Rozel Energy II, L.L.C. VS Larry L. Coupel and Natalie L. Coupel
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2007 CA 0610 ROZEL ENERGY II LLC VERSUS LARRY L COUPEL AND NATALIE L COUPEL Judgment rendered December 21 2007 Appealed from the 23rd Judicial District Court in and for the Parish of Assumption Louisiana Trial Court No 28723 Honorable Thomas J Kliebert Jr Judge CHRISTOPHER B BAILEY ATTORNEYS FOR SAMUEL E PLAINTIFF APPELLEE MASUR ROZEL ENERGY II LLC LAFAYElTE LA MALCOLM DUGAS JR ATTORNEYS FOR DONALDSONVILLE DEFENDANTS APPELLANTS LA AND LARRY L COUPEL AND CHRISTOPHER H RIVIERE NATAUE L COUPEL ERIC L TROSCLAIR THIBODAUX LA BEFORE CARTER C l PETIIGREW AND WELCH ll PETIIGREW J In this plaintiff Rozel Energy II case LLC Rozel against defendants Larry L Coupel and Natalie L Coupel enjoining the Coupels from interfering with Rozel granted to Rozel s a Rozel use restraining and Coupels of certain servitudes predecessor in title by the Coupels ancestor in title of its rights under certain servitude agreements granted title in 1950 and 1957 from use the allegedly Specifically Rozel permanent injunction against the Coupels prohibiting them from interfering with sought s s sought injunctive relief In addition interfering with its docking facilities on trial court rendered use of Rozel road that a Lake Verett the judgment on sought runs injunction from Louisiana Subject Road October 6 2006 IT IS ORDERED an to predecessor a in prohibit the Coupels Highway 401 Following as to its trial on to the Rozel the merits the follows ADJUDGED AND DECREED that the demands plaintiff Rozel Energy II L L c for a permanent injunction be rejected at the plaintiff s costs and the preliminary injunction issued herein on February 14 2005 be dissolved of the IT IS FURTHER ORDERED the 1957 Servitude ADJUDGED AND DECREED that granted Energy II L L c s ancestor in title Humble Oil Refining Company by the Coupels ancestor in title Stanley Aucoin has not been extinguished by non use and Rozel Energy II L L c retains the right to use said servitude to Rozel IT IS FURTHER ORDERED the defendants Larry and Natalie ADJUDGED AND DECREED that Coupel are hereby awarded reasonable attorney s fees for services rendered in connection with the dissolution of the preliminary injunction to be set at a later date on a Rule to Fix Attorney Fees which shall be filed by the Coupels within fifteen 15 days of the mailing of notice of this judgment or attorney s fees will be waived JUDGMENT RENDERED AND SIGNED in Convent Louisiana this 6th day of October 2006 Thereafter New Trial on October 17 2006 requesting that the trial conform to the law and evidence the an language Amended on the a presented Judgment at trial language Judgment Or For 2006 judgment to Along with its motion Rozel filed set for hearing In addition a Rozel On October 24 2006 the trial court struck through that would have set the matter for hearing Rule To Show Cause and instead altered the Motion To Amend court amend the October 6 requesting that the matter be Rule To Show Cause submitted Rozel filed so as to read 2 as follows IT IS ORDERED that Rozel s MOTION FOR A NEW TRIAL IS GRANTED signed the Amended Judgment IT IS ORDERED of the plaintiff partially rejected which On October 24 provides 2006 the trial court also follows as ADJUDGED AND DECREED that the demands Rozel Energy II LLC for a permanent injunction be at the plaintiffs costs and the preliminary injunction issued herein on February 14 2005 be partially dissolved as to the 200 Section of the Subject Road not covered by the 1950 or 1957 servitude IT IS FURTHER ORDERED ADJUDGED AND DECREED that the preliminary injunction of Rozel Energy II LLC issued herein on February 14 2005 be made permanent in part and that Larry L Coupel and Natalie L Coupel and on their beneficiaries agents successors and or assigns be prohibited from interfering in any way with Rozel Energy II LLC s or its beneficiaries agents permittees successors and assign s use of the 1950 and 1957 servitudes or from interfering with Rozel s use of any part of the Subject Road situated off the Coupel Tract or off of the 200 Section of the Subject Road not covered by the 1950 or 1957 Servitudes IT IS FURTHER ORDERED ADJUDGED AND DECREED