Opinion
2017 CA 0171
09-15-2017
WILLIAM P. HONEYCUTT, JR. v. ELVIN CARMENA
Colt J. Fore D. Blayne Honeycutt Denham Springs, Louisiana Counsel for Plaintiff-Appellant William P. Honeycutt, Jr. Craig Hunter King New Orleans, Louisiana Counsel for Defendant-Appellee Elvin Comena
NOT DESIGNATED FOR PUBLICATION ON APPEAL FROM THE NINETEENTH JUDICIAL DISTRICT COURT NUMBER 620081, DIVISION D, PARISH OF EAST BATON ROUGE STATE OF LOUISIANA HONORABLE JANICE G. CLARK, JUDGE Colt J. Fore
D. Blayne Honeycutt
Denham Springs, Louisiana Counsel for Plaintiff-Appellant
William P. Honeycutt, Jr. Craig Hunter King
New Orleans, Louisiana Counsel for Defendant-Appellee
Elvin Comena BEFORE: WHIPPLE, C.J., McDONALD, AND CHUTZ, JJ.
Disposition: AMENDING JUDGMENT VACATED AND SET ASIDE; ORIGINAL JUDGMENT REINSTATED; SHOW-CAUSE ORDER RENDERED MOOT.
CHUTZ, J.
Plaintiff-appellee, William P. Honeycutt, Jr., appeals the trial court's judgment decreeing that defendant-appellant, Elvin Comena, can use a driveway/road and ordering Comena to install an additional PVC pipe on his property to drain plaintiff's land. Because we conclude that the appealed judgment constituted an improper substantive amendment, it is vacated and set aside, and the original judgment is reinstated.
Although named as "Carmena" in the petition, we refer to defendant by his correct surname, "Comena."
FACTUAL AND PROCEDURAL DISCUSSION
Honeycutt filed this lawsuit, averring that Comena caused adjoining property to be built up, interrupting the natural drainage flow. It is undisputed that Comena added additional dirt to a driveway/roadway (the driveway) adjacent to the parties' common property line. Honeycutt alleged that as a result of the buildup to the driveway, excessive water remained on his property, causing it to flood. In addition to damages, Honeycutt requested an order, directing Comena to undertake the necessary actions to restore the natural drainage.
See generally La. C.C. art. 655 (providing that an estate situated below is the servient estate and is bound to receive the surface waters that flow naturally from a dominant estate situated above unless an act of man has created the flow) and art. 656 (stating that the owner of the servient estate situated below may not do anything to prevent the flow of the water).
On April 18, 2016, the trial court signed a judgment subsequent to a June 10, 2015 settlement hearing. According to the salient terms of the April 18, 2016 judgment, the trial court granted Honeycutt an order directing Comena "to install a sufficient PVC pipe under the driveway to drain the land to the extent as it [formerly] existed." The judgment, which dismissed all claims of both parties, was neither subject to a new trial motion nor an appeal.
Comena filed a reconventional demand, alleging that when Honeycutt rebuilt a fence that had been knocked down by livestock, Honeycutt encroached on Comena's property. In the April 18, 2016 judgment, the trial court issued an order directing Honeycutt to remove the encroaching fence and install a new fence in conformity with the parties' property line. The parties agree that Honeycutt complied with this order.
On May 20, 2016, Honeycutt filed a motion for contempt of court, claiming that Comena had failed to comply with the trial court's order. Specifically, Honeycutt averred that Comena had not installed the drainage pipe that he had been directed to install in the April 18, 2016 judgment. Additionally, Honeycutt alleged that Comena had constructed a levee and dumped shingles and concrete, all of which blocked the drainage of Honeycutt's land.
According to the official court minutes, on June 27, 2016, a hearing was held on Honeycutt's contempt motion. The matter was recessed to allow Honeycutt's expert civil engineer to forward a written recommendation for amendment and/or enhancement to the existing drainage installed by Comena in compliance with the April 18, 2016 order. The trial court indicated that an "additional hearing or status conference" would be noticed if necessary.
On August 29, 2016, stating that "new circumstances" with the Zachary City Council had occurred, Comena filed a motion to set an emergency status conference. An emergency status hearing was held on September 14, 2016.
