Alva Longino v. the City of Oakdale

• Court: Louisiana Court of Appeal
• Decided: July 28, 2021
• Docket: CA-0021-0296
• Status: Unknown

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

CA 21-296

ALVA LONGINO

VERSUS

THE CITY OF OAKDALE, ET AL.

**********

APPEAL FROM THE THIRTY-THIRD JUDICIAL DISTRICT COURT PARISH OF ALLEN, NO. C-2018-513 HONORABLE JUDI F. ABRUSLEY, DISTRICT JUDGE

JOHN E. CONERY

JUDGE

Court composed of Billy H. Ezell, John E. Conery, and D. Kent Savoie, Judges.

MOTION TO DISMISS APPEAL DENIED. Bradley Charles Myers Kean Miller L.L.P. Post Office Box 3513 Baton Rouge, LA 70821-3513 (225) 387-0999 COUNSEL FOR DEFENDANT/APPELLEE: Risk Management, Inc.

Gregory W. Belfour Post Office Box 1930 Lake Charles, LA 70602 (337) 439-8315 COUNSEL FOR DEFENDANT/APPELLEE: Oakdale Housing Authority

Jonathan Clyde Vidrine Vidrine & Associates Post Office Drawer 1019 Ville Platte, LA 70586 (337) 363-2772 COUNSEL FOR PLAINTIFF/APPELLANT: Alva Longino

Randall Brian Keiser Keiser Law Firm, P.L.C. Post Office Box 12358 Alexandria, LA 71315 (318) 443-6168 COUNSEL FOR DEFENDANT/APPELLEE: The City of Oakdale CONERY, Judge.

Appellees-Defendants, the City of Oakdale and Housing Authority of the City

of Oakdale, filed a Joint Motion to Dismiss Appeal, asserting therein that the appeal

is untimely and was taken from a non-appealable interlocutory judgment. Appellees

then filed a Motion to Withdraw First Motion to Dismiss Appeal, Second Joint

Motion to Dismiss Appeal with Incorporated Memorandum in Support and

Alternative Motion to Refix Briefing Deadlines, stating that they withdrew the first

motion with regard to timeliness but not as to the attempted appeal of a non-

appealable judgment. Appellees then assert that the appeal should be dismissed as

abandoned for Appellant’s failure to file an appellate brief. For the reasons set forth

herein, we deny the motion to dismiss.

This case arises from a slip and fall accident that occurred on December 10,

2017, when Appellant was walking in a parking lot of an apartment complex owned

and maintained by Appellees. As a result of injuries sustained in the accident,

Appellant filed suit against the Appellees and Risk Management, Inc. Appellees

filed a Joint Motion for Summary Judgment on March 16, 2020. The motion was

heard on July 1, 2020, and granted in a written Judgment signed on December 15,

2020.

Appellant filed a Motion for New Trial and/or Reconsideration on December

22, 2020. Following a hearing held on January 20, 2021, the motion was denied. A

written Judgment on Motion for New Trial was signed on January 29, 2021, and

Notice of Judgment was served on Appellant on February 12, 2021. Appellant filed

a Motion and Order for Devolutive Appeal on April 8, 2021, and an appeal was

granted on April 9, 2021.

In Appellees’ Joint Motion to Dismiss Appeal, they argue that Appellant

attempts to appeal a judgment denying a motion for new trial which is a non- appealable interlocutory judgment. See McClure v. City of Pineville, 05-1460

(La.App. 3 Cir. 12/6/06), 944 So.2d 805, writ denied, 07-43 (La. 3/9/07), 949 So.2d

446. We note that in Appellant’s Motion and Order for Devolutive Appeal, it is

unclear whether he seeks review of the trial court’s denial of his Motion for New

Trial and/or Reconsideration only. Appellant states in his motion:

1. Notice of Signing Judgment was signed in the above captioned matter on January 29, 2021.

2. Petitioner will not file a Motion for New Trial.

3. Petitioner, ALVA LONGINO, desires to appeal devolutively from the final judgment rendered in this action to the Court of Appeal, 3rd Circuit, State of Louisiana.

Appellant does not specifically refer to the ruling on Appellee’s motion for

summary judgment but states that he “desires to appeal devolutively from the final

judgment rendered in this action[.]” However, in his appellate brief, Appellant seeks

review of both the summary judgment and the denial of his motion for new trial.

“Although the denial of a motion for new trial is generally a non-appealable

interlocutory judgment, the court may consider interlocutory judgments as part of an

unrestricted appeal from a final judgment.” Babineaux v University Medical Center,

15-292, p. 4 (La.App. 3 Cir. 11/4/15), 177 So.3d 1120, 1123. (Citation omitted).

Since it appears that Appellant intended to appeal both the summary judgment and

the motion denying him a new trial, we find that Appellant is entitled to seek review

of all adverse interlocutory judgments prejudicial to him in addition to the review of

the final judgment.

Next, a thirty-day order was issued to Appellant, instructing him to file his

appellate brief by July 17, 2021, to avoid the dismissal of his appeal. Appellant’s

brief was filed timely on July 15, 2021. As such, Appellees’ argument that the

2 appeal should be deemed abandoned and dismissed for Appellant’s failure to file his

appellate brief is rendered moot.

MOTION TO DISMISS APPEAL DENIED.

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION. Uniform Rules―Courts of Appeal, Rule 2-16.3.