Colby S. Harrington v. Board of Supervisors of Louisiana State University and Agricultural and Mechanical College and Andrea Carroll ( 2022 )

NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
NO. 2021 CA 1527
COLBY S. HARRINGTON
VERSUS
BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY
AND AGRICULTURAL AND MECHANICAL COLLEGE AND
ANDREA BEAUCHAMP CARROLL
Judgment Rendered: SEP 2 9 2022
On Appeal from the
19th Judicial District Court
In and for the Parish of East Baton Rouge
State of Louisiana
Trial Court No, 691612
Honorable Ronald R. Johnson, Judge Presiding
Mark A. Harrington Attorney for Plaintiff A
- ppellant,
Benton, LA Colby S. Harrington
Guice A. Giambrone, III Attorneys for Defendants -Appellees,
Craig R. Watson Board of Supervisors of Louisiana State
Amanda M. Plaiscia University and Agricultural and
Jeremy D. Rush Mechanical College, Andrea
Metairie, LA Beauchamp Carroll, Thomas C.
and- Galligan, P. Raymond Lamonica, and
Carlton " Trey" Jones, III Alexander Timothy Griffin
Johanna A. Posada
Baton Rouge, LA
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Antonio M. " Tony" Clayton Attorneys for Defendant -Appellee,
Michael P. Fruge Claire Elizabeth Traver
Port Allen, LA
and-
Andy Dupre
New Orleans, LA
and-
Kyle Findley
Houston, TX
BEFORE: WHIPPLE, C. J., CHUTZ, AND HESTER, JJ.
2
HESTER, J.
This is an appeal by plaintiff, Colby S. Harrington, from the trial court' s
judgment denying his motion for reconsideration and/ or rehearing, sustaining the
peremptory exception raising the objection of no cause of action raised by
defendants, the Board of Supervisors of Louisiana State University and Agricultural
and Mechanical College, Andrea Beauchamp Carroll, Thomas C. Galligan, P.
Raymond Lamonica, and Alexander Timothy Griffin, and
dismissing Mr.
Harrington' s claim for a mandatory preliminary injunction. For the reasons that
follow, we affirm in part, reverse in part and remand.
FACTS AND PROCEDURAL HISTORY
Mr. Harrington was a law student at the Louisiana State University Law
Center (" Law Center") in the spring semester of 2018 when administrators at the
Law Center became aware of academic cheating allegations. According to a law
student' s report to administrators, Mr. Harrington and another law student stole
copies of unadministered examinations from faculty offices. Independently, but at
the same approximate time, Law Center staff discovered two " keystroke loggers" 1
that were installed on computers at the Law Center, including one on the computer
of the administrative assistant to several of Mr. Harrington' s professors. Upon
discovering the keystroke loggers, a motion -activated camera was installed in the
administrative assistant' s office, and that same night, the camera recorded a series
of still images of a person in a hooded sweatshirt breaking into the locked office.
The intruder' s identity could not be determined from the still images; however, video
A keystroke logger is a small physical device that resembles a jump drive storage device.
It plugs into a USB port on a computer, after which it records all the keystrokes made on that
computer, including login credentials of anyone using that computer. Once the keystroke logger
has been retrieved, a person who is not authorized to use the computer can extract the login
credentials of authorized users from the keystroke logger, thereby gaining unauthorized access to
the computer network.
3
footage from another area within the Law Center confirmed Mr. Harrington was
inside the Law Center that night, after hours.
Law Center administrators, including Associate Dean Andrea Beauchamp
Carroll ( Professor Carroll), investigated the allegations during the spring and
summer of 2018. At the beginning of the fall semester in 2018, LSU initiated formal
disciplinary proceedings against Mr. Harrington and sent a formal written complaint
notifying Mr. Harrington of the charges against him. Prior to the disciplinary
hearing, LSU provided Mr. Harrington with a list of anticipated witnesses and
evidence as well as copies of documentary evidence to be used by LSU at the
hearing.
