Delores Galland v. Jon Bladel

• Court: Louisiana Court of Appeal
• Decided: July 28, 2010
• Docket: CA-0010-0650
• Status: Unknown

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

10-650

DELORES GALLAND VERSUS JON BLADEL, BLADEL ENTERPRISE, L.L.C., AND BLADEL HOMES, L.L.C.

********** APPEAL FROM THE MARKSVILLE CITY COURT PARISH OF AVOYELLES, NO. C-10-20 HONORABLE ANGELO J. PIAZZA, III, CITY COURT JUDGE

********** BILLY H. EZELL JUDGE

**********

Court composed of Billy H. Ezell, Shannon J. Gremillion, and David E. Chatelain*, Judges.

MOTION TO DISMISS APPEAL DENIED.

Thomas D. Davenport Attorney at Law 1628 Metro Drive Alexandria, Louisiana 71301 (318) 445-9696 COUNSEL FOR DEFENDANTS/APPELLANTS: Jon Bladel Bladel Enterprise, L.L.C. Bladel Homes, L.L.C.

___________________ *Judge David E. Chatelain, participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore. Derek Paul Manuel Attorney at Law, P.L.L.C. 115 East Ogden Street Marksville, Louisiana 71352 (318) 717-1199 COUNSEL FOR PLAINTIFF/APPELLEE: Delores Galland EZELL, Judge.

The Plaintiff-Appellee, Delores Galland, moves to dismiss this appeal, in whole

or in part, on the ground that the appeal was not filed timely. For the reasons given

herein, we deny the motion.

Plaintiff filed suit in Marksville City Court alleging that Defendants, Jon

Bladel; Bladel Enterprise, L.L.C.; and Bladel Homes, L.L.C., owe her money for

work that she performed for them. Defendants were not present in court when trial

was held on February 11, 2010. On February 11, 2010, the trial court signed a money

judgment ordering one of the Defendants, Jon Bladel, to pay Plaintiff $3,121.95, plus

interest and costs. On April 8, 2010, the trial court signed an amended judgment

finding that all Defendants are liable to Plaintiff in the amount of $3,881.31, plus

interest and costs. The record does not contain any documentation that notice of the

original judgment or the amended judgment was mailed to the parties.

On May 10, 2010, Defendants filed a motion for a suspensive appeal, and the

trial court signed an order of appeal on that same day. The appeal was lodged in this

court on May 27, 2010. On July 9, 2010, Plaintiff filed a motion to dismiss the

appeal.

In her motion to dismiss the appeal, Plaintiff asserts that Defendants’ appeal

was filed untimely. Plaintiff points out that Defendants’ motion for appeal indicates

that they are seeking to appeal both the trial court’s original judgment of February 11,

2010, and the amended judgment of April 8, 2010. Plaintiff argues that the May 10,

2010, motion for appeal is untimely because it was filed well beyond the thirty days

allowed for filing a suspensive appeal and the sixty days allowed for filing a

devolutive appeal. As such, Plaintiff seeks to have this court dismiss the entire

appeal as untimely or, alternatively, to dismiss that part of the appeal pertaining to the

original judgment.

1 The time delay for seeking an appeal from a judgment rendered by a city court

when no motion for new trial is filed is set forth in La.Code Civ.P. art. 5002, which

provides, in pertinent part, that “[a]n appeal from a judgment rendered by a city court

or a parish court may be taken only within ten days from the date of the judgment or

from the service of notice of judgment, when such notice is necessary.” In the instant

case, the initial judgment was rendered against Defendants in open court on February

11, 2010, and the judgment was signed that same day. Because Defendants were not

present in court, we find that notice of judgment was required in this case. La.Code

Civ.P. art. 1913. However, the record is devoid any evidence that notice of the

judgment was ever mailed to the parties for either the original judgment or the

amended judgment. Accordingly, we find that the ten-day appeal delay had not

commenced to run when Defendants filed their motion for appeal. Therefore, we hold

that Defendants’ motion for appeal was not filed untimely, and we deny Plaintiff’s

motion to dismiss the appeal.

Additionally, we note that Plaintiff has requested that this court suspend the

deadline for Plaintiff to submit her brief to this court. However, because the record

reveals that Plaintiff submitted her brief to this court on July 13, 2010, we find the

request for a suspension of the briefing deadlines to be moot.

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