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Hidden Grove, LLC v. Brauns

Court of Appeals of Louisiana, Third Circuit

May 17, 2017

HIDDEN GROVE, LLC
v.
RICHARD BRAUNS AND LESLIE BRAUNS

         APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. C-20134910 HONORABLE LAURIE A. HULIN, DISTRICT JUDGE

          Patrick J. Briney Michael Patrick Corry Briney & Foret COUNSEL FOR DEFENDANTS/APPELLANTS: Richard Brauns Leslie Brauns

          Gerald Charles deLaunay Perrin, Landry, deLaunay COUNSEL FOR PLAINTIFF/DEFENDANT IN RECONVENTION/APPELLEE Hidden Grove, LLC COUNSEL FOR THIRD PARTY DEFENDANTS/APPELLEES: Jeffrey Mark Gossen Gerald Millard Gossen, Jr. Jonathan Webster Burke

          James Lawrence Bullen Strain, Dennis, Mayhall & Bate COUNSEL FOR DEFENDANTS/APPELLANTS: Richard Brauns Leslie Brauns

          Court composed of John E. Conery, D. Kent Savoie, and Van H. Kyzar, Judges.

          CONERY, Judge.

         The Plaintiff/Defendant in Reconvention/Appellee, Hidden Grove, LLC, moves to dismiss the appeal by the Defendants/Plaintiffs in Reconvention/ Appellants, Richard and Leslie Brauns. For the reasons assigned below, we deny the motion to dismiss.

         The instant litigation arises out of the purchase of lots in the Hidden Grove Subdivision. The Braunses purchased Lot 14 of this subdivision from a third party unrelated to this litigation. They purchased Lot 15 from Hidden Grove. In association with the purchase of Lot 15, the Braunses were also given a right of first refusal for Lots 16 and 17 of the subdivision by Hidden Grove.

         A disagreement arose regarding the excavation of Lots 16 and 17 by the Braunses. They claim that Hidden Grove had agreed to permit them to lower the elevation of Lots 16 and 17 without having to build a retaining wall at the back of these lots. Hidden Grove contends that the excavation of Lots 16 and 17 were only approved because the Braunses had agreed to build a retaining wall at the back of these lots.

         Hidden Grove filed suit seeking specific performance and damages associated with the removal of the soil from Lots 16 and 17 and the construction of a retaining wall at the back of these lots. Initially, the Braunses answered the suit and filed a reconventional demand against Hidden Grove raising a claim for damages based on detrimental reliance. The Braunses later amended that reconventional demand and also filed a third party demand seeking damages against three individuals: Jeffery Gossen, Gerald Gossen, and Jonathan Burke, based on their alleged actions and agreements with respect to the excavation.

         Hidden Grove filed a motion for summary judgment seeking dismissal of the claims made by the Braunses in their reconventional demand against Hidden Grove based on detrimental reliance. The trial court granted the motion for summary judgment, and a written judgment was signed by the trial court on August 8, 2016. The pertinent part of the judgment reads, "[T]he Reconventional Demand filed by Defendants, Richard Brauns and Leslie Brauns, against Plaintiff, Hidden Grove, LLC, be and is hereby dismissed with prejudice." Notice of the signing of this judgment was mailed to the parties by the district court's clerk's office on August 17, 2017.

         On October 4, 2016, the Braunses filed their Motion to Certify Judgment as Final. By a written judgment signed on October 18, 2016, the trial court granted this motion, certifying the judgment of August 8 as final for the reasons set forth by the Braunses in their motion. The district court's clerk's office certified that notice of the rendition of this judgment was sent to the parties' counsel on October 24, 2016.

         On December 28, 2016, the Braunses filed their Motion for Devolutive Appeal. The trial court granted the order of appeal on January 3, 2017. This court lodged the record in this appeal on March 13, 2017. On May 3, 2017, Hidden Grove filed the Motion to Dismiss Appeal sub judice.

         Hidden Grove's first argument in support of dismissing the Braunses' appeal is that the appeal is untimely because the appealed judgment falls under the provision of La.Code Civ.P. art. 1915(A) such that the delay for applying for a new trial and for seeking an appeal began running when notice was mailed of the August 8 judgment. Alternatively, Hidden Grove contends that even if the judgment had to be designated as final pursuant to La.Code Civ.P. art. 1915(B), the appeal should still be dismissed. First, Hidden Grove asserts that the request for designation of the judgment as final was untimely presented to the trial ...


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