PHYLLIS M. KEATY, Judge.
Son appeals a judgment in favor of his father,
This case, which grew out of a feud between a father and two of his sons, has previously come before this court. See Kite v. Kite Bros., 11-334, 11-335, pp. 1-4 (La.App. 3 Cir. 10/5/11), 74 So.3d 1266, 1267-69, writ denied, 11-2436 (La. 1/13/12), 77 So.3d 966, which we now quote for the procedural history
In an opinion dated October 5, 2011, a panel of this court affirmed the trial court's grant of partial summary judgment in favor of Kite regarding Alan's defamation, ownership, and retaliatory discharge claims. Id.
Upon motion of Kite, the trial court set the trial of its reconventional demand for April 1, 2013. On the Friday before trial, Alan's attorney emailed Kite's attorney to inform him that Alan's son had several biopsies taken from his thyroid the previous day, that he would be seeking cancer treatment the next week if he tested positive for cancer, and that Alan would want to be with him should that be the case. When the matter was called for trial on April 1, 2013, Alan's counsel made an oral motion for a continuance on the basis that Alan's son's test results indicated that he had cancer and that he may be seeking treatment at M. D. Anderson that week. After Kite's attorney informed the trial court that his client had received information that the cancer threat may not be legitimate, the court requested that Alan provide documentation from his son's physician. Pending receipt of such documentation, the trial court entertained arguments relative to an exception of prescription that had been filed by Alan. Thereafter, rather than produce the requested proof of Alan's son's medical condition, Alan's attorney gave the trial court notice that Alan had filed a Chapter 11 bankruptcy that morning which had the effect of automatically staying the state court proceeding.
Pursuant to Kite's motion for relief from stay, the bankruptcy court, by order dated June 19, 2013, modified the automatic stay: 1) to allow Kite to request that the Thirty-Sixth Judicial District Court (36th JDC) sign the order that it had orally granted on February 8, 2013, granting Kite Bros. motion to establish facts pursuant to issue preclusion and law of the case principles; and 2) to allow Kite to request that the trial court in the 36th JDC set the remaining issues pending between the parties for trial for the rendering of a final judgment on the merits, with the proviso that no trial be held before July 12, 2013, and that Kite not execute upon any final judgment except through the bankruptcy proceeding.
Thereafter, the 36th JDC reset the trial for August 1, 2013. The day before the trial, Alan filed a notice of removal to remove the matter to the United States District Court for the Western District of Louisiana (USDC) "[p]ursuant to 28 U.S.C. § 1334 and 1452 and Rule 9027 of the Bankruptcy Rules." In an effort to preserve the trial date, Kite requested an expedited hearing from the USDC. On the morning of August 1, 2013, Judge Patricia Minaldi, the judge assigned to hear the removal, held a telephone conference at which the parties and their attorneys were present, along with the judge from the 36th JDC. At the hearing, Judge Minaldi determined that the removal filed by Alan was untimely pursuant to 11 U.S.C. § 9027(a)(2). Accordingly, she ordered the matter remanded to the 36th JDC consistent with the June 19, 2013 order modifying the stay issued in conjunction with Alan's bankruptcy filing. Judge Minaldi further ordered "that all matters proceed forward in the 36th Judicial District on or after August 1, 2013 as previously scheduled." See August 7, 2013 Order from the USDC remanding the matter back to the 36th JDC. Judge Minaldi signed a written order memorializing the remand on August 7, 2013, and the order was filed in the 36th JDC two days later.
After Judge Minaldi orally pronounced the remand, the trial court in the 36th JDC held another telephone conference with the parties' attorneys during which it offered to delay the start of trial for two hours to allow Alan's attorney, who was in Lake Charles, Louisiana, time to travel to the court. In response, Alan's attorney stated that he deemed it "a jurisdictional issue, and until an order of remand is issued[,] the matter is in the Federal Court." He expressed his opinion that "under the federal jurisprudence anything that's taken is null and void until the matter is remanded," and he requested that he be allowed to confer with Alan and Alan's bankruptcy attorney. Thereafter, Alan's attorney informed the trial court that the three of them had decided that he would not be participating in the trial because they believed that the 36th JDC had no jurisdiction. The trial court responded that it would "proceed forward" as directed by Judge Minaldi. The only two witnesses to testify at trial were Mr. Kite, on his own behalf and on behalf of Kite Bros., and Mr. Charles Scarborough, a certified public accountant (CPA) whom the trial court accepted as an expert CPA with a specialty of forensic tracing of accounting records for fraud and theft. Trial was completed that afternoon, and the trial court took the matter under advisement.