Mr. Harrington' s disciplinary hearing was held on October 15, 2018, before a
panel of three law students and two law faculty members. Mr. Harrington was
represented by an attorney who was allowed to examine witnesses at the hearing and
to present testimony and evidence on behalf of Mr. Harrington. During the hearing,
the panel heard from Mr. Harrington, Law Center faculty and professors, the
administrative assistant whose office was broken into, Dean Thomas Galligan, and
other Law Center students ( including Claire Elizabeth Travor). The panel was also
presented with certain text messages discussing allegations of Mr. Harrington' s
cheating, Mr. Harrington' s Law Center transcript, and a multitude of documents
relating to these professors' final examinations: previously administered and not
circulated exams, and exams for the semester in question, along with Mr.
Harrington' s answers thereto. Thereafter, the panel unanimously found Mr.
Harrington violated the Law Center' s Code of Student Professional Responsibility
and recommended Mr. Harrington be expelled from the Law School. The panel
issued its report on November 1, 2018. Mr. Harrington' s attorney submitted a
response to the report and recommendation and on December 10, 2018, the Law
Center' s Dean designee, Raymond Lamonica, upheld Mr. Harrington' s expulsion,
4
but nonetheless ruled Mr. Harrington could apply for readmission after twelve
months.
On December 10, 2019, Mr. Harrington filed suit against the Board of
Supervisors of Louisiana State University and Agricultural and Mechanical College
LSU") and Professor Carroll in connection with his expulsion from the Law
Center, raising claims based on breach of contract, due process violations, fraud,
negligence, abuse of rights, and intentional interference of contract. Mr. Harrington
also asserted claims for preliminary and permanent mandatory injunctive relief and
judicial review of a final agency decision under the Louisiana Administrative
Procedure Act, La. R.S. 49:950, et seq. The petition alleged that, after allegations
of cheating swirled around the Law Center, Professor Carroll felt pressure to find a
culprit and adopted the unsubstantiated claims of two students, one a rival classmate,
the other, Mr. Harrington' s ex- girlfriend, to incriminate Mr. Harrington in the
cheating scandal. He further alleged that the pressure Professor Carroll was under
caused her to be biased in her investigation against him, building a case without
actual evidence to show that he cheated.
On August 5, 2020, Mr. Harrington filed a motion and order to set an
evidentiary hearing on his claim for mandatory preliminary injunctive relief. LSU
and Professor Carroll objected to setting the matter for hearing, asserting that the
trial court did not have legal authority to grant Mr. Harrington a mandatory
preliminary injunction and citing Deshotels v. White, 2016- 0889 ( La. App. 1 st Cir.
8/ 16/ 17), 226 So. 3d 1211 ( en bane), writ denied, 2017- 1565 ( La. 1215117), 231
So. 3d 628. Nevertheless, the trial court issued an order setting Mr. Harrington' s
mandatory preliminary injunction for a full evidentiary hearing.
At the hearing, the trial court heard arguments of the parties and received
testimony and documentary evidence. The matter was taken under advisement, and
the trial court later issued its ruling in open court. Indicating that the matter was
5
heard on " judicial review of a final agency decision," the trial court ruled that the
proceeding conducted [ by LSU] denied plaintiff appellant' s rights to due process
in that such proceeding was not conducted with proper notice, opportunity to be
heard, and have exhibits of evidence presented before the proceeding and before an
arbiter who is neutral and fair." The trial court further stated that LSU sought to
expel Mr. Harrington based on no evidence, and only offered an opportunity to apply
for readmission one year after expulsion, which LSU had summarily denied.
Accordingly, the trial court ordered that the enforcement of the administrative
decision of expulsion be stayed and that the parties review Mr. Harrington' s
application for readmission or conduct a full and fair trial on the administrative level
with rights of due process. The court also dismissed Mr. Harrington' s " application
for mandatory injunction."
