Department of Highways v. Clemmons, 49010

• Decision Date: 25 March 1968
• Docket Number: No. 49010,49010
• Citation: 252 La. 51,209 So.2d 18
• Parties: DEPARTMENT OF HIGHWAYS, State of Louisiana, v. Bryan CLEMMONS, Sheriff of East Baton Rouge Parish et al.
• Court: Louisiana Supreme Court

Page 18

209 So.2d 18

252 La. 51

DEPARTMENT OF HIGHWAYS, State of Louisiana, v. Bryan CLEMMONS, Sheriff of East Baton Rouge Parish et al.

No. 49010.

Supreme Court of Louisiana.

March 25, 1968.

Dissenting Opinion April 8, 1968.

Dissenting Opinion April 16, 1968.

Rehearing Denied April 29, 1968.

Philip K. Jones, Norman L. Sisson, Robert J. Jones, Baton Rouge, for relator.

Victor A. Sachse, Maurice J. Wilson, Hopkins P. Breazeale, Jr., Breazeale, Sachse & Wilson, Baton Rouge, for intervenors.

C. A. Miller, Jr., Frederick W. Ellis, Hall, Raggio & Farrar, John B. Scofield, Lake Charles, for intervenors-respondents.

HAMITER, Justice.

The Department of Highways of the State of Louisiana (referred to hereinafter as Department) seeks in this cause to enjoin the enforcement of a money judgment rendered by the Court of Appeal Third Circuit, in a previous suit styled Gray et al. v. State of Louisiana, through the Department of Highways et al., 191 So.2d 802, in favor of Reuben F. Gray and others against W. R. Aldrich & Company (hereafter referred to as Aldrich) and its surety (the National Surety Corporation).

The Nineteenth Judicial District Court in East Baton Parish, in which this action was filed, refused to enjoin the judgment's enforcement. Whereupon, the Court of Appeal, First Circuit, granted writs of certiorari, mandamus and review, following which it certified certain questions to this court.

The factual and procedural background leading up to the judgment sought to be enforced is fully detailed in our decision in Gray et al. v. State of Louisiana, through the Department of Highways et al., 250 La 1045, 202 So.2d 24. However, in order to understand the issues presented herein it is necessary to restate certain portions of that background.

In the previous suit numerous property owners sought to recover tort damages in the amount of $740,000 for the allegedly wrongful trespass on, and the taking of dirt from, their land in connection with the construction of a highway through Calcasieu Parish. That action was brought in the Fourteenth Judicial District Court, Parish of Calcasieu. Named defendants were the Department, Aldrich (which had contracted with the Department for the construction of the highway), and Aldrich's surety. In the district court, judgment was rendered in favor of the property owners and against the Department and Aldrich, in solido, but only for $33,625 as in expropriation proceedings.

On an appeal the Court of Appeal, Third Circuit, held that the entry onto, and the removal of dirt from, the plaintiffs' property constituted a trespass for which the Department, Aldrich, and the latter's surety must respond solidarily in tort in the sum of $119,682.84, less a credit of $8,360. It also recognized the right of Aldrich and its surety to recover from the Department all amounts which they might have to pay by reason of the judgment. 191 So.2d 802.

At the instance of the Department (in the previous case) we granted certiorari. 250 La. 27, 193 So. 531. And, following a hearing, we amended the Court of Appeal judgment by reducing the amount due by the Department to the property owners to $25,265. 250 La. 1045, 202 So.2d 24. But neither Aldrich nor its surety had sought a rehearing in the Court of Appeal or applied to this court for certiorari. Consequently, as we observed in our decision, they were not parties to the proceedings here.

Meanwhile, following rendition of the judgment in the previous cause by the Court of Appeal, and while that case was pending here on certiorari granted to the Department, the property owners sought to make executory and to enforce their judgment against Aldrich and its surety through proceedings in the Nineteenth Judicial District Court in and for the Parish of East Baton Rouge (the surety's bonds in the hands of the State Treasurer were affected), they showing that the Court of Appeal judgment was final as to those defendants by reason of their failure to apply for a rehearing in the Court of Appeal. Whereupon, the Department sought and obtained in the East Baton Rouge Parish court an injunction which prevented execution of the judgment until this court rendered a final decree in the previous matter, at which time the injunction would expire by its own terms.

