Kosmitis v. Bailey

680 So. 2d 1167, 1996 WL 577534

• Court: Supreme Court of Louisiana
• Decided: October 4, 1996
• Docket: 96-C-1573
• Status: Published

Opinion

680 So.2d 1167 (1996)

Georgia "Gia" P. KOSMITIS
v.
Jack M. BAILEY, Jr.

No. 96-C-1573.

Supreme Court of Louisiana.

October 4, 1996.

PER CURIAM.^[*]

Granted.

At issue is the date of the "ruling at issue" under Rule 4-3 of the Uniform Rules of the Courts of Appeal for the purpose of calculating the thirty-day period for applying for supervisory writs.

In the present defamation case, the trial court on September 26, 1995 assigned oral reasons for judgment denying defendant's motion for summary judgment. Three days later the court issued written reasons for the denial and ordered counsel to prepare a judgment for signing. The formal judgment was signed on November 28, 1995.

Three days later, defendant filed a notice of intention to apply for supervisory writs, and the trial court granted him thirty days to apply. This application was filed within the next thirty days.

The court of appeal dismissed the action as untimely, apparently because the application was not filed within thirty days of the "rulings" of September 26 and 29.

Because a written judgment was clearly contemplated at all times by the trial court and all parties, the date of the "ruling at issue" for purposes of Rule 4-3 was November 28. Defendant was under a court order to prepare a judgment and could not reasonably be expected to seek review before the November 28 judgment was prepared. Counsel and his client should not be penalized for following the court's instructions. Whatever the merits of the application, it was timely filed.

The ruling of the court of appeal is set aside, and the case is remanded to the court of appeal to rule on the merits of the application.

KIMBALL and VICTORY, JJ., would grant and docket.

WATSON, J. not on panel.

NOTES

[*] WATSON, J., n.o.p. Rule IV, Part II, § 3. KIMBALL and VICTORY, JJ., would grant and docket.