Trentecosta v. Beck

786 So. 2d 885, 2000 La.App. 4 Cir. 0860, 2001 La. App. LEXIS 1442, 2001 WL 540914
CourtLouisiana Court of Appeal
DecidedMay 2, 2001
DocketNo. 2000-CA-0860
StatusPublished
Cited by3 cases

This text of 786 So. 2d 885 (Trentecosta v. Beck) 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
Trentecosta v. Beck, 786 So. 2d 885, 2000 La.App. 4 Cir. 0860, 2001 La. App. LEXIS 1442, 2001 WL 540914 (La. Ct. App. 2001).

Opinion

It LOVE, Judge.

The defendants, Kermit Smith and the State of Louisiana through the Department of Public Safety and Corrections appeal the trial court’s judgment taxing them with costs and fees.

FACTS AND PROCEDURAL HISTORY

On May 2, 1990, Gordon J. Trentecosta (Mr. Trentecosta) sued the defendants, Robert Beck (Mr. Beck), Ronnie Jones (Mr. Jones), Kermit Smith (Mr. Smith) and the Department of Public Safety and Corrections for defamation in the 34th Judicial District Court for the Parish of St. Bernard. On April 7,1993, Mr. Trentecos-ta’s petition for damages was amended to add C & T Arabi, Inc. (C & T) as a plaintiff. C & T is owned by Mr. Trente-costa and his wife. Mr. Trentecosta and C & T won the lawsuit and the defendants appealed the trial court’s judgment. This Court affirmed the trial court’s judgment as to both liability and damages. Thereafter, the defendants sought and were granted writs to the Louisiana Supreme Court of Louisiana. The Supreme Court vacated the judgments of the trial court | ?.and the Fourth Circuit Court of Appeal and then remanded the case back to the Fourth Circuit Court of Appeal. On remand, this court entered a judgment in favor of the plaintiffs and against all of the defendants. This court awarded Trentecosta $50,000 and C & T Arabi, Inc. $94,357.50. The [887]*887defendants then applied for writs to the Louisiana Supreme Court but were denied.

After the Fourth Circuit Court of Appeal rendered judgment, the plaintiffs demanded payment of the damages, costs and interest. The defendants tendered payment of the judgment for an amount less than that requested by the plaintiffs. The plaintiffs accepted the payment and then brought a Motion to Tax Costs and Interests against the defendants. In their motion, the plaintiffs alleged that they were entitled to a judgment for costs in the amount of $3,753.17 and that the interest on the judgment in favor of C & T should date back to the date the original petition was filed by Mr. Trentecosta. The trial court denied the plaintiffs’ motion. The plaintiffs then filed a Motion for a New Trial alleging that the judgment of the trial court failed to mention an award for costs and expert fees and that the judgment was contrary to the law. On October 13, 1999, the trial court first amended the judgment, awarding plaintiffs costs and expert fees. Then, on December 20,1999, the trial court granted the Motion for a New Trial and rendered a judgment for pre-judgment interest in favor of C & T Arabi, Inc. back to the filing of the original petition filed by Mr. Trentecosta. The defendants now appeal the judgment of the trial court awarding costs to plaintiffs.

| ^DISCUSSION

The two issues that this court must determine are 1) Did the trial court have subject matter jurisdiction to determine the costs and fees in this lawsuit and 2) Whether C & T, who was added to the lawsuit through amendment of the petition, is entitled to an award of interest and costs dating from the filing of the original lawsuit. First we will address whether the trial court had proper jurisdiction to award the costs and fees. Louisiana Code of Civil Procedure, Article 2088 outlines the powers retained by the trial court, following the filing of an appeal. This statute provides as follows:

Art. 2088

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 and the timely filing of the appeal bond, in the case of a suspensive appeal or 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:
(1) Allow the taking of a deposition, as provided by Article 1433;
(2) Extend the return day of the appeal, as provided in Article 2125;
(3) Make or permit the making of, a written narrative of. the facts of the- case, as provided in Article 2131;
(4) Correct any misstatement, irregularity, informality, or omission’of the trial record, as provided in Article 2132;
(5) Test the solvency of the surety on the appeal bond as of the date of its filing or subsequently, consider objections to the form, substance and sufficiency of the appeal bond, and permit the curing thereof, as provided in Articles 5123, 5124, and 5126;
(6) Grant an appeal to another party;
(7) Execute or give effect to the judgment when its execution or effect is not suspended by the appeal;
14(8) Enter orders permitting the deposit of sums of money within the meaning of Article 4658 of this Code;
(9) Impose the penalties provided by Article 2126, or dismiss the ap[888]*888peal, when the appellant fails to timely pay the estimated costs or the difference between the estimated costs and the actual costs of the appeal; or
(10) Set and tax costs and expert witness fees.

Consequently, it is clear from La. C.C.P. art. 2088(10) that despite an appeal, the trial court retains jurisdiction to award costs and fees. See Oliver v. Department of Public Safety & Corrections, Office of Alcoholic Beverage Control, 94 1228 (La. App. 1 Cir. 6/23/95), 657 So.2d 596; Chamberlain v. Burcham 624 So.2d 20 (La.App. 2 Cir.1993). The defendants argue that because the Louisiana Supreme Court remanded this case to the Fourth Circuit Court of Appeal, the trial court did not have jurisdiction to determine costs and fees. However, pursuant to La.C.C.P. Art. 2088, this proposition is erroneous. The defendants in Daney v. Haynes, 630 So.2d 949 (La.App. 4 Cir.1993) advanced a similar argument, contending that the trial court had no authority to enter a judgment awarding costs because the trial court had been divested of jurisdiction when the appeal order was signed. Id. at 955. The appellate court rejected this argument, finding that La.C.C.P. art. 2088(10) granted the trial court the power to render a judgment awarding costs and fees subsequent to an appeal. Id. As the court in Chamberlain, supra, stated:

Under the provisions of LSA-C.C.P. Art. 2088(10), a trial court retains jurisdiction to set and tax costs and expert witness fees even after the jurisdiction of the trial court over all matters in the case reviewable under the appeal is divested and the jurisdiction of the appellate court attaches. [Emphasis added],

1,624 So.2d at 22.

Therefore, Louisiana’s Code of Civil Procedure and the corresponding case law make it clear that a trial court may award costs and fees following an appeal. We find no distinction between a trial court setting costs and fees after an appeal has been lodged and a trial court setting costs and fees after a case has been remanded to the appellate court. In both instances, although appellate jurisdiction has attached in different ways, the law remains that the trial court still retains jurisdiction to set costs and fees. Consequently, we find that the trial court committed no error with regard to this issue.

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Bluebook (online)
786 So. 2d 885, 2000 La.App. 4 Cir. 0860, 2001 La. App. LEXIS 1442, 2001 WL 540914, Counsel Stack Legal Research, https://law.counselstack.com/opinion/trentecosta-v-beck-lactapp-2001.