The trial court issued reasons for judgment on September 17, 2013. Because the claims in Alan's main demand had been deemed false in our decision in Kite v. Kite Bros., 74 So.3d 1266, and by virtue of the trial court's grant of an exception for res judicata filed by Kite that was unopposed by Alan, the trial court found that the claims brought by Alan in his main demand "had been established as false.[
Alan appealed the judgment and is now before this court asserting the following assignments of error: 1) the trial court committed legal error by conducting a trial when it had no jurisdiction to act; 2) the trial court erred as a matter of law in determining that Kite Bros. had a claim under La.Civ.Code arts. 2298 and 2299 regarding payment of a thing not owed regarding the Gum Cove property; 3) the trial court erred by signing a judgment not in conformity with its written reasons and without support by the law or the evidence; and 4) the trial court erred in failing to join a party necessary for a just adjudication. Kite answered the appeal seeking a modification of the judgment to increase the attorney fee award to account for the expenses it incurred in defending this appeal, which it deems frivolous. Kite also filed in this court a motion for partial dismissal of Alan's appeal based upon the peremptory exception of res judicata and the declinatory exception of lack of subject matter jurisdiction seeking to prohibit Alan from basing his appeal upon a lack of authority in the 36th JDC to preside over the August 1, 2013 trial. Upon receipt, this court referred the partial motion to dismiss to the merits.
Kite's motion for partial dismissal of Alan's appeal is based upon its contention that Judge Minaldi's August 1, 2013 order remanding the case to the 36th JDC and ordering Alan to proceed with the trial previously scheduled that morning was a final order that was res judicata to the issues that it specifically ruled upon. Kite submits that this court is without subject matter jurisdiction to collaterally attack the order of a federal bankruptcy court. By way of supplemental brief, Kite additionally submits that Alan's notice of removal was untimely, and, thus, the 36th JDC was never divested of the jurisdiction granted to it by the bankruptcy court when it modified the stay order to allow this matter to proceed to trial. Conversely, Alan's first assignment of error is based upon his contention that the 36th JDC lacked jurisdiction to try this matter because it did not receive notice of the remand until August 9, 2013.
The June 19, 2013 order signed by the bankruptcy court modified the stay which had automatically come into effect on April 1, 2013, upon Alan's filing for bankruptcy, as follows:
By order dated July 19, 2013, the trial judge in the 36th JDC reset the trial for August 1, 2013. The day before trial was to commence, however, Alan filed a notice to remove the matter to the United States District Court for the Western District of Louisiana (USDC) "[p]ursuant to 28 U.S.C. § 1334 and 1452 and Rule 9027 of the Bankruptcy Rules."
We conclude that the notice of removal filed by Alan was untimely. The bankruptcy removal statutes allow for removal of a case within "30 days after entry of an order terminating a stay," or within ninety days after an automatic stay has been instituted. See Fed. R. Bankr. P. 9027(a)(2)(A) and (B). The June 19, 2013 order signed by the bankruptcy court modified, but did not terminate, the stay that had been in place since April 1, 2013. Even if the stay had been terminated, however, Alan's July 31, 2013 notice of removal was untimely since it was not filed until more than thirty days after the stay was modified on June 19, 2013. Alternatively, the ninety-day period listed in Article 9027(a)(2)(A) would have run on June 30, 2013, ninety days after Alan filed his bankruptcy petition on April 1, 2013.
According to the August 7, 2013 order remanding this matter the 36th JDC, Judge Minaldi determined that the removal filed by Alan was untimely pursuant to 11 U.S.C. § 9027(a)(2), and she ordered the matter to "proceed forward in the 36th Judicial District on or after August 1, 2013 as previously scheduled."
