Schmidt v. Atlas Erection Co.

Louisiana Court of Appeal

Schmidt v. Atlas Erection Co.

475 So. 2d 1134, 1985 La. App. LEXIS 9865

CourtLouisiana Court of Appeal

DecidedOctober 4, 1985

DocketNo. CA-4250

StatusPublished

Cited by1 cases

This text of 475 So. 2d 1134 (Schmidt v. Atlas Erection Co.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Schmidt v. Atlas Erection Co., 475 So. 2d 1134, 1985 La. App. LEXIS 9865 (La. Ct. App. 1985).

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Opinion

SCHOTT, Judge.

This worker’s compensation ease is before us on a motion by plaintiff to dismiss the appeal taken by defendants. The following chronology is pertinent:

December 13, 1984 Judgment for plaintiff against defendants for partial permanent disability benefits

December 21, 1984 Motion by plaintiff for partial new trial seeking benefits of 450 weeks duration rather than 100 weeks awarded.

February 8, 1985 Plaintiff’s motion for new trial denied

March 8, 1985 Motion for suspensive appeal by defendants.

The issue is whether the motion for partial new trial by plaintiff extended the time for defendants to appeal suspensively in accordance with L.S.A.-C.C.P. Art. 2123.

[1135]*1135In Comeaux v. Matix, 367 So.2d 1192 (La.App. 4th Cir.1978) this court was confronted with the identical problem and held that the appellant’s thirty day delay under Art. 2123 for taking a suspensive appeal did not begin to run until notice was sent to the parties of the court’s denial of plaintiff’s motion for partial new trial. This was consistent with our earlier decision in Thibodeaux v. Lock Clinic, 299 So.2d 574 (La.App. 4th Cir.1974). In both cases the court reasoned that a defendant in such circumstances cannot be required to take an appeal at a time when the amount of the judgment is uncertain and may be increased at plaintiff’s behest in the trial court while defendant’s appeal is pending.

Accordingly, plaintiff’s motion to dismiss defendant’s appeal is denied.

MOTION TO DISMISS APPEAL DENIED.

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SCHOTT, Judge.

This worker’s compensation ease is before us on a motion by plaintiff to dismiss the appeal taken by defendants. The following chronology is pertinent:

December 13, 1984 Judgment for plaintiff against defendants for partial permanent disability benefits

December 21, 1984 Motion by plaintiff for partial new trial seeking benefits of 450 weeks duration rather than 100 weeks awarded.

February 8, 1985 Plaintiff’s motion for new trial denied

March 8, 1985 Motion for suspensive appeal by defendants.

The issue is whether the motion for partial new trial by plaintiff extended the time for defendants to appeal suspensively in accordance with L.S.A.-C.C.P. Art. 2123.

[1135]*1135In Comeaux v. Matix, 367 So.2d 1192 (La.App. 4th Cir.1978) this court was confronted with the identical problem and held that the appellant’s thirty day delay under Art. 2123 for taking a suspensive appeal did not begin to run until notice was sent to the parties of the court’s denial of plaintiff’s motion for partial new trial. This was consistent with our earlier decision in Thibodeaux v. Lock Clinic, 299 So.2d 574 (La.App. 4th Cir.1974). In both cases the court reasoned that a defendant in such circumstances cannot be required to take an appeal at a time when the amount of the judgment is uncertain and may be increased at plaintiff’s behest in the trial court while defendant’s appeal is pending.

Accordingly, plaintiff’s motion to dismiss defendant’s appeal is denied.

MOTION TO DISMISS APPEAL DENIED.

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475 So. 2d 1134, 1985 La. App. LEXIS 9865, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schmidt-v-atlas-erection-co-lactapp-1985.

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