought to have the cost judgment cancelled in the Red River
Parish and Natchitoches Parish public records. The trial court denied those motions.
From that decision, the Kings appeal.
On appeal, the Kings assert five assignments of error. They first claim that
the trial court erred in failing to sanction the Plaintiffs for moving ex parte to
remove funds from the registry of the court after they had already transferred title to third parties. They further assert other assignments of error concerning court
costs awarded arising from the original judgment of the trial court. We will
address those assignments of error together. Finally, the Kings claim that the trial
court erred in failing to cancel the costs judgment rendered against them.
The Kings first claim that the trial court erred in failing to sanction the
Plaintiffs for taking funds from the registry of the court after they had transferred
title to the disputed land to third parties. Following the original judgment of the
trial court in their favor and the Kings‟ failure to take a suspensive appeal, the
Plaintiffs transferred title to the land to third parties. The trial court stated at the
hearing on the motions:
I don‟t see a problem with anything that they did. As far as sanctions for both of y‟all, I‟m denying sanctions on both sides. I don‟t think either side was egregious in their behavior in order to award sanctions and attorney‟s fees. I don‟t [think] that [Plaintiff‟s counsel] did it with intent to defraud anybody. I think he did it in good faith. He thought his trial judgment was good so he did it in good faith. He has turned the property back over to the people completely as a whole title to what they had before the Court of Appeals reversed it or after the Court of Appeals reversed it.
The trial court concluded the actions of the Plaintiffs were not so flagrant as
to require the imposition of sanctions. We cannot find clear error in that finding.
The trial court has „considerable discretion as to the type and severity of
sanctions to be imposed,‟ and we review those decisions under the abuse
of discretion standard of review.” Moffett v. Moffett, 10-1364, p. 6 (La.App. 3 Cir.
6/22/11), 67 So.3d 1287, 1291 (quoting Joyner v. Wear, 27,631, p. 14 (La.App. 2
Cir. 12/6/95), 665 So.2d 634, 642, writs denied, 96-40, 96-42 (La. 2/28/96), 668
So.2d 370). After a review of the record before this court, we cannot say the trial
court committed an abuse of discretion. Thus, we find no clear error in the trial
court‟s failure to award sanctions. This assignment of error is without merit.
2 The Kings next assert several assignments of error claiming that the trial
court erred in fixing various items as court costs and awarding judgment for those
costs in favor of Plaintiffs and against them, especially in light of the determination
of this court that the sale could not be rescinded for lesion beyond moiety.
However, we conclude that these costs-related issues are not properly before this
court, as the judgment which fixed costs and taxed them against the Kings is a final
judgment which was not appealed.
On January 17, 2013, the trial court signed a judgment on the merits in favor
of the Plaintiffs, ordering the sale rescinded based on lesion beyond moiety. That
judgment specifically noted that the assessment of costs, including expert witness
fees, would be fixed at a separate hearing. That decision was appealed by the
Kings and subsequently reversed by this court. Harruff v. King, 139 So.3d 1062.
However, following that original judgment by the trial court and during the
pendency of that appeal, the separate hearing on the costs referenced in the original
judgment was held. A separate judgment on costs was rendered on March 5, 2013,
taxing the Kings for costs in the amount of $31,151.29. That judgment on costs
was not appealed.
“A „costs‟ judgment against a defendant is a separately appealable judgment
where the amount of expert witness fees taxed as costs are substantial and where,
following a judgment on the merits, the trial court takes the matter of costs under
advisement and conducts additional hearings on such matter.” Hoyt v. State Farm
Mut. Auto. Ins. Co., 623 So.2d 651, 664 (La.App. 1 Cir.), writ denied, 629 So.2d
1179 (La.1993). See also Phillips v. G & H Seed Co., 10-1484 (La.App. 3 Cir.
6/8/11), 68 So.3d 645.
3 The jurisdiction of the trial court over all matters in the case reviewable under the appeal is divested, and that of the appellate court attaches, on the granting of the order of appeal in the case of a devolutive appeal. Thereafter, the trial court has jurisdiction in the case only over those matters not reviewable under the appeal, including the right to set and tax costs and expert witness fees. La. C.C.P. art.2088. A judgment for costs rendered after the final judgment on the merits is a separate and appealable judgment. In re Succession of Pitman, 42,654 (La.App.2d Cir.10/24/07), 968 So.2d 871; Hoyt v. State Farm Mutual Automobile Insurance Co., 623 So.2d 651 (La.App. 1st Cir.1993), writ denied, 629 So.2d 1179 (La.1993).
Little v. Pou, 42,872, p. 28 (La.App. 2 Cir. 1/30/08), 975 So.2d 666, 681,
writ denied, 08-806 (La. 6/6/08), 983 So.2d 920.
“„According to . . . the clear implication of [Louisiana Code of Civil
Procedure] Article 2088, an assessment of costs which proceeds separately from
the prior appeal of the judgment on the merits requires a separate appeal.‟”
Johnson v. Foret, 15-943, p.___ (La. App. 3 Cir. 11/12/15), ___So.3d___, ___
(quoting Little v. Pou, 975 So.2d at 681 (first alteration in original)).
An appellant‟s failure to file a devolutive appeal timely is a jurisdictional defect, in that neither the court of appeal nor any other court has the jurisdictional power and authority to reverse, revise or modify a final judgment after the time for filing a devolutive appeal has elapsed. When an appellant fails to file a devolutive appeal from a final judgment timely, the judgment acquires the authority of the thing adjudged, and the court of appeal has no jurisdiction to alter that judgment.
Lay v. Stalder, 99-402, p. 5 (La.App. 1 Cir. 3/31/00), 757 So.2d 916, 919.
Because the Kings failed to appeal the separate judgment which assessed the
expert witness fees and costs against them, that judgment became final. The Kings
are, therefore, precluded from raising any error in that judgment on appeal. Even if
we were to find any argument they made completely compelling, we would have
4 no jurisdiction to alter the costs judgment.1 Accordingly, the Kings‟ assignments
of error dealing with the costs of appeal cannot be addressed by this court or are
rendered moot by this finding.
Finally, the Kings assert that the trial court erred in failing to cancel the costs
judgment from the public records of Red River and Natchitoches Parishes. Based
on our above finding that the cost judgment was final and cannot be appealed, we
can find no error in the trial court failing to cancel the recordation of a valid
judgment.
Additionally, the Kings claim that the costs judgment‟s recordation should
be cancelled because, upon their appeal, the Plaintiffs deposited into the registry of
the court the required amount of money to be returned to the Kings should the
original decision be upheld and the sale rescinded, minus the costs that had been
awarded to the Plaintiffs. The Kings claim that when the Plaintiffs transferred the
property to third parties after their favorable trial court judgment, this amounted to
the Kings paying the costs, since they could allegedly no longer be placed in
proper title. However, we find this argument to be specious, since the Kings were,
indeed, placed in complete and full title after the hearing below and do not dispute
that fact in any way. This assignment of error is without merit.
For the above reasons, the decision of the trial court is hereby affirmed.
Costs of this appeal are hereby assessed against the Kings.
AFFIRMED.
1 After filing briefs in this matter, the Plaintiffs subsequently filed an exception of lack of subject matter jurisdiction before this court. We will forego ruling on that motion, as our decision renders the exception moot.