In New Orleans Public Service, Inc. v. Majoue, 802 F.2d 166, 167 (5th Cir. 1986) (disagreed with on other grounds by McDermott International, Inc. v. Lloyds Underwriters of London, 944 F.2d 1199 (5th Cir. 1991)), the Fifth Circuit held:
Id. at 167-68. See also, 28 U.S.C. § 1452(b), titled "Removal of claims related to bankruptcy cases," which provides that "[t]he court to which such claim or cause of action is removed may remand such claim or cause of action on any equitable ground."
Based on the forgoing law, we conclude Alan's untimely filed notice of removal did not divest the state court of jurisdiction. We further conclude that the order of remand that Judge Minaldi orally pronounced on August 1, 2013, and signed on August 7, 2013, "is res judicata as to the forum" and that the merits of this dispute were properly determined "in the first instance, by the Louisiana [state court.]" Id. at 168. Alan acted at his own peril when he chose to let the trial proceed in his absence. Accordingly, Mr. Kite's motion for partial dismissal is granted. Because we have so ruled, Alan's first assignment of error has been rendered moot.
The trial court rendered judgment against Alan and in favor of Kite Bros. for $29,625.00 "representing the payment of a thing not owed regarding the Gum Cove property." Louisiana Civil Code Article 2299 provides that "[a] person who has received a payment or a thing not owed to him is bound to restore it to the person from whom he received it."
At trial, Mr. Kite testified that Alan had approached him when Alan was offered an opportunity to acquire an interest in Gum Cove. According to Mr. Kite's testimony, Alan told him that the property had to be put in one person's name in order to form a hunting club. Mr. Kite stated that he agreed to such an arrangement because, in his words, "we all gonna use it together," and because Alan had agreed at that time to deed the property back to his father upon his request. Mr. Kite described the Gum Cove property as a "fishing paradise" and a place where he had duck hunted long before and also many times after the purchase of the property. He explained that during duck season, he would bring a travel trailer to the property for his brothers, sons, and grandkids to stay in.
Despite the foregoing testimony, Mr. Kite insisted at trial that the check he wrote from the Kite Bros. account to Mayo Land and Title for $29,625.00 on June 1, 1999, represented payment of a thing not due. Alan insists that the facts do not support his father's arguments. In that regard, Alan points out that although the interest in the Gum Cove property was acquired in June of 1999, his father did not ask him to transfer the interest back to him or pay him damages until he filed his reconventional demand in this matter on June 14, 2006.
Ogden v. Ogden, 93-1413, p. 5 (La.App. 3 Cir. 9/21/94), 643 So.2d 245, 248, writ denied, 94-2539 (La. 1/13/95), 648 So.2d 1339. See La.Civ.Code art. 1839, which requires that "[a] transfer of immovable property must be made by authentic act or by act under private signature." See also La.Civ.Code art. 1846, which provides that even "[w]hen a writing is not required by law, a contract not reduced to writing" for a "price or value ... in excess of five hundred dollars ... must be proved by at least one witness and other corroborating circumstances."
In Gray v. McCormick, 94-1282 (La.App. 3 Cir. 10/18/95), 663 So.2d 480, this court reversed a trial court judgment in favor of a daughter and her husband who sued the daughter's parents, the McCormicks, for unjust enrichment and detrimental reliance after the parents evicted them from a house that the McCormicks had built. The daughter, her husband, and their two daughters, the Grays, lived in the McCormicks' home for nine months, rent-free, after having filed bankruptcy. Thereafter, the McCormicks mortgaged 1.5 acres of their property and built a home on it for the Grays to live because the Grays could not obtain financing to build the home themselves. The Grays lived in the home for six years, during which time they made over $6,000.00 in improvements to the home and paid the McCormicks' $316.60 monthly mortgage note. Later, the McCormicks evicted the Grays when they were unable or unwilling to buy the home and release the McCormicks from any related indebtedness. Thereafter, the Grays sued the McCormicks for unjust enrichment and detrimental reliance. After a trial, the trial court found that the parties had entered into a "contract for a gratuitous use of the home" and rendered judgment in favor of the Grays reimbursing them for the improvements they made to and for the mortgage payments they made on the home. Id. at 482. The McCormicks were awarded damages for repairs they had to make after the Grays were evicted.
