Preserving errors in trial court’s reasons for judgment
Motion for new trial not a prerequisite to appeal

Additur, remittitur, and acquiescence

Code of Civil Procedure art. 1814 authorizes a trial court to grant an additur or remittur if the court believes that the verdict is so excessive or inadequate that a new trial should be granted for that reason alone. In such cases, the trial court must give the party adversely affected by the additur or remittur the opportunity to consent to it as an alternative to a new trial on quantum. That is, the additur may be granted only with the defendant’s consent, and a remittitur may be granted only with the plaintiff’s consent. See Accardo v. Cenac, 722 So. 2d 302, 306 (La. App. 1 Cir. 1998).

Consenting to an additur or remittitur makes lawyers nervous. The reason is that, under La. Code Civ. P. art. 2085, an appeal cannot be taken by a party who voluntarily and unconditionally acquiesced in an adverse judgment. If you consent to an additur or remittitur, have you acquiesced in the judgment and lost your right to appeal the amount of damages?

In 1975, the Louisiana Supreme Court answered this question in the affirmative. In Miller v. Chicago Insurance Co., 320 So. 2d 134 (La. 1975), the Court held that a defendant who agreed to an additur or a plaintiff who agreed to a remittitur, while not losing the right to appeal entirely, lost the right to appeal the amount of damages. Any right of a party agreeing to an additur or remittitur to complain of the amount of damages was limited to answering the other side’s appeal.

Nine years later, the Louisiana Legislature amended La. Code Civ. P. art. 2083 to allow appeal of "a judgment reformed in accordance with an additur or remittitur. See 1984 La. Acts No. 59. The intermediate appellate courts have interpreted this legislation as overruling Miller and allowing a party who agreed to an additur or remittitur to appeal the award of damages. See Karl v. Amoco Prod. Co., 492 So. 2d 1279, 1280 (La. App. 3 Cir. 1986)Accardo v. Cenac, 722 So. 2d at 307 n. 3. In a similar vein, the court in Hodapp v. Am. Indem. Co., 618 So. 2d 32, 35 (La. App. 3 Cir. 1993), held that a defendant who agreed to and paid an additur retained the right to appeal damages.

This interpretation is supported by a 1989 comment accompanying the reenactment of La. Code Civ. P. art. 1814. According to comment (b), the article’s purpose is to “serve[ ] judicial efficiency by allowing the parties to avoid a possibly unnecessary new trial and then to seek appellate review of the correctness of the judgment reformed by additur or remittitur.”


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