that the 1957 Servitude granted to Rozel Energy II LLC s ancestor in title Humble Oil Refining Company by the Coupels ancestor in title Stanley Aucoin has not been extinguished by non use and Rozel Energy II LLC retains the right to use said servitude IT IS FURTHER ORDERED the defendants attorney Larry and Natalie Coupel fees s ADJUDGED AND DECREED that for services in rendered dissolution of the hereby awarded reasonable connection with the partial are to be set at a later date on a Rule preliminary injunction Attorney Fees which shall be filed by the Coupels within fifteen 15 days of the mailing of notice of this judgment or attorney s fees will be to Fix waived JUDGMENT RENDERED AND SIGNED in Convent Louisiana this 24th day of October 2006 It is from this issues for our judgment that the Coupels have appealed raising the following review 1 prescribed by ten years of because substantive the should be awarded non use changes Coupels without a whether the were 1957 servitude whether the amended 2 made to the hearing and or on without a new trial 3 or judgment is improper whether the to Coupels trespass damages by the trial motion of any extinguished and original judgment without any notice Louisiana Code of Civil Procedure article 1951 be amended was court at any time with or provides that without notice a final on its own party to alter the phraseology of the judgment but 3 judgment may motion or not the substance or to correct to substantively alter court errors of calculation a final actual intention s Article 1951 does not however judgment Indeed even if the amendment the trial court s written though the trial court may have intended otherwise Expert Co 94 1647 p 5 La argument that the trial 1 Cir 10 6 95 App court La substance of action for or a 670 SO 2d 1242 judgment 554 recourse v to subtracts from is Hebert v or 351 in any way affects a To alter the timely application for Code Civ P art 1977 trial new Wilkinson 2003 1178 p 3 Pursuant to La although Rozel filed case rather than setting the opted grant the to matter for a allowing the Coupels an a Motion To Amend motion for contradictory hearing opportunity signed the amended judgment the two on to defend their October 24 were not trial court La an App When 1 a new 1 Cir So 2d 1145 judgment is 12 28 99 Based as is trial ex Judgment Or For required by Article 1977 position on the motion It is clear from to the However parte the trial reading of a original October 6 2006 merely changes in phraseology but rather substantive changes When substantively amends the amended new 2006 judgments in question that the changes made judgment error to Emphasis added the trial court App See Hebert is considered a substantive amendment timely appeal McGee New Trial a Thus any 1246 granted it shall be assigned for hearing in accordance with the rules and practice In the instant court judgment that adds a 878 SO 2d 552 of the court and Asplundh Tree v thereby alter only the phraseology of the original judgment the proper nullity Cir 4 2 04 trial is a even 1977 An amendment to the substance of the judgment is controlling Starnes judgment in keeping with his oral statements is invalid 1200 merely expresses the trial attempted by way of the amended judgment demonstrate his actual intent and So 2d 1199 permit the trial court an a judgment without absolute 747 So 2d 813 on our for the trial court to nullity 819 recourse to Frisard writ denied v Autin 2000 0126 thorough review of the record before grant Rozel s new the proper us 98 2637 La we p 8 3 17 00 find it trial and not set the matter for 4 procedure was hearing La 756 legal For the above and foregoing judgment rendered by the trial contradictory hearing we on reasons we court on October 24 the motion for new trial vacate and set aside the amended 2006 and remand the matter for pursuant to Article 1977 pretermit consideration of the remaining issues raised by the Coupels costs associated with this opinion appeal are assessed in accordance with Uniform Rules In on so a doing appeal All against Rozel We issue this memorandum Courts of Appeal Rule 2 16 18 OCTOBER 24 2006 JUDGMENT VACATED AND SET ASIDE HEARING ON MOTION FOR NEW TRIAL 5 REMANDED FOR
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