APPLICATION FOR WRITS DIRECTED TO CIVIL DISTRICT COURT,
ORLEANS PARISH NO. 2013-10539, DIVISION "I-14"
Honorable Piper D. Griffin, Judge
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
Quinn Justine E. Alsterberg Emily Stevens Hardin QUINN
ALSTERBERG, LLC COUNSEL FOR PLAINTIFF/ RESPONDENT
composed of Judge Terri F. Love, Judge Edwin A. Lombard,
Judge Sandra Cabrina Jenkins
CABRINA JENKINS JUDGE.
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,
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.
AND PROCEDURAL HISTORY
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.
instant action filed on November 8, 2013, Cambrie Celeste, an
entity owned and controlled by Mr. Anderson,  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) 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.
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.
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
& 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.
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
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
(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.
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."
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).
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.
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 ...