The trial court ultimately signed a partial judgment on September 23, 2020,
reducing its oral ruling to writing, stating, in pertinent part, that " the application for
preliminary mandatory injunction is DISMISSED." Mr. Harrington did not seek
appellate review of the trial court' s ruling on his request for a mandatory preliminary
injunction.2 Instead, on November 18, 2020, Mr. Harrington filed a motion for
reconsideration and/ or rehearing of the September 23, 2020 ruling on the mandatory
preliminary injunction, which LSU opposed.
Mr. Harrington also obtained leave of court on November 18, 2020 to file an
amended and supplemented petition. The amended petition consisted of 564
numbered paragraphs, and named additional defendants, including LSU interim
President Thomas C. Galligan, Law Center Professor P. Raymond Lamonica, Claire
2 LSU sought supervisory review of the portion of the September 23, 1.020 ruling staying
the enforcement of the administrative decision of expulsion and ordering the parties to review Mr.
Harrington' s application for readmission or conduct a full and fair trial on the administrative level
with rights of due process, and this court reversed the trial court' s ruling. Harrington v. Board
of Supervisors of Louisiana State University & Agricultural & Mechanical College, 2020-
1012 ( La. App. 1st Cir. 12114120), 2020 WL 7333455 ( unpublished writ action).
2
Elizabeth Traver, and Alexander Timothy Griffin. In the amended petition, Mr.
Harrington requested that, " after an evidentiary hearing," the trial court issue a
mandatory preliminary injunction against LSU ordering it to rescind his expulsion,
reinstate him at LSU as a student in good standing without any expulsion noted on
his transcript or record, issue a letter of good standing to Mr. Harrington, permit Mr.
Harrington to complete the rest of his juris doctor degree, and make all classes
available to Mr. Harrington so that he may complete all coursework required to
graduate in the spring of 2021, pending further proceedings in this suit. Mr.
Harrington further requested that a permanent mandatory injunction against LSU be
issued after a full trial on the merits.
In response to Mr. Harrington' s amended petition, LSU, Professor Carroll,
LSU Interim President Galligan, Professor Lamonica, and Mr. Griffin (the " LSU
Defendants") filed a consolidated pleading urging the following: ( 1) motion for
sanctions pursuant to La. Code Civ. P. art. 863, contending that Mr. Harrington' s
lawsuit cannot proceed until [ Mr. Harrington] demonstrates there is evidentiary
support for the reprehensible accusations contained in the Amended Petition" ( italics
removed); ( 2) motion to strike the amended petition pursuant to La. Code Civ. P. art.
964; ( 3) dilatory exception raising the objection of unauthorized use of summary
proceedings and improper cumulation of actions, seeking to sever and dismiss Mr.
Harrington' s claim under the Louisiana Procedures Act; and ( 4) peremptory
exception raising the objection of no cause of action, seeking to dismiss Mr.
Harrington' s mandatory preliminary injunction.
After a hearing was held on Mr. Harrington' s motion for reconsideration
and/or rehearing and the LSU Defendants' exception raising the objection of no
cause of action the trial court took the matter under advisement. On October 8, 2021,
the trial court issued an oral ruling, denying Mr. Harrington' s motion for
7
reconsideration and/or rehearing and sustaining the LSU Defendants' exception
raising the objection of no cause of action.
The trial court' s ruling was reduced to writing and signed by the trial court on
December 15, 2021, and Mr. Harrington appealed.' After this court examined the
record,
an interim order was issued, pointing out that the December 15, 2021
judgment sustained the exception raising the objection of no cause of action but
lacked decretal language dismissing any and/ or all of Mr. Harrington' s claims. The
matter was remanded to the trial court for the limited purpose of instructing the trial
court to sign an amended judgment correcting the deficiency and complying with
La. Code Civ. P. art. 1951. Subsequently, the record was supplemented with an
amended judgment, signed by the trial court on March 28, 2022, in which Mr.
