Brett S. Casimer Versus Paul D. Connick, Jr., District Attorney for the 24th Judicial District Court; Parish of Jefferson State of Louisiana

• Court: Louisiana Court of Appeal
• Decided: November 6, 2019
• Docket: 19-CA-202
• Status: Unknown

Opinion

BRETT S. CASIMER NO. 19-CA-202

VERSUS FIFTH CIRCUIT

PAUL D. CONNICK, JR., DISTRICT COURT OF APPEAL ATTORNEY FOR THE 24TH JUDICIAL DISTRICT COURT; PARISH OF JEFFERSON, STATE OF LOUISIANA STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 766-414, DIVISION "P" HONORABLE LEE V. FAULKNER, JR., JUDGE PRESIDING

November 06, 2019

JUDE G. GRAVOIS JUDGE

Panel composed of Judges Jude G. Gravois, Robert A. Chaisson, and Hans J. Liljeberg

APPEAL DISMISSED JGG RAC HJL COUNSEL FOR PLAINTIFF/APPELLANT, BRETT S. CASIMER Brett S. Casimer

COUNSEL FOR DEFENDANT/APPELLEE, PAUL D. CONNICK, JR., DISTRICT ATTORNEY FOR THE 24TH JUDICIAL DISTRICT COURT; PARISH OF JEFFERSON STATE OF LOUISIANA Paul D. Connick, Jr. Terry M. Boudreaux David B. Wheeler GRAVOIS, J.

Plaintiff/appellant Brett S. Casimer1 appeals a final judgment rendered by

the district court on October 12, 2018 which found that his request for public

records had been fulfilled and dismissed his suit against the District Attorney for

the Parish of Jefferson, the Jefferson Parish Sheriff’s Office, and the Clerk of Court

for the 24th Judicial District Court with prejudice. For the following reasons, we

find that this appeal is untimely, and accordingly, we dismiss this appeal.

FACTS AND PROCEDURAL HISTORY

In 2016, plaintiff Brett S. Casimer brought this mandamus suit against the

District Attorney for the Parish of Jefferson, seeking to obtain his entire criminal

file from the District Attorney in order to aid in his preparation of a post-

conviction relief application.2 In the course of that proceeding, Mr. Casimer

amended his petition twice to add as defendants the Jefferson Parish Sheriff’s

Office and the Clerk of Court for the 24th Judicial District Court. Pertinent to this

proceeding, following a hearing on October 12, 2018 with all parties present, a

final judgment was rendered that same day declaring that the amended and

supplemental writ of mandamus filed against the parties was fully satisfied and

further ordering that “all parties be and are hereby dismissed with prejudice.”3

Previously, in the same suit, the trial court had issued a judgment on August

14, 2017 which dismissed the suit against the Sheriff, which Mr. Casimer

appealed. Casimer v. Connick, 17-669 (La. App. 5 Cir. 6/27/18), 250 So.3d 393.

This Court noted that the appealed judgment dismissed only the District Attorney

1 In the multiple criminal and civil proceedings, appellant’s name is variously spelled as both “Casimer” and “Casimir.” 2 Mr. Casimer was convicted of one count of forcible rape and one count of second degree kidnapping. This Court affirmed his conviction on appeal. State v. Casimer, 12-678 (La. App. 5 Cir. 3/13/13), 113 So.3d 1129. He did not seek review with the Supreme Court. Mr. Casimer has filed at least one previous application for post- conviction relief that was denied and for which he sought review in this Court. This Court denied that application for review. State v. Casimer, 15-KH-181 (La. App. 5 Cir. 5/13/15) (unpublished writ disposition). 3 This ruling was captioned as an “Order” but nonetheless is a final judgment containing the proper decretal language.

19-CA-202 1 and not the Clerk of Court or the Sheriff’s Office. This Court vacated the

judgment and remanded the matter for further proceedings, finding that under the

procedural posture of the case, it was not appropriate for the trial court to partially

dispose of the amended writs of mandamus without the participation of all

necessary parties in the contradictory hearing. Id. at 396.

At the proceedings on remand, the Clerk of Court’s Office and the Sheriff’s

Office, as well as the District Attorney, appeared and participated in hearings in

September and October of 2018. The October 12, 2018 judgment dismissed all

parties with prejudice. The record reflects that notice of this judgment was mailed

to Mr. Casimer on October 16, 2018.