On October 14, 2016, the trial court signed a judgment prepared by Comena that modified the April 18, 2016 judgment. The October 14, 2016 judgment decreed that Comena "can have the full use of his driveway[] to gain passage to the rear of his property." The judgment also order Comena "to install a second PVC pipe to the rear of the [driveway] that would be sufficient under the driveway to drain the land to the extent as it [formerly] existed." Honeycutt appealed.
On October 28, 2016, the trial court signed another judgment, prepared by Honeycutt, decreeing that Comena "will be permitted to leave the [driveway] he built in place so long as he installs a drainage system that shall consist of proper sized piping, placed in the proper area, and at the proper elevations along the boundary line of the parties['] property to ensure the natural flow of drainage is not obstructed." Although that judgment has not been appealed and, therefore, is not before us, in his appellate brief, Honeycutt acknowledged that it was also an improper amendment of the April 18, 2016 judgment. --------
On February 8. 2017, this court issued a show cause order, noting that the October 14, 2016 order did not appear to be an appealable judgment.
DISCUSSION
It is well settled under our jurisprudence that a judgment that has been signed cannot be altered, amended, or revised by the trial court, except in the manner provided by law. La. C.C.P. art. 1951 limits the amendment of judgments to the correction of errors in calculation and alteration of phraseology, but not the substance. Mack v. Wiley , 2007-2344 (La. App. 1st Cir. 5/2/08), 991 So.2d 479, 485-86, writ denied, 2008-1181 (La. 9/19/08), 992 So.2d 932. A judgment may be amended by the court where the resulting judgment takes nothing from or adds nothing to the original judgment. Sanderford v. Mason , 2012-1881 (La. App. 1st Cir. 11/1/13), 135 So.3d 745, 748-49.
An amendment to a judgment which adds to, subtracts from, or in any way affects the substance of the judgment, is considered a substantive amendment. Substantive amendments to judgments can be made only by consent of the parties or, after a party has successfully litigated, by a timely application for new trial, an action for nullity, or a timely appeal. Otherwise, the trial court lacks authority to make any modifications of substance to a final judgment. When the substance of a judgment has been improperly amended, the amending judgment is annulled and set aside, and the original judgment is reinstated. Sanderford , 135 So.3d at 748-49.
The October 14, 2016 judgment was a substantive amendment inasmuch as it added to the original judgment. Specifically, it decreed that Comena "can have the full use of his driveway[] to gain passage to the rear of his property" and also ordered Comena to install a second PVC pipe to the rear of the driveway which would be sufficient to restore the natural drainage.
Initially we note that in its April 18, 2016 judgment, all claims were dismissed, and the record is devoid of any pleading requesting recognition of the right for Comena to use the driveway subsequent to the order requiring that he install a sufficient PVC pipe to drain that driveway. Similarly, the record contains no pleading seeking an order directing Comena to install a second PVC pipe at the rear of the driveway or any allegations indicating such action would be sufficient to restore the natural drainage to the property. Although Honeycutt filed a motion for contempt, the October 14, 2016 judgment did not order any relief on that motion. See La. C.C.P. art. 224(2) (a constructive contempt of court includes the willful disobedience of any lawful judgment, order, or mandate of the court) and art. 225 (setting forth the procedure for punishing a constructive contempt of court); La. R.S. 13:4611d(1) (providing for the imposition of a fine of not more than five hundred dollars and/or imprisonment for not more than three months); see also Boudreaux v. Vankerkhove , 2007-2555 (La. App. 1st Cir. 8/11/08), 993 So.2d 725, 734 (concluding that the trial court abused its discretion in ordering a party pay interest on a loan as a punishment for contempt).
Moreover, the record contains no motion for new trial or an appeal of the April 18, 2016 judgment. Therefore, the October 14, 2016 judgment constituted an improper substantive amendment of the April 18, 2016 judgment. Accordingly, the trial court's October 14, 2016 judgment is vacated and set aside. The April 18, 2016 judgment, which is final, is reinstated.
DECREE
For these reasons, the October 14, 2016 judgment is vacated and set aside and the April 18, 2016 judgment, which was not appealed, is reinstated. The show-cause order, issued by this court on May 18, 2016, is moot. Appeal costs are assessed against defendant-appellee, Elvin Comena.
OCTOBER 14, 2016 JUDGMENT VACATED AND SET ASIDE; APRIL 18, 2016 JUDGMENT REINSTATED; SHOW-CAUSE ORDER RENDERED MOOT.