Patricia K. McNeely v. Safe Haven Enterprises, Inc.

• Court: Louisiana Court of Appeal
• Decided: May 10, 2006
• Docket: CA-0005-1609
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

05-1609

PATRICIA K. MCNEELY

VERSUS

SAFE HAVEN ENTERPRISES, INC.

**********

APPEAL FROM THE THIRTY-FIRST JUDICIAL DISTRICT COURT PARISH OF JEFFERSON DAVIS, NO. C-736-04 HONORABLE WENDELL R. MILLER, DISTRICT JUDGE

ELIZABETH A. PICKETT JUDGE

Court composed of John D. Saunders, Glenn B. Gremillion, and Elizabeth A. Pickett, Judges.

APPEAL DISMISSED.

Saunders, J., dissents and assigns written reasons.

Stanley Stephen Spring II Spring, Spring & Associates 8939 Jefferson Hwy., #E Baton Rouge, LA 70809 (225) 932-9671 Counsel for Defendant-Appellant: Safe Haven Enterprises, Inc. John and Alta Baker

Milo Addison Nickel, Jr. The Nickel Law Firm, LLC 930 Lakeshore Drive Lake Charles, LA 70601 (337) 433-8278 Counsel for Defendant-Appellee: MB Industries, LLC

Patricia K. McNeely In Proper Person 356 Pelican Road Morse, LA 70559 Pickett, Judge.

The defendant, Safe Haven Enterprises, Inc., (Safe Haven) appeals an order of

the trial court holding John and Alta Baker in contempt of court for failing to attend

a deposition.

STATEMENT OF THE CASE

Patricia McNeely filed suit against Safe Haven on October 25, 2004. On April

18, 2005, Safe Haven filed a reconventional demand against McNeely, and named

several other parties as defendants-in-reconvention. This appeal arises from the

discovery phase of the litigation.

On June 8, 2005, M. B. Industries, LLC, (MBI) one of the defendants named

by Safe Haven, filed a Notice of Deposition of John and Anita [sic] Baker, with the

depositions scheduled for June 10, 2005. The Bakers are the principals of Safe Haven

Enterprises, Inc, a Louisiana corporation. The notice was served on the Bakers’

attorney, who at all times also represented Safe Haven, by a private process server on

June 9, 2005. The Bakers were in Florida, and filed a Motion to Quash the

depositions, which the trial court denied. The attorney for the Bakers made the

opposing attorneys aware that his clients would not appear. Nevertheless, the

attorneys who scheduled the depositions did appear at the appointed place at the

appointed time and conducted a proces verbal.

McNeely and MBI filed Motions for Contempt. After a hearing on July 26,

2005, the trial court found both John and Alta Baker in contempt of court and fined

them each $250.00. He signed an order to that effect on July 29, 2005. Safe Haven

sought a rehearing, which the trial court denied. Safe Haven then filed the instant

appeal. In response to the appeal, MBI has filed a motion to dismiss the appeal. They

argue that the issues in this appeal have been reviewed by this court in applications

for supervisory writs and that Safe Haven lacks standing to appeal the order finding

John and Alta Baker in contempt. Their motion was referred to the merits. The

Bakers filed a Motion to File a Supplemental Brief, arguing that the appeal of the

orders requiring them to pay attorneys fees should be heard in this appeal. That, too,

was referred to the merits.

MOTION TO DISMISS THE APPEAL

The Notice of Deposition which was the impetus of this appeal was directed

to John and Alta Baker. The trial court held the Bakers in contempt of court at a

hearing held June 26, 2005. The trial court signed an order holding the Bakers in

contempt on July 29, 2005. The Bakers paid the fine imposed by the court. The

appeal of the contempt citation was filed by Safe Haven, and Safe Haven was granted

a devolutive appeal. The original brief to this court was filed by Safe Haven. Safe

Haven, which as a corporation is a separate juridical person under La.Civ.Code art.

24, was not the party held in contempt of court and lacks standing to appeal the order

holding the Bakers in contempt. The Bakers, not Safe Haven, have the right to an

appeal.

In a brief filed by the Bakers in response to the Motion to Dismiss the Appeal,

they state, “In point of fact, the only Appellant Brief of record herein was filed by

John Baker and Alta Baker[.]” They also argue that this appeal was filed by the

Bakers, and not Safe Haven, so the motion to dismiss must fail. The record before

us includes only one motion seeking an appeal, filed by Safe Haven, and one order

2 granting an appeal, to Safe Haven. As Safe Haven lacks standing to appeal the

judgment of contempt, the appeal is dismissed.

3 NUMBER CA 05-1609

COURT OF APPEAL, THIRD CIRCUIT

STATE OF LOUISIANA

DISSENT

I respectfully dissent. While the majority concludes that the appeal should be

dismissed, I believe that Safe Haven does have standing and the merits of the appeal

should be addressed. The Bakers were to be deposed in their role as corporate

representatives. This is evidenced by the fact that the corporation, not the Bakers,

was the subject of the motion for contempt. Furthermore, not only was Safe Haven

the party named on the motion, but it was the defendant in rule at the hearing on the

motion. An appeal is the right of a party to have a judgment revised, modified, set

aside, or reversed. La.Code Civ.P. art. 2082. [Emphasis added]. Safe Haven, not the

Bakers individually, is party to the litigation and was the defendant in rule at the

hearing of the motion which sought that it be held in contempt. Furthermore, the

above definition does not limit a party’s right to appeal to judgments in which they

are cast. Id. The Bakers are not parties to the litigation, nor were they named

individually in the motion for contempt suggesting that the trial court abused its

discretion by holding them, not the corporation, in contempt.

While I certainly agree with the majority that the Bakers have standing to

appeal the judgment on their own behalf, I do not believe that Safe Haven is precluded from appealing this judgment. Louisiana is a civilian jurisdiction and I see

no codal prohibitions to Safe Haven’s appeal from this judgment. It may have been

preferable for the Baker’s to appeal in their own right, but I think the interests of

justice and judicial efficiency are best served by addressing the merits of the appeal

at this time.

JDS