In Re: Interdiction of James H. Talley

• Court: Louisiana Court of Appeal
• Decided: September 23, 2015
• Docket: CM-0015-0221
• Status: Unknown

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

CM 15-221

IN RE: INTERDICTION OF

JAMES H. TALLEY

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APPEAL FROM THE SEVENTH JUDICIAL DISTRICT COURT PARISH OF CONCORDIA, NO. 48,571 “B” HONORABLE LEO BOOTHE, DISTRICT JUDGE

ELIZABETH A. PICKETT

JUDGE

Court composed of Judges Elizabeth A. Pickett, Shannon J. Gremillion, and Phyllis M. Keaty.

MOTION TO DISMISS APPEAL DISMISSED AS PREMATURE.

Madaline Cross Gibbs Seibert & Gibbs PA 307 Texas Street Vidalia, LA 71363 (318)336-9676 COUNSEL FOR APPELLEE/CURATOR FOR THE INTERDICT: Loura Susan Owings

Philip LeTard, Sr. Post Office Box 187 Vidalia, LA 71373 (318)336-8990 COUNSEL FOR APPELLANT/INTERVENOR: Jim B. Talley PICKETT, Judge.

Loura Susan Owings (Ms. Owings), Curator for the Interdict, James H.

Talley, moves to dismiss the appeal of Appellant-Intervenor, Jim B. Talley (Mr.

Talley), for having been taken from an interlocutory judgment denying Mr.

Talley’s motion for new trial. Ms. Owings styled her pleading as a “Motion to

Dismiss and Exception of No Cause of Action;” however, Ms. Owings does not

brief or further mention the exception of no cause of action. This court finds that

exception to be abandoned. For the reasons given below, we dismiss the motion as

premature.

The interdiction suit was filed by Ms. Owings. Ms. Owings’ father, James H.

Talley, was placed under full interdiction, and she was appointed curator.

Mr. Talley filed a motion for new trial, which was denied by the trial court

by judgment signed on November 24, 2014. The motion was denied because Mr.

Talley failed to appear and argue his own motion. Notice of this judgment was

mailed on November 26, 2014.

On December 22, 2014, the trial court signed an order of appeal. The order

of appeal references only the judgment that was signed on November 24, 2014,1

i.e., the judgment denying Mr. Talley’s motion for new trial.

On March 10, 2015, Ms. Owings filed the instant motion to dismiss in which

she contends that no appeal lies from the interlocutory order denying Mr. Talley’s

motion for new trial. La.Code Civ.P. art. 2083. This court has previously noted

“that our Louisiana Supreme Court has held that where the motion for appeal refers

to a judgment by date and that judgment is one denying a motion for a new trial,

1 This court notes that notice of appeal gives the date of judgment as November 26, 2014, but the judgment was signed on November 24, 2015. Notice of judgment was dated November 26, 2014. but the appellant exhibits the clear intention in brief and argument to appeal from

the adverse judgment on the merits, the appeal should be considered.” Walsh v.

Walsh, 544 So.2d 720, 721 (La.App. 3 Cir.1989), citing Smith v. Hartford Accident

and Indem. Co., 254 La. 341, 223 So.2d 826 (1969), and Fruehauf Trailer Co. v.

Baillio, 252 La. 181, 210 So.2d 312 (1968). Every pleading must be construed so

“as to do substantial justice.” La.Code Civ.P. art. 865.

The record in this case has not been lodged. Thus, no brief has been filed by

Mr. Talley, and this court is unable to determine whether Mr. Talley intends to

appeal the judgment on the merits or only the judgment denying his motion for

new trial. Therefore, this court concludes that Ms. Owings’ motion to dismiss is

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION. Rule 2-16.3 Uniform Rules, Court of Appeal.