Dalton John Meaux v. Elizabeth Hensgens Miller

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

09-1018

DALTON JOHN MEAUX VERSUS ELIZABETH HENSGENS MILLER, ET AL.

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APPEAL FROM THE

FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF VERMILION, NO. 87119-C HONORABLE EDWARD B. BROUSSARD, DISTRICT JUDGE

********** JOHN D. SAUNDERS

JUDGE

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Court composed of John D. Saunders, Marc T. Amy, and James T. Genovese, Judges.

RULE RECALLED. APPEAL MAINTAINED.

Matthew D. Lane, Jr. Gordon, Arata, McCollam, Duplantis & Eagan, L.L.P. Post Office Box 81829 Lafayette, LA 70598 (337) 237-0132 COUNSEL FOR PLAINTIFF/APPELLANT:

Dalton John Meaux

Beverly K. Baudouin Bernard Hayne Ticer, II Baldwin, Haspel, Burke and Mayer, L.L.C. 1100 Poydras Street, 22nd Floor New Orleans, LA 70163 (504) 569-2900 COUNSEL FOR DEFENDANTS/APPELLEES:

Noble Royalties, Inc. The Noble Grantees

Frank John Reeks, Jr. Lemle & Kelleher 401 Edwards Street, 10th Floor Shreveport, LA 71101 (318) 227-1131 COUNSEL FOR DEFENDANT/APPELLEE:

Eagle Rock Production, L.P.

Michael R. Mangham Mangham & Hardy 406 Audubon Boulevard, # A Lafayette, LA 70503 (337) 233-6200 COUNSEL FOR DEFENDANTS/APPELLEES:

Elizabeth Miller Hensgens Charles Nicholas Hensgens Craig Robert Hensgens Mary Elizabeth Hensgens Hetzel Catherine Elaine Hensgens Cramer Brian Keith Hensgens Karl Jude Hensgens

SAUNDERS, Judge.

This court issued, sua sponte, a rule ordering the Plaintiff-Appellant, Dalton

John Meaux, to show cause, by brief only, why the appeal in this matter should not

be dismissed as premature. On September 10, 2009, this court received Appellant’s

response to the rule. For the reasons given herein, we hereby recall the rule and

maintain the appeal.

On June 3, 2009, the trial court signed a judgment granting an exception of

prescription and dismissing Appellant’s possessory action as to Appellees, Noble

Royalties, Inc. and The Noble Grantees. Notice of the judgment was mailed to the

parties on June 16, 2009. Appellant filed a Motion for New Trial on June 19, 2009.

The trial court did not sign the order attached to the motion. A diagonal line was

drawn across the proposed order to show cause, and the word “moot” was written on

the line. No hearing was held on the motion.

Appellant filed a motion for devolutive appeal on June 22, 2009, and the order

granting the appeal was signed on June 24, 2009. The record in this case was lodged

in this court on August 25, 2009.

Louisiana Code of Civil Procedure Article 1918 provides, in pertinent part, that

“[a] final judgment shall be identified as such by appropriate language.” In the case

at bar, the only language on the purported judgment is the word “moot” written on the

rule to show cause order. As such, it appeared that pursuant to Egle v. Egle, 05-531

(La.App. 3 Cir. 2/8/06), 923 So.2d 780, the statutory requirement set forth in La.Code

Civ.P. art. 1918 had not been satisfied. Also, the appeal appeared to be premature in

light of La.Code Civ.P. art. 2087(D), which provides that “[a]n order for appeal is

premature if granted before the court disposes of all timely filed motions for new trial

or judgment notwithstanding the verdict.”

However, in response to this court’s order that Appellant show cause why his

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appeal should not be dismissed as premature, Appellant states that on June 18, 2009,

Appellant’s counsel sent a letter to the Vermillion Parish Clerk of Court withdrawing

his motion for new trial and submitting his motion for appeal. In light of said

withdrawal, this court finds that at the time when the motion for appeal was granted,

there was no outstanding motion for new trial pending. As such, we find that the

appeal is not premature and should be allowed to proceed.

RULE RECALLED. APPEAL MAINTAINED.

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