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Cambrie Celeste, LLC v. F.I.N.S. Construction, LLC

Court of Appeals of Louisiana, Fourth Circuit

September 26, 2018

CAMBRIE CELESTE, LLC
v.
F.I.N.S. CONSTRUCTION, LLC, ET AL. CAMBRIE CELESTE, LLC
v.
F.I.N.S. CONSTRUCTION, LLC, ET AL.

          APPLICATION FOR WRITS DIRECTED TO CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2013-10539, DIVISION "I-14" Honorable Piper D. Griffin, Judge

          Sidney J. Angelle Eric B. Berger LOBMAN, CARNAHAN, BATT, ANGELLE & NADER, Christina A. Culver THOMSON, COE, COUSINS & IRONS, LLPCOUNSEL FOR DEFENDANT/APPLICANT - CRUM & FORSTER SPECIALTY INSURANCE CO.

          Jeffrey A. Riggs Jennifer E. Michel LEWIS BRIBOIS BISGAARD & SMITH, LLP COUNSEL FOR DEFENDANT/APPLICANT - GENERAL STAR INDEMNITY COMPANY

          Julie Quinn Justine E. Alsterberg Emily Stevens Hardin QUINN ALSTERBERG, LLC COUNSEL FOR PLAINTIFF/ RESPONDENT

          Court composed of Judge Terri F. Love, Judge Edwin A. Lombard, Judge Sandra Cabrina Jenkins

          SANDRA CABRINA JENKINS JUDGE.

         Relators, Crum & Foster Specialty Insurance Company ("Crum & Foster") and General Star Indemnity Company ("General Star"), seek review of the trial court's May 14, 2018 judgment granting the motion for new trial filed by plaintiff, Cambrie Celeste, LLC ("Cambrie Celeste"), vacating the trial court's November 28, 2017[1] order dismissing the case on the grounds of abandonment, and reinstating the instant action. For the reasons that follow, we find that the trial court abused its discretion in granting Cambrie Celeste's motion for new trial. Accordingly, we grant relators' writ, reverse the trial court's May 14, 2018 judgment, and reinstate the order of dismissal of the case on the grounds of abandonment.

         FACTS AND PROCEDURAL HISTORY

         Steven Anderson, a property developer who specializes in developing properties using tax credits, and Robert Armbruster, a contractor, have been parties to multiple lawsuits and arbitrations, involving various issues and entities owned and/or controlled by them.

         In the instant action filed on November 8, 2013, Cambrie Celeste, an entity owned and controlled by Mr. Anderson, [2] filed suit against the defendants: 1) Mr. Armbruster; 2) F.I.N.S. Construction, LLC ("F.I.N.S."), an entity owned and controlled by Mr. Armbruster;[3] 3) AIX Specialty Insurance Company ("AIX"); 4) Crum & Forster; and 5) General Star Indemnity Company ("General Star"), to recover alleged damages for construction defects to its building located at 621 Celeste Street in New Orleans, Louisiana. Specifically, Cambrie Celeste alleged that F.I.N.S. was responsible for the alleged construction defects, as well as water damage the property allegedly sustained during Tropical Storm Lee and Hurricane Isaac.

         On November 27, 2017, Crum & Forster filed an ex parte motion for order of dismissal on the grounds of abandonment, pursuant to La.C.C.P. art. 561. In an order dated November 29, 2017, the trial court granted the motion for order of dismissal on the grounds of abandonment, thereby dismissing Cambrie Celeste's claims with prejudice. Cambrie Celeste filed a motion for new trial on December 8, 2017. General Star and Crum & Forster filed separate memorandums in opposition to the motion for new trial on or about January 11, 2018. Subsequently, Cambrie Celeste filed a supplemental memorandum in support of its motion for new trial; and Crum & Forster and General Star each filed an opposition to Cambrie Celeste's supplemental memorandum in support of the motion for new trial.

         A hearing on the motion for new trial was held on April 27, 2018, and on May 14, 2018, the trial court rendered a judgment granting Cambrie Celeste's motion for new trial, vacating the November 28, 2018 order dismissing the case on the grounds of abandonment, and reinstating the instant action. Both relators timely filed notice of intent to seek supervisory review.

         Crum & Foster filed its application for supervisory writ on May 29, 2018. After being granted an extension of the return date by the trial court, General Star filed its application for supervisory writ on June 27, 2018. This Court ordered that the two writs be consolidated.

         DISCUSSION

         Relators argue that the trial court improperly granted Cambrie Celeste's motion for new trial because it looked outside the record of this case to find that action taken in the record of separate and unrelated cases or involving an individual who is not a party to this suit prevented abandonment.

         The Louisiana Civil Code provides for both peremptory and discretionary grounds for granting a motion for new trial. See La. C.C.P. arts. 1972 and 1973. In a non-jury case, La. C.C.P. art. 1972 requires the trial court to grant a new trial, upon contradictory motion, in the following instances:

(1)When the verdict or judgment appears clearly contrary to the law and the evidence.
(2)When the party has discovered, since the trial, evidence important to the cause, which he could not, with due diligence, have obtained before or during the trial.

         Additionally, pursuant to La. C.C.P. art.1973, a judge has discretion to grant a new trial "in any case if there is good ground therefor, except as otherwise provided by law."

         "The standard of review of a judgment on a motion for new trial, whether on peremptory or discretionary grounds, is that of abuse of discretion." Pollard v. Schiff, 13-1682, p. 21 (La.App. 4 Cir. 2/4/15), 161 So.3d 48, 61 (citing Magee v. Pittman, 98-1164, p. 19 (La.App. 1 Cir. 5/12/00), 761 So.2d 731, 746). "The breadth of the trial court's discretion to order a new trial varies with the facts and circumstances of each case." Pollard, 2013-1682, p. 21, 161 So.3d at 61 (citing Horton v. Mayeaux, 2005-1704, p. 11 (La.5/30/06), 931 So.2d 338, 344).

         Here, Cambrie Celeste did not specifically assert the peremptory or discretionary grounds upon which it was seeking a new trial. Rather, Cambrie Celeste simply relied upon La. C.C.P. art. 1971, which provides:

A new trial may be granted, upon contradictory motion of any party or by the court on its own motion, to all or any of the parties and on all or part of the issues, or for reargument only. If a new trial is granted as to less than all parties or issues, the judgment may be held in abeyance as to all parties and issues.

         However, upon a review of the arguments presented in its memorandum in support of the motion for new trial, it appears that Cambrie Celeste asserts that a new trial is warranted on Crum & Forster's ex parte motion for order of dismissal on the grounds ...


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