Recognizing the "strict legal requirements for the transfer of immovable property" found in La.Civ.Code art. 1839, we held that the trial court properly found that the Grays "failed to establish that they were entitled to be recognized as the owners of the ... home and the immovable property on which the home was built." Id. We further concluded that the trial court erred in basing its damage award to the Grays on the theory of detrimental reliance because they were "not justified in their reliance on the McCormicks' oral promise to donate immovable property to them." Louisiana Civil Code Article 1967 provides, in pertinent part, that "[r]eliance on a gratuitous promise made without required formalities is not reasonable."
The undisputed facts clearly show that the Gum Cove property was purchased for the benefit of the entire Kite family and that the entire Kite family in fact enjoyed the property for many years before this dispute arose. Moreover, nothing was put in writing to show that Alan agreed to transfer the property back to his father should he desire to be the record owner of the Gum Cove property. Given the foregoing, we conclude that the trial court erred in finding that Kite paid for a thing not due when it funded the purchase of the Gum Cove property.
We further conclude that Kite is not entitled to damages based upon the legal theories of detrimental reliance or unjust enrichment. Mr. Kite could have purchased the Gum Cove property in his own name rather than in Alan's name when the property was acquired in 1999. Moreover, Mr. Kite should have put into writing any agreement that he had with Alan to have title deeded back to him upon his request. Mr. Kite did neither and must now suffer the consequences of dealing with Alan. Accordingly, we reverse that portion of the judgment against Alan and in favor of Kite Bros. for $29,625.00 which represented the payment of a thing not owed regarding the Gum Cove property.
In his third assignment of error, Alan complains that the judgment rendered in this matter is not in conformity with the trial court's factual findings in its written reasons and is not supported by the law or the evidence. Nevertheless, he accurately cites the law of this state which provides that appeals are taken from judgments, not reasons for judgment. See Wooley v. Lucksinger, 09-571, 09-584, 09-585, 09-586, (La. 4/1/11), 61 So.3d 507.
Citing Nicholson v. Transit Management of Southeast Louisiana, 00-706 (La.App. 4 Cir. 2/14/01), 781 So.2d 661, writ denied, 01-721 (La. 5/11/01), 792 So.2d 735, Alan contends that the trial court erred in awarding legal interest on the entire judgment against him to run from March 6, 2006, the date of judicial demand, where the law provides that judicial interest on attorney fee awards should run from the date of the judgment. We agree that the trial court erred in this regard, and we amend the judgment to provide that legal interest on the portion of the award representing the $354,207.17 in attorney fees owed by Alan to Kite Bros. shall run from the date of judgment.
Alan next contends that because he pled compensation in his answer to Kite's reconventional demand, the trial court erred in not reducing the judgment rendered against him by $149,391.00, the amount which he claims was due to him in commissions from sales to Henry Alexander in 2004 to 2005 when Alan worked at Kite Bros.
Louisiana Civil Code Article 1893, entitled "Compensation extinguishes obligations," provides, in pertinent part, that:
In opposition to Alan's claim that the judgment against him should have been reduced due to compensation, Kite submits that Alan failed to plead such set-off with particularity, and he, likewise, failed to offer any evidence to support his burden of proof with regard to his claim. Moreover, Kite submits that this court's decision in Ducote v. City of Alexandria, 95-1197 (La.App. 3 Cir. 3/6/96), 670 So.2d 1378, which was relied upon by Alan in his appellant brief, supports its defense to Alan's claim.
After a thorough review of the pleadings and the evidence presented at trial, we conclude that Alan did not prove his entitlement to compensation. Even though Alan mentioned compensation, or set-off, in his answer to Kite's reconventional demand, he failed to plead that affirmative defense with particularity, and he failed to offer any evidence to prove his claim at trial. See Ducote, 670 So.2d 1378. On the other hand, Kite proved its claims at trial through the testimonies of Mr. Kite and Mr. Scarborough. Because Alan did not meet his burden of proof regarding compensation, there is no merit to this aspect of his third assignment of error.
Finally, Alan's appellant brief contains two sentences wherein he complains that the portion of the general damages awarded to his father for the emotional distress caused by Alan's actions is not supported by the evidence. Alan fails to support this argument with any jurisprudence.
