356 So.3d 505
La. Ct. App.2022Background
- Mercato Elisio sought public records from the HDLC and sued the City, the HDLC, and HDLC Commissioner John Deveney claiming incomplete production and seeking mandamus, civil penalties, and attorneys’ fees under La. R.S. 44:35.
- Trial court initially denied relief, then on limited new trial found an email was a public record and that Mercato prevailed, entitling him to attorneys’ fees under La. R.S. 44:35(D).
- On May 3, 2019 the court awarded specific fee amounts to Mercato’s counsel; Mercato then moved to hold the City and Deveney liable in solido under La. R.S. 44:35(E)(2).
- On September 30, 2020 the court entered judgment finding the City and “Commissioner John Deveney” liable in solido for the previously awarded fees; Mercato did not appeal that judgment.
- Mercato later moved under La. C.C.P. art. 1951 to alter phraseology of the Sept. 30, 2020 judgment to remove the title “Commissioner,” and the court granted that motion by a January 5, 2022 amended judgment that named “John Deveney” (without title), effectively creating personal liability.
- Deveney appealed; the Fourth Circuit held the January 5, 2022 amendment was an impermissible substantive change to a final judgment, vacated the amendment, and reinstated the September 30, 2020 judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a trial court may use La. C.C.P. art. 1951 to alter a final judgment’s phraseology by removing an official title from a party cast in judgment, thereby imposing individual liability | Mercato: removing the title is phraseological only; the same individual remains liable and the amendment conforms the judgment to the court’s reasons | Deveney: removing the title substantively alters the judgment by converting official/capacity liability into personal liability without new-trial, appeal, or nullity action | Court: Amendment was substantive and impermissible under art. 1951; amended Jan. 5, 2022 judgment is void; original Sept. 30, 2020 judgment reinstated |
Key Cases Cited
- Mercato Elisio, L.L.C. v. City of New Orleans, 259 So.3d 1235 (La. App. 4 Cir. 2018) (prior appellate decision: email was public record and Mercato entitled to fees)
- Tunstall v. Stierwald, 809 So.2d 916 (La. 2002) (changing a party name in a judgment is a substantive change; amended judgment vacated)
- Safeguard Storage Props., L.L.C. v. Donahue Favret Contractors, Inc., 60 So.3d 110 (La. App. 4 Cir. 2011) (trial court’s post-appeal substantive amendment excluding a party is null)
- Freeman v. Zara’s Food Store, Inc., 204 So.3d 691 (La. App. 4 Cir. 2016) (amendment adding or clarifying a party in a final judgment is generally substantive and impermissible under art. 1951)
- Bates v. City of New Orleans, 137 So.3d 774 (La. App. 4 Cir. 2014) (summarizes limits of art. 1951 and remedies for improper substantive amendments)
- Duncan v. Gauthier, 332 So.3d 16 (La. App. 1 Cir. 2021) (substantive post-judgment change to party names is void and original judgment reinstated)