MERCATO ELISIO, L.L.C.
CITY OF NEW ORLEANS, NEW ORLEANS HISTORIC DISTRICT LANDMARK COMMISSION, AND JOHN DEVENEY
FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2013-03057,
DIVISION "M" Honorable Paulette R. Irons, Judge.
K. Sangisetty Parker N. Hutchinson SANGISETTY LAW FIRM, LLC
AND Richard G. Perque LAW OFFICES OF RICHARD G. PERQUE, LLC
COUNSEL FOR PLAINTIFF/APPELLEE, MERCATO ELISIO, L.L.C.
G. Joseph Deputy City Attorney Cherrell S. Taplin Senior
Deputy City Attorney Sunni J. LeBeouf City Attorney CITY OF
NEW ORLEANS COUNSEL FOR DEFENDANTS/APPELLANTS, CITY OF NEW
ORLEANS, NEW ORLEANS HISTORIC DISTRICT LANDMARK COMMISSION,
Ney COUNSEL FOR DEFENDANT/APPELLANT, HDLC COMMISSIONER, JOHN
composed of Judge Terri F. Love, Judge Edwin A. Lombard,
Judge Tiffany G. Chase.
F. Love Judge.
appeal arises from a public records request. A proposed
apartment development was denied by the historic landmarks
commission. The developer then filed a public records request
for the commission's documents regarding the development.
The developer, after receiving an incomplete response to the
request, filed for a writ of mandamus. The trial court
initially denied the developer's writ of mandamus
regarding the public records request. However, after the
filing of a limited motion for new trial, the trial court
found that a previously withheld exhibit was a public record.
The trial court also found that the plaintiff was entitled to
attorney's fees with an amount to be determined after
submitting documentation for an in camera
inspection. Defendants appealed contending that the motion
for new trial was untimely, that the trial court committed
manifest error by granting the motion for new trial, and the
trial court erred by awarding attorney's fees.
that the developer's motion for new trial was timely
filed because the notice of signing of the judgment was not
mailed until the day after it was signed. We find that the
exhibit, an e-mail, was a public record. Also, we find that
the developer was entitled to attorney's fees as a
prevailing party. Accordingly, we affirm the judgment of the
BACKGROUND AND PROCEDURAL HISTORY
Elisio, L.L.C. ("Mercato") sought to develop an
apartment complex named the Elisio Lofts in the Faubourg
Marigny neighborhood of New Orleans. However, the Historic
District Landmarks Commission ("HDLC") did not
approve the development. Subsequently, Mercato submitted a
public records request to the HDLC regarding records relative
to the Elisio Lofts development. The public records request
As such, we request copies of all public records, as defined
in La. Rev. Stat. § 44:1 A(2)(a), dated between January
1, 2011, and December 31, 2012, in the possession of the HDLC
and/or Commissioner John Deveney including, but not limited
to, letters, e-mails, text messages, notes, documents,
meeting minutes, calendar entries of meetings, reports and
memoranda to and/or from any person or entity related to the
Elisio Lofts-501 Elysian Fields Project, Mercato Elisio, LLC,
Ekistics, LLC, and/or Sean Cummings. Please note such records
include those that exist or were created using private
accounts and/or devices utilized in conducting the business
of the HDLC.
receiving a response to the request, Mercato filed a Petition
for Writ of Mandamus and Civil Penalties, pursuant to La.