The effects of Alan's behavior and ill will toward his father have been displayed to both the trial court and to this court over the years that these matters have been pending, and we conclude that the record provides overwhelming support for the portion of the damage award meant to compensate Mr. Kite for the emotional distress suffered at the hands of his son, Alan. This aspect of Alan's third assignment of error lacks merit.
Louisiana Code of Civil Procedure Article 641 provides:
"If a person described in Article 641 cannot be made a party, the court shall determine whether the action should proceed among the parties before it, or should be dismissed." La.Code Civ.P. art. 642. When making such a determination, the code instructs the court to consider the following factors:
"In evaluating those four factors, [an appellate court] should review the findings of the trial court in accordance with the `abuse of discretion' standard of review." Rayford v. Nat'l R.R. Passenger Corp., 05-1273, p. 9 (La.App. 4 Cir. 4/13/07), 962 So.2d 5, 9, writ denied, 07-1021 (La. 8/31/07), 962 So.2d 439.
Alan contends that the trial court erred in allowing this matter to proceed to trial in Jeff's absence because, in its reconventional demand, Kite alleged that both Alan and Jeff were liable to it in solido for any overpayment they received in the form of salaries and bonuses. In opposition, citing Uniform Rules—Courts of Appeal, Rule 1-3, Kite submits that because Alan did not file a peremptory exception of nonjoinder of a party under La.Code Civ.P. arts. 641 and 642, he should not be allowed to now claim on appeal that the trial court erred by failing rule on his unfiled exception. Kite further submits that in a Consent Judgment submitted to the trial court on March 27, 2009, Jeff, Mr. Kite, and Kite Bros. listed the main demand by Alan and Jeff against Kite as well as the reconventional demand by Kite against his two sons and stated "that all claims between Jeffrey Kite and his father, Robert Kite, and between Jeffrey Kite and Kite Bros., L.L.C., are hereby dismissed with prejudice.[
We note that at trial, Mr. Scarborough only testified as to the excess and/or unauthorized salary and bonuses that Alan took from Kite Bros. In addition, the appealed judgment was rendered against Alan only. Given the foregoing, we find no abuse of discretion on the trial court's decision to decide the merits of this case in Jeff's absence, especially where Alan failed to place this issue directly before the trial court. Alan's fourth assignment of error lacks merit.
Kite answered Alan's appeal to request that it be awarded additional attorney fees to account for the fees incurred in defending this appeal, which it deems frivolous. In Kite Bros., LLC v. Kite RV, LLC, 14-374, p. 1 (La.App. 3 Cir. 11/5/14), 150 So.3d 608, 609, we stated:
Because Alan prevailed in having two aspects of the judgment against him amended and/or reversed, we do not deem his appeal entirely frivolous, and we decline to award Kite additional attorney fees on appeal.
For the reasons assigned herein, the motion for partial dismissal filed by Robert Kite and Kite Bros., L.L.C., is granted. The judgment rendered in favor of Robert Kite and Kite Bros., L.L.C., and against Alan Kite is amended to provide that legal interest on the portion of the award representing the $354,207.17 in attorney fees owed by Alan to Kite Bros. shall run from the date of judgment. In addition, that portion of the judgment against Alan and in favor of Kite Bros. for $29,625.00 which represented the payment of a thing not owed is reversed. In all other respects, the judgment is affirmed. All costs of this appeal are assessed against Alan Kite.
COOKS, J., dissents.
Although I agree with the majority's decision on all other issues, I cannot join in the majority's reversal of the trial court's award of damages to Mr. Kite regarding the Gum Cove property. I believe the trial judge correctly awarded a return of the monies paid by Mr. Kite on behalf of his son Alan for that property which was titled in his son's name. The majority appears entrenched in old law which is no longer applicable following the enactment of La. Civ.Code art. 1967, which effected a change in the law in 1985. The former rule was so engrained in Louisiana law, and fastidiously taught, the majority apparently is unwilling to recognize the import of the new law, despite the fact that this court recognized, and presaged, the change in the law in the very case relied upon by the majority for its current position, as did the Louisiana Supreme Court in a case relying on that very case.
