City of Lafayette v. Daphanie Comeaux AKA Daphanie Curry Tilghman

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

10-48

CITY OF LAFAYETTE VERSUS DAPHANIE COMEAUX A.K.A. DAPHANIE CURRY TILGHMAN

********** APPEAL FROM THE LAFAYETTE CITY COURT PARISH OF LAFAYETTE, NO. SC1998-1862 HONORABLE FRANCES M. BOUILLION, CITY COURT JUDGE

********** J. DAVID PAINTER JUDGE

**********

Court composed of Oswald A. Decuir, J. David Painter, and David E. Chatelain*, Judges.

APPEAL DISMISSED.

David Smith Lafayette Parish District Attorney’s Office Post Office Box 3306 Lafayette, Louisiana 70502 (337) 232-5170 COUNSEL FOR PLAINTIFF/APPELLEE: City of Lafayette

____________________ *Judge DAVID E. CHATELAIN, participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore. Randy J.Lassiegne Attorney at Law Post Office Box 5313 Lafayette, Louisiana 70502 (337) 233-1720 COUNSEL FOR INTERVENORS/APPELLANTS: Safety National Casualty Corporation and A-Able Bonding, Inc.

Daphanie Comeaux a.k.a. Daphanie Curry Tilghman 915 South College Street, Apt. 102 Lafayette, Louisiana 70506 DEFENDANT/APPELLEE: In Proper Person PAINTER , Judge.

This court issued, sua sponte, a rule ordering the Appellants, Safety National

Casualty Corporation and A-Able Bonding, Inc., to show cause, by brief only, why

the appeal in this matter should not be dismissed as untimely. On February 25, 2010,

this court received Appellants’ response to the rule. For the reasons given herein, we

hereby dismiss the appeal.

Appellants issued bonds securing the appearance of Defendant, Daphanie

Comeaux a.k.a. Daphanie Curry Tilghman, at court hearings pertaining to criminal

charges which had been filed against her for the issuance of worthless checks.

Because Defendant failed to appear at a hearing in Lafayette City Court on February

10, 2009, a bench warrant was issued and bond forfeiture was issued and signed on

February 17, 2009. The notice of judgment was mailed on February 19, 2009.

On November 5, 2009, Appellants filed a motion for appeal. When the appeal

was lodged in this court, it appeared that Plaintiff was seeking to appeal the trial

court’s bond forfeiture ruling of February 17, 2009. Because La.Code Civ.P. art.

5002 provides for a ten-day appeal delay for judgments rendered by a city court, and

because Appellants filed their motion for appeal on November 5, 2009, more than

eight months after the mailing of notice of judgment for the trial court’s judgment of

February 17, 2009, this court issued a rule to show cause why the appeal should not

be dismissed as untimely.

In response to this court’s order that Appellants show cause why their appeal

should not be dismissed as untimely, Appellants contend that they are not seeking to

appeal the trial court’s ruling of February 17, 2009. Rather, Appellants contend that

they are seeking to appeal another ruling which the trial court rendered on October

13, 2009. In that regard, Appellants point out that on August 20, 2010, they

surrendered Defendant to the Lafayette Parish Correctional Facility, and that, on

1 September 11, 2009, they filed a Motion To Be Relieved of Bond Obligation.

Appellants maintain that following a hearing, the trial court denied their Motion To

Be Relieved of Bond Obligation in open court. According to Appellants, the appeal

delay has not commenced to run because no written judgment was ever signed by the

trial court. Thus, Appellants argue that the motion for appeal was filed out of an

abundance of caution but was not filed untimely. Appellants cite State v. Jones,

02-813 (La.App. 3 Cir. 12/11/02), 832 So.2d 1203, in support of their position that

notice of judgment was required and that the ten-day appeal delay set forth in

La.Code Civ.P. art. 5002 will not commence to run until after notice of judgment is

mailed.

Even accepting that Appellants are not appealing the February 17, 2009

judgment, Appellants motion for appeal, nonetheless, was filed prematurely because

no written judgment has been signed in connection with the ruling made in open court

on October 13, 2009. See La.Code Civ.P. art. 1911. Accordingly, the appeal is

hereby dismissed without prejudice. Costs of this appeal are to be paid by the

Appellants.

This opinion is NOT DESIGNATED FOR PUBLICATION. Rules 2-16.2 and 2-16.3, Uniform Rules, Courts of Appeal.