Scott Thompson v. Susan Molinari

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

10-805

SCOTT THOMPSON VERSUS SUSAN MOLINARI

********** APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT COURT PARISH OF ST. MARTIN, NO. 72107 HONORABLE EDWARD M. LEONARD, JR., DISTRICT JUDGE

********** SHANNON J. GREMILLION JUDGE

**********

Court composed of Billy H. Ezell, Shannon J. Gremillion, and David E. Chatelain,* Judges.

MOTION FOR APPOINTMENT OF COUNSEL DENIED. REQUEST FOR STAY DENIED.

RICHARD DAMIAN MERE Attorney at Law Post Office Box 3301 Lafayette, Louisiana 70502 (337) 269-5555 COUNSEL FOR DEFENDANT/APPELLEE: Susan Molinari

SCOTT THOMPSON Federal Correctional Complex, USP-1 Post Office Box 1033 Coleman, Florida 33521-1033 PLAINTIFF/APPELLANT: In Proper Person ____________________ *Judge David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore. GREMILLION, Judge.

This appeal was filed by a pro se pauper applicant who is currently

incarcerated in a federal prison in Florida. On July 21, 2010, this court

received the Appellant’s Motion for Appointment of Counsel. The Appellant

requests this court appoint him an attorney to assist him in preparing his civil

appeal brief. The Appellant claims that because he has recently been

transferred to federal custody and is now incarcerated in Florida, he has no

access to the Louisiana law library materials necessary to prepare his brief.

In the alternative, the Appellant requests this court stay his appeal proceedings

in order that he may attempt to obtain these materials. For the reasons given

below, we deny the Appellant’s Motion for Appointment of Counsel and

request for stay.

This case arises out of the Plaintiff’s filing of a summary proceeding

seeking to nullify a donation. The trial court signed a judgment on February

8, 2008, which dismissed Plaintiff’s claims with prejudice. Notice of the

signing of judgment was sent on March 18, 2008. The Plaintiff then filed a

request for an appeal from this judgment on April 28, 2008. The trial court

signed an order of appeal, and the record in this case was lodged in this court.

Upon the lodging of the record, this court issued a notice of lodging to the

Appellant notifying him that his appellate brief is due on August 2, 2010.

We find that the Appellant has cited no authority for the appointment

of an appeal attorney, nor has the Appellant shown how he is an exception to

the general rule that parties in civil cases are not entitled to appointed counsel

to represent them. In Ardoin v. Bourgeois, 04-1663 (La.App. 3 Cir. 11/2/05),

916 So.2d 329, this court found that an incarcerated defendant was not entitled

1 to appointed counsel in civil trial proceedings. This court did acknowledge

that constitutional due process may require the appointment of counsel to

indigents in civil matters “when fundamental constitutional rights are

involved.” Id. at 333. However, we find that the Appellant’s

underlying suit seeking to nullify a donation does not satisfy this requirement.

Accordingly, we hereby deny the Appellant’s Motion for Appointment of

Counsel.

In addition, we also deny Appellant’s request for stay of his appeal, but

will consider this request as a timely filed motion for extension of time to file

brief pursuant to Uniform Rules—Courts of Appeal, Rule 2–12.8. For good

cause shown, we hereby order that the Appellant file his appellate brief on or

before August 12, 2010.

MOTION FOR APPOINTMENT OF COUNSEL DENIED.

STAY OF APPEAL DENIED.

This opinion is NOT DESIGNATED FOR PUBLICATION. Rules 2-16.2 and 2-16.3, Uniform Rules, Courts of Appeal.