Ngozi Owuamanam O/B/O Ekene Nwanji v. Super One

• Court: Louisiana Court of Appeal
• Decided: December 5, 2012
• Docket: CA-0012-1040
• Status: Unknown

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

CA 12-1040

NGOZI OWUAMANAM O/B/O EKENE NWANJI

VERSUS

SUPER ONE, ET AL.

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APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. C-20093374 HONORABLE JULES DAVIS EDWARDS, DISTRICT JUDGE

JIMMIE C. PETERS

JUDGE

Court composed of Jimmie C. Peters, Billy H. Ezell, and J. David Painter, Judges.

APPEAL DISMISSED.

Andrew Holleman Meyers Beaud & Meyers Post Office Box 3448 Lafayette, LA 70502 (337) 266-2200 COUNSEL FOR DEFENDANT/APPELLEE: Brookshire Grocery Company Dr. Sule Douglas Busari Attorney at Law Post Office Box 168 Tallulah, LA 71282 (318) 574-2955 COUNSEL FOR PLAINTIFF/APPELLANT: Ngozi Owuamanam PETERS, Judge.

After the lodging of the record in the instant appeal, this court, on its own

motion, issued a rule for the plaintiff-appellant, Ngozi Owuamanam, to show cause,

by brief only, why the appeal should not be dismissed as untimely filed. The plaintiff

filed a brief in response. For the reasons which follow, we dismiss the instant appeal.

The instant suit arises from a slip and fall. In the course of this litigation, the

defendant-appellee, Brookshire Grocery Company, filed a motion for summary

judgment. After a hearing was held on this motion, the trial court signed a written

judgment on August 15, 2011, dismissing the plaintiff’s claims against the defendant.

Notice of the judgment was mailed to counsel of record by the clerk of court’s office

for the district court on August 17, 2011.

The plaintiff filed a motion with the trial court on September 7, 2011, asking

for the setting of a return date for the filing of an application for supervisory writs

with this court. The trial court set the return date for September 15, 2011. However,

the trial court also signed a handwritten “Amended Order” on September 21, 2011,

which ordered that the plaintiff be provided with the minutes and transcript by

October 21, 2011, provided the fees were paid and which extended the return date for

the filing of the writ application to November 21, 2011.

According to the response to the rule to show cause filed in this court by the

plaintiff, the plaintiff did not receive the court minutes and the transcript by the date

ordered by the trial court. Nevertheless, a review of the record indicates that the

plaintiff took no action seeking judicial enforcement of the trial court’s order nor did

the plaintiff seek an order further extending the return date on or before November 21,

2011. Additionally, the plaintiff did not file a writ application with this court on or

before this return date. Instead, the plaintiff waited until June 13, 2012, and filed

another motion and order with the trial court requesting a return date for the filing of a

writ application challenging the judgment of August 15, 2011. The trial court set a return date of July 14, 2012, for the writ application. On July 6, 2012, this court

received a writ application from the plaintiff challenging the judgment of August 15,

2011.

In response to this writ application, the defendant filed a motion to dismiss the

writ as having been untimely filed. On October 3, 2012, this court entered judgment

granting the motion to dismiss and stated, “The Plaintiff-Relator failed to file the

instant writ application by the return date originally set by the trial court. The filing

of a second request for the setting of a return date cannot revive the expired delay for

seeking appellate review of the subject judgment. Therefore, we grant the motion to

dismiss the instant writ application filed by the Defendant-Respondent.”

However, on July 6, 2012, the plaintiff filed a pleading in the trial court entitled

Motion to Convert Writ Application to an Appeal. The trial court signed this order on

July 16, 2012. Thus, in response to this court’s rule to show cause, the plaintiff

contends that this court should maintain the instant appeal based on the conversion of

the writ application into an appeal.

The timeliness of an appeal is jurisdictional; therefore, neither a trial court nor

an appellate court of this state has the authority to extend the delay for seeking an

appeal. See State in the Interest of E.A., 2002-996 (La.App. 3 Cir. 10/2/02), 827

So.2d 594. Plaintiff correctly notes in brief that, when a writ applicant has improperly

sought review of an appealable judgment through means of an application for

supervisory review rather than through the appropriate method of filing an ordinary

appeal, the appellate courts have converted those writ applications into appeals. See

Armstrong v. Stein, 94-1997 (La. 3/18/99), 634 So.2d 845. However, in the instant

case, the plaintiff failed to file a timely writ application with this court in accordance

with the trial court’s original return date. Furthermore, as noted above, while the

plaintiff seeks to excuse the failure to file a timely writ application on having not

received the court minutes and transcript as ordered and within the time period set by

2 the trial court, the record does not reveal any attempt by the plaintiff to obtain

enforcement of this ruling within the return date originally set by the trial court nor

does the plaintiff show that a further extension of the return date was timely sought

either from the trial court or from this court. Finally, we note that the jurisprudence of

this state has long held that an application for the exercise of an appellate court’s

supervisory jurisdiction must be sought prior to the expiration of the delays for

seeking an appeal; therefore, we find that the subsequent request by plaintiff for a new

return date on June 13, 2012, filed long after the delays for an appeal had run, did not

operate to extend the appeal delays. See Amoco Prod. Co. v. United Gas Pipe Line

Co., 496 So.2d 319 (La.1986), citing Morris v. Transtates Petroleum, Inc., 258 La.

311, 246 So.2d 183 (La.1971).

Thus, we pretermit any discussion as to the consequences of this court’s having

dismissed the prior writ application as untimely filed. Rather, we find that it suffices

in this case to hold that the plaintiff failed to file a timely appeal. Accordingly, we

hereby dismiss this appeal at plaintiff’s cost.

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