Thereafter, on October 30, 2018, Mr. Casimer filed a pleading entitled

“Notice of Intent to Seek Writs,” declaring his intent to seek review of a judgment

dated August 14, 2017.4 It is noted that this August 14, 2017 judgment is the same

judgment that Mr. Casimer previously appealed in Casimer v. Connick, supra. It

appears that this date may have been a typographical error or the result of Mr.

Casimer’s altering the motion for appeal he used in 2017 in his first appeal. On

October 30, 2018, the district court signed the Order attached to the notice of

intent, granting Mr. Casimer until November 29, 2018 within which to apply for

supervisory writs to this Court. Service information in the record indicates that

Mr. Casimer was served with notice of the return date on November 16, 2018.

On December 12, 2018, Mr. Casimer filed in the district court a pleading

entitled “Motion for Disposition or Ruling,” wherein he noted the final judgment

of October 12, 2018 and that he had filed a notice of intent. He alleged therein that

the district court had failed to respond to his notice of intent. (However, as noted

above, the record reflects that Mr. Casimer was served on November 16, 2018 with

4 The record shows a stamped filing date of October 30, 2018, but the certificate Mr. Casimer attached to the filing shows that he signed the attached certificate of service on October 23, 2018.

19-CA-202 2 the court’s ruling granting his notice of intent and setting November 29, 2018 as

the return date.) The motion’s prayer, however, asks for obscure relief, and does

not clearly seek additional time within which to file a writ or an appeal. The trial

court denied the motion on December 14, 2018, stating in its own order that it was

unable to determine the relief Mr. Casimer sought from the court in his motion.

Thereafter, on February 12, 2019, Mr. Casimer filed a “Motion to Annul

Final Judgement and Reinstate Appeal Time” in which he refers to the October 30,

2018 notice of intent as pertaining to the October 12, 2018 judgment, further

noting that the October 12, 2018 judgment was a “final judgment.” The Motion

also seeks more evidence allegedly in possession of the Jefferson Parish Sheriff’s

Office or the Jefferson Parish Crime Lab, referencing subsequent requests for

records Mr. Casimer made to those offices after the October 12, 2018 final

judgment.5 The motion does not seek to annul any particular judgment and does

not seek reinstatement of appeal time, despite its title and caption.6 The trial court

denied the motion without reasons on February 14, 2019.

Finally, on April 2, 2019, Mr. Casimer filed a “Notice of Intent to File

Suspensive Appeal and Order of Appeal,” which referenced multiple pleadings in

the record and several prior “final order[s]” in the record, including the October 12,

2018 order, but not specifying which (any or all) prior order of the court might be

the subject of the appeal. The trial court signed the attached order, granting the

“suspensive” appeal and setting a “due date” of May 9, 2019 within which to file

5 Mr. Casimer notes therein that he filed another request for public records on December 13, 2018, seeking items allegedly referenced by the witness Elaine Schneida at the October 12, 2018 hearing on this matter. However, it is unclear whether this was a post-dismissal filing in this suit, or a new matter. Mr. Casimer did file a new suit captioned Casimir v. Joseph Lopinto III, Sheriff of Jefferson, No. 791-794, 24th Judicial District Court, which also seeks public records. 6 The prayer states: “WHEREFORE, for the good cause shown in the interest of justice and fundamental fairness, Petitioner prays that this Honorable Court will issue an order directing that any and all evidence in possession of the Jefferson Parish Sheriff’s Office, including the Jefferson Parish Crime Lab to be provided in accordance with Louisiana law.”

19-CA-202 3 the appeal in this Court. The appellate record was lodged in this Court on May 3,

2019.

ANALYSIS

The appeal delays found in La. C.C.P. art. 2087 are not prescriptive periods

that are subject to interruption; rather, these time limits are jurisdictional. An

appellant’s failure to file an appeal timely is a jurisdictional defect in that neither

the court of appeal nor any other court has the jurisdictional power and authority to

reverse, revise, or modify a final judgment after the time for filing a devolutive

appeal has elapsed. Par. of Jefferson v. McGee, 11-76 (La. App. 5 Cir. 5/24/11),

67 So.3d 640, 642, citing Harper v. Eschenazi, 04-863 (La. App. 5 Cir. 12/28/04),

892 So.2d 671, 673.

The trial court’s October 12, 2018 Order, dismissing all parties with

prejudice, is clearly a final judgment under La. C.C.P. art. 1841.7 It is noted that