Harrington' s claim for mandatory preliminary injunction was dismissed with
prejudice.
LAW AND ANALYSIS
Preliminaty Inunction
A preliminary injunction is an interlocutory judgment designed to preserve
the status quo between the parties pending a trial on the merits. Stevens
Construction & Design, L.L.C. v. St. Tammany Fire Protection District No. 1,
2018- 1759 ( La. App. 1st Cir. 1116/ 20), 295 So. 3d 954, 957- 58, ( en Banc), writ
denied, 2020- 00977 ( La. 11/ 4120), 303 So. 3d 650. A preliminary injunction is
issued in summary proceedings incidental to the main demand for permanent
3 Mr. Harrington filed a motion and order for devolutive appeal on October 21, 2021, within
fifteen days of the trial court' s oral ruling issued on October 8, 2021. See La. Code Civ. P. art.
3612( C) (" An appeal from an order or judgment relating to a preliminary injunction must be taken,
and any bond required must be furnished, within fifteen days from the date of the order or
judgment.") See also Stevens Construction & Design, L.L.C. v. St. Tammany Fire Protection
District No. 1, 2018- 1759 ( La. App. 1 st Cir. 1/ 16/ 20), 295 So. 3d 954, 958, ( en hanc), writ denied,
2020- 00977 ( La. 11/ 4/ 20), 303 So. 3d 650. The trial court' s oral ruling was ultimately reduced to
writing and signed on December 15, 2021, curing any defect in the appeal taken prior to the
judgment being signed. See Overmier v. Traylor, 475 So. 2d 1094, 1094- 95 ( La. 1985)
concluding that an appeal of an oral ruling on a preliminary injunction granted before the signing
of the judgment is subject to dismissal until the judgment is signed, but any previously existing
defect in the appeal was cured once the judgment was signed by the trial court).
injunctive relief. Concerned Citizens for Proper Planning, LLC v, Parish of
Tangipahoa, 2004- 0270 ( La. App. 1st Cir. 3124105), 906 So. 2d 660, 664. Pursuant
to La. Code Civ. P. art. 3602, a preliminary injunction shall not issue unless notice
is given to the adverse party and an opportunity had for a hearing assigned not less
than two nor more than ten days after service of the notice.
A prohibitory preliminary injunction is one that seeks to restrain conduct and
may be issued without the showing of irreparable injury in certain cases. Deshotels,
226 So. 3d at 1218, n.9. Generally, a party seeking the issuance of a preliminary
injunction must show that he will suffer irreparable injury if the injunction does not
issue and must show entitlement to the relief sought; this must be done by a prima
facie showing that the party will prevail on the merits of the case. Concerned
Citizens for Proper Planning, LLC, 906 So.2d at 664.
A mandatory injunction commands a party to take specific action. City of
New Orleans v. Board of Directors of Louisiana State Museum, 98- 1170 ( La.
312199), 739 So. 2d 748, 756. A mandatory preliminary injunction has the same basic
effect as a permanent injunction. Deshotels, 226 So. 3d at 1218. Accordingly, a
mandatory injunction may not be issued on a merely prima facie showing that the
party seeking the injunction can prove the necessary elements. Instead, the party
must show by a preponderance of the evidence at an evidentiary hearing that he is
entitled to the preliminary injunction. City of New Orleans, 739 So. 2d at 756.
Notwithstanding, this court stated that "[ g] iven mandatory injunctions and
prohibitory injunctions have different procedural rules and evidentiary burdens, one
court even recognized, as do we, that as a matter oflaw, it is not possible to issue a
mandatory preliminary injunction." Deshotels, 226 So. 3d at 1218. ( Emphasis
added.)
See also Hyman v. Puckett, 2015- 0930 ( La. App. 4th Cir. 514116), 193
So. 3d 1184, 1189. Stated another way, " a mandatory injunction cannot, as a matter
9
of law, be a preliminary injunction." Plantation Trace Development, LLC v.
