KIMBERLY UDDO * NO. 2024-C-0319
VERSUS * COURT OF APPEAL MARLIN GUSMAN, FORMER * SHERIFF OF ORLEANS FOURTH CIRCUIT PARISH * STATE OF LOUISIANA *******
APPLICATION FOR WRITS DIRECTED TO CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2018-07641, DIVISION “I-14” Honorable Lori Jupiter, Judge ****** Judge Sandra Cabrina Jenkins ****** (Court composed of Chief Judge Terri F. Love, Judge Roland L. Belsome, Judge Sandra Cabrina Jenkins)
BELSOME, J., CONCURS IN THE RESULT
Dara L. Baird 5523 S. Johnson Street New Orleans, Louisiana 70125
COUNSEL FOR PLAINTIFF/RESPONDENT
Tracey J. Comeaux Yolanda Martin Singleton ORLEANS PARISH SHERIFF’S OFFICE 2800 Perdido Street New Orleans, LA 70119
COUNSEL FOR DEFENDANT/RELATOR
WRIT GRANTED; RELIEF DENIED AS UNTIMELY. JULY 8, 2024 SCJ TFL
The defendant, the Orleans Parish Sheriff’s Office, seeks review of the trial
court judgment of October 9, 2023, denying its motion for summary judgment.
However, upon review, the OPSO’s application for supervisory writs is untimely.
For the foregoing reasons, we grant the writ application, but deny relief as the
application is untimely.
PROCEDURAL HISTORY
The plaintiff, Kimberly Uddo, filed the present action alleging that she was
injured when an OPSO horse stepped on her ankle and foot. Ms. Uddo alleged in
her petition that her foot was injured when Justice, a patrol horse under the control
of former Commander Kathleen Cure, backed into her, knocked her to the ground,
and trampled her following the Krewe of Oak parade on August 19, 2017. The
plaintiff alleged that the accident was caused by the negligence of Commander
Cure and the OPSO for: (1) failing to keep their horse under proper control; (2)
failing to yield to the crowds of persons located in Palmer Park; (3) failing to keep
a proper look out for persons behind their horse as it backed up into the crowds of
persons in Palmer Park; (4) riding a horse in an unsafe manner under the
1 circumstances; (5) riding a horse in a careless or reckless manner under the
circumstances; and (6) failure to maintain control of their horse.
The OPSO filed a motion for summary judgment seeking dismissal of the
plaintiff’s claim on the basis that she would not be able to meet her burden of
proving negligence under La. C.C. article 2321. In opposition to the motion for
summary judgment, the plaintiff argued that she was alleging a cause of action
under La. C.C. article 2321 solely, but was also alleging a cause of action under
La. C.C. article 2315, based on Commander Cure’s alleged negligence. After a
hearing on the motion, the trial court rendered a written judgment on October 9,
2023, denying the motion for summary judgment. A notice of judgment was
mailed on October 16, 2023.
The defendant filed a notice of intent to seek supervisory writs on October
10, 2023. There was no order setting a return date. The defendant filed a second
notice of intent on February 9, 2024. On February 14, 2024, the trial court set a
return date as within the “delays provided by law.” Pursuant to this order, the
return date would have been November 16, 2023.
On March 25, 2024, the defendant filed a third motion for extension of the
return date. The trial court set the return date as “thirty days from the date of the
order”, which was signed on March 25, 2024. March 2024 had thirty-one days,
making the return date April 24, 2024. The defendant filed a fourth motion for
extension of time on April 25, 2024. The trial court set the return date as thirty
days from the date of the order signed on May 2, 2024. The defendant filed its
application for supervisory writs with this Court on May 29, 2024.
2 DISCUSSION
Rule 4-2, Uniform Rules, Courts of Appeal provides that “[t]he party, or
counsel of record, intending to apply to the Court of Appeal for a writ shall give to
the opposing parties or the opposing counsel of record, notice of such intention.
The party, simultaneously, shall give notice to the judge whose ruling is at issue,
by requesting a return date to be set by the judge within the time period provided
for in Rule 4-3.”