The majority's reliance on Ogden v. Ogden, 93-1413, p. 5 (La.App. 3 Cir. 9/21/94), 643 So.2d 245, 248, writ denied, 94-2539 (La. 1/13/95), 648 So.2d 1339, and the requirement in Civil Code Article 1839 that "[a] transfer of immovable property must be made by authentic act or by act under private signature,"
Cause is the reason why a party obligates himself.
Indeed, in two subsequent cases this court, applying La.Civ.Code art. 1967, found the requirement that an agreement be in writing in cases involving onerous agreements controlled by Article 1967, no longer applied after its effective date. See Dugas v. Guillory, 97-398 (La.App. 3 Cir. 10/7/98), 719 So.2d 719 and Cenac v. Hart, 98-1679 (La.App. 3 Cir. 4/7/99), 741 So.2d 690. Relying on this court's decisions in these cases, the Louisiana Fifth Circuit Court of Appeals in Rhoads v. Quicksilver Brokers, Ltd. 01-768, p. 9 (La.App. 5 Cir. 1/14/01), 801 So.2d 1284, 1289 (emphasis added) reversed the lower court's grant of summary judgment noting:
The Louisiana Second Circuit Court of Appeals discussed the import of La.Civ. Code art. 1967 in Benton v. Clay, 48,245 (La.App. 2 Cir. 8/7/13), 123 So.3d 212, 222-23 (emphasis added):
Mr. Kite gave unrefuted testimony at trial that Alan made an onerous agreement with him to enable Alan to purchase an undivided interest in immovable property with a third party. The agreement between Alan and Mr. Kite was not an agreement between them to purchase and sell immovable property. Mr. Kite explained in his unrefuted testimony at the trial on the merits that the agreement was, instead, an agreement for Mr. Kite to provide Alan with the funds he needed to purchase an undivided interest in the immovable property in exchange for which Alan promised his father he would transfer title to the property to him at any time Mr. Kite requested him to do so. Mr. Kite lived up to his part of the agreement and provided the funds to Alan enabling Alan to purchase an interest in the Gum Cove property. Alan refused to honor his part of the agreement, and would not even allow his father any further access to the property. When questioned at trial, Mr. Kite explained that Alan expressed to him that
Mr. Kite is entitled to recover his money because he relied on Alan's promise to his detriment. Both cases cited above after the adoption of La. Civ.Code art. 1967, and cases such as Ogden, heralding the change in the law, clearly demonstrate the rightness of the trial court's decision and govern the decision of this court. I note, too, contrary to the concurrence, the trial court did not "rely on facts not offered into evidence at the two-day trial on the merits" but did in fact, rely on the undisputed testimony of Mr. Kite at the trial on the merits concerning the Gum Cove property. I note too that Alan's lawyer has done a commendable job in taking over this case from previous counsel, but the existence of that fact cannot change the facts and the law in this case. To do so in this case obfuscates, confuses, and simply ignores what has been the law since 1985.
I respectfully dissent from that portion of the majority's opinion that reverses the trial court's award of monetary damages to Mr. Kite concerning the Gum Cove property. Mr. Kite is entitled to recover the $29,625.00 awarded for the Gum Cove property.
PETERS, J., concurs in the result and assigns reasons.
I join to form the majority in this protracted litigation, but assign additional reasons to reflect that while I find the evidence sufficient to support the judgment on all issues except the Gum Cove property and the interest issue, this matter raises additional issues. However, despite their presence, they do not affect the outcome suggested in the majority opinion.
This litigation began in 2006, and the underlying family relationships have generated the intensely personal animosity which gave rise to the judgment of the trial court now before us. The evidence was adduced at the two-day trial on the merits held on April 1, 2013, and August 1, 2013; and Alan Kite participated in the April 1 proceeding, but as explained in the majority opinion, declined to participate in the August 1 proceeding. His failure to participate resulted in a proceeding more resembling a default judgment confirmation than a contested trial on the merits.