R.S. 44:35, against the City of New Orleans, the HDLC, and
John Deveney (a commissioner on the HDLC) (collectively
"Defendants"). Mercato contended that Commissioner
Deveney improperly sought to have the development denied and
planned to prove same with the documents from the public
records request. Mercato alleged that the response to the
request did not include documents from Commissioner Deveney.
the deposition of Commissioner Deveney, Defendants filed a
Motion for Summary Judgment contending that they fulfilled
the public records request. The trial court denied the
Defendants' Motion for Summary Judgment. Mercato then
took Mr. Costello's deposition regarding Commissioner
Deveney's compliance with the public records
request. Mercato filed a Supplemental Petition for
Writ of Mandamus and Civil Penalties and Fees averring that
Defendants only partially produced responses to the public
trial court denied Mercato's Petition for Writ of
Mandamus, Civil Penalties, and Fees. The trial court based
the denial on a finding that Exhibit Gwas not a public
record because "[t]his is between two spouses so
it's not a public record." Mercato filed a Limited
Motion for New Trial asserting that the denial of
attorney's fees was contrary to the law. Mercato also
maintained that the trial court erroneously determined that
Exhibit G was not a public record. The Defendants filed a
Joint Motion to Strike or Dismiss Mercato's Motion for
New Trial alleging that the motion was untimely. The trial
court found that Mercato's Motion for New Trial was
timely filed. The Defendants sought supervisory review with
this Court on the timeliness of the Motion for New Trial.
This Court denied writs.
trial court granted Mercato's Limited Motion for New
Trial. The trial court found that Exhibit G was a public
record because there is no exception for communications
between spouses. The trial court also found that Mercato was
entitled to attorney's fees pursuant to La. R.S.
44:35(D). The trial court ordered Mercato to submit proposed
attorney's fees and costs for an in camera
inspection and a separate determination. Defendants'
suspensive appeal from the judgment granting the Motion for
New Trial followed.
applicable standard of review in ruling on a motion for new
trial is whether the trial court abused its discretion."
Barham, Warner & Bellamy, L.L.C. v. Strategic All.
Partners, L.L.C., 09-1528, p. 6 (La.App. 4 Cir.
5/26/10), 40 So.3d 1149, 1152.
the Louisiana Supreme Court expounded upon this Court's
standard practice of appellate review, as follows:
It is well-settled that a court of appeal may not set aside a
trial court's or a jury's finding of fact in the
absence of "manifest error" or unless it is
"clearly wrong." Rosell v. ESCO, 549 So.2d
840, 844 (La. 1989). However, where one or more trial court
legal errors interdict the fact-finding process, the manifest
error standard is no longer applicable, and, if the record is
otherwise complete, the appellate court should make its own
independent de novo review of the record and
determine a preponderance of the evidence. Ferrell v.
Fireman's Fund Ins. Co., 94-1252 (La. 2/20/95); 650
So.2d 742, 747, rev'd in part, on other grounds,
96-3028 (La. 7/1/97); 696 So.2d 569, reh'g
denied, 96-3028 (La. 9/19/97); 698 So.2d 1388. A legal
error occurs when a trial court applies incorrect principles
of law and such errors are prejudicial. See Lasha v. Olin
Corp., 625 So.2d 1002, 1006 (La. 1993). Legal errors are
prejudicial when they materially affect the outcome and
deprive a party of substantial rights. See Lasha,
625 So.2d at 1006. When such a prejudicial error of law skews
the trial court's finding of a material issue of fact and
causes it to pretermit other issues, the appellate court is
required, if it can, to render judgment on the record by
applying the correct law and determining the essential
material facts de novo. Lasha, 625 So.2d at
Evans v. Lungrin, 97-0541, pp. 6-7 (La. 2/6/98), 708
So.2d 731, 735.
Defendants challenge the timeliness of the filing of
Mercato's Limited Motion for New Trial.
time delay for applying for a new trial is seven days, not
including legal holidays. La. C.C.P. art. 1974. "The
delay . . . commences to run on the day after the clerk has
mailed, or the sheriff has served, the notice of judgment as
required by Article 1913." Id. La. C.C.P. art.
1913(D) provides that "[t]he clerk shall file a
certificate in the record showing the date on which, and the
counsel and parties to whom, notice of the signing of the
judgment was mailed." "We have held repeatedly
that, when notice of the signing of a judgment is required by
Article 1913(B), the delays for new trial motions and appeals