Paul N. Sens v. Kenneth Michael Plaisance and the Honorable Arthur Morrell

• Court: Louisiana Court of Appeal
• Decided: August 12, 2020
• Docket: 2020-CA-0382
• Status: Published

Opinion

PAUL N. SENS * NO. 2020-CA-0382

VERSUS * COURT OF APPEAL KENNETH MICHAEL * PLAISANCE AND THE FOURTH CIRCUIT HONORABLE ARTHUR * MORRELL STATE OF LOUISIANA *******

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2020-06357, DIVISION “I-14” Honorable Piper D. Griffin, Judge ****** JUDGE SANDRA CABRINA JENKINS ****** (Court composed of Chief Judge James F. McKay, III, Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins, Judge Regina Bartholomew-Woods, Judge Dale N. Atkins)

Kenneth C. Bordes ATTORNEY AT LAW 2725 Lapeyrouse Street New Orleans, LA 70119

COUNSEL FOR PLAINTIFF/APPELLEE

Madro Bandaries MADRO BANDARIES, P.L.C. 938 Lafayette Street, Suite 507 Post Office Box 56458 New Orleans, LA 70156

Kenneth M. Plaisance ATTORNEY AT LAW 2202 Touro Street New Orleans, LA 70119

COUNSEL FOR DEFENDANT/APPELLANT

APPEAL DISMISSED AUGUST 12, 2020 SCJ JFM RML RBW DNA

Appellant Kenneth Michael Plaisance’s appeal of the trial court’s August 3,

2020 judgment sustaining appellee Paul N. Sens’ suit for the disqualification of

Mr. Plaisance’s candidacy is dismissed as untimely.

The pertinent time line of this suit is as follows. On July 30, 2020, Mr. Sens

filed a Petition Objecting to Candidacy of Kenneth Michael Plaisance, alleging that

Mr. Plaisance had falsely certified in his Notice of Candidacy form that he filed his

state income tax returns for the previous five years.

This matter proceeded to trial on August 3, 2020.1 The trial court issued a

judgment of disqualification on August 3, 2020 at 3:20 p.m. The court issued a

notice of judgment on August 3, 2020. Mr. Plaisance filed a motion for appeal on

August 10, 2020. The record was lodged in this matter on August 12, 2020. The

court issued an order directing Mr. Plaisance to show cause in writing why his

appeal should not be dismissed as untimely.

1 Mr. Plaisance did not appear at trial.

1 DISCUSSION

An appellate court has a duty to determine, sua sponte, whether the court has

proper jurisdiction to consider the merits of an appeal filed in the court.

Schwarzenberger v. Louisiana State Univ. Health Sciences Ctr.-New Orleans, 18-

0812, p. 2 (La. App. 4 Cir. 1/9/19), 263 So.3d 449, 451-52. “Absent a timely filed

motion for appeal, the appellate court lacks jurisdiction over the appeal.” Joseph v.

Egan Health Care Corp., 19-10, p. 3 (La. App. 5 Cir. 5/16/19), 273 So.3d 459,

462.

Louisiana Revised Statutes 18:1409(D) governs appeals of actions objecting

to candidacy and provides:

Within twenty-four hours after rendition of judgment, a party aggrieved by the judgment may appeal by obtaining an order of appeal and giving bond for a sum fixed by the court to secure the payment of costs. The clerk of the trial court shall give notice of the order of appeal to the clerk of the court of appeal and to all the parties or their counsel of record. The trial judge shall fix the return day at a time not to exceed three days after rendition of judgment.

“The Supreme Court has noted that ‘the 24-hour delay period is based on the

obvious need for expedited treatment.’” Board of Ethics v. Jones, 19-638, p. 4 (La.

App. 3 Cir. 9/30/19), 280 So.3d 242, 244 (quoting Dumas v. Jetson, 445 So.2d 424

425 (La. 1984)). “‘The short time delays are in the interest of the electorate not the

private parties litigant. As such they may not be waived or modified even with the

agreement of the litigants and the courts.’” Id. (quoting Plaquemines Parish

Council v. Petrovich, 95-2263, p. 2 (La. App. 4 Cir. 10/18/95), 662 So.2d 542,

543).

The provisions of La. R.S. 18:1409(D), as interpreted by our courts,

establish strict procedural and temporal requirements for perfecting an appeal of an

action objecting to candidacy. Id. “These straightforward requirements include

2 the obtaining of an order of appeal as well as the posting of an appeal bond within

twenty-four hours after the rendition of the judgment, which is ‘deemed to have

been rendered when signed by the judge.’” Id. (quoting La. R.S. 18:1409(J)).

Pursuant to these provisions, Mr. Plaisance had to obtain an order of appeal

and post an appeal bond within twenty-four hours of the signing of the

disqualifying judgment, i.e., by August 4, 2020 at 3:20 p.m. The record, however,

establishes that Mr. Plaisance did not obtain an order of appeal or post an appeal

bond within the twenty-four hour time delay. Mr. Plaisance, therefore, did not

timely perfect an appeal of the disqualifying judgment, and the time period by law

for perfecting such an appeal elapsed.

CONCLUSION

“Absent a timely motion for appeal, the appellate court lacks jurisdiction

over the appeal.” Tennebaum v. Lecompte, 15-0008, p. 2 (La. App. 4 Cir. 8/12/15),

173 So.3d 1185. We find that Mr. Plaisance’s motion for appeal, filed on August

10, 2020, seven days after the rendition of the disqualifying judgment, is clearly

untimely under La. R.S. 18:1409(D).2 Mr. Plaisance’s appeal is hereby dismissed.

APPEAL DISMISSED

2 We further note that Mr. Plaisance’s appeal is not proper under La. R.S. 18:1409(D) for the additional reason that he failed “to timely post a bond within twenty-four hours of the judgment.” La. R.S. 18:1409(D).