In considering the matter on the merits, I do note that in the judgment recorded on December 16, 2013, the trial court stated that it reached its judgment by considering, among other things, "the prior summary judgment rulings by [the trial court], and the evidence submitted in support and opposition thereto[.]" I find nothing in the record that suggests the summary judgment proceedings were offered into evidence at trial. That being the case, to the extent the trial court relied on any evidence introduced at the summary judgment hearing, such reliance was error. Additionally, such a proceeding does not provide for the confrontation and cross-examination allowed at a trial on the merits. Even if the summary judgment proceedings had been introduced at the trial on the merits, the trial court could not have considered anything other than the undisputed findings of fact generated therein. La.Code Civ.P. art. 966(B). The trial court also noted in the judgment that it also considered this court's opinion resulting from the summary judgment proceedings as set forth in Kite v. Kite Bros., 11-334, 11-335 (La.App. 3 Cir. 10/5/11), 74 So.3d 1266, writ denied, 11-2436 (La. 1/13/12), 77 So.3d 966. While a trial court can take judicial notice of a prior judgment, the opinion of this court was an appeal of the aforementioned summary judgment proceeding and any consideration of those proceedings would be limited as well. La.Code Civ.P. art. 966(B).
Despite the trial court's error in considering the summary judgment proceedings, I concur in the result set forth in the majority opinion because the factual record we are allowed to consider supports the majority affirmation of everything except the award for the Gum Cove property and the date interest is to run on the attorney fee award. With regard to the Gum Cove property, the majority opinion correctly concludes that Mr. Kite's testimony, standing alone, was not sufficient to establish the elements necessary to prove payment of a thing not due, detrimental reliance, or unjust enrichment. See La.Civ.Code art. 1846.
I do, however, disagree with the analysis concerning the jurisdictional issue as set forth in the majority opinion. Without commenting on the effective date of the remand, the majority opinion finds that the federal judge's August 1, 2013 oral order of remand, which was signed on August 7, 2013, "[was] res judicata as to the forum[,]" citing New Orleans Public Service, Inc. v. Majoue, 802 F.2d 166 (5th Cir. 1986). I agree that the cited case stands for that rule of law, but 28 U.S.C. § 1447(c) provides that "[a] certified copy of the order of remand shall be mailed by the clerk to the clerk of the State court. The State court may thereupon proceed with such case." (Emphasis added). If an order of remand was required in this matter, Alan Kite's argument that the trial court could not proceed until receipt of the written order of remand, would have merit. In fact, counsel for Mr. Kite and Kite Bros. L.L.C. conceded as much at one of the oral arguments in this matter when he acknowledged that the federal judge could have changed her mind anytime between her oral order of August 1, 2013, and the filing of her written order of August 7, 2013, in state court on August 19, 2013.
Still, while I disagree with the majority opinion analysis on this issue, I find that it reached the correct result. The federal district court concluded that Alan Kite's attempted removal was untimely filed under 11 U.S.C. § 9027(a)(2). That being the case, the state trial court never lost jurisdiction. See generally Motton v. Lockheed Martin Corp., 97-204 (La.App. 4 Cir. 3/19/97), 692 So.2d 6. Because it never lost jurisdiction, the trial court could have proceeded with the trial on August 1, 2013, without pursuing a federal court remand. Therefore, the fact that the trial court proceeded with the trial before the filing of the remand order in the state court records did not affect its jurisdiction, and the ultimate result of the trial is not null and void as argued by Alan Kite.
In fact, but for the untimeliness of the attempt at removal, I would have found merit in the first assignment of error and remanded this matter for a new trial. Although the trial court saw fit to communicate with the federal court and received immediate relief for Mr. Kite and Kite Bros. L.L.C., I do not find that an "emergency telephone hearing" was made necessary by the filing of the removal action. This matter has been pending since 2006, and the action on behalf of Alan Kite was simply another of the many trial tactics that had been effected over the years by both sides in this litigation. However, as pointed out in the majority opinion, when he untimely filed for removal, "Alan acted at his own peril when he chose to let the trial proceed in his absence."
AMY, J., concurring in part and dissenting in part.
I agree with the majority opinion in all respects other than its reversal of the trial court's award for damages for the Gum Cove dispute. I dissent on this limited aspect of the case.
In my opinion, the Gum Cove issue is not appropriately considered as a contractual dispute involving an immoveable. Rather, I find no manifest error in the trial court's award on an equitable basis in light of the parties' expectations. Accordingly, and under the facts of this case, I would affirm the trial court's award of damages for payment of a thing not owed.
