Michael and Christine Dauzat v. State of La., Dotd

• Court: Louisiana Court of Appeal
• Decided: August 26, 2009
• Docket: CA-0009-0793
• Status: Unknown

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

09-793

MICHAEL AND CHRISTINE DAUZAT

VERSUS

STATE OF LOUISIANA, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT

**********

APPEAL FROM THE TWELFTH JUDICIAL DISTRICT COURT PARISH OF AVOYELLES, NO. 2005-7740-A HONORABLE MARK A. JEANSONNE, DISTRICT JUDGE

BILLY H. EZELL JUDGE

Court composed of Marc T. Amy, Billy H. Ezell, and J. David Painter, Judges.

MOTION TO SUPPLEMENT MOTION TO DISMISS GRANTED. MOTION TO DISMISS APPEAL DENIED.

John T. Bennett John T. Bennett Law Offices Post Office Box 275 Marksville, Louisiana 71351 (337) 598-2638 COUNSEL FOR PLAINTIFFS/APPELLEES: Michael and Christine Dauzat Laura L. Picard Assistant Attorney General La. Dept. of Justice Litigation Division Post Office Box 1710 Alexandria, LA 71309 (318) 487-5944 COUNSEL FOR DEFENDANT/APPELLANT: State of Louisiana, Department of Transportation and Development EZELL, Judge.

The plaintiffs-appellees, Michael and Christine Dauzat, move to dismiss the

appeal of the defendant-appellant, State of Louisiana, through the Department of

Transportation and Development (State), as an untimely filed suspensive appeal.

Specifically, the plaintiffs argue that the appellant’s notice of appeal was defective

since the order stated that the appeal was returnable to the Second Circuit Court of

Appeal instead of this circuit. However, finding that the circumstances do not

warrant a dismissal, we deny the motion.

The plaintiffs filed this action for damages against the State claiming that Mrs.

Dauzat was injured when an old culvert, allegedly located on the state’s right of way,

collapsed under her. The plaintiffs averred that Mrs. Dauzat was severely burned

when she was attempting to pour out hot water that had been used to boil crawfish

and the ground on which she was standing gave way, causing the hot water to pour

over her body.

In the course of the litigation, the plaintiffs filed a motion for partial summary

judgment on the issue of liability against the state. Following a hearing on the matter,

the trial court granted the plaintiffs’ motion for partial summary judgment. The trial

court signed the judgment on April 6, 2009, and the notice of judgment was mailed

on the same date. Then, on May 15, 2009, the State filed a motion for appeal. The

trial court signed the order granting the appeal on May 18, 2009.

The record in this appeal was lodged in this court on July 7, 2009. The

plaintiffs filed their motion to dismiss the appeal in this court on July 14, 2009,

contending that the notice of appeal was defective because it erroneously stated that

the appeal was returnable to the second circuit. The trial court corrected the error in

2 the notice of appeal by an order dated June 18, 2009, wherein the court stated that the

appeal be made returnable to this circuit.

The plaintiffs contend that the instant appeal should be dismissed even though

it was filed in the correct circuit because the trial court’s order granting the appeal

erroneously states that the appeal is returnable to the second circuit, instead of the

third circuit. In opposition, the State argues that the error was harmless as it was

simply a typographical error that was later corrected by the trial court.

The law favors the right of appeal, and it does not provide for the dismissal

of an appeal for an arguably typographical error that caused no harm to the appellees.

Spiller v. Spiller, 129 So. 212 (La.1930). The instant appeal seeks review of a

judgment of the Twelfth Judicial District Court, Avoyelles Parish, and is properly

filed in this circuit. Additionally, even if this appeal had been filed in an appellate

court that was without jurisdiction, the appeal could have simply been transferred to

the proper court pursuant to La.Code Civ.P. art. 2162. Therefore, we find that the

appeal should be maintained.

MOTION TO SUPPLEMENT MOTION TO DISMISS GRANTED. MOTION TO DISMISS APPEAL DENIED.

This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform Rules—Courts of Appeal, Rule 2–16.3.