Louisiana State Board of Private Investigator Examiners v. Scott Frank

• Court: Louisiana Court of Appeal
• Decided: August 5, 2020
• Docket: CA-0020-0214
• Status: Unknown

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

CA 20-214

LOUISIANA STATE BOARD OF

PRIVATE INVESTIGATOR EXAMINERS

VERSUS

SCOTT FRANK

**********

APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. 2019-5331 HONORABLE EDWARD B. BROUSSARD, DISTRICT JUDGE

ULYSSES GENE THIBODEAUX

CHIEF JUDGE

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and John D. Saunders, Judges.

MOTION TO DISMISS APPEAL GRANTED; APPEAL DISMISSED. George Malcom Papale Attorney at Law Post Office Box 1827 Hammond, LA 70404 (985) 543-0171 COUNSEL FOR PLAINTIFF/APPELLEE: Louisiana State Board of PrivateInvestigator Examiners

George Robinson Knox Attorney at Law 117 West Convent Street Lafayette, LA 70501 (337) 264-9083 COUNSEL FOR DEFENDANT/APPELLANT: Scott Frank

Louis Clayton Burgess Liza Trahan Law Firm of L. Clayton Burgess Attorney at Law 605 West Congress Street Lafayette, LA 70501 (337) 234-7573 COUNSEL FOR DEFENDANT/APPELLANT: Scott Frank THIBODEAUX, Chief Judge.

Plaintiff-Appellee, Louisiana State Board of Private Investigator Examiners,

filed a motion to dismiss the instant appeal filed by Defendant-Appellant, Scott

Frank. For the reasons set forth herein, we grant Plaintiff’s motion and dismiss the

appeal.

Plaintiff-Appellee filed a Petition for Injunction Under La.R.S. 37:3522(B),

seeking to enjoin and restrain Defendant-Appellant from representing and holding

himself out to the public on his website, in print, or electronic media as a “Private

Investigator” or “Private Detective” under La.R.S. 37:3503(8)(b)(iv), “Scott Frank

Private Investigator exempt under La.R.S. 37:3503(8)(b)(iv)” or “Scott Frank

Private investigator under George R. Knox” and to further enjoin such use by

Defendant-Appellant in print media, on any website or other internet site, on radio

or television, in any broadcast medium or any other electronic or electromagnetic

audio/visual means or medium. A hearing on the matter was held on October 31,

2019, and the matter was taken under advisement. A judgment granting a

preliminary injunction was signed on December 2, 2019. Defendant-Appellant

filed Petition and Order for Appeal on December 27, 2019, which was granted on

January 7, 2020.

Plaintiff-Appellee filed in this court a Motion to Dismiss Appeal, alleging

that the appeal was filed untimely. Pursuant to La.Code Civ.P. art. 3612(C), “An

appeal from an order or judgment relating to a preliminary injunction must be

taken, and any bond required must be furnished, within fifteen days from the date

of the order or judgment.” Additionally, “the delay for taking an appeal is not

affected by the filing of a motion for new trial.” Stevens v. St. Tammany Parish

Government, 16-197 p. 6 (La.App. 1 Cir. 1/18/17), 212 So.3d 562, 566. See also

Marlbrough v. Zar, 98-38 (La.App. 5 Cir. 5/27/98), 713 So.2d 1163 (Delay not

suspended by the filing of a motion for new trial). In opposition, Defendant-Appellant refers this court to La.Code Civ.P. art

3612(D), which provides, “Except as provided in this Article, the procedure for an

appeal from an order or judgment relating to a preliminary or final injunction shall

be provided in Book III.” Next, Defendant refers to La.Code Civ.P. art 2123

(Delay for taking a suspensive appeal) found in Book III, which reads, in pertinent

part:

A. Except as otherwise provided by law, an appeal that suspends the effect or the execution of an appealable order or judgment may be taken, and the security therefor furnished, only within thirty 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.

La.Code Civ.P. art. 1974 provides that “[t]he delay for applying for a new trial

shall be seven days, exclusive of legal holidays. The delay for applying for a new

trial commences to run on the day after the clerk has mailed, or the sheriff has

served, the notice of judgment as required by Article 1913.” Applying these rules

to the facts herein, Defendant-Appellant contends that he had fifteen days from

December 17, 2019 in which to file his Petition and Order for Appeal; thus, the

December 27, 2019 filing was timely.

In light of Article 3612(C) and the applicable jurisprudence cited herein, we

find that the fifteen-day delay in which to seek an appeal began to run after the

judgment denying the preliminary injunction was signed on December 2, 2019.

Defendant-Appellant did not file his Petition and Order for Appeal until December

27, 2019, more than fifteen days after the judgment was signed. As such, we find

that the Petition and Order for Appeal was filed untimely. Accordingly, we grant

the motion and dismiss the appeal.

MOTION TO DISMISS APPEAL GRANTED; APPEAL DISMISSED.

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