Thereafter, again in an attempt to prevent execution of the judgment against Aldrich and its surety, the Department instituted the instant proceedings, in which Aldrich and its surety intervened on behalf of the Department and prayed for preliminary and permanent injunctions. In connection therewith they obtained a temporary restraining order. But after a hearing on the rule for the preliminary injunction the trial court dissolved the temporary restraining order, and it denied the preliminary injunction.

The Department, Aldrich and the surety applied for and obtained writs of certiorari, mandamus and review from the Court of Appeal, First Circuit, seeking to compel the district court to enjoin execution of the judgment.

The Court of Appeal then certified to us the following four questions:

'1. Should the judgment of the Supreme Court rendered in this case (250 La. 1045, 202 So.2d 24) be interpreted by this Court as fixing the total and ultimate liability of the State of Louisiana, through the Department of Highways, at $33,625.00, subject to a credit of $8,360.00?

2. Should the judgment of the Supreme Court be interpreted to mean that insofar as W. R. Aldrich & Company and National Surety Corporation are concerned, the judgment of the Third Circuit Court of Appeal fixes the liability of W. R. Aldrich & Company and National Surety Corporation at $111,322.84 with a limitation as to National Surety Corporation of its policy limits of $100,000.00?

3. If the latter is the case, then under the judgment of the Supreme Court is the Department of Highways liable to W. R. Aldrich and National Surety for any sum over and above the sum fixed by the Supreme Court, that is, $33,625.00, subject to a credit of $8,360.00?

4. Should the judgment of the Supreme Court be interpreted to mean that the liability of all parties concerned is fixed at $33,625.00, subject to a credit of $8,360.00?'

Because the answers to one or two of these questions will settle the dispute, we decided to order the entire record transmitted to us and to handle the matter as though it had come here directly on appeal. This we are authorized to do under the provisions of Article VII, Section 25, of the Louisiana Constitution. See also Hall v. Rosteet, 247 La. 45, 169 So.2d 903 and Moosa v. Abdalla, 248 La. 344, 178 So.2d 273.

As is readily perceived by the foregoing recitation of the circumstances leading up to our present consideration, the basic question presented to us now is whether the landowners (plaintiffs in the previous suit) should be permitted to enforce against Aldrich (the Department's agent) and its surety, the $111,322.84 judgment of the Court of Appeal, it having been clearly established by our later ruling on certiorari that they were entitled to no more than $25,265 from the Department which is primarily responsible for the taking (and which, concededly, has paid this amount to such landowners).

In refusing to issue the preliminary injunction herein the trial judge observed: 'Counsel for plaintiffs seeking execution on the judgment contends, however, that the failure of Aldrich and National Surety Corporation to apply for rehearing to the ruling of the Court of Appeal and application for writs meant that the Court of Appeal judgment as to them became executory and subject to enforcement after the normal delays. * * * Numerous cases are cited wherein it is evident that the Supreme Court has been faithful to the proposition that no relief can be granted to the party that fails to perfect an appeal, and as to him the judgment of the lower court cannot be amended to his advantage. * * * the wealth of jurisprudence on analogous situations presented sustains the finality of the judgment against Aldrich and National Surety Corporation.

'This court agrees with counsel for applicants that it is manifest from the Supreme Court decision that the high court was of the opinion that plaintiffs' claims were not worth in excess of $25,265.00. But as stated in that opinion not once, but twice, * * * they (Aldrich and its surety) were no longer parties to the proceeding. While this court may be in sympathy with the position of applicants, a decision in their favor would not only be repugnant to the clear language of a number of articles of the Code of Civil Procedure, but be against the stated policy of a long line of decisions of the Supreme Court dealing with the finality of judgments. * * *' And such trial judge further asserted that if that long standing line of jurisprudence were to be departed from in the instant case (for policy consideration) such action would have to be taken by this court itself.

There is no doubt but that the district judge has correctly stated the general rule relative to the finality of a judgment of the Court of Appeal when no rehearing has been applied for in that tribunal. However, we have concluded that there do exist circumstances which warrant our recognizing an exception to that rule in the instant matter. From the record it appears that, in the contract between the Department and Aldrich the former agreed to defend the latter in any litigation arising out of the use of the land taken and to hold it harmless for any damages it might suffer and from any judgment which might be rendered against it.

In other words the agreement, we think, renders the Department liable to the contractor (and/or its surety) for any judgment executed against it based on the use of the land taken, including the judgment which is presently sought to be enforced. Indeed, the Department recognizes such liability in its application for writs to the Court of Appeal, and such ultimate responsibility forms the basis for...