Scott, 2018- 1044 ( La. App. 1 st Cir. 6/ 25/ 19), 2019 WL 2612862, * 4 ( unpublished).
Motion for Reconsideration and/or Rehearing
The Louisiana Code of Civil Procedure does not provide for a motion to
reconsider with respect to any judgment, and such a motion is generally treated as a
motion for new trial.' Harris v. Louisiana Department of Public Safety &
Corrections, 2019- 1657 ( La. App. 1st Cir. 8/ 3120), 310 So. 3d 211, 214. A trial
court has much discretion in determining whether to grant a motion for new trial;
however, the denial of a motion for new trial should not be reversed on appeal unless
there has been an abuse of discretion.5 Wright v. Bennett, 2004- 1944 ( La. App. 1 st
Cir. 9/ 28/ 05), 924 So. 2d 178, 191. See also La. Code Civ. P. art. 1971.
In this appeal, Mr. Harrington maintains that the trial court legally erred in
denying his motion for reconsideration and/ or rehearing of the September 23, 2020
ruling on the mandatory preliminary injunction. However, we cannot say that the
trial court abused its discretion in light of our pronouncement in Deshotels, 226
So. 3d at 1218, that as a matter of law, it is not possible to issue a mandatory
preliminary injunction. Accordingly, we do not find merit to Mr. Harrington' s
second, third, and fourth assignments of error.6
4 Without approving the procedural vehicle utilized by Mr. Harrington, we attempt to do
justice in reviewing the ruling of the trial court, which requires reliance on the Louisiana Code of
Civil Procedure articles concerning motions for new trial.
s The denial of the motion for reconsideration and/ or rehearing is an interlocutory and non -
appealable ruling. See McKee v. Wal- Mart Stores, inc., 2006- 1672 ( La. App. 1st Cir. 6/$/ 07),
964 So. 2d 1008, 1013, writ denied, 2007- 1655 ( La. 10126/ 07), 966 So. 2d 583 ( finding that the
denial of a motion for new trial is an interlocutory and non -appealable judgment). However, the
trial court' s denial of Mr. Harrington' s motion was incorporated into the same judgment and
interrelated with the ruling dismissing his claim for mandatory preliminary injunction, which is
appealable pursuant to La. Code Civ. P. art. 3612; therefore, it is appropriate to consider the
interlocutory ruling. See Stevens v. St. Tammany Parish Government, 2016- 0534 ( La. App.
1st Cir. 1/ 18/ 17), 212 So. 3d 568, 578.
6
Having determined that the trial court did not abuse its discretion in denying the motion
for reconsideration and/ or rehearing, we pretermit those portions of Mr. Harrington' s second, third,
and fourth assignments of error concerning whether the trial court erred in declaring that it was
procedurally barred" from reviewing the September 23, 2020 denial of the mandatory preliminary
injunction.
10
No Cause o Action
In his first assignment of error, Mr. Harrington states that the trial court
committed legal error in sustaining the LSU Defendants' peremptory exception
raising the objection of no cause of action, finding that a mandatory preliminary
injunction was not a valid cause of action. Notwithstanding the substantive
arguments of the parties, we find merit in this assignment of error.
The function of the peremptory exception raising the objection of no cause of
action is to test the legal sufficiency of the petition by determining whether the law
affords a remedy on the facts alleged in the pleading. Everything on Wheels
Subaru, Inc. v. Subaru South, Inc., 616 So. 2d 1234, 1235 ( La. 1993). For
purposes of the exception, all facts pled in the petition as well as facts shown in any
documents annexed to the petition must be accepted as true. Expert Riser
Solutions, LLC v. Techcrane International, LLC, 2018- 0612 ( La. App. 1 st Cir.
12128/ 18), 270 So. 3d 655, 663. See also La. Code Civ. R art. 854. Because the
exception of no cause of action raises a question of law and the trial court' s decision
is based solely on the sufficiency of the petition, appellate review of the trial court' s
ruling on an exception raising the objection of no cause of action is de novo.
