Landry v. Aspen Square Management, Inc.

779 So. 2d 975, 0 La.App. 3 Cir. 1707, 2001 La. App. LEXIS 10, 2001 WL 41030
CourtLouisiana Court of Appeal
DecidedJanuary 17, 2001
DocketNo. CM-00-1707
StatusPublished

This text of 779 So. 2d 975 (Landry v. Aspen Square Management, Inc.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Landry v. Aspen Square Management, Inc., 779 So. 2d 975, 0 La.App. 3 Cir. 1707, 2001 La. App. LEXIS 10, 2001 WL 41030 (La. Ct. App. 2001).

Opinion

| DECUIR, Judge.

The Defendants-Appellees, Aspen Square Management, Inc., and Allen Pi-card, move to dismiss as untimely the appeal by the Plaintiff-Appellant, Fred Landry. For the reasons given below, we deny the motion.

Landry, acting pro se throughout this litigation, filed the instant suit seeking damages arising out of his eviction by the Defendants. In the course of the litigation, Landry filed a motion to recuse Judge John D. Trahan from presiding in the matter. Judge, Trahan referred the motion to another Fifteenth Judicial District Court judge. That judge denied the motion in a written judgment signed on January 25, 2000.

The Defendants filed various other motions and exceptions, including a motion for summary judgment. These matters were heard before Judge Trahan on March 27, 2000, and a written judgment was signed by Judge Trahan granting the motion for summary judgment and dismissing Landry’s suit against the Defendants on [976]*976March 29, 2000. Notice of the signing of this judgment is certified by the clerk’s office as having been mailed to all parties or their attorneys on April 4, 2000.

On April 11, 2000, Landry filed another motion to recuse Judge Trahan from this case. Judge Trahan denied this motion on April 18, 2000. Also filed by Landry on April 11, 2000, was a Motion for New Trial. Judge Trahan denied this motion also on April 18, 2000. Following these events, Landry filed another Motion for New Trial on April 26, 2000. This motion was not denied by the trial court until October 6, 2000.

Appearing next in the record sent to this court from the district court is a handwritten document filed by Landry entitled “APPEAL TO 3RD CIRCUIT COURT OF APPEALS". The first paragraph of this motion for appeal states that Landry “prays that this appeal be held in abeyance until the court rules on” the motion to recuse and the motion for new trial filed on April 11 and April 26. This paragraph concludes with the statement, “This being done to preserve a timely appeal to the 3rd circuit in event the motions for recusal and new trial are again denied.” At the bottom | aof this page appears a handwritten order which was completed by the trial court granting an appeal in this case on October 6, 2000.

Near the bottom of this document appears a date stamp of October 6, and the document is indexed in the trial court record as having been filed on that date. However, another date stamp appears at the top of this document which indicates that the document was received in the office of the clerk of court for Lafayette Parish on April 26, 2000. The record reflects no explanation for the chronological placement of this motion for appeal.

On December 5, 2000, the Defendants filed a motion in this court seeking the dismissal of Landry’s appeal as untimely. The record in this case was lodged in this court on December 14, 2000.

The Defendants contend that the delay for seeking an appeal in this case began to run on the date following the trial court’s denial of the first motion for new trial. The Defendants argue that the second motion for new trial was not timely filed; therefore, the delays for seeking an appeal were not affected by the trial court’s delay in entering the order denying this second motion.

The delays for seeking a devolutive appeal are set forth in La.Code Civ.P. art. 2087(A):

A. Except as otherwise provided in this Article or by other law, an appeal which does not suspend the effect or the execution of an appealable order or judgment may be taken within sixty days of any of the following:
(1) The expiration of the delay for applying for a new trial or judgment notwithstanding the verdict, as provided by Article 1974 and Article 1811, if no application has been filed timely.
(2) The date of the mailing of notice of the court’s refusal to grant a timely application for a new trial or judgment notwithstanding the verdict, as provided under Article 1914.

The Defendants do not challenge the timeliness of Landry’s first motion for new trial. Therefore, the timeliness of the appeal turns on the date set forth in La.Code Civ.P. art. 2087(A)(2), the date of the mailing of the notice required by | aArticle 1914 of the trial court’s refusal to grant the new trial.

The pertinent portion of the latter statute reads:

C. If the interlocutory order or judgment is one refusing to grant a new trial or a judgment notwithstanding the verdict, regardless of whether the motion is taken under advisement, the delay for appealing commences to run only from the date of the mailing of the notice, as provided in Articles 2087 and 2123.

Article 1914 pertains only to interlocutory rulings. With respect to final judgments, La.Code Civ.P. art. 1913(D) requires, “The clerk shall file a certificate in the record showing the date on which, and the counsel and parties to whom, notice of [977]*977the signing of the judgment was mailed.” Thus, proof must appear of record as to the court’s compliance with the notice requirements of Article 1913. However, Article 1914 places no certification requirement as to the notice sent of the denial of a motion for new trial.

In the case of the ruling sub judice, the trial court’s order denying the motion appears as a signed and dated handwritten notation at the bottom of the second page of the motion for new trial. Underneath the trial court’s handwritten order appears a stamp with the date, the signature of the deputy clerk of court, and “cc” notations being handwritten. This stamp, as completed, reads:

FILED THIS 18 DAY OF APRIL, 2000
(illegible), LAFAYETTE, LA
VELMA (illegible)
Deputy Clerk of Court
cc: Fred Landry
Craig Richardson

While the Defendants acknowledge in their memorandum in support of the motion to dismiss that the delays for seeking an appeal in this case turn on the date of the mailing of the notice of the trial court’s denial of the first motion for new trial, the memorandum offers no discussion as to whether the above notation is sufficient proof that the clerk’s office fulfilled the notice requirements of Article 1914. We interpret the above stamp as a filed date stamp reflecting only that the motion for new trial was filed in the office of the clerk of court for the Fifteenth Judicial District 14Court for Lafayette Parish. The fact that a “cc” appears following the signature of the deputy clerk provides this court with no indication as to what was copied and sent to the persons listed beneath the deputy clerk’s signature.

This court’s interpretation of this stamp as not being an indication as to whether notice of the denial of the motion for new trial was sent to the parties is further bolstered by an inspection of the stamps and notations appearing on the page of the record on which the trial court’s order denying the second motion for new trial appears. On this page, a filed date stamp appears on one side of the page and another stamp appears on the opposite side of the page. This latter stamp reads:

STATE OF LOUISIANA PARISH OF LAFAYETTE

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Perry v. First National Bank of Jefferson
673 So. 2d 1235 (Louisiana Court of Appeal, 1996)

Cite This Page — Counsel Stack

Bluebook (online)
779 So. 2d 975, 0 La.App. 3 Cir. 1707, 2001 La. App. LEXIS 10, 2001 WL 41030, Counsel Stack Legal Research, https://law.counselstack.com/opinion/landry-v-aspen-square-management-inc-lactapp-2001.