Cheramie v. VegasCheramie v. Vegas
Edward T. Diaz, Golden Meadow, for defendant-appellee Nolan Rogers.
William W. Rosen, New Orleans, and Robert B. Butler, III, Jerry H. Schwab, Houma, for defendant-appellee Raphael Vegas, et al.
This appeal arises out of a dispute concerning a boundary between two land owners in Lafourche Parish. Trial was set on the matter on March 31, 1976. In order not to delay the dispute any longer the parties negotiated a settlement concerning where the boundary between the two tracts of land should be located. A default judgment was entered against some defendants who had never entered the proceedings. The trial court also entered a judgment judicially establishing the location of the boundary in dispute. The judgment was prepared in accordance with the agreement the parties reached and was then read, approved, and signed by each attorney and the trial judge on May 21, 1976. The trial court directed a surveyor, John E. Walker, to monument the boundary line. After monumenting the boundary, another court-appointed surveyor, Carl Heck, approved the results of Mr. Walker.
On May 21, 1979 plaintiffs filed a “Rule to Show Cause” why the 1976 judgment should not be corrected to comply with the intent of the parties. Defendants in turn filed the dilatory exception raising the objection of unauthorized use of summary proceedings,
In their appellate brief plaintiffs merely assert issues involved in the case, however, our understanding of the case is such that plaintiffs essentially allege that there was an error made in the boundary description in the consent judgment of 1976, and that the error has deprived plaintiffs ownership of approximately 28 acres of land.
FINALITY OF THE 1976 JUDGMENT
The parties involved reached an agreement during the trial of this matter in 1976. This agreement was reduced to a judgment which each party reviewed and approved. The terms of the consent judgment were read aloud in open court, and a judgment subsequently signed by the trial judge.
A compromise agreement or judgment needs no other cause than a desire to adjust differences and put to rest all possibility of litigation. K.G. Farms, Inc. v. State of Louisiana Department of Transportation and Development, 402 So.2d 304 (La.App. 1st Cir.1981). Termination of over 20 years of litigation concerning the same boundary dispute is sufficient cause or consideration for entering into the 1976 consent agreement.
ALTERING A JUDGMENT
A judgment is a solemn adjudication of a court, settling the rights of the parties, as disclosed by the record, and which passes on the matters presented for determination. Breaux v. Laird, 230 La. 221, 88 So.2d 33 (La.1956). This consent judgment was designed and approved to bring an end to this extended litigation. This being a final judgment settling the rights of the parties, and however unjust, erroneous, or illegal the settlement may be
The law affords a party several means in which to attack a judgment. A party may sue to have the judgment declared a nullity for vices in either form or substance.
In an action for nullity the specific requirements of
An aggrieved party may also apply for a new trial. A motion for new trial shall be granted if: (1) the finding of the trial court appears to be clearly contrary to the law and evidence; (2) when the party has discovered new evidence important to the case which could not be obtained before or during the trial; or (3) when the jury was bribed or behaved improperly so as to impair justice from having been done.
After a judgment is signed, a party may move for a judgment notwithstanding the verdict. The party must make this motion not later than seven days after the signing of the judgment, unless notice of the signing of the judgment is required under
However, in the instant case plaintiffs may not make use of a judgment notwithstanding the verdict because there was not a jury verdict. A judgment notwithstanding the verdict is only available in those cases involving a jury trial.
A party may have the option to appeal a judgment which is adverse to him. There are two types of appeals provided for by the Louisiana Code of Civil Procedure.
Plaintiffs allowed the time delays for both suspensive and devolutive appeals to run against them. Therefore, plaintiffs do not have the option of appeal available.
The remaining method of changing a judgment comes by way of
Plaintiffs attempted to show in the hearing that any changes made to express the true intent of the parties would be simply correcting errors in the court appointed surveyor‘s calculations. However, after a review of the case law we find that any correction of calculations would drastically
In light of the fact that the plaintiffs were not successful in utilizing the remedies afforded by law to change the judicial decree of 1976, the judgment is now a final judgment decreeing the rights of the parties by its terms.
EXCEPTIONS
The trial court sustained defendants’ peremptory exception raising the objections of res judicata, no cause of action and no right of action.
The elements of res judicata are: (1) the thing demanded must be the same; (2) the demand must be founded upon the same cause of action; (3) the demand must be between the same parties and formed by them against each other in the same quality.
The peremptory exception raising the objection of no cause of action tests the sufficiency of the petition in law, Darville v. Texaco, Inc., 447 So.2d 473 (La.1984); is triable solely on the allegations of plaintiffs’ petition, Geist v. Martin Decker Co., 313 So.2d 1 (La.App. 1st Cir.1975); must be overruled unless the allegations of the petition exclude every reasonable hypothesis other than the premise upon which the defense is based, i.e., unless the plaintiff has no cause of action under any evidence admissible under the pleadings, Darville v. Texaco, Inc., supra; and may be sustained only when the plaintiff is neither entitled to a judgment in any amount nor states a cause of action on any ground whatsoever under the facts alleged, McKey v. Dow Chemical Co., Inc., 295 So.2d 516 (La.App. 1st Cir.1974).
Because of the finality of the 1976 judgment, plaintiffs have no cause upon which to sue. Plaintiffs have allowed all time delays for new trial and appeals to lapse. Plaintiffs are not entitled to a judgment allowing them any relief. Therefore, the trial court was correct in maintaining defendants’ exception.
The peremptory exception raising the objection of no right of action is to provide a threshold device for terminating suit brought by one without a legal interest to assert it. Favrot v. Favrot, 448 So.2d 187 (La.App. 1st Cir.1984). The objection of no right of action does not question the plaintiff‘s ability to succeed in his allegations, nor does it question the plaintiff‘s actual damages, but rather it questions whether the plaintiff is a member of the class to whom the law affords a remedy.
In the present case we are of the opinion the trial court erred in maintaining the peremptory exception raising the objection of no right of action. These plaintiffs are the proper persons to sue regarding this particular dispute. There are two tracts of land involved with two separate groups of owners. Similarly there can be only two parties which could legally be affected in this lawsuit. Because plaintiffs are the owners of one of the tracts of acreage they are the proper parties to whom the law would afford a remedy.
Therefore, for the above and foregoing reasons, the judgment of the trial court insofar as it maintained defendants’ peremptory exception raising the objection of no right of action is reversed, but in all other respects, the judgment is affirmed.
REVERSED IN PART AND AFFIRMED IN PART.