Scheffler v. Adams and Reese, LLP, 2006- 1774 ( La. 2/ 22/ 07), 950 So. 2d 641, 647.
An exception of no cause of action should be granted only when it appears beyond
doubt that the plaintiff can prove no set of facts in support of any claim that would
entitle him to relief. Expert Riser Solutions, LLC, 270 So. 3d at 663.
Generally, an exception of no cause of action should not be maintained in part;
the purpose of this general rule is to prevent a multiplicity of appeals that forces an
appellate court to consider the merits of the action in a piecemeal fashion.
Everything on Wheels Subaru, Inc., 616 So. 2d at 1236. If there are two or more
items of damages or theories of recovery which arise out of the operative facts of a
single transaction or occurrence, a partial judgment on an exception of no cause of
11
action should not be rendered to dismiss one item of damages or theory of recovery.
In such a case, there is truly only one cause of action, and a judgment partially
maintaining the exception is generally inappropriate. Id. at 1239. However, if two
or more actions are cumulated which could have been brought separately because
they were based on the operative facts of separate and distinct transactions or
occurrences,
a partial judgment may be rendered to dismiss one action on an
exception of no cause of action, while leaving the other actions to be tried on the
merits.
In such a case, there are truly several causes of action, and a judgment
partially maintaining the exception as to one separate and distinct cause of action is
generally appropriate. Id.In considering an exception of no cause of action in multi -claim litigation in
which the court might rule in favor of the exceptor on less than all claims or on the
rights of less than all parties, the court must first determine whether: ( 1) the petition
asserts several demands or theories of recovery based on a single cause of action
arising out of one transaction or occurrence; or (2) the petition is based on several
separate and distinct causes of action arising out of separate and distinct transactions
or occurrences. Everything on Wheels Subaru, Inc., 616 So. 2d at 1242. If the
former, then the court should overrule the exception of no cause of action when the
petition states a cause of action as to any demand or theory of recovery; if the latter,
then the court should maintain the exception in part. Id.Here, Mr. Harrington' s amended petition asserts several demands and theories
of recovery based on a single cause of action arising out of one very complex
transaction or occurrence. While the specific remedy sought in the form of a
mandatory preliminary injunction may not be available to Mr. Harrington, the law
affords some remedy based on the facts alleged in the amended petition and the facts
shown in the documents annexed thereto, which are accepted as true for purposes of
the exception. See Deshotels, 226 So. 3d at 1218; see also Expert Riser Solutions,
12
LLC, 270 So.3d at 663. With more than one item of damages or theory of recovery
arising out of a single transaction or occurrence, the trial court erred in rendering a
partial judgment on the LSU Defendants' exception raising the objection of no cause
of action to dismiss one item of damages or theory ofrecovery, i.e., the mandatory
preliminary injunction. See Everything on Wheels Subaru, Inc., 6I6 So.2d at
1239. See also McGowan v. Ramey, 484 So. 2d 785, 791 ( La. App. 1 st Cir. 1986)
finding that an objection of no cause of action is not the proper procedural vehicle
to eliminate an isolated claim of relief from consideration by the court and noting
that if a court determines that a plaintiff is not entitled to certain relief, it can decline
to give it). Accordingly, we find merit in Mr. Harrington' s first assignment of error.
CONCLUSION
Based on the above and foregoing, we affirm that portion of the trial court' s
March 28, 2022 amended judgment insofar as it denied plaintiff, Colby S.
Harrington' s motion for reconsideration and/ or rehearing of the September 23, 2020
ruling on the mandatory preliminary injunction. We reverse that portion of the
judgment sustaining the peremptory exception raising the objection of no cause of
action filed by defendants, the Board of Supervisors of Louisiana State University
and Agricultural and Mechanical College, Andrea Beauchamp Carroll, Thomas C.