Mr. Casimer filed a notice of intent on October 30, 2018 seeking time within

which to file a writ of supervisory review, rather than a motion for an appeal of a

final judgment.8 As noted above, on October 30, 2018, the district court signed the

Order attached to the notice of intent, granting Mr. Casimer until November 29,

2018 within which to apply for supervisory writs to this Court. Service

information in the record indicates that Mr. Casimer was served with notice of the

return date on November 16, 2018. Importantly, Mr. Casimer did not proceed to

subsequently file a writ application with this Court. Therefore, Mr. Casimer’s

7 La. C.C.P. art. 1841 provides: A judgment is the determination of the rights of the parties in an action and may award any relief to which the parties are entitled. It may be interlocutory or final. A judgment that does not determine the merits but only preliminary matters in the course of the action is an interlocutory judgment. A judgment that determines the merits in whole or in part is a final judgment. 8 It is noted that in his previous appeal, Mr. Casimer filed a motion for an appeal after the final judgment of August 14, 2017 that was timely, unambiguous, and comprehensible, clearly seeking appellate review of that judgment. Accordingly, defendant has previously demonstrated an understanding of the procedural requirements for taking an appeal.

19-CA-202 4 notice of intent filed on October 30, 2018 cannot be construed as a timely-filed

motion for an appeal of the trial court’s October 12, 2018 Order.

Further, Mr. Casimer’s “Motion for Disposition or Ruling,” filed on

December 12, 2018, cannot be construed as a timely-filed motion for an appeal, as

he did not seek such relief therein. The same can be said with respect to the

“Motion to Annul Final Judgement and Reinstate Appeal Time” filed by Mr.

Casimer on February 12, 2019. As noted above, that motion does not seek to annul

any particular judgment and does not seek reinstatement of appeal time, despite its

title and caption.

Mr. Casimer’s Notice of Intent filed on April 2, 2019 lists several of the trial

court’s final orders therein, including the one rendered on October 12, 2018 which

dismissed his case with prejudice. Even if such notice of intent were to be

construed as a motion for an appeal of the October 12, 2018 judgment, it was filed

well beyond the appeal delays for devolutive appeals established in La. C.C.P. art.

2087.9

Upon review, in light of the above, we find that the Notice of Intent filed on

April 2, 2019 is not a timely-filed motion for an appeal to seek appellate review of

the final judgment of October 12, 2018, which dismissed Mr. Casimer’s public

records request against all parties with prejudice. Accordingly, this appeal is

untimely under La. C.C.P. art. 2087.

9 La. C.C.P. art. 2087 provides, in pertinent part: A. Except as otherwise provided in this Article or by other law, an appeal which does not suspend the effect or the execution of an appealable order or judgment may be taken within sixty days of any of the following: (1) The expiration of the delay for applying for a new trial or judgment notwithstanding the verdict, as provided by Article 1974 and Article 1811, if no application has been filed timely. (2) The date of the mailing of notice of the court’s refusal to grant a timely application for a new trial or judgment notwithstanding the verdict, as provided under Article 1914.

19-CA-202 5 CONCLUSION

For the foregoing reasons, this appeal is dismissed as untimely.

APPEAL DISMISSED

19-CA-202 6 SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

MARY E. LEGNON FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON SUSAN BUCHHOLZ STEPHEN J. WINDHORST FIRST DEPUTY CLERK HANS J. LILJEBERG JOHN J. MOLAISON, JR. FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX www.fifthcircuit.org

NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY NOVEMBER 6, 2019 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

19-CA-202 E-NOTIFIED 24TH JUDICIAL DISTRICT COURT (CLERK) HON. LEE V. FAULKNER, JR. (DISTRICT JUDGE) TERRY M. BOUDREAUX (APPELLEE) DARREN A. ALLEMAND (APPELLEE) DAVID B. WHEELER (APPELLEE) THOMAS J. BUTLER (APPELLEE)

MAILED BRETT S. CASIMER #590811 (APPELLANT) HON. PAUL D. CONNICK, JR. (APPELLEE) IN PROPER PERSON DISTRICT ATTORNEY ALLEN CORRECTIONAL CENTER TWENTY-FOURTH JUDICIAL DISTRICT 3751 LAUDERDALE WOODYARD ROAD 200 DERBIGNY STREET KINDER, LA 70648 GRETNA, LA 70053