James B. Blake" Cureton v. James H. "Jimmy" Cureton "

• Court: Louisiana Court of Appeal
• Decided: April 8, 2020
• Docket: CM-0020-0199
• Status: Unknown

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

CM 20-199

JAMES B. "BLAKE" CURETON

VERSUS

JAMES H. "JIMMY" CURETON, ET AL.

**********

APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 2020-274 HONORABLE CLAYTON DAVIS, DISTRICT JUDGE

SYLVIA R. COOKS

JUDGE

Court composed of Sylvia R. Cooks, Billy H. Ezell, and Van H. Kyzar, Judges.

MOTION TO DISMISS UNLODGED APPEAL DENIED.

ALTERNATIVE MOTION TO CONVERT APPEAL TO SUPERVISORY WRIT DENIED. Todd Samuels Clemons Bradley T. Rasile Todd Clemons & Associates 1740 Ryan Street Lake Charles, LA 70601 (337) 477-0000 COUNSEL FOR PLAINTIFF/APPELLEE: James B. "Blake" Cureton

Philip Anthony Franco Jeffrey Edward Richardson Kellen J. Mathews Courtney C. Miller Adams & Reese 701 Poydras Street, Suite 4500 New Orleans, LA 70139 (504) 581-3234 COUNSEL FOR PLAINTIFF/APPELLEE: James B. "Blake" Cureton

Richard Dale Moreno Attorney at Law 125 West School Street Lake Charles, LA 70605 (337) 433-9535 COUNSEL FOR DEFENDANT/APPELLANT: James H. "Jimmy" Cureton Custom Metal Fabricators, Inc. COOKS, Judge.

Plaintiff, James B. “Blake” Cureton, filed a “Motion to Dismiss Appeal and

Request for Expedited Consideration and in the Alternative, if the Court Desires,

Convert the Appeal to a Writ.” For the reasons below, we deny the motions.

In the trial court, Plaintiff filed a writ of mandamus against his father,

Defendant, James H. “Jimmy” Cureton, alleging that Defendant improperly fired

Plaintiff from his job at Custom Metal Fabricators, Inc. Plaintiff’s health insurance

provided by the company was also terminated. The trial court ruled in favor of

Plaintiff.

Defendant sought review of the ruling by filing a motion for appeal in the

trial court; the motion was denied. Defendant then filed an application for

supervisory writ in this court, seeking review of the trial court’s denial of his

motion to appeal. On March 19, 2020, this court held:

STAY DENIED. WRIT GRANTED AND MADE PEREMPTORY. We find that the trial court erred in denying Relator's Motion and Order for Appeal. Although the trial court correctly found that its February 24, 2020 ruling is not a final judgment subject to appeal and that a supervisory writ might be more appropriate, this court is the arbiter of its own jurisdiction. See Morris v. State/Attorney General, 05-508 (La.App. 3 Cir. 4/21/05), 909 So.2d 1. As such, the trial court is without jurisdiction to determine whether Relator is entitled to an immediate appeal. Accordingly, we reverse and set aside the trial court’s ruling and remand the matter to the trial court for further proceedings consistent with this court’s decision. The hearing on Respondent's Motion for Contempt scheduled on March 20, 2020, is rendered moot.

Cureton v. Cureton, 20-188 (La.App. 3 Cir. 3/19/20) (unpublished opinion).

Plaintiff asserts that the trial court signed an Order of Appeal on Friday,

March 20, 2020. Plaintiff urges this court to act quickly in the matter because

emergency relief is required to secure health benefits for Plaintiff and his family.

Since the trial court granted the appeal, Plaintiff states that this court now has jurisdiction under La.Code Civ.P. art. 2088(A). Plaintiff argues that it does not

matter that the record in this matter has not yet been lodged because a motion

arguing that an appellate court lacks jurisdiction and/or that an appellant has no

right to appeal may be filed “at any time.” La.Code Civ.P. art. 2162. Article 2162

provides, in pertinent part, “An appeal can be dismissed at any time by consent of

all parties, or for lack of jurisdiction of the appellate court, or because there is no

right to appeal, or if, under the rules of the appellate court, the appeal has been

abandoned.”

Plaintiff also argues that this Court need not wait for Defendant to post the

$200,000 bond required for his suspensive appeal because this court already has

jurisdiction over the appeal, regardless of whether the appeal is suspensive or

devolutive. Plaintiff points out that Defendant has thirty days to post bond, a delay

which may not begin running until “at least Monday, April 13, 2020” per Governor

Edwards March 16, 2020 proclamation. JBE 2020-30. As such, Relator maintains

that it could be a long time before we learn whether Defendant is pursuing a

suspensive or devolutive appeal. Plaintiff concludes that this court, to conserve

resources and provide Plaintiff with the immediate relief he requires, should

dismiss the appeal now.

In the alternative, Plaintiff asks this court to convert Defendant’s appeal to a

supervisory writ and order Defendant to quickly file a brief in support of his

application. In this event, this court, Plaintiff urges, can quickly rule on the merits,

and Plaintiff can restore his health insurance.

We note that the appeal in this matter has not yet been lodged. “Appellate

courts are courts of record, and we must render judgment based on the record on

appeal. La.Code Civ.P. art. 2164; Willis v. Letulle, 597 So.2d 456 (La.App. 1

2 Cir.1992). We may not review evidence that is not in the record, and we may not

receive new evidence. Willis, 597 So.2d 456.” Independent Weekly, LLC v. Pope,

16-160 (La.App. 3 Cir. /30/16), 188 So.3d 469. This court needs the entire

appellate record evidencing the fact that Defendant has appealed and comported

with the rules for filing a suspensive or devolutive appeal. For instance, Plaintiff

directs this court’s attention to a purported judgment of March 20, 2020, granting

Defendant an appeal, but no judgment bearing that date has been provided to this

court. This court must have a record upon which to base a finding as to what

issues remain to be decided.

Therefore, this court denies Plaintiff’s motion to dismiss the unlodged

appeal and alternative motion to convert Defendant’s appeal to a supervisory writ,

at Plaintiff’s cost.

ALTERNATIVE MOTION TO CONVERT APPEAL TO SUPERVISORY WRIT DENIED.

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