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Mercato Elisio, L.L.C. v. City of New Orleans

Court of Appeals of Louisiana, Fourth Circuit

November 21, 2018

MERCATO ELISIO, L.L.C.
v.
CITY OF NEW ORLEANS, NEW ORLEANS HISTORIC DISTRICT LANDMARK COMMISSION, AND JOHN DEVENEY

          APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2013-03057, DIVISION "M" Honorable Paulette R. Irons, Judge.

          Ravi 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.

          Joyce 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, JOHN DEVENEY

          Sarah Ney COUNSEL FOR DEFENDANT/APPELLANT, HDLC COMMISSIONER, JOHN DEVENEY

          Court composed of Judge Terri F. Love, Judge Edwin A. Lombard, Judge Tiffany G. Chase.

          Terri F. Love Judge.

         This 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.

         We find 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 trial court.

         FACTUAL BACKGROUND AND PROCEDURAL HISTORY

         Mercato 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 stated:

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.

         After 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[1] (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.[2] Mercato alleged that the response to the request did not include documents from Commissioner Deveney.

         Following 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.[3] Mercato filed a Supplemental Petition for Writ of Mandamus and Civil Penalties and Fees averring that Defendants only partially produced responses to the public records request.

         The 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 G[4]was 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.[5]

         The 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.

         STANDARD OF REVIEW

         "The 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.

         Further, 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 1006.

Evans v. Lungrin, 97-0541, pp. 6-7 (La. 2/6/98), 708 So.2d 731, 735.

         TIMELINESS

         Firstly, Defendants challenge the timeliness of the filing of Mercato's Limited Motion for New Trial.

         The 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 do ...


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