Belser v. St. Paul Fire & Marine Ins. Co.

542 So. 2d 163, 1989 La. App. LEXIS 633, 1989 WL 35345
CourtLouisiana Court of Appeal
DecidedApril 11, 1989
DocketCM 88 1434
StatusPublished
Cited by17 cases

This text of 542 So. 2d 163 (Belser v. St. Paul Fire & Marine Ins. Co.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Belser v. St. Paul Fire & Marine Ins. Co., 542 So. 2d 163, 1989 La. App. LEXIS 633, 1989 WL 35345 (La. Ct. App. 1989).

Opinion

542 So.2d 163 (1989)

Robert BELSER, M.D.
v.
ST. PAUL FIRE & MARINE INSURANCE COMPANY, et al.

No. CM 88 1434.

Court of Appeal of Louisiana, First Circuit.

April 11, 1989.

Paul H. Dué, Baton Rouge, W. Hugh Sibley, Greensburg, for Robert Belser, M.D.

*164 Ernest P. Gieger, Jr., Sharon D. Smith, Margaret Diamond, New Orleans, for Extracorporeal Medical Specialties, Inc.

William E. Willard, Powers, Vaughn & Clegg, Baton Rouge, for Shiley, Inc.

Arthur H. Andrews, Funderburk & Andrews, Baton Rouge, for Aetna and Texas Medical Products, Inc.

Carey J. Guglielmo, Mathews, Atkinson, Guglielmo, Marks & Day, Baton Rouge, for Bard Cardiopulmonary.

Before WATKINS, LANIER and LeBLANC, JJ.

LANIER, Judge.

This is a motion to dismiss an appeal as untimely.

PROCEDURAL FACTS

This suit for damages was originally filed in the Twenty-First Judicial District Court (JDC) in St. Helena Parish. Made parties defendant were Dr. B. Eugene Berry, St. Paul Fire & Marine Insurance Company (St. Paul), and five foreign corporations (appellants)[1]. Dr. Berry and St. Paul filed a declinatory exception raising the objection of improper venue which was overruled by the trial court. On appeal from that judgment, this court reversed the trial court, sustained the exception and ordered this suit (insofar as it pertained to Dr. Berry and St. Paul) transferred to the Nineteenth Judicial District Court for further proceedings. Belser v. St. Paul Fire & Marine Insurance Company, 509 So.2d 12 (La.App. 1st Cir.1987). Although they were not parties to the exception and did not appear before this court on appeal, the appellants filed a petition in these proceedings in the Nineteenth Judicial District Court seeking to enjoin the plaintiff from proceeding against them in the suit in the Twenty-First Judicial District Court on the ground that this court's judgment was "binding on all parties to the instant action" and that "[i]n contravention of the judgment of the First Circuit Court of Appeal, plaintiff seeks to pursue his action in St. Helena Parish against movers herein." On January 7, 1988, the Nineteenth Judicial District Court rendered judgment denying injunctive relief to the appellants.

On February 25, 1988, the appellants filed a pleading which provided as follows:

NOTICE OF APPEAL

Notice is hereby given that Extracorporeal Medical Specialties, Inc.; Bard Cardiopulmonary; Sarns, Inc.; Shiley, Inc.; and Aetna and Texas Medical Products, Inc., defendants, appeal to the First Circuit, Court of Appeals, State of Louisiana, from the Judgment entered herein on January 7, 1988.

On April 27, 1988, the appellants filed a pleading which provided as follows:

ORDER

It Is Ordered that a devolutive appeal be granted to the defendants, Extracorporeal Medical Specialties, Inc.; Bard Cardiopulmonary; Sarns, Inc.; Shiley, Inc.; and Aetna and Texas Medical Products, Inc., and that the appeal of this case be returnable to the Court of Appeal, First Circuit, in accordance with law.
Baton Rouge, Louisiana, this 27 day of April, 1988.
[Doug Gonzales] JUDGE

Thereafter, on August 9, 1988, the Clerk of the Nineteenth Judicial District Court issued a notice of appeal, which provided as follows:

NOTICE is hereby given that on APRIL 27, 1988, upon motion of, DEFENDANTS in the above numbered and entitled cause, an order of appeal was entered granting a DEVOLUTIVE ... appeal from the judgment of JANUARY 7, 1988, which appeal is returnable to FIRST CIRCUIT COURT OF APPEAL IN ACCORDANCE WITH LAW.