Galligan, P. Raymond Lamonica, and Alexander Timothy Griffin, and dismissing
plaintiff' s claim for mandatory preliminary injunction with prejudice. This matter
is remanded to the trial court for further proceedings consistent with this opinion.
All costs of this appeal in the total amount of $13, 961. 00 are assessed equally, one-
half against plaintiff Colby S. Harrington and one-half against defendants the Board
of Supervisors of Louisiana State University and Agricultural and Mechanical
College, Andrea Beauchamp Carroll, Thomas C. Galligan, P. Raymond Lamonica,
and Alexander Timothy Griffin.
AFFIRMED IN PART; REVERSED IN PART; REMANDED.
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HARRINGTON STATE OF LOUISIANA
COURT OF APPEAL
VERSUS
FIRST CIRCUIT
BOARD OF SUPERVISORS OF
LOUISIANA STATE UNIVERSITY
AND AGRICULTURAL AND
MECHANICAL COLLEGE ET AL NUMBER 2021 CA 1527
CHUTZ, J., concurring.
I disagree with the rationale set forth by the majority in its affirmance of the
trial court' s denial of the motion for reconsideration/ rehearing filed by plaintiff-
appellant, Colby Harrington, in which he sought a different result from the trial
court' s ruling on his request for a mandatory preliminary injunction against the
defendants -appellees, the Board of Supervisors of Louisiana State University and
Agricultural and Mechanical College, Andrea Carroll, Thomas Galligan, Raymond
Lamonica, and Alexander Timothy Griffin. As the majority correctly points out, the
Louisiana Code of Civil Procedure does not provide for a motion to
reconsider/rehearing of a judgment rendered by the trial court. Instead, such a motion
is generally treated as a motion for new trial. See Whitney Bank v. Rayford, 2021-
0406 ( La. App. 1 st Cir. 1219/ 21), 332 So. 3 d 1243, 1247 n.4.
Here, the trial court denied the requested mandatory preliminary injunction on
September 23, 2020, and notice of judgment issued on September 25, 2020. It was
not until November 18, 2020 that Harrington moved for rehearing/reconsideration
of that ruling. The delay for filing a motion for a new trial is not later than seven
days, exclusive of legal holidays, after the clerk has mailed notice ofjudgment. See
La. C. C. P. art. 1974. Thus, Harrington' s motion was untimely. See e.-, Harris v.
310
Louisiana Dept ofPub. Safety & Corr., 2019- 1657 ( La. App. 1 st Cir. $/3/ 20),
So -3d 211, 214 ( where a motion for reconsideration was untimely filed, it was
without effect).
Furthermore, "[ t]he articles regulating new trials ( La. [ C. C. P.] arts. 1971, et
seq.) pertain to cases which have been tried on the merits, and the articles have no
relation to interlocutory orders such as orders or,judgments bearing on preliminary
injunctions which are only rendered during the course of the proceeding and before
final judgment." .Stevens Constr. & Design, L.L. C. v St. Tammany Fire Prot. Dist.
No. 1, 2018- 1759 (La. App. 1 st Cir. 1/ 16120), 295 So.3d 9541 959, writ denied., 2020-
00977 ( La. 1114120), 303 So. 3d 650 ( quoting Morris v, Transtates Petroleum, Inc.,
258 La. 311, 322, 246 So.2d 183, 187 ( 1971)). In light of this jurisprudence and the
untimeliness of Harrington' s pleading, I believe the trial court correctly denied the
relief requested in the motion for reconsideration/ rehearing.
Since Harrington has alleged two or more items of damages or theories of
recovery arising out of the operative facts of a single transaction or occurrence, see
Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1239
La. 1993), 1 feel constrained to concur with the majority' s conclusion that the trial
court' s partial judgment, sustaining the exception of no cause of action to dismiss
only Harrington' s claim for a mandatory preliminary injunction, was reversible
error.
For these reasons, I concur,
2