Joseph J. Bazile, Jr. and Barbara B. Mire Versus Charles E. Zetzmann and Anne Zetzmann
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Opinion
JOSEPH J. BAZILE, JR. AND BARBARA B. NO. 22-CA-273 MIRE FIFTH CIRCUIT VERSUS COURT OF APPEAL CHARLES E. ZETZMANN AND ANNE ZETZMANN STATE OF LOUISIANA
ON APPEAL FROM THE FIRST PARISH COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 155-981, DIVISION "B" HONORABLE JOHN J. LEE, JR., JUDGE PRESIDING
November 16, 2022
STEPHEN J. WINDHORST JUDGE
Panel composed of Judges Robert A. Chaisson, Stephen J. Windhorst, and Hans J. Liljeberg
APPEAL DISMISSED SJW RAC HJL COUNSEL FOR PLAINTIFF/APPELLEE, JOSEPH J. BAZILE, JR. AND BARBARA B. MIRE Robert W. Drouant
COUNSEL FOR DEFENDANT/APPELLANT, CHARLES E. ZETZMANN AND ANNE ZETZMANN David J. Halpern Jill A. Gautreaux WINDHORST, J.
Appellants/defendants, Charles E. Zetzmann and Ann Zetzmann, appeal the
trial court’s February 18, 2022 judgment.1 For the following reasons, we find this
court lacks jurisdiction to consider the merits of the appeal and dismiss appellants’
appeal as untimely.
PROCEDURAL HISTORY
Appellees/plaintiffs, Joseph J. Bazile, Jr. and Barbara B. Mire, filed a Petition
for Damages and to Enforce Lease in the First Parish Court for the Parish of
Jefferson. In response, appellants/defendants filed an answer and reconventional
demand seeking return of their security deposit.
Trial on the merits of plaintiffs’ petition occurred on September 22, 2020. The
trial court took the matter under advisement and issued a judgment on October 15,
2020. The judgment awarded plaintiffs $11,000.00 for property damage and
unauthorized removal of materials, attorney’s fees in the amount of $1,100.00, legal
interest from the date of judicial demand, and all costs of the proceedings.
Defendants appealed. This court dismissed defendants’ appeal on the grounds that
the October 15, 2020 judgment only disposed of plaintiffs’ claims in their petition
and did not address the reconventional demand filed by defendants.
On January 18, 2022, after a hearing on defendants’ reconventional demand,
the trial court took the matter under advisement and allowed the parties to submit
post-trial briefs. On February 18, 2022, the trial court rendered judgment denying
defendants’ reconventional demand. On February 23, 2022, defendants filed a
request for reasons for judgment. On February 25, 2022, the Clerk of Court issued
notice of judgment to the parties and filed into the record a certification that the
judgment had been mailed on February 25, 2022. On April 22, 2022, defendants
filed this motion for appeal.
1 Defendants also seek review of the trial court’s October 15, 2020 judgment.
22-CA-273 1 LAW and ANALYSIS
On July 28, 2022, this court issued an order, sua sponte, directing defendants
to show cause why this appeal, filed over two months after the judgment, should not
be dismissed on the basis that it was untimely. In their response to this court, 2
defendants contend that the delay in filing is due to this court’s failure to timely issue
a rule to show cause within the requisite time period set forth in La. C.C.P. art. 2161,
and/or is “imputable to the First Parish Court Judge’s delay in issuing reasons for
judgment” as to the February 18, 2022 judgment. Defendants acknowledged that
the February 18, 2022 judgment was issued on February 25, 2022 and that counsel
“saw the minutes of the Judge’s ruling prior to the issuance” of the notice of the
February 18, 2022 judgment. Notably, defendants did not claim that notice of the
February 18, 2022 judgment was not received. Instead, defendants argue that the
written reasons for judgment was issued April 5, 2022, received by defendants on
April 8, 2022, and the trial court stated defendants would have an extension of time
to file an appeal from the written reasons for judgment. Thus, defendants contend
that the motion for appeal was timely filed on April 22, 2022, following receipt of
the reasons for judgment.
When an appellant fails to timely take and perfect an appeal, the appellate
court lacks jurisdiction to consider the appeal. Louisiana jurisprudence is clear that
timeliness of an appeal is jurisdictional, and neither the trial court nor the appellate
court has the authority to extend this delay. Dew v. Blankenship, 14-649 (La. App.
5 Cir. 09/30/14), 150 So.3d 934, 935; Brown v. Schreiner, 05-255 (La. App. 4 Cir.
04/05/06), 929 So.2d 773, 775; Seaman v. Seaman, 10-1295 (La. App. 3 Cir.
12/15/10), 54 So.3d 756, 760; State ex rel. E.A., 02-996 (La. App. 3 Cir. 10/02/02),
827 So.2d 594, 596. Further, the provision in La. C.C.P. art. 2161 that an appeal
2 Defendants brief was not timely filed per this court’s order.
22-CA-273 2 should not be dismissed because of any irregularity, error, or defect unless it is
imputable to the appellant does not include the failure to bring an appeal within the
requisite period. Martin v. Freiberger, 02-188 (La. App. 5 Cir. 06/26/02), 822 So.2d
810, 811. Under such circumstances, the appellate court may, on its own motion,
recognize its lack of jurisdiction and dismiss the appeal as untimely. Hamilton v.
Lefevre, 06-729 (La. App. 5 Cir. 01/30/07), 951 So.2d 1223, 1224; State Farm Mut.
Auto. Ins. Co. ex rel. Robinson v. Jimenez, 98-1057 (La. App. 5 Cir. 01/26/99), 726
So.2d 465, 466.
A judgment and reasons for judgment are two separate and distinct legal
documents and appeals are taken from the judgment, not the reasons for judgment.
Alexander v. Maki, 15-517 (La. App. 5 Cir. 01/04/16), 183 So.3d 821, 822; Jimenez,
726 So.2d at 466. The appealable judgment in this case is the February 18, 2022
judgment, not the written reasons for judgment rendered on April 5, 2022.
La. C.C.P. art. 5002 A provides: A. An 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. [Emphasis added.]
When service of notice of judgment is necessary, the Louisiana Supreme Court has
held that this time period to file an appeal under La. C.C.P. art. 5002 commences
upon receipt of notice of judgment rather than upon mailing of said notice. Myles
v. Turner, 612 So.2d 32, 35 (La. 1993). Notice of any final judgment rendered in
parish court is required and such notice shall be mailed by the clerk of court to
counsel of record for each party in accordance with La. C.C.P. art. 1913. La. C.C.P.
art. 4905. Notice of final judgment was required in this case.
Here, the trial court heard the reconventional demand on January 18, 2022,
and after post-trial memoranda and 31 days, the trial court rendered its decision and
signed the judgment on February 18, 2022. Three business days later, appellants
filed a request for written reasons for the judgment.
22-CA-273 3 The record shows that the Clerk of Court mailed notice of judgment as
required on February 25, 2022. Despite our request, defendants have not shown or
alleged that the motion for appeal was filed within 10 days of their receipt of the
notice of judgment. Smith v. Winn-Dixie Louisiana, Inc., 626 So.2d 750 (La. App.
5 Cir. 1993).
It is therefore reasonable for this court to assume that defendants received
notice of the February 18, 2022 judgment more than 10 days prior to the filing of the
motion for appeal. Id. Considering the facts of this case, we find defendants’ appeal
filed on April 22, 2022 is untimely.
DECREE
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