Also on August 9, 1988, the following entry was made in the court minutes:

*165 TUESDAY, AUGUST 9, 1988 Division "L"
AMENDMENT TO MINUTES OF 4-27-88
On motion of counsel for defendants, an order of devolutive appeal was granted from the judgment of January 7, 1988, returnable to the First Circuit Court of Appeal in accordance with law.

On September 2, 1988, the plaintiff filed this motion to dismiss the appeal as untimely.

TIMELINESS OF APPEAL

The plaintiff asserts the appeal is untimely because (1) the petition of the appellants was for a preliminary injunction and, pursuant to La.C.C.P. art. 3612, an appeal from a judgment relating to a preliminary injunction must be taken within 15 days, and (2) the pleading filed on February 25, 1988, was not a valid motion or order for an appeal and, even if the 60 day period of La.C.C.P. art 2087 were applicable, the order of appeal entered on April 27, 1988, was not timely. Appellants respond that (1) their petition was for a permanent injunction (and not a preliminary injunction), (2) the 60 day delay for taking an appeal is applicable, (3) the pleading filed on February 25, 1988, was in fact a motion for an appeal and was timely, and (4) the filing of the order of appeal on April 27, 1988, after the 60 day period elapsed, did not affect the validity of the appeal.

The method of taking an appeal is set forth in La.C.C.P. art. 2121 as follows:

An appeal is taken by obtaining an order therefor, within the delay allowed, from the court which rendered the judgment.
An order of appeal may be granted on oral motion in open court, on written motion, or on petition. This order shall show the return day of the appeal in the appellate court and shall provide the amount of security to be furnished, when the law requires the determination thereof by the court.

When the order is granted, the clerk of court shall mail a notice of appeal to counsel of record of all other parties, to the respective appellate court, and to other parties not represented by counsel. The failure of the clerk to mail the notice does not affect the validity of the appeal.

[Emphasis added.]

The method for taking an appeal involves three procedural elements: (1) a motion or petition for appeal, (2) an order of appeal, and (3) a notice of appeal. The reason for a notice of appeal is set forth in Official Revision Comment (c) for Article 2121 as follows:

Under the 1870 Code citation of appeal was required in all cases except when the order of appeal could be, and was, granted on oral motion in open court. Under this article, no citation of appeal is necessary, but as a substitute therefor the clerk of court is required to issue or to mail notices of appeal to all appellees. Failure of the clerk to issue and to mail these notices does not affect the validity of the appeal. If the appellees receive no notices of appeal, they will be entitled to obtain a delay of the proceedings in the appellate court, if necessary.

The appellants contend that, despite its caption, the pleading of February 25, 1988, is a written motion or petition for an appeal.[2] They assert "[t]he pleading was a clear announcement to the parties and the court of the appellants' wish to take an appeal from the January 7, 1988 judgment, and pursuant to that pleading the trial court granted the order of appeal...."

Pleadings in civil actions are petitions, exceptions, written motions and answers. La.C.C.P. art. 852. A pleading should have a caption which designates what type of pleading it is. La.C.C.P. art. 853. However, a pleading is governed by its substance rather than its caption. Bryant v. Middlebrooks, 486 So.2d 188 (La. App. 1st Cir.1986).

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Cite This Page — Counsel Stack

Bluebook (online)
542 So. 2d 163, 1989 La. App. LEXIS 633, 1989 WL 35345, Counsel Stack Legal Research, https://law.counselstack.com/opinion/belser-v-st-paul-fire-marine-ins-co-lactapp-1989.