Melissa Landry Trimble v. David Richard Trimble

• Court: Louisiana Court of Appeal
• Decided: April 28, 2010
• Docket: CA-0010-0337
• Status: Unknown

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

10-337

MELISSA LANDRY TRIMBLE VERSUS DAVID RICHARD TRIMBLE

********** APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT COURT PARISH OF IBERIA, NO. 112232 HONORABLE CHARLES PORTER, DISTRICT JUDGE

********** ELIZABETH A. PICKETT JUDGE

**********

Court composed of Jimmie C. Peters, Elizabeth A. Pickett, and James T. Genovese, Judges.

APPEAL DISMISSED. APPELLANT PERMITTED TO FILE AN APPLICATION FOR SUPERVISORY WRITS.

Melissa Landry Trimble In Proper Person 1612 Tarleton Street Jeanerette, LA 70544 Appellant

David Richard Trimble In Proper Person LSP - Main Prison West/Walnut-2 Angola, LA 70712 Appellee PICKETT, Judge.

On March 22, 2010, this court issued a rule sua sponte ordering the

appellant to show cause, by brief only, why the instant appeal should not be

dismissed as having been taken from a non-appealable, interlocutory order

denying a motion to recuse. For the reasons assigned below, we dismiss the

appeal, but we grant the appellant time within which to perfect a properly

documented application for supervisory relief with this court.

This case arises from a community property dispute. In the course of

these proceedings, the pro se defendant-appellant filed a motion to recuse the

trial judge. The motion to recuse was orally denied in open court on December

16, 2009. The appellant filed his motion for appeal on December 28, 2009.

On January 4, 2010, the trial court granted the appeal. The record in this

appeal was lodged on March 17, 2010. As stated above, on March 22, 2010,

this court issued a rule for the appellant to show cause by April 6, 2010 why

the appeal should not be dismissed. Despite the rule being delivered by

certified mail on March 23, 2010, this court has not received a response from

appellant.

We find that the ruling at issue, denying a motion to recuse, is an

interlocutory ruling that is not appealable. La.Code Civ.P. art. 1841. The

proper procedural device for seeking appellate review is an application for

supervisory writs. La.Code Civ.P. art. 2083. Deville v. Calogero, 96-162,

(La.App. 3 Cir. 4/24/96), 673 So.2d 1175. Therefore, we hereby dismiss the

appeal at appellant’s cost.

However, we find that since the appellant filed a motion for an appeal

within the time delays for seeking supervisory writs, justice demands that we

1 afford the appellant time within which to file a supervisory writ application

with this court. See Stelluto v. Stelluto, 05-74 (La. 6/29/05), 914 So.2d 34.

Accordingly, the appellant is hereby permitted to file a proper application for

supervisory writ in compliance with Uniform Rules—Courts of Appeal, Rule

4, no later than May 28, 2010. The appellant is not required to file a notice of

intent to seek writs nor obtain an order setting a return date pursuant to

Uniform Rules—Courts of Appeal, Rule 4–3, as we hereby construe the

motion for appeal as a timely filed notice of intent to seek a supervisory writ.

APPEAL DISMISSED. APPELLANT PERMITTED TO FILE AN APPLICATION FOR SUPERVISORY WRITS.

This opinion is NOT DESIGNATED FOR PUBLICATION. Rules 2-16.2 and 2-16.3, Uniform Rules, Courts of Appeal.