Under Rule 4-3, Uniform Rules, Courts of Appeal,
[t]he judge who has been given notice of intention as provided by Rule 4-2 shall immediately set a reasonable return date within which the application shall be filed in the Court of Appeal. The return date in civil cases shall not exceed 30 days from the date of notice of the judgment, as provided in La. C.C.P. art. 1914. In criminal cases, unless the judge orders the ruling to be reduced to writing, the return date shall not exceed 30 days from the date of the ruling at issue. When the judge orders the ruling to be reduced to writing in criminal cases, the return date shall not exceed 30 days from the date the ruling is signed. In all cases, the judge shall set an explicit return date; a Court of Appeal shall not infer a return date from the record. Upon proper showing, the trial court or the Court of Appeal may extend the time for filing the application upon the filing of a motion for an extension of the return date by the applicant, filed within the original or an extended return date period. An application not filed in the Court of Appeal within the time so fixed or extended shall not be considered, in the absence of a showing that the delay in filing was not due to the applicant's fault. The application for writs shall contain documentation of the return date and any extensions thereof; any application that does not contain this documentation may not be considered by the Court of Appeal.
This Court has consistently recognized that the time period for filing a notice
of intent pursuant to Rules 4-2 and 4-3, Uniform Rules, Courts of Appeal is thirty
days from the date of notice of the judgment, if a written judgment has been
prepared, or from the date of the oral ruling rendered, if no written judgment has
been prepared. Rieth v. Munguia, 2023-0547, pp. 3-4 (La. App. 4 Cir. 5/30/24),
___ So.3d ___, ___. 2024 WL 2763774, at *2; Fairley v. Poche, 2022-0247, p. 4
(La. App. 4 Cir. 9/7/22), 367 So.3d 22, 24; McGaha v. Franklin Homes, Inc.,
3 2021-0244, pp. 25-26 (La. App. 4 Cir. 2/4/22), 335 So.3d 842, 858–859; Vigne v.
Cooper Air Freight Servs., 2021-0205, p. 6 (La. App. 4 Cir. 5/12/21), 321 So.3d
440, 443–444.
In setting a return date upon the filing of a notice of intent, the trial court
may implicitly grant a return date of more than thirty days by setting the return
date more than thirty days from the date of notice of the judgment. Hester v.
Hester, 98-0854, p. 3 (La. App. 4 Cir. 5/13/98), 715 So.2d 40. The trial court may
also grant a motion for extension of the return date filed on or before the original
return date. Barnard v. Barnard, 96–0859 (La. 6/24/96), 675 So.2d 734.
However, the trial court does not have authority to grant an extension of the return
date when the motion for extension is filed after the return date set in the prior
order. Carter v. Rhea, 2001-0234, p.3 (La. App. 4 Cir. 4/25/01), 785 So.2d 1022,
1024; Levert v. St. Bernard Par. Sch. Bd., 2000-2216, pp. 1-2 (La. App. 4 Cir.
10/20/00), 772 So.2d 236, 236–237; Tower Credit, Inc. v. Bradley, 2015-1164, p. 4
(La. App. 1 Cir. 4/15/16), 194 So.3d 62. This Court has held that a trial court
cannot extend the time for filing under Rule 4-3 after the time has expired. Ross v.
City of New Orleans, 96-1853, p. 2 (La. App. 4 Cir. 9/13/96), 694 So.2d 973, 974.
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KIMBERLY UDDO * NO. 2024-C-0319
VERSUS * COURT OF APPEAL MARLIN GUSMAN, FORMER * SHERIFF OF ORLEANS FOURTH CIRCUIT PARISH * STATE OF LOUISIANA *******
APPLICATION FOR WRITS DIRECTED TO CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2018-07641, DIVISION “I-14” Honorable Lori Jupiter, Judge ****** Judge Sandra Cabrina Jenkins ****** (Court composed of Chief Judge Terri F. Love, Judge Roland L. Belsome, Judge Sandra Cabrina Jenkins)
BELSOME, J., CONCURS IN THE RESULT
Dara L. Baird 5523 S. Johnson Street New Orleans, Louisiana 70125
COUNSEL FOR PLAINTIFF/RESPONDENT
Tracey J. Comeaux Yolanda Martin Singleton ORLEANS PARISH SHERIFF’S OFFICE 2800 Perdido Street New Orleans, LA 70119
COUNSEL FOR DEFENDANT/RELATOR
WRIT GRANTED; RELIEF DENIED AS UNTIMELY. JULY 8, 2024 SCJ TFL
The defendant, the Orleans Parish Sheriff’s Office, seeks review of the trial
court judgment of October 9, 2023, denying its motion for summary judgment.
However, upon review, the OPSO’s application for supervisory writs is untimely.
For the foregoing reasons, we grant the writ application, but deny relief as the
application is untimely.
PROCEDURAL HISTORY
The plaintiff, Kimberly Uddo, filed the present action alleging that she was
injured when an OPSO horse stepped on her ankle and foot. Ms. Uddo alleged in
her petition that her foot was injured when Justice, a patrol horse under the control
of former Commander Kathleen Cure, backed into her, knocked her to the ground,
and trampled her following the Krewe of Oak parade on August 19, 2017. The
plaintiff alleged that the accident was caused by the negligence of Commander
Cure and the OPSO for: (1) failing to keep their horse under proper control; (2)
failing to yield to the crowds of persons located in Palmer Park; (3) failing to keep
a proper look out for persons behind their horse as it backed up into the crowds of
persons in Palmer Park; (4) riding a horse in an unsafe manner under the
1 circumstances; (5) riding a horse in a careless or reckless manner under the
circumstances; and (6) failure to maintain control of their horse.
The OPSO filed a motion for summary judgment seeking dismissal of the
plaintiff’s claim on the basis that she would not be able to meet her burden of
proving negligence under La. C.C. article 2321. In opposition to the motion for
summary judgment, the plaintiff argued that she was alleging a cause of action
under La. C.C. article 2321 solely, but was also alleging a cause of action under
La. C.C. article 2315, based on Commander Cure’s alleged negligence. After a
hearing on the motion, the trial court rendered a written judgment on October 9,
2023, denying the motion for summary judgment. A notice of judgment was
mailed on October 16, 2023.
The defendant filed a notice of intent to seek supervisory writs on October
10, 2023. There was no order setting a return date. The defendant filed a second
notice of intent on February 9, 2024. On February 14, 2024, the trial court set a
return date as within the “delays provided by law.” Pursuant to this order, the
return date would have been November 16, 2023.
On March 25, 2024, the defendant filed a third motion for extension of the
return date. The trial court set the return date as “thirty days from the date of the
order”, which was signed on March 25, 2024. March 2024 had thirty-one days,
making the return date April 24, 2024. The defendant filed a fourth motion for
extension of time on April 25, 2024. The trial court set the return date as thirty
days from the date of the order signed on May 2, 2024. The defendant filed its
application for supervisory writs with this Court on May 29, 2024.
2 DISCUSSION
Rule 4-2, Uniform Rules, Courts of Appeal provides that “[t]he party, or
counsel of record, intending to apply to the Court of Appeal for a writ shall give to
the opposing parties or the opposing counsel of record, notice of such intention.
The party, simultaneously, shall give notice to the judge whose ruling is at issue,
by requesting a return date to be set by the judge within the time period provided
for in Rule 4-3.”
Under Rule 4-3, Uniform Rules, Courts of Appeal,
[t]he judge who has been given notice of intention as provided by Rule 4-2 shall immediately set a reasonable return date within which the application shall be filed in the Court of Appeal. The return date in civil cases shall not exceed 30 days from the date of notice of the judgment, as provided in La. C.C.P. art. 1914. In criminal cases, unless the judge orders the ruling to be reduced to writing, the return date shall not exceed 30 days from the date of the ruling at issue. When the judge orders the ruling to be reduced to writing in criminal cases, the return date shall not exceed 30 days from the date the ruling is signed. In all cases, the judge shall set an explicit return date; a Court of Appeal shall not infer a return date from the record. Upon proper showing, the trial court or the Court of Appeal may extend the time for filing the application upon the filing of a motion for an extension of the return date by the applicant, filed within the original or an extended return date period. An application not filed in the Court of Appeal within the time so fixed or extended shall not be considered, in the absence of a showing that the delay in filing was not due to the applicant's fault. The application for writs shall contain documentation of the return date and any extensions thereof; any application that does not contain this documentation may not be considered by the Court of Appeal.
This Court has consistently recognized that the time period for filing a notice
of intent pursuant to Rules 4-2 and 4-3, Uniform Rules, Courts of Appeal is thirty
days from the date of notice of the judgment, if a written judgment has been
prepared, or from the date of the oral ruling rendered, if no written judgment has
been prepared. Rieth v. Munguia, 2023-0547, pp. 3-4 (La. App. 4 Cir. 5/30/24),
___ So.3d ___, ___. 2024 WL 2763774, at *2; Fairley v. Poche, 2022-0247, p. 4
(La. App. 4 Cir. 9/7/22), 367 So.3d 22, 24; McGaha v. Franklin Homes, Inc.,
3 2021-0244, pp. 25-26 (La. App. 4 Cir. 2/4/22), 335 So.3d 842, 858–859; Vigne v.
Cooper Air Freight Servs., 2021-0205, p. 6 (La. App. 4 Cir. 5/12/21), 321 So.3d
440, 443–444.
In setting a return date upon the filing of a notice of intent, the trial court
may implicitly grant a return date of more than thirty days by setting the return
date more than thirty days from the date of notice of the judgment. Hester v.
Hester, 98-0854, p. 3 (La. App. 4 Cir. 5/13/98), 715 So.2d 40. The trial court may
also grant a motion for extension of the return date filed on or before the original
return date. Barnard v. Barnard, 96–0859 (La. 6/24/96), 675 So.2d 734.
However, the trial court does not have authority to grant an extension of the return
date when the motion for extension is filed after the return date set in the prior
order. Carter v. Rhea, 2001-0234, p.3 (La. App. 4 Cir. 4/25/01), 785 So.2d 1022,
1024; Levert v. St. Bernard Par. Sch. Bd., 2000-2216, pp. 1-2 (La. App. 4 Cir.
10/20/00), 772 So.2d 236, 236–237; Tower Credit, Inc. v. Bradley, 2015-1164, p. 4
(La. App. 1 Cir. 4/15/16), 194 So.3d 62. This Court has held that a trial court
cannot extend the time for filing under Rule 4-3 after the time has expired. Ross v.
City of New Orleans, 96-1853, p. 2 (La. App. 4 Cir. 9/13/96), 694 So.2d 973, 974.
This Court has consistently denied writ applications on the basis of untimeliness.
In Carter v. Rhea, the relators filed their writ application with this Court four
months after the trial court issued its written judgment on September 7, 2000. This
Court noted that the writ application, on its face, was untimely, and could only be
considered if an exception to the thirty day rule applied. The relators suggested
that their writ application was timely because they had filed a motion for new trial
from a partial summary judgment. The Court declined to adopt the relators’
4 argument, found that none of the exceptions to thirty-day rule applied and
dismissed the writ application as untimely.
CONCLUSION
In the present matter, the trial court was without authority to continually
extend the return date because the motions for extension of the return date were
untimely. There is no evidence that the February 9, 2024 notice of intent was
timely filed given that the defendant did not produce a signed order setting a return
date from the notice of intent filed on October 10, 2023. In response to the
February 14, 2024, the trial court set the return date within the “delays allowed by
law.” As stated above, the return date would have been November 16, 2023. No
writ application was filed at that time.
Thereafter, the defendant waited until March 24, 2024, more than thirty days
from the trial court order of February 14, 2024, to file its third motion for extension
of the return date. The fourth motion for extension of the return date, filed on
April 25, 2024, was also untimely.
For the foregoing reasons, the OPSO’s writ application is granted, but relief
denied as untimely.
WRIT GRANTED; RELIEF DENIED AS UNTIMELY.