Harold Lee v. State of Louisiana, Thru the dept.of Corr.

• Court: Louisiana Court of Appeal
• Decided: November 3, 2010
• Docket: CA-0010-1013
• Status: Unknown

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

10-1013

HAROLD LEE

VERSUS

STATE OF LOUISIANA, THROUGH THE DEPARTMENT OF CORRECTIONS, ET AL.

********** APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 225,547 HONORABLE MARY LAUVE DOGGETT, DISTRICT JUDGE

********** JAMES T. GENOVESE JUDGE

**********

Court composed of Billy H. Ezell, James T. Genovese, and Shannon J. Gremillion, Judges.

MOTION TO PARTIALLY DISMISS APPEAL GRANTED.

Shawanna Marie Johnson S. Marie Johnson, L.L.C. Post Office Box 14103 New Iberia, LA 70562 (337) 256-3055 COUNSEL FOR PLAINTIFF/APPELLANT: Harold Lee Lloyd Frederick Schroeder, II Usury, Weeks, & Mathews, A.P.L.C. 1615 Poydras Street, Suite 1250 New Orleans, LA 70112 (504) 592-4600 COUNSEL FOR DEFENDANT/APPELLEE: William Earl Hilton, Sheriff

John Albert Ellis Louisiana Department of Justice Litigation Division 130 DeSiard Street, Suite 812 Monroe, LA 71201 (318) 362-5252 COUNSEL FOR DEFENDANT/APPELLEE: State of Louisiana through the Department of Corrections

Steven Patrick Mansour Attorney at Law Post Office Box 13557 Alexandria, LA 71315 (318) 442-4855 COUNSEL FOR DEFENDANT/APPELLEE: Rapides Parish Police Jury GENOVESE, Judge.

The Defendant-Appellee, former Rapides Parish Sheriff William Earl Hilton,

has filed a Motion forPartial Dismissal for Lack of Jurisdiction. For the reasons

given herein, we hereby grant the Motion for Partial Dismissal of the appeal.

This case involves a personal injury action which Plaintiff, Harold Lee, filed

against Rapides Parish, the Rapides Parish Sheriff, and the State of Louisiana through

the Department of Corrections (the State of Louisiana). Allegedly, Plaintiff was

injured when some boards fell on him while he was working for a private employer

as part of a work release program established by the former sheriff (hereinafter

“Hilton”).

The defendants were granted summary judgments at different times during the

course of the proceedings in the trial court. Plaintiff’s claims against Hilton were

dismissed in a judgment dated May 6, 2010. The notice of judgment was mailed on

May 12, 2010. Subsequently, a summary judgment was granted in favor of the State

of Louisiana. The judgment dismissing Plaintiff’s claims against the State was signed

on July 12, 2010, and the notice of judgment was mailed on July 13, 2010.

On July 23, 2010, Plaintiff filed a motion for appeal indicating his intention to

appeal the trial court’s judgment rendered on July 12, 2010, and naming Hilton and

the State of Louisiana as appellees. The trial court signed the order of appeal on July

27, 2010. The appeal record was lodged in this court on August 20, 2010.

On October 14, 2010, Hilton filed the instant motion seeking to be dismissed

as an appellee in this appeal. Hilton takes the position that this court has no

jurisdiction over an appeal as to the summary judgment granted in favor of Hilton in

the trial court’s ruling of May 6, 2006. According to Hilton, the only judgment which

is at issue in this appeal is the trial court’s ruling of July 12, 2010, granting summary

judgment in favor of the State of Louisiana. In that regard, Hilton points out that the motion for appeal specifically references the judgment rendered on July 12, 2010, and

that the notice of appeal indicates that the order of appeal granted an appeal only from

the judgment of July 12, 2010. Also, Hilton points out that the transcript prepared as

part of the appeal record pertains only to the hearing on July 12, 2010, involving the

summary judgment which was granted in favor of the State of Louisiana. Hilton

contends that since the summary judgment granted in its favor involved a separate

hearing and separate judgment signed on May 6, 2010, Plaintiff’s appeal, which

references only the judgment of July 12, 2010, does not include the judgment

rendered in favor of Hilton.

Citing Clark v. Mangham, Hardy, Rolfs and Abadie, 30,471 (La.App. 2 Cir.

2/24/99), 733 So.2d 43, and Bamburg v. St. Francis Medical Center, 45,024 (La.App.

2 Cir. 1/27/10), 30 So.3d 1071, writ denied, 10-458 (La. 4/30/10), 34 So.3d 294,

Hilton asserts that an appellant must obtain an order of appeal for each final judgment

sought to be appealed. Thus, Hilton contends that when the motion for appeal

specifies one, but not the other, of two judgments rendered against an appellant, the

court of appeal does not have jurisdiction to hear the appeal of the judgment which

was not specifically referenced in the motion for appeal.

Additionally, Hilton argues that at the time when Plaintiff filed its motion to

appeal on July 23, 2010, the deadline for appealing the May 6, 2010 judgment

rendered in Hilton’s favor had passed. In that regard, Hilton contends that since the

notice of judgment for the May 6, 2010 judgment was mailed on May 12, 2010, the

seven day delay for filing a motion for new trial in connection with the May judgment

expired on May 21, 2010. As such, Hilton maintains that the sixty-day delay for

taking a devolutive appeal from that judgment expired on July 20, 2010. Thus, Hilton

asserts that, because Plaintiff’s motion for appeal was filed on July 23, 2010, it was

2 filed too late to constitute a timely appeal from the judgment rendered in Hilton’s

favor on May 6, 2010.

We find that there is merit to Relator’s arguments in support of its motion for

partial dismissal of the appeal. In Jeansonne v. New York Life Ins. Co., 08-932

(La.App. 3 Cir. 5/20/09), 11 So.3d 1160, although multiple judgments had been

rendered by the trial court, the appellant obtained an order of appeal for only one

judgment that had been rendered on a specific date, rather than an unrestricted order

of appeal for all prior judgments. This court held that it lacked jurisdiction to hear

the appeal as to those judgments not referenced in the motion and order for appeal.

In the instant case, we note that Hilton correctly points out that the motion for

appeal indicates that Plaintiff seeks to appeal only the trial court’s judgment of July

12, 2010. We also note that while the judgment signed on July 12, 2010, dismisses

Plaintiff’s claims against the State of Louisiana, the judgment dismissing Plaintiff’s

claims against Hilton was signed on May 12, 2010. We find that although Plaintiff

identifies both the State of Louisiana and Hilton as appellees in his motion to appeal

the trial court’s July 12, 2010, judgment, this does not convert a limited motion for

appeal into an unrestricted appeal of all prior judgments pertaining to these two

parties. Additionally, to the extent that Plaintiff seeks to appeal the judgment

rendered in Hilton’s favor on May 12, 2010, we find that the motion for appeal filed

on July 23, 2010 was untimely, as it was filed more than sixty days after the

expiration of the delay for filing a motion for new trial. See La.Code Civ.P. art. 2087.

For the foregoing reasons, we find that this court lacks subject matter

jurisdiction to review the trial court’s ruling rendered in Hilton’s favor on May 12,

2010. Accordingly, we hold that the trial court’s judgment of July 12, 2010, is the

only ruling at issue for purposes of this appeal. Therefore, we hereby grant Hilton’s

3 motion and dismiss the appeal insofar as the Plaintiff sought to appeal the judgment

of May 12, 2010, dismissing Hilton.

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