104 So. 3d 751
La. Ct. App.2012Background
- Succession of Simon Harrell and Clara Harrell sue Erris-Omega Plantation, Inc. and Wilbert J. Saucier, Jr. seeking a predial servitude over defendants’ property.
- A purported stipulation was entered on the record; later disputes arose over enforcement of that settlement.
- Defendants moved to enforce the settlement; hearing occurred; neither plaintiffs nor counsel appeared, and the court granted the motion to enforce.
- Plaintiffs filed a petition to annul judgment, and at a hearing on that petition neither they nor their counsel appeared; the court dismissed the petition with prejudice.
- The matter had prior appellate history: initial affirmance by this court, then a Louisiana Supreme Court remand for confusion and relief not prayed for, returning the case for further proceedings on the annulment petition.
- The appellate court ultimately affirmed the trial court’s dismissal and declined to award damages for frivolous appeal to the defendants.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether scheduling actions violated Rule 9.14/Art. 1551 | Harrell argues improper scheduling | Erris-Omega contends proper discretion used | No reversible error; court had discretion and input opportunity was provided. |
| Whether denial of continuance violated due process | Harrell asserts continuance denied day in court | Erris-Omega asserts broad discretion in continuances | No abuse of discretion; grounds for continuance not met. |
| Whether appeal dismissal is frivolous | Harrell challenges dismissal as improper | Erris-Omega seeks damages for frivolous appeal | Not frivolous; damages denied. |
| Whether the court erred in scheduling hearings without counsel input | Harrell claims lack of input | Erris-Omega | No error; input opportunity existed and was considered. |
| Whether costs or attorney fees are warranted for frivolous appeal | Frivolous appeal damages requested | Costs denied; no frivolous-appeal finding. |
Key Cases Cited
- Russell v. H & H Metal Contractors, Inc., 65 So.3d 806 (La.App. 3 Cir. 2011) (trial court discretion in pretrial orders)
- Powell v. Giddens, 271 So.2d 596 (La.App. 1 Cir. 1972) (discretion in ruling on continuances)
- Gilcrease v. Bacarisse, 647 So.2d 1219 (La.App. 2 Cir. 1994) (continuance and justice considerations)
- Rodriguez-Farr Insurance Agency, Inc. v. Sharp, 431 So.2d 889 (La.App. 2 Cir. 1983) (no right to last-minute continuances when counsel delay)
- Johnson v. Johnson, 986 So.2d 797 (La.App. 4 Cir. 2008) (frivolous appeal standards for damages)
- Bandaries v. Cassidy, 86 So.3d 125 (La.App. 3 Cir. 2012) (damages for frivolous appeal considerations)