Opinion
2023-CA-0645
05-07-2024
JON LOY, INC. v. TERRIE L. ALLEN
James E. Uschold Mark J. Boudreau Paul W. Pritchett JAMES E. USCHOLD, PLC COUNSEL FOR PLAINTIFF/APPELLEE Irl R. Silverstein THE SILVERSTEIN LAW FIRM, APLC COUNSEL FOR DEFENDANT/APPELLANT
APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2022-00098, DIVISION "M" Honorable Paulette R. Irons, Judge
James E. Uschold
Mark J. Boudreau
Paul W. Pritchett
JAMES E. USCHOLD, PLC
COUNSEL FOR PLAINTIFF/APPELLEE
Irl R. Silverstein
THE SILVERSTEIN LAW FIRM, APLC
COUNSEL FOR DEFENDANT/APPELLANT
(Court composed of Judge Daniel L. Dysart, Judge Tiffany Gautier Chase, Judge Nakisha Ervin-Knott)
ON APPLICATION FOR REHEARING
Nakisha Ervin-Knott Judge
Appellee, Jon Loy, Inc. ("Jon Loy"), has filed an Application for Rehearing regarding this Court's April 18, 2024 opinion reversing the ruling on its motion for summary judgment. For the following reasons, we grant Jon Loy's Application for Rehearing for the limited purpose of clarifying our original opinion.
First, Jon Loy argues that this Court did not have jurisdiction to consider the trial court's ruling on its motion for summary judgment because the Appellant, Terrie Allen ("Allen"), did not appeal that judgment. While Allen only sought an appeal from the judgment denying her motion for new trial, this did not preclude the Court from considering Jon Loy's motion for summary judgment because a ruling on a motion for new trial requires an analysis of the underlying judgment on which the motion is based.
Allen's Motion for Suspensive Appeal provided that she was granted an appeal from the judgment denying her motion for new trial and confirming the summary judgment rendered in favor of Jon Loy.
A new trial may be granted on peremptory or discretionary grounds. Autin v. Voronkova, 2015-0407, p. 3 (La.App. 4 Cir. 10/21/15), 177 So.3d 1067, 1069. The appellate court reviews a ruling on a motion for new trial under an abuse of discretion standard, and a trial court "abuses its discretion if its ruling is based on an erroneous view of the law." Id. at p. 4, 177 So.3d at 1070 (quoting LCR-M Ltd. P'ship v. Jim Hotard Properties, L.L.C., 2013-0483, p. 9 (La.App. 4 Cir. 10/9/13), 126 So.3d 668, 675). In this case, Allen sought a new trial on peremptory grounds under La. C.C.P. art. 1972, which provides that a new trial shall be granted when the judgment appears clearly contrary to the law and the evidence. For the reasons discussed in our previous opinion, the trial court erred in granting the motion for summary judgment. Consequently, it also erred in denying the motion for new trial as summary judgment had not been proper.
Second, Jon Loy argues that this Court erred in concluding that the tax sale certificate contained a contradiction because Allen did not raise the issue in her appeal. However, under a de novo review, we are required to look at all the evidence considered by the trial court, without deference to the trial court's judgment or reasons, and determine whether the evidence shows that the mover is entitled to summary judgment as a matter of law. See Jessie v. Wendy's Co., 22156, p. 4 (La.App. 5 Cir. 12/7/22), 356 So.3d 467, 471 (quoting Allday v. Newpark Square I Office Condo. Ass'n, Inc., 20-358, p. 8 (La.App. 5 Cir. 8/18/21), 327 So.3d 566, 573). We did just this. Even assuming for the sake of argument that there was no error in the tax sale certificate, we find that Allen met her burden of proof in opposing the summary judgment motion for the reasons stated in our previous opinion.
"A de novo review 'involves examining the facts and evidence in the record, without regard or deference to the judgment of the trial court or its reasons for judgment.'"
Therefore, for the foregoing reasons, we grant Jon Loy's Application for Rehearing and maintain our April 18, 2024 opinion.
REHEARING GRANTED; APRIL 18, 2024 OPINION AFFIRMED